2018—Pub. L. 115–232, div. A, title VIII, §§812(a)(2)(B), (3)(B), 821(c)(2), 881(a)(2), Aug. 13, 2018, 132 Stat. 1846, 1847, 1853, 1913, struck out items 2323 "Contract goal for small disadvantaged businesses and certain institutions of higher education", 2332 "Share-in-savings contracts", and 2339 "Micro-purchase threshold for basic research programs and activities of the Department of Defense science and technology reinvention laboratories" and added item 2339a.
2017—Pub. L. 115–91, div. A, title X, §1081(d)(1), Dec. 12, 2017, 131 Stat. 1599, amended directory language of Pub. L. 114–328, §217(a)(2), effective Dec. 23, 2016, and as if included in Pub. L. 114–328 as enacted. See 2016 Amendment note below.
Pub. L. 115–91, div. A, title VIII, §§803(b), 836(a)(2), 851(a)(2), 861(a)(2), 871(a)(2), Dec. 12, 2017, 131 Stat. 1455, 1473, 1492, 1494, 1497, added items 2302e, 2313b, 2322a, 2329, and 2337a.
Pub. L. 115–91, div. A, title VIII, §802(a)(2), Dec. 12, 2017, 131 Stat. 1451, which directed amendment of the table of sections for this chapter by adding item 2322 at the end, was executed by adding item 2322 after item 2321, to reflect the probable intent of Congress.
2016—Pub. L. 114–328, div. A, title VIII, §§821(b), 833(b)(5)(B), Dec. 23, 2016, 130 Stat. 2276, 2285, added item 2338 and struck out item 2302c "Implementation of electronic commerce capability".
Pub. L. 114–328, div. A, title II, §217(a)(2), Dec. 23, 2016, 130 Stat. 2051, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(1), Dec. 12, 2017, 131 Stat. 1599, added item 2339.
2014—Pub. L. 113–291, div. A, title III, §351(c)(1), Dec. 19, 2014, 128 Stat. 3347, struck out item 2336 "Intergovernmental support agreements with State and local governments".
2013—Pub. L. 112–239, div. A, title III, §331(b), title VIII, §823(a)(2), Jan. 2, 2013, 126 Stat. 1697, 1832, added items 2336 and 2337.
2011—Pub. L. 112–81, div. A, title VIII, §805(b), 823(b), Dec. 31, 2011, 125 Stat. 1486, 1503, added items 2313a and 2335.
2009—Pub. L. 111–23, title I, §101(b)(2), May 22, 2009, 123 Stat. 1709, added item 2334.
2008—Pub. L. 110–181, div. A, title X, §1063(a)(10), Jan. 28, 2008, 122 Stat. 322, added item 2333 and struck out former item 2333 "Joint policies on requirements definition, contingency contracting, and program management".
2006—Pub. L. 109–364, div. A, title VIII, §854(a)(2), Oct. 17, 2006, 120 Stat. 2346, added item 2333.
Pub. L. 109–163, div. A, title VIII, §812(a)(2), Jan. 6, 2006, 119 Stat. 3378, substituted "Procurement of contract services: management structure" for "Procurement of services: management structure" in item 2330.
2002—Pub. L. 107–347, title II, §210(a)(2), Dec. 17, 2002, 116 Stat. 2934, added item 2332.
Pub. L. 107–314, div. A, title VIII, §801(a)(2), Dec. 2, 2002, 116 Stat. 2602, added item 2308.
2001—Pub. L. 107–107, div. A, title VIII, §801(g)(2), Dec. 28, 2001, 115 Stat. 1178, added items 2330, 2330a, and 2331 and struck out former item 2331 "Contracts for professional and technical services".
2000—Pub. L. 106–398, §1 [[div. A], title VIII, §802(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–205, added item 2306c.
1998—Pub. L. 105–261, div. A, title X, §1069(a)(3), Oct. 17, 1998, 112 Stat. 2135, substituted "electronic commerce capability" for "FACNET capability" in item 2302c.
1997—Pub. L. 105–85, div. A, title VIII, §804(a)(2), title X, §1073(a)(48)(B), Nov. 18, 1997, 111 Stat. 1833, 1903, substituted "contracts: acquisition of property" for "contracts" in item 2306b and added item 2325.
1996—Pub. L. 104–201, div. A, title VIII, §805(b), Sept. 23, 1996, 110 Stat. 2606, added item 2302d.
Pub. L. 104–106, div. D, title XLI, §4105(a)(2), title XLIII, §4321(b)(6)(B), Feb. 10, 1996, 110 Stat. 647, 672, redesignated item 2304a, relating to contracts: prohibition on competition between Department of Defense and small businesses and certain other entities, as 2304e and added item 2305a.
1994—Pub. L. 103–355, title I, §§1004(a)(2), 1022(a)(2), 1501(b), 1503(a)(2), (b)(2), 1506(b), title II, §§2001(i), 2201(a)(2), title IV, §§4002(b), 4203(a)(2), title VIII, §8104(b)(2), title IX, §9002(b), Oct. 13, 1994, 108 Stat. 3253, 3260, 3296–3298, 3303, 3318, 3338, 3346, 3391, 3402, struck out items 2301 "Congressional defense procurement policy", 2308 "Assignment and delegation of procurement functions and responsibilities", 2325 "Preference for nondevelopmental items", and 2329 "Production special tooling and production special test equipment: contract terms and conditions", added items 2302a to 2302c, 2304a relating to task and delivery order contracts: general authority, 2304b to 2304d, and 2306b, and substituted "Contract financing" for "Advance payments" in item 2307, "Assignment and delegation of procurement functions and responsibilities" for "Delegation" in item 2311, and "Examination of records of contractor" for "Examination of books and records of contractor" in item 2313.
1993—Pub. L. 103–160, div. A, title VIII, §§828(a)(1), 848(a)(2), Nov. 30, 1993, 107 Stat. 1713, 1725, added item 2304a and struck out item 2317 "Encouragement of competition and cost savings".
1992—Pub. L. 102–484, div. A, title VIII, §801(a)(2), (g)(2), title X, §1052(25)(B), div. D, title XLII, §4271(b)(2), Oct. 23, 1992, 106 Stat. 2442, 2445, 2500, 2695, struck out items 2322 "Limitation on small business set-asides" and 2330 "Integrated financing policy" and added items 2323 and 2323a.
1990—Pub. L. 101–510, div. A, title VIII, §§804(b), 834(a)(2), Nov. 5, 1990, 104 Stat. 1591, 1614, struck out item 2323 "Commercial pricing for spare or repair parts" and added item 2331.
1988—Pub. L. 100–456, div. A, title VIII, §801(a)(2), Sept. 29, 1988, 102 Stat. 2007, added item 2330.
1987—Pub. L. 100–180, div. A, title VIII, §810(a)(2), Dec. 4, 1987, 101 Stat. 1132, added item 2329.
Pub. L. 100–26, §7(a)(7)(B)(ii), (b)(9)(B), Apr. 21, 1987, 101 Stat. 278, 280, transferred item 2305a "Major programs: competitive alternative sources", to chapter 144 as item 2438 and substituted "Release of technical data under Freedom of Information Act: recovery of costs" for "Release of technical data" in item 2328.
Pub. L. 100–26, §5(4), (6), made technical amendments to directory language of sections 926(a)(2) and 954(a)(2), respectively, of Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661. See 1986 Amendment note below.
1986—Pub. L. 99–661, div. A, title XIII, §1343(a)(12), Nov. 14, 1986, 100 Stat. 3993, substituted "competitors" for "competition" in item 2319.
Pub. L. 99–500, §101(c) [title X, §§907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–138, 1783–141, 1783–155, 1783–165, 1783–169, 1783–173, and Pub. L. 99–591, §101(c) [title X, §§907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–138, 3341–141, 3341–155, 3341–165, 3341–169, 3341–173; Pub. L. 99–661, div. A, title IX, formerly title IV, §§907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2), Nov. 14, 1986, 100 Stat. 3917, 3921, 3935, 3945, 3949, 3953, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; as amended by Pub. L. 100–26, §5(4), (6), Apr. 21, 1987, 101 Stat. 274, amended chapter analysis identically striking out ": cost or pricing data: truth in negotiations" after "contracts" in item 2306, substituting "spare or repair parts" for "supplies" in item 2323, and adding items 2306a and 2325 to 2328.
1985—Pub. L. 99–145, title IX, §§911(a)(2), 912(a)(2), Nov. 8, 1985, 99 Stat. 685, 686, added items 2305a and 2324.
1984—Pub. L. 98–577, title III, §302(c)(2), Oct. 30, 1984, 98 Stat. 3077, struck out item 2303a "Publication of proposed regulations".
Pub. L. 98–525, title XII, §1217, Oct. 19, 1984, 98 Stat. 2599, added items 2303a and 2317 to 2323.
Pub. L. 98–369, div. B, title VII, §2727(a), July 18, 1984, 98 Stat. 1194, substituted "Congressional defense procurement policy" for "Declaration of policy" in item 2301, "Contracts: competition requirements" for "Purchases and contracts: formal advertising; exceptions" in item 2304, "Contracts: planning, solicitation, evaluation, and award procedures" for "Formal advertisements for bids; time; opening; award; rejection" in item 2305, and "Kinds of contracts; cost or pricing data: truth in negotiation" for "Kinds of contracts" in item 2306.
1982—Pub. L. 97–295, §1(26)(B), Oct. 12, 1982, 96 Stat. 1291, added item 2316.
1981—Pub. L. 97–86, title IX, §908(a)(2), Dec. 1, 1981, 95 Stat. 1118, added item 2315.
1980—Pub. L. 96–513, title V, §511(75), Dec. 12, 1980, 94 Stat. 2926, inserted "formal" before "advertising" in item 2304.
Section, acts Aug. 10, 1956, ch. 1041, 70A Stat. 127; Dec. 1, 1981, Pub. L. 97–86, title IX, §909(a), 95 Stat. 1118; July 18, 1984, Pub. L. 98–369, div. B, title VII, §2721, 98 Stat. 1185; Oct. 18, 1986, Pub. L. 99–500, §101(c) [title X, §925(a)], 100 Stat. 1783–82, 1783–153, and Oct. 30, 1986, Pub. L. 99–591, §101(c) [title X, §925(a)], 100 Stat. 3341–82, 3341–153; Nov. 14, 1986, Pub. L. 99–661, div. A, title IX, formerly title IV, §925(a), 100 Stat. 3933, renumbered title IX, Apr. 21, 1987, Pub. L. 100–26, §3(5), 101 Stat. 273; Oct. 23, 1992, Pub. L. 102–484, div. A, title VIII, §808(a), 106 Stat. 2449, related to Congressional defense procurement policy.
For effective date and applicability of repeal, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
In this chapter:
(1) The term "head of an agency" means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration.
(2) The term "competitive procedures" means procedures under which the head of an agency enters into a contract pursuant to full and open competition. Such term also includes—
(A) procurement of architectural or engineering services conducted in accordance with chapter 11 of title 40;
(B) the competitive selection for award of science and technology proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of such proposals;
(C) the procedures established by the Administrator of General Services for the multiple award schedule program of the General Services Administration if—
(i) participation in the program has been open to all responsible sources; and
(ii) orders and contracts under such program result in the lowest overall cost alternative to meet the needs of the United States;
(D) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for such procurements are permitted to compete; and
(E) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of the Small Business Act (15 U.S.C. 638).
(3) The following terms have the meanings provided such terms in chapter 1 of title 41:
(A) The term "procurement".
(B) The term "procurement system".
(C) The term "standards".
(D) The term "full and open competition".
(E) The term "responsible source".
(F) The term "item".
(G) The term "item of supply".
(H) The term "supplies".
(I) The term "commercial item".
(J) The term "nondevelopmental item".
(K) The term "commercial component".
(L) The term "component".
(4) The term "technical data" means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency. Such term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration.
(5) The term "major system" means a combination of elements that will function together to produce the capabilities required to fulfill a mission need. The elements may include hardware, equipment, software or any combination thereof, but excludes construction or other improvements to real property. A system shall be considered a major system if (A) the conditions of section 2302d of this title are satisfied, or (B) the system is designated a "major system" by the head of the agency responsible for the system.
(6) The term "Federal Acquisition Regulation" means the Federal Acquisition Regulation issued pursuant to section 1303(a)(1) of title 41.
(7) The term "simplified acquisition threshold" has the meaning provided that term in section 134 of title 41, except that, in the case of any contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation or a humanitarian or peacekeeping operation, the term means an amount equal to two times the amount specified for that term in such section.
(8) The term "humanitarian or peacekeeping operation" means a military operation in support of the provision of humanitarian or foreign disaster assistance or in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations. The term does not include routine training, force rotation, or stationing.
(9) The term "nontraditional defense contractor", with respect to a procurement or with respect to a transaction authorized under section 2371(a) or 2371b of this title, means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section.
(Aug. 10, 1956, ch. 1041, 70A Stat. 127; Pub. L. 85–568, title III, §301(b), July 29, 1958, 72 Stat. 432; Pub. L. 85–861, §1(43A), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 96–513, title V, §511(74), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 98–369, div. B, title VII, §2722(a), July 18, 1984, 98 Stat. 1186; Pub. L. 98–525, title XII, §1211, Oct. 19, 1984, 98 Stat. 2589; Pub. L. 98–577, title V, §504(b)(3), Oct. 30, 1984, 98 Stat. 3087; Pub. L. 99–661, div. A, title XIII, §1343(a)(13), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 101–189, div. A, title VIII, §853(b)(1), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 102–25, title VII, §701(d)(1), Apr. 6, 1991, 105 Stat. 113; Pub. L. 102–190, div. A, title VIII, §805, Dec. 5, 1991, 105 Stat. 1417; Pub. L. 103–355, title I, §1502, Oct. 13, 1994, 108 Stat. 3296; Pub. L. 104–106, div. D, title XLIII, §4321(b)(3), Feb. 10, 1996, 110 Stat. 672; Pub. L. 104–201, div. A, title VIII, §§805(a)(1), 807(a), Sept. 23, 1996, 110 Stat. 2605, 2606; Pub. L. 105–85, div. A, title VIII, §803(b), Nov. 18, 1997, 111 Stat. 1832; Pub. L. 107–217, §3(b)(2), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 111–350, §5(b)(8), Jan. 4, 2011, 124 Stat. 3842; Pub. L. 111–383, div. A, title VIII, §866(g)(1), Jan. 7, 2011, 124 Stat. 4298; Pub. L. 113–291, div. A, title X, §1071(a)(2), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §815(b), Nov. 25, 2015, 129 Stat. 896; Pub. L. 115–91, div. A, title II, §221, Dec. 12, 2017, 131 Stat. 1333; Pub. L. 115–232, div. A, title VIII, §836(c)(1), Aug. 13, 2018, 132 Stat. 1864.)
Pub. L. 115–232, div. A, title VIII, §836(c)(1), (h), Aug. 13, 2018, 132 Stat. 1864, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, paragraph (3) of this section is amended as follows:
(1) by redesignating subparagraphs (J), (K), and (L) as subparagraphs (K), (L), and (M); and
(2) by striking subparagraph (I) and inserting the following new subparagraphs (I) and (J):
(I) The term "commercial product".
(J) The term "commercial service".
See 2018 Amendment note below.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2302 | 41:158 (less clause (b)). | Feb. 19, 1948, ch. 65, §9 (less clause (b)), 62 Stat. 24. |
In clause (1), the words "(if any)" are omitted as surplusage. The words "Secretary of the Treasury" are substituted for the words "Commandant, United States Coast Guard, Treasury Department", since the functions of the Coast Guard and its officers, while operating under the Department of the Treasury, were vested in the Secretary of the Treasury by 1950 Reorganization Plan No. 26, effective July 31, 1950, 64 Stat. 1280. Under that plan the Secretary of the Treasury was authorized to delegate any of those functions to the agencies and employees of the Department of the Treasury.
Clauses (2) and (3) are inserted for clarity, and are based on the usage of those terms throughout the revised chapter.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2302(3) | [No source]. | [No source]. |
The amendments reflect section 1(44) of the bill [amending section 2305 of Title 10].
2018—Par. (3)(I) to (M). Pub. L. 115–232 added subpars. (I) and (J), redesignated former subpars. (J) to (L) as (K) to (M), respectively, and struck out former subpar. (I) which read as follows: "The term 'commercial item'."
2017—Par. (2)(B). Pub. L. 115–91 substituted "science and technology" for "basic research".
2015—Par. (9). Pub. L. 114–92 amended par. (9) generally. Prior to amendment, par. (9) read as follows: "The term 'nontraditional defense contractor', with respect to a procurement or with respect to a transaction authorized under section 2371(a) of this title, means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any of the following for the Department of Defense:
"(A) Any contract or subcontract that is subject to full coverage under the cost accounting standards prescribed pursuant to chapter 15 of title 41 and the regulations implementing such chapter.
"(B) Any other contract in excess of $500,000 under which the contractor is required to submit certified cost or pricing data under section 2306a of this title."
2014—Par. (7). Pub. L. 113–291, §1071(a)(2)(A), substituted "such section" for "section 4 of such Act".
Par. (9)(A). Pub. L. 113–291, §1071(a)(2)(B), substituted "chapter 15 of title 41" for "section 26 of the Office of Federal Procurement Policy Act (41 U.S.C. 422)" and "such chapter" for "such section".
2011—Par. (3). Pub. L. 111–350, §5(b)(8)(A), substituted "chapter 1 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)" in introductory provisions.
Par. (6). Pub. L. 111–350, §5(b)(8)(B), substituted "section 1303(a)(1) of title 41" for "section 25(c)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c)(1))".
Par. (7). Pub. L. 111–350, §5(b)(8)(C), substituted "section 134 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)".
Par. (9). Pub. L. 111–383 added par. (9).
2002—Par. (1). Pub. L. 107–296 substituted "of Homeland Security" for "of Transportation".
Par. (2)(A). Pub. L. 107–217 substituted "chapter 11 of title 40" for "title IX of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 541 et seq.)".
1997—Pars. (7), (8). Pub. L. 105–85 struck out "(A)" before "The term 'simplified" in par. (7), redesignated par. (7)(B) as par. (8), and substituted "The" for "In subparagraph (A), the" in that par.
1996—Par. (3)(K). Pub. L. 104–106 inserted period at end.
Par. (5). Pub. L. 104–201, §805(a)(1), substituted "A system shall be considered a major system if (A) the conditions of section 2302d of this title are satisfied, or (B) the system is designated a 'major system' by the head of the agency responsible for the system." for "A system shall be considered a major system if (A) the Department of Defense is responsible for the system and the total expenditures for research, development, test, and evaluation for the system are estimated to be more than $75,000,000 (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement of more than $300,000,000 (based on fiscal year 1980 constant dollars); (B) a civilian agency is responsible for the system and total expenditures for the system are estimated to exceed $750,000 (based on fiscal year 1980 constant dollars) or the dollar threshold for a 'major system' established by the agency pursuant to Office of Management and Budget (OMB) Circular A–109, entitled 'Major Systems Acquisitions', whichever is greater; or (C) the system is designated a 'major system' by the head of the agency responsible for the system."
Par. (7). Pub. L. 104–201, §807(a), designated existing provisions as subpar. (A), inserted "or a humanitarian or peacekeeping operation" after "contingency operation", and added subpar. (B).
1994—Par. (3). Pub. L. 103–355, §1502(1), added par. (3) and struck out former par. (3) which read as follows: "The terms 'full and open competition' and 'responsible source' have the same meanings provided such terms in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)."
Par. (7). Pub. L. 103–355, §1502(2), added par. (7) and struck out former par. (7) which read as follows: "The term 'small purchase threshold' has the meaning given that term in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)), except that, in the case of any contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation, the term means $100,000."
1991—Par. (7). Pub. L. 102–190 inserted before period ", except that, in the case of any contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation, the term means $100,000".
Pub. L. 102–25 added par. (7).
1989—Par. (6). Pub. L. 101–189 added par. (6).
1987—Pub. L. 100–26, §7(k)(2)(A), inserted "The term" after each par. designation except par. (3) and struck out uppercase letter of first word after first quotation marks in each par. and substituted lowercase letter.
1986—Par. (2)(A). Pub. L. 99–661 substituted "(40 U.S.C." for "(41 U.S.C.".
1984—Pub. L. 98–369 amended section generally, substituting in cl. (1) "the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force" for "the Secretary, the Under Secretary, or any Assistant Secretary, of the Army, Navy, or Air Force", in cl. (2) definition of "competitive procedures" for a definition of "negotiate", and in cl. (3) definition of the terms "full and open competition" and "responsible source" for a definition of "formal advertising".
Cl. (2)(D), (E). Pub. L. 98–577 added subpars. (D) and (E).
Cls. (4), (5). Pub. L. 98–525 added cls. (4) and (5).
1980—Cl. (1). Pub. L. 96–513 substituted "Secretary of Transportation" for "Secretary of the Treasury".
1958—Cl. (1). Pub. L. 85–568 substituted "Administrator of the National Aeronautics and Space Administration" for "Executive Secretary of the National Advisory Committee for Aeronautics", in cl. (1).
Cl. (3). Pub. L. 85–861 substituted "section 2305 of this title" for "section 2305(a) and (b) of this title".
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.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Pub. L. 104–106, div. D, title XLIV, §4401, Feb. 10, 1996, 110 Stat. 678, provided that:
"(a)
"(b)
"(1)
"(2)
"(A) a contract that is in effect on the date described in paragraph (3);
"(B) an offer under consideration on the date described in paragraph (3); or
"(C) any other proceeding or action that is ongoing on the date described in paragraph (3).
"(3)
Pub. L. 103–355, title X, §10001, Oct. 13, 1994, 108 Stat. 3404, provided that:
"(a)
"(b)
"(2) An amendment made by this Act shall also apply, to the extent and in the manner prescribed in the final regulations promulgated pursuant to section 10002 to implement such amendment, with respect to any matter related to—
"(A) a contract that is in effect on the date described in paragraph (3);
"(B) an offer under consideration on the date described in paragraph (3); or
"(C) any other proceeding or action that is ongoing on the date described in paragraph (3).
"(3) The date referred to in paragraphs (1) and (2) is the date specified in such final regulations [Oct. 1, 1995, see 60 F.R. 48231, Sept. 18, 1995]. The date so specified shall be October 1, 1995, or any earlier date that is not within 30 days after the date on which such final regulations are published.
"(c)
Pub. L. 98–369, div. B, title VII, §2751, July 18, 1984, 98 Stat. 1203, provided that:
"(a) Except as provided in subsection (b), the amendments made by this title [see Tables for classification] shall apply with respect to any solicitation for bids or proposals issued after March 31, 1985.
"(b) The amendments made by section 2713 [amending section 759 of former Title 40, Public Buildings, Property, and Works, and enacting provisions set out as a note under section 759 of former Title 40] and subtitle D [enacting sections 3551 to 3556 of Title 31, Money and Finance] shall apply with respect to any protest filed after January 14, 1985."
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.
Pub. L. 85–568, title III, §301(e), July 29, 1958, 72 Stat. 433, provided that: "This section [amending this section, section 2303 of this title, section 22–1 of former Title 5, and sections 511 to 513 and 515 of Title 50, War and National Defense, and enacting provisions set out as a note under section 2472 of Title 42, The Public Health and Welfare] shall take effect ninety days after the date of the enactment of this Act [July 29, 1958], or on any earlier date on which the Administrator [of the National Aeronautics and Space Administration] shall determine, and announce by proclamation published in the Federal Register, that the Administration has been organized and is prepared to discharge the duties and exercise the powers conferred upon it by this Act."
Pub. L. 99–500, §101(c) [title X, §900], Oct. 18, 1986, 100 Stat. 1783–82, 1783–130, Pub. L. 99–591, §101(c) [title X, §900], Oct. 30, 1986, 100 Stat. 3341–82, 3341–130, and Pub. L. 99–661, div. A, title IX, formerly title IV, §900, Nov. 14, 1986, 100 Stat. 3910, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "This title [enacting sections 133a, 2306a, 2325–2328, 2365–2367, 2397b, 2397c, 2408, 2409, 2416, and 2435–2437 of this title, amending sections 133, 134, 135, 138, 171, 1622, 2301, 2304, 2305, 2306, 2320, 2321, 2323, 2384, 2406, 2411, 2413, 2432, and 2433 of this title, sections 5314 and 5315 of Title 5, Government Organization and Employees, sections 632, 637, and 644 of Title 15, Commerce and Trade, and section 416 of Title 41, Public Contracts, renumbering section 2416 as 2417 of this title, enacting provisions set out as notes under sections 113, 1621, 2304, 2305, 2306a, 2320, 2323, 2325–2328, 2365–2367, 2384, 2397b, 2406, 2408, 2409, 2416, 2432, 2435–2437 of this title and section 632 of Title 15, amending provisions set out as a note under this section, and repealing provisions set out as notes under section 2304 and 2397a of this title] may be cited as the 'Defense Acquisition Improvement Act of 1986'."
Pub. L. 99–145, title IX, §901, Nov. 8, 1985, 99 Stat. 682, provided that: "This title [enacting sections 1621 to 1624, 2305a, 2324, 2397a, and 2406 of this title, amending sections 2304, 2313, 2320, 2323, 2397, and 2411 to 2415 of this title, section 759 of former Title 40, Public Buildings, Property, and Works, sections 253 and 418a of Title 41, Public Contracts, and former section 2168 of the former Appendix to Title 50, War and National Defense, enacting provisions set out as notes under this section and sections 139, 139c, 1622 to 1624, 2304, 2305a, 2307, 2324, 2397a, and 2411 of this title, section 287 of Title 18, Crimes and Criminal Procedure, section 3729 of Title 31, Money and Finance, and former section 2168 of the former Appendix to Title 50, and amending provisions set out as a note under section 418a of Title 41] may be cited as the 'Defense Procurement Improvement Act of 1985'."
Pub. L. 98–525, title XII, §1201, Oct. 19, 1984, 98 Stat. 2588, provided that: "This title [enacting sections 2303a, 2317 to 2323, 2384a, 2402 to 2405, and 2411 to 2416 of this title, amending sections 139a, 139b, 2302, 2305, 2311, 2384, and 2401 of this title, enacting provisions set out as notes under this section and sections 139, 139a, 2303a, 2305, 2318, 2319, 2322, 2323, 2384, 2384a, 2392, and 2402 of this title, amending provisions set out as notes under sections 2392, 2401, and 2452 of this title, and repealing provisions set out as notes under section 2304 of this title] may be cited as the 'Defense Procurement Reform Act of 1984'."
Pub. L. 115–232, div. A, title I, §154, Aug. 13, 2018, 132 Stat. 1672, provided that:
"(a)
"(1) ensure that in-progress inspections are conducted at the armoring vendor's facility for each procurement of an armored commercial passenger-carrying vehicles [sic] until the date on which the Secretary of Defense approves and implements an updated armoring and inspection standard for such vehicles; and
"(2) designate a central point of contact for collecting and reporting information on armored commercial passenger-carrying vehicles (such as information on contracts execution and vehicle inspections).
"(b)
"(1) whether criteria for the procurement of such vehicles have been established and distributed to the relevant components of the Department; and
"(2) whether a process is in place for ensuring that the relevant components of the Department incorporate those criteria into contracts for such vehicles."
Pub. L. 115–232, div. A, title II, §226, Aug. 13, 2018, 132 Stat. 1685, provided that:
"(a)
"(b)
"(1)
"(2)
"(A) Development of streamlined requirements for procurement of personal protective equipment.
"(B) Appropriate testing of personal protective equipment prior to procurement and fielding.
"(C) Development of expedited mechanisms for deployment of effective personal protective equipment.
"(D) Identification of areas of research in which increased investment has the potential to improve the quality of personal protective equipment and the capability of the industrial base to produce such equipment.
"(E) Such other goals as the Secretary considers appropriate.
"(3)
"(A) The ability of various forms of personal protective equipment to protect against common blast injuries, including traumatic brain injuries.
"(B) The value of real-time data analytics to track the effectiveness of various forms of personal protective equipment to protect against common blast injuries, including traumatic brain injuries.
"(C) The availability of commercial-off [sic] the-shelf personal protective technology to protect against traumatic brain injury resulting from blasts.
"(D) The extent to which the equipment determined through the assessment to be most effective to protect against common blast injuries is readily modifiable for different body types and to provide lightweight material options to enhance maneuverability.
"(c)
"(1) Experimental procurement authority under section 2373 of title 10, United States Code.
"(2) Other transactions authority under section 2371 and 2371b of title 10, United States Code.
"(3) Authority to award technology prizes under section 2374a of title 10, United States Code.
"(4) Authority under the Defense Acquisition Challenge Program under section 2359b of title 10, United States Code.
"(5) Any other authority on acquisition, technology transfer, and personnel management that the Secretary considers appropriate.
"(d)
"(e)
"(1) Evaluate the extent to which personal protective equipment identified through the activities would—
"(A) enhance survivability of personnel from blasts in combat and training; and
"(B) enhance prevention of brain damage, and reduction of any resultant chronic brain dysfunction, from blasts in combat and training.
"(2) In the case of personal protective equipment so identified that would provide enhancements as described in paragraph (1), estimate the costs that would be incurred to procure such enhanced personal protective equipment, and develop a schedule for the procurement of such equipment.
"(3) Estimate the potential health care cost savings that would occur from expanded use of personal protective equipment described in paragraph (2).
"(f)
"(g)
Pub. L. 115–232, div. A, title VIII, §843, Aug. 13, 2018, 132 Stat. 1878, provided that:
"(a)
"(b)
"(1) The effectiveness and technology readiness level of machine-vision technologies to determine the authenticity of microelectronic parts at the time of the creation of such part through final insertion of such part into weapon systems.
"(2) The best method of incorporating machine-vision technologies into the process of developing, transporting, and inserting microelectronics into weapon systems.
"(3) The rules, regulations, or processes that hinder the development and incorporation of machine-vision technologies, and the application of such rules, regulations, or processes to mitigate counterfeit microelectronics proliferation throughout the Department of Defense.
"(c)
"(1) Manufacturers of semiconductors or electronics.
"(2) Industry associations relating to semiconductors or electronics.
"(3) Original equipment manufacturers of products for the Department of Defense.
"(4) Nontraditional defense contractors (as defined in section 2302(9) of title 10, United States Code) that are machine vision companies.
"(5) Federal laboratories (as defined in section 2500(5) of title 10, United States Code).
"(6) Other elements of the Department of Defense that fall under the authority of the Undersecretary of Defense for Research and Engineering.
"(d)
Pub. L. 115–91, div. A, title I, §142, Dec. 12, 2017, 131 Stat. 1320, provided that: "The Secretary of Defense, after consultation with the head of each military service, may provide to an explosive ordnance disposal unit the authority to acquire new or emerging technologies and capabilities that are not specifically provided for in the authorized equipment allowance for the unit, as such allowance is set forth in the table of equipment and table of allowance for the unit."
Pub. L. 115–91, div. A, title III, §334, Dec. 12, 2017, 131 Stat. 1356, provided that:
"(a)
"(1) identify the number of military working dogs required to fulfill the various missions of the Department of Defense for which such dogs are used, including force protection, facility and check point security, and explosives and drug detection;
"(2) take such steps as are practicable to ensure an adequate number of military working dog teams are available to meet and sustain the mission requirements identified in paragraph (1);
"(3) ensure that the Department's needs and performance standards with respect to military working dogs are readily available to dog breeders and trainers; and
"(4) coordinate with other Federal, State, and local agencies, nonprofit organizations, universities, and private sector entities, as appropriate, to increase the training capacity for military working dog teams.
"(b)
"(c)
"(1) The number of military working dogs procured, by source, by each military department or Defense Agency.
"(2) The cost of procuring military working dogs incurred by each military department or Defense Agency.
"(3) The number of domestically-bred and sourced military working dogs procured by each military department or Defense Agency, including a list of vendors, their location, cost, and the quantity of dogs procured from each vendor.
"(4) The number of non-domestically-bred military working dogs procured from non-domestic sources by each military department or Defense Agency, including a list of vendors, their location, cost, and the quantity of dogs procured from each vendor.
"(5) The cost of procuring pre-trained and green dogs for force protection, facility and checkpoint security, and improvised explosive device, other explosives, and drug detection.
"(6) An analysis of the procurement practices of each military department or Defense Agency that limit market access for domestic canine vendors and breeders.
"(7) The total cost of procuring domestically-bred military working dogs versus the total cost of procuring dogs from non-domestic sources.
"(8) The total number of domestically-bred dogs and the number of dogs from foreign sources procured by each military department or Defense Agency and the number and percentage of those dogs that are ultimately deployed for their intended use.
"(9) An explanation for any significant difference in the cost of procuring military working dogs from different sources.
"(10) An estimate of the number of military working dogs expected to retire annually and an identification of the primary cause of the retirement of such dogs.
"(11) An identification of the final disposition of military working dogs no longer in service.
"(d)
Pub. L. 115–91, div. A, title III, §344, Dec. 12, 2017, 131 Stat. 1362, provided that: "Beginning on the date of the enactment of this Act [Dec. 12, 2017], whenever the Secretary of Defense enters into a contract for the provision of uniforms for Afghan military or security forces, the Secretary shall conduct a cost-benefit analysis of the uniform specification for the Afghan military or security forces uniform. Such analysis shall determine—
"(1) whether there is a more effective alternative uniform specification, considering both operational environment and cost, available to the Afghan military or security forces;
"(2) the efficacy of the existing pattern compared to other alternatives (both proprietary and non-proprietary patterns); and
"(3) the costs and feasibility of transitioning the uniforms of the Afghan military or security forces to a pattern owned by the United States, using existing excess inventory where available, and acquiring the rights to the Spec4ce Forest pattern."
Pub. L. 115–91, div. A, title VIII, §801, Dec. 12, 2017, 131 Stat. 1449, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to include the following statements of purpose:
"(1) The defense acquisition system (as defined in section 2545 of title 10, United States Code) exists to manage the investments of the United States in technologies, programs, and product support necessary to achieve the national security strategy prescribed by the President pursuant to section 108 of the National Security Act of 1947 (50 U.S.C. 3043) and to support the United States Armed Forces.
"(2) The investment strategy of the Department of Defense shall be postured to support not only the current United States Armed Forces, but also future Armed Forces of the United States.
"(3) The primary objective of Department of Defense acquisition is to acquire quality products that satisfy user needs with measurable improvements to mission capability and operational support, in a timely manner, and at a fair and reasonable price."
Pub. L. 115–91, div. A, title VIII, §807, Dec. 12, 2017, 131 Stat. 1456, provided that:
"(a)
"(b)
"(1) Designation of a senior official responsible for overseeing the development and implementation of the process.
"(2) Development or integration of tools to support commercial due-diligence, business intelligence, or otherwise analyze and monitor commercial activity to understand business relationships with entities determined to be threats to the United States.
"(3) Development of risk profiles of products or services based on commercial due-diligence tools and data services.
"(4) Development of education and training curricula for the acquisition workforce that supports the process.
"(5) Integration, as needed, with intelligence sources to develop threat profiles of entities determined to be threats to the United States.
"(6) Periodic review and assessment of software products and services on computer networks of the Department of Defense to remove prohibited products or services.
"(7) Synchronization of the use of current authorities for making supply chain decisions, including section 806 of Public Law 111–383 (10 U.S.C. 2304 note) or improved use of suspension and debarment officials.
"(8) Coordination with interagency, industrial, and international partners, as appropriate, to share information, develop Government-wide strategies for dealing with significant entities determined to be significant threats to the United States, and effectively use authorities in other departments and agencies to provide consistent, Government-wide approaches to supply chain threats.
"(9) Other matters as the Secretary considers necessary.
"(c)
"(1) Identification of the official designated under subsection (b)(1).
"(2) Identification of tools and services currently available to the Department of Defense under subsection (b)(2).
"(3) Assessment of additional tools and services available under subsection (b)(2) that the Department of Defense should evaluate.
"(4) Identification of, or recommendations for, any statutory changes needed to improve the effectiveness of the process.
"(5) Projected resource needs for implementing any recommendations made by the Secretary."
Pub. L. 115–91, div. A, title VIII, §868, Dec. 12, 2017, 131 Stat. 1495, provided that:
"(a)
"(b)
"(1) convert existing acquisition policies, guides, memos, templates, and reports to an online, interactive digital format to create a dynamic, integrated, and authoritative knowledge environment for purposes of assisting program managers and the acquisition workforce of the Department of Defense to navigate the complex lifecycle for each major type of acquisition program or activity of the Department;
"(2) as part of this digital environment, create a digital decision support capability that uses decision trees and tailored acquisition models to assist users to develop strategies and facilitate coordination and approvals; and
"(3) as part of this environment, establish a foundational data layer to enable advanced data analytics on the acquisition enterprise of the Department, to include business process reengineering to improve productivity.
"(c)
"(d)
Pub. L. 115–91, div. A, title VIII, §874, Dec. 12, 2017, 131 Stat. 1500, provided that:
"(a)
"(b)
"(1) Earned value management (EVM) or EVM-like reporting.
"(2) Development of integrated master schedule.
"(3) Development of integrated master plan.
"(4) Development of technical requirement document.
"(5) Development of systems requirement documents.
"(6) Use of information technology infrastructure library agreements.
"(7) Use of software development life cycle (methodology).
"(c)
"(1)
"(A) A program manager that is authorized to make all programmatic decisions within the overarching activity objectives, including resources, funding, personnel, and contract or transaction termination recommendations.
"(B) A product owner that reports directly to the program manager and is responsible for the overall design of the product, prioritization of roadmap elements and interpretation of their acceptance criteria, and prioritization of the list of all features desired in the product.
"(C) An engineering lead that reports directly to the program manager and is responsible for the implementation and operation of the software.
"(D) A design lead that reports directly to the program manager and is responsible for identifying, communicating, and visualizing user needs through a human-centered design process.
"(2)
"(3)
"(d)
"(1) Definition of a product vision, identifying a succinct, clearly defined need the software will address.
"(2) Definition of a product road map, outlining a noncontractual plan that identifies short-term and long-term product goals and specific technology solutions to help meet those goals and adjusts to mission and user needs at the product owner's discretion.
"(3) The use of a broad agency announcement, other transaction authority, or other rapid merit-based solicitation procedure.
"(4) Identification of, and continuous engagement with, end users.
"(5) Frequent and iterative end user validation of features and usability consistent with the principles outlined in the Digital Services Playbook of the U.S. Digital Service.
"(6) Use of commercial best practices for advanced computing systems, including, where applicable—
"(A) Automated testing, integration, and deployment;
"(B) compliance with applicable commercial accessibility standards;
"(C) capability to support modern versions of multiple, common web browsers;
"(D) capability to be viewable across commonly used end user devices, including mobile devices; and
"(E) built-in application monitoring.
"(e)
"(1) award processes that take no longer than three months after a requirement is identified;
"(2) planned frequent and iterative end user validation of implemented features and their usability;
"(3) delivery of a functional prototype or minimally viable product in three months or less from award; and
"(4) follow-on delivery of iterative development cycles no longer than four weeks apart, including security testing and configuration management as applicable.
"(f)
"(1) use a modern tracking tool to execute requirements backlog tracking; and
"(2) use agile development metrics that, at a minimum, track—
"(A) pace of work accomplishment;
"(B) completeness of scope of testing activities (such as code coverage, fault tolerance, and boundary testing);
"(C) product quality attributes (such as major and minor defects and measures of key performance attributes and quality attributes);
"(D) delivery progress relative to the current product roadmap; and
"(E) goals for each iteration.
"(g)
"(1)
"(2)
"(h)
"(1)
"(A)
"(B)
"(i) The purpose of the pilot activity.
"(ii) The duration of the pilot activity.
"(iii) The efficiencies and benefits anticipated to accrue to the Government under the pilot program.
"(2)
"(A)
"(B)
"(i) A description of results of the pilot activity.
"(ii) Such recommendations for legislative or administrative action as the Secretary considers appropriate in light of the pilot activity.
"(i)
"(1)
"(2)
"(A) means acquisition pursuant to a method for delivering multiple, rapid, incremental capabilities to the user for operational use, evaluation, and feedback not exclusively linked to any single, proprietary method or process; and
"(B) involves—
"(i) the incremental development and fielding of capabilities, commonly called 'spirals', 'spins', or 'sprints', which can be measured in a few weeks or months; and
"(ii) continuous participation and collaboration by users, testers, and requirements authorities."
Pub. L. 115–91, div. A, title VIII, §886, Dec. 12, 2017, 131 Stat. 1505, provided that:
"(a)
"(1) a definition of the term 'Procurement Administrative Lead Time' or 'PALT', to be applied Department of Defense-wide, that describes the amount of time from the date on which a solicitation is issued to the date of an initial award of a contract or task order of the Department of Defense; and
"(2) a plan for measuring and publicly reporting data on PALT for Department of Defense contracts and task orders above the simplified acquisition threshold.
"(b)
"(1) begin on the date on which the initial solicitation is issued for a contract or task order of the Department of Defense by the Secretary of a military department or head of a Defense Agency; and
"(2) end on the date of the award of the contract or task order.
"(c)
"(1) the senior contracting official of each military department and Defense Agency to determine the variations of the definition in use across the Department of Defense and each military department and Defense Agency; and
"(2) the Administrator of the General Services Administration on modifying the existing data system of the Federal Government to determine the date on which the initial solicitation is issued.
"(d)
Pub. L. 115–91, div. A, title IX, §913, Dec. 12, 2017, 131 Stat. 1523, as amended by Pub. L. 115–232, div. A, title X, §1081(c)(2), Aug. 13, 2018, 132 Stat. 1985, provided that:
"(a)
"(b)
"(1) Establishment of data analytics capabilities and organizations within an Armed Force.
"(2) Development of capabilities in Department of Defense laboratories, test centers, and federally funded research and development centers to provide technical support for data analytics activities that support acquisition program management and business process re-engineering activities.
"(3) Increased use of existing analytical capabilities available to acquisition programs and offices to support improved acquisition outcomes.
"(4) Funding of intramural and extramural research and development activities to develop and implement data analytics capabilities in support of improved acquisition outcomes.
"(5) Publication, to the maximum extent practicable, and in a manner that protects classified and proprietary information, of data collected by the Department of Defense related to acquisition program costs and activities for access and analyses by the general public or Department research and education organizations.
"(6) Promulgation by the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, and the Commandant of the Marine Corps, in coordination with the Deputy Secretary of Defense, the Under Secretary of Defense for Research and Engineering, and the Under Secretary for Acquisition and Sustainment, of a consistent policy as to the role of data analytics in establishing budgets and making milestone decisions for major defense acquisition programs.
"(7) Continual assessment, in consultation with the private sector, of the efficiency of current data collection and analyses processes, so as to minimize the requirement for collection and delivery of data by, from, and to Government organizations.
"(8) Promulgation of guidance to acquisition programs and activities on the efficient use, quality, and sharing of enterprise data between programs and organizations to improve acquisition program analytics and outcomes.
"(9) Establishment of focused research and educational activities at the Defense Acquisition University, and appropriate private sector academic institutions, to support enhanced use of data management, data analytics, and other evaluation-related methods to improve acquisition outcomes."
[Pub. L. 115–232, div. A, title X, §1081(c), Aug. 13, 2018, 132 Stat. 1985, provided that the amendment made by section 1081(c)(2) to section 913 of Pub. L. 115–91, set out above, is effective as of Dec. 12, 2017, and as if included in Pub. L. 115–91 as enacted.]
Pub. L. 115–91, div. A, title XVI, §1628, Dec. 12, 2017, 131 Stat. 1735, provided that:
"(a)
"(b)
"(1) The term 'small business concern' has the meaning given that term under section 3 of the Small Business Act (15 U.S.C. 632).
"(2) The term 'nontraditional defense contractors' has the meaning given that term in section 2302 of title 10, United States Code."
Pub. L. 115–91, div. A, title XVI, §1696, Dec. 12, 2017, 131 Stat. 1793, provided that:
"(a)
"(b)
"(1) not fewer than one program shall be related to nuclear weapons;
"(2) not fewer than one program shall be related to nuclear command, control, and communications;
"(3) not fewer than one program shall be related to continuity of government;
"(4) not fewer than one program shall be related to ballistic missile defense;
"(5) not fewer than one program shall be related to other command and control systems; and
"(6) not fewer than one program shall be related to space systems.
"(c)
"(1) details on how the Secretary will establish the pilot program under subsection (a) to ensure all source information is appropriately, singularly, and exclusively shared for the purpose of ensuring the security or integrity of the supply chain of covered programs;
"(2) details of any personnel, funding, or statutory constraints in carrying out the pilot program; and
"(3) the identification of any legislative action or administrative action required to provide the Secretary with specific additional authorities required to fully implement the pilot program.
"(d)
Pub. L. 115–91, div. A, title XVI, §1698, Dec. 12, 2017, 131 Stat. 1794, provided that:
"(a)
"(b)
"(c)
"(1) The term 'appropriate congressional committees' means—
"(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and
"(B) the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
"(2) The term 'covered Distributed Common Ground System' includes the following:
"(A) The Distributed Common Ground System of the Army.
"(B) The Distributed Common Ground System of the Navy.
"(C) The Distributed Common Ground System of the Marine Corps.
"(D) The Distributed Common Ground System of the Air Force.
"(E) The Distributed Common Ground System of the Special Operations Forces."
Pub. L. 114–328, div. A, title II, §231, Dec. 23, 2016, 130 Stat. 2059, provided that:
"(a)
"(b)
"(1) Definitions of the various levels of trust required by classes of Department of Defense systems.
"(2) Means of classifying systems of the Department of Defense based on the level of trust such systems are required to maintain with respect to microelectronics.
"(3) Means by which trust in microelectronics can be assured.
"(4) Means to increase the supplier base for assured microelectronics to ensure multiple supply pathways.
"(5) An assessment of the microelectronics needs of the Department of Defense in future years, including the need for trusted, radiation-hardened microelectronics.
"(6) An assessment of the microelectronic needs of the Department of Defense that may not be fulfilled by entities outside the Department of Defense.
"(7) The resources required to assure access to trusted microelectronics, including infrastructure, workforce, and investments in science and technology.
"(8) A research and development strategy to ensure that the Department of Defense can, to the maximum extent practicable, use state of the art commercial microelectronics capabilities or their equivalent, while satisfying the needs for trust.
"(9) Recommendations for changes in authorities, regulations, and practices, including acquisition policies, financial management, public-private partnership policies, or in any other relevant areas, that would support the achievement of the goals of the strategy.
"(c)
"(2) Not later than two years after submitting the strategy under paragraph (1) and not less frequently than once every two years thereafter until September 30, 2024, the Secretary shall update the strategy as the Secretary considers appropriate to support Department of Defense missions.
"(d)
"(e)
"(1) a report on—
"(A) the status of the implementation of the strategy developed under subsection (a);
"(B) the actions being taken to achieve full implementation of such strategy, and a timeline for such implementation; and
"(C) the status of the implementation of the directive required by subsection (d); and
"(2) a certification of whether the Department of Defense has an assured means for accessing a sufficient supply of trusted microelectronics, as required by the strategy developed under subsection (a).
"(f)
"(1) The term 'assured' refers, with respect to microelectronics, to the ability of the Department of Defense to guarantee availability of microelectronics parts at the necessary volumes and with the performance characteristics required to meet the needs of the Department of Defense.
"(2) The terms 'trust' and 'trusted' refer, with respect to microelectronics, to the ability of the Department of Defense to have confidence that the microelectronics function as intended and are free of exploitable vulnerabilities, either intentionally or unintentionally designed or inserted as part of the system at any time during its life cycle."
Pub. L. 114–328, div. A, title III, §313, Dec. 23, 2016, 130 Stat. 2073, provided that:
"(a)
"(b)
Pub. L. 114–328, div. A, title VIII, §814(a), Dec. 23, 2016, 130 Stat. 2271, as amended by Pub. L. 115–91, div. A, title VIII, §882, Dec. 12, 2017, 131 Stat. 1504, provided that:
"(a)
"(1) to prohibit the use by the Department of Defense of reverse auctions or lowest price technically acceptable contracting methods for the procurement of personal protective equipment or an aviation critical safety item (as defined in section 2319(g) of this title [probably means section 2319(g) of title 10, United States Code]) if the level of quality or failure of the equipment or item could result in combat casualties; and
"(2) to establish a preference for the use of best value contracting methods for the procurement of such equipment or item."
Pub. L. 114–92, div. A, title VIII, §884, Nov. 25, 2015, 129 Stat. 948, which required the Secretary of Defense to ensure that the Secretaries of the Army, Navy, and Air Force, in procuring an item of personal protective equipment or a critical safety item, use source selection criteria that were predominately based on technical qualifications of the item and not predominately based on price to the maximum extent practicable if the level of quality or failure of the item could result in death or severe bodily harm to the user, as determined by the Secretaries, was repealed by Pub. L. 114–328, div. A, title VIII, §814(b), Dec. 23, 2016, 130 Stat. 2271.
Pub. L. 114–328, div. A, title VIII, §836, Dec. 23, 2016, 130 Stat. 2285, as amended by Pub. L. 115–91, div. A, title VIII, §824, Dec. 12, 2017, 131 Stat. 1465, provided that:
"(a)
"(1) remaining contract balances may be offset with balances in other contract line items within a contract regardless of the year or type of appropriation obligated to fund each contract line item and regardless of whether the appropriation for such contract line item has closed; and
"(2) remaining contract balances may be offset with balances on other contracts regardless of the year or type of appropriation obligated to fund each contract and regardless of whether the appropriation has closed.
"(b)
"(1) was entered into on a date that is at least 17 fiscal years before the current fiscal year;
"(2) has no further supplies or services deliverables due under the terms and conditions of the contract; and
"(3) is determined by the Secretary of Defense to be not otherwise reconcilable because—
"(A) the records have been destroyed or lost; or
"(B) the records are available but the Secretary of Defense has determined that the time or effort required to determine the exact amount owed to the United States Government or amount owed to the contractor is disproportionate to the amount at issue.
"(c)
"(d)
"(1)
"(2)
"(e)
"(f)
"(g)
Pub. L. 114–328, div. A, title VIII, §854, Dec. 23, 2016, 130 Stat. 2297, provided that:
"(a)
"(b)
Pub. L. 114–328, div. A, title VIII, §879, Dec. 23, 2016, 130 Stat. 2312, as amended by Pub. L. 115–232, div. A, title VIII, §836(f)(9), Aug. 13, 2018, 132 Stat. 1872, provided that:
"(a)
"(b)
"(c)
"(1)
"(2)
"(3)
"(d)
"(e)
"(1)
"(2)
"(A) Description of the innovative commercial item, technology, or service acquired.
"(B) Description of the requirement, capability gap, or potential technological advancement with respect to which the innovative commercial item, technology, or service acquired provides a solution or a potential new capability.
"(C) Amount of the contract awarded.
"(D) Identification of contractor awarded the contract.
"(f)
"(1) any technology, process, or method, including research and development, that is new as of the date of submission of a proposal; or
"(2) any application that is new as of the date of submission of a proposal of a technology, process, or method existing as of such date.
"(g)
[Pub. L. 115–232, div. A, title VIII, §836(f)(9), (h), Aug. 13, 2018, 132 Stat. 1872, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, section 879 of Pub. L. 114–328, set out above, is amended:
[(1) in the section heading, by striking "Commercial Items" and inserting "Commercial Products";
[(2) in subsection (a), by striking "commercial items" and inserting "commercial products";
[(3) in subsection (c)(3), by striking "commercial items" and inserting "commercial products or commercial services" in heading and text; and
[(4) in subsection (e)(2)(A), (B), by striking "item" and inserting "products".]
Pub. L. 114–328, div. A, title VIII, §883, Dec. 23, 2016, 130 Stat. 2316, provided that:
"(a)
"(b)
"(1)
"(2)
"(c)
"(d)
"(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)
"(f)
"(1)
"(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)
"(g)
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, provided that:
"(a)
"(b)
"(c)
"(1)
"(2)
"(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;
"(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) and procedures for alternative acquisition pathways established under section 805 of such Act (10 U.S.C. 2302 note).
"(d)
"(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)
"(1)
"(2)
"(f)
Pub. L. 114–328, div. A, title VIII, §898, Dec. 23, 2016, 130 Stat. 2327, provided that:
"(a)
"(1)
"(2)
"(A) A representative of the Under Secretary of Defense for Acquisition, Technology, and Logistics, who shall be the chairman of the Panel.
"(B) A representative from the AbilityOne Commission.
"(C) A representative of the service acquisition executive of each military department and Defense Agency (as such terms are defined, respectively, in section 101 of title 10, United States Code).
"(D) A representative of the Under Secretary of Defense (Comptroller).
"(E) A representative of the Inspector General of the Department of Defense and the AbilityOne Commission.
"(F) A representative from each of the Army Audit Agency, the Navy Audit Service, the Air Force Audit Agency, and the Defense Contract Audit Agency.
"(G) The President of the Defense Acquisition University, or a designated representative.
"(H) One or more subject matter experts on veterans employment from a veterans service organization.
"(I) A representative of the Commission Directorate of Veteran Employment of the AbilityOne Commission whose duties include maximizing opportunities to employ significantly disabled veterans in accordance with the regulations of the AbilityOne Commission.
"(J) One or more representatives from the Department of Justice who are subject matter experts on compliance with disability rights laws applicable to contracts of the Department of Defense and the AbilityOne Commission.
"(K) One or more representatives from the Department of Justice who are subject matter experts on Department of Defense contracts, Federal Prison Industries, and the requirements of the Javits-Wagner-O'Day Act [see 41 U.S.C. 8501 et seq.].
"(L) Such other representatives as may be determined appropriate by the Under Secretary of Defense for Acquisition, Technology, and Logistics.
"(b)
"(c)
"(1) review the status of and progress relating to the implementation of the recommendations of report number DODIG–2016–097 of the Inspector General of the Department of Defense titled 'DoD Generally Provided Effective Oversight of AbilityOne Contracts', published on June 17, 2016;
"(2) recommend actions the Department of Defense and the AbilityOne Commission may take to eliminate waste, fraud, and abuse with respect to contracts of the Department of Defense and the AbilityOne Commission;
"(3) recommend actions the Department of Defense and the AbilityOne Commission may take to ensure opportunities for the employment of significantly disabled veterans and the blind and other severely disabled individuals;
"(4) recommend changes to law, regulations, and policy that the Panel determines necessary to eliminate vulnerability to waste, fraud, and abuse with respect to the performance of contracts of the Department of Defense;
"(5) recommend criteria for veterans with disabilities to be eligible for employment opportunities through the programs of the AbilityOne Commission that considers the definitions of disability used by the Secretary of Veterans Affairs and the AbilityOne Commission;
"(6) recommend ways the Department of Defense and the AbilityOne Commission may explore opportunities for competition among qualified nonprofit agencies or central nonprofit agencies and ensure an equitable selection and allocation of work to qualified nonprofit agencies;
"(7) recommend changes to business practices, information systems, and training necessary to ensure that—
"(A) the AbilityOne Commission complies with regulatory requirements related to the establishment and maintenence of the procurement list established pursuant to section 8503 of title 41, United States Code; and
"(B) the Department of Defense complies with the statutory and regulatory requirements for use of such procurement list; and
"(8) any other duties determined necessary by the Secretary of Defense.
"(d)
"(1) compliance with disability rights laws applicable to contracts of the Department of Defense and the AbilityOne Commission;
"(2) employment of significantly disabled veterans; and
"(3) vocational rehabilitation.
"(e)
"(f)
"(1)
"(2)
"(g)
"(1)
"(A) With respect to a notification relating to the AbilityOne Commission, the Secretary may suspend compliance with the requirement to procure a product or service in section 8504 of title 41, United States Code, until the date on which the Secretary notifies Congress, in writing, that the AbilityOne Commission is substantially implementing the recommendations made under subsection (c).
"(B) With respect to a notification relating to a qualified nonprofit agency, the Secretary may terminate a contract with such agency that is in existence on the date of receipt of such notification, or elect to not enter into a contract with such agency after such date, until the date on which the AbilityOne Commission certifies to the Secretary that such agency is substantially implementing the recommendations made under subsection (c).
"(C) With respect to a notification relating to a central nonprofit agency, the Secretary may include a term in a contract entered into after the date of receipt of such notification with a qualified nonprofit agency that is under such central nonprofit agency that states that such qualified nonprofit agency shall not pay a fee to such central nonprofit agency until the date on which the AbilityOne Commission certifies to the Secretary that such central nonprofit agency is substantially implementing the recommendations made under subsection (c).
"(2)
"(h)
"(1)
"(2)
"(i)
"(1)
"(2)
"(A) a summary of findings and recommendations for the year covered by the report;
"(B) a summary of the progress of the relevant qualified nonprofit agencies or central nonprofit agencies in implementing recommendations of the previous year's report, if applicable;
"(C) an examination of the current structure of the AbilityOne Commission to eliminate waste, fraud, and abuse and to ensure contracting integrity and accountability for any violations of law or regulations;
"(D) recommendations for any changes to the acquisition and contracting practices of the Department of Defense and the AbilityOne Commission to improve the delivery of goods and services to the Department of Defense; and
"(E) recommendations for administrative safeguards to ensure the Department of Defense and the AbilityOne Commission are in compliance with the requirements of the Javits-Wagner-O'Day Act [see 41 U.S.C. 8501 et seq.], Federal civil rights law, and regulations and policy related to the performance of contracts of the Department of Defense with qualified nonprofit agencies and the contracts of the AbilityOne Commission with central nonprofit agencies.
"(j)
"(k)
"(l)
"(1)
"(A) information about—
"(i) the mission of the AbilityOne Commission;
"(ii) the employment of significantly disabled veterans through contracts from the procurement list maintained by the AbilityOne Commission;
"(iii) reasonable accommodations and accessibility requirements for the blind and other severely disabled individuals; and
"(iv) Executive orders and other subjects related to the blind and other severely disabled individuals, as determined by the Secretary of Defense; and
"(B) procurement, acquisition, program management, and other training specific to procuring goods and services for the Department of Defense pursuant to the Javits-Wagner-O'Day Act.
"(2)
"(3)
"(4)
"(m)
"(1) The term 'AbilityOne Commission' means the Committee for Purchase From People Who Are Blind or Severely Disabled established under section 8502 of title 41, United States Code.
"(2) The terms 'blind', 'qualified nonprofit agency for the blind', 'qualified nonprofit agency for other severely disabled', and 'severely disabled individual' have the meanings given such terms under section 8501 of such title.
"(3) The term 'central nonprofit agency' means a central nonprofit agency designated under section 8503(c) of such title.
"(4) The term 'executive agency' has the meaning given such term in section 133 of such title.
"(5) The term 'Javits-Wagner-O'Day Act' means chapter 85 of such title.
"(6) The term 'qualified nonprofit agency' means—
"(A) a qualified nonprofit agency for the blind; or
"(B) a qualified nonprofit agency for other severely disabled.
"(7) The term 'significantly disabled veteran' means a veteran (as defined in section 101 of title 38, United States Code) who is a severely disabled individual."
Pub. L. 114–328, div. A, title VIII, §899A(a)–(e), Dec. 23, 2016, 130 Stat. 2336, 2337, provided that:
"(a)
"(1) competition is limited to products or services from the host nation;
"(2) a preference is provided for products or services from the host nation; or
"(3) a preference is provided for products or services from a covered African country, other than the host nation.
"(b)
"(1)
"(A) That the product or service concerned is to be used only in support of covered activities.
"(B) That it is in the national security interests of the United States to limit competition or provide a preference as described in subsection (a) because such limitation or preference is necessary—
"(i) to reduce overall United States transportation costs and risks in shipping products in support of operations, exercises, theater security cooperation activities, and other missions in the African region;
"(ii) to reduce delivery times in support of covered activities; or
"(iii) to promote regional security and stability in Africa.
"(C) That the product or service is of equivalent quality to a product or service that would have otherwise been acquired without such limitation or preference.
"(2)
"(A) the limitation or preference will not adversely affect—
"(i) United States military operations or stability operations in the African region; or
"(ii) the United States industrial base; and
"(B) in the case of air transportation, an air carrier holding a certificate under section 41102 of title 49, United States Code, is not reasonably available to provide the air transportation.
"(c)
"(d)
"(1) The number of determinations made by the Secretary pursuant to subsection (b).
"(2) A list of the countries providing products or services as a result of determinations made pursuant to subsection (b).
"(3) A description of the products and services acquired using the authority.
"(4) The extent to which the use of the authority has met the one or more of the objectives specified in clause (i), (ii), or (iii) of subsection (b)(1)(B).
"(5) Such recommendations for improvements to the authority as the Secretary considers appropriate.
"(6) Such other matters as the Secretary considers appropriate.
"(e)
"(1)
"(2)
"(3)
"(4)
"(A) A product from a covered African country that is wholly grown, mined, manufactured, or produced in the covered African country.
"(B) A service from a covered African country that is performed by a person or entity that—
"(i) is properly licensed or registered by appropriate authorities of the covered African country; and
"(ii) as determined by the Chief of Mission concerned—
"(I) is operating primarily in the covered African country; or
"(II) is making a significant contribution to the economy of the covered African country through payment of taxes or use of products, materials, or labor that are primarily grown, mined, manufactured, produced, or sourced from the covered African country."
Pub. L. 114–92, div. A, title VIII, §804, Nov. 25, 2015, 129 Stat. 882, as amended by Pub. L. 114–328, div. A, title VIII, §§849(a), 864(b), 897, title X, §1081(c)(2), Dec. 23, 2016, 130 Stat. 2293, 2304, 2327, 2419; Pub. L. 115–91, div. A, title VIII, §866, Dec. 12, 2017, 131 Stat. 1495, provided that:
"(a)
"(b)
"(1)
"(2)
"(c)
"(1)
"(2)
"(A) a merit-based process for the consideration of innovative technologies and new capabilities to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders;
"(B) a process for developing and implementing acquisition and funding strategies for the program;
"(C) a process for demonstrating and evaluating the performance of fieldable prototypes developed pursuant to the program in an operational environment; and
"(D) a process for transitioning successful prototypes to new or existing acquisition programs for production and fielding under the rapid fielding pathway or the traditional acquisition system.
"(3)
"(A) a merit-based process for the consideration of existing products and proven technologies to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders;
"(B) a process for demonstrating performance and evaluating for current operational purposes the proposed products and technologies;
"(C) a process for developing and implementing acquisition and funding strategies for the program;
"(D) a process for considering lifecycle costs and addressing issues of logistics support and system interoperability; and
"(E) a process for identifying and exploiting opportunities to use the rapid fielding pathway to reduce total ownership costs.
"(4)
"(A) The service acquisition executive of the military department concerned shall appoint a program manager for such program from among candidates from among civilian employees or members of the Armed Forces who have significant and relevant experience managing large and complex programs.
"(B) The program manager for each program shall report with respect to such program directly, without intervening review or approval, to the service acquisition executive of the military department concerned.
"(C) The service acquisition executive of the military department concerned shall evaluate the job performance of such manager on an annual basis. In conducting an evaluation under this paragraph, a service acquisition executive shall consider the extent to which the manager has achieved the objectives of the program for which the manager is responsible, including quality, timeliness, and cost objectives.
"(D) The program manager of a defense streamlined program shall be authorized staff positions for a technical staff, including experts in business management, contracting, auditing, engineering, testing, and logistics, to enable the manager to manage the program without the technical assistance of another organizational unit of an agency to the maximum extent practicable.
"(E) The program manager of a defense streamlined program shall be authorized, in coordination with the users of the equipment and capability to be acquired and the test community, to make trade-offs among life-cycle costs, requirements, and schedules to meet the goals of the program.
"(F) The service acquisition executive, acting in coordination with the defense acquisition executive, shall serve as the milestone decision authority for the program.
"(G) The program manager of a defense streamlined program shall be provided a process to expeditiously seek a waiver from Congress from any statutory or regulatory requirement that the program manager determines adds little or no value to the management of the program.
"(d)
"(1)
"(A)
"(i) amounts appropriated to the Fund;
"(ii) amounts credited to the Fund pursuant to section 828 of this Act [set out as a note under section 2430 of this title]; and
"(iii) any other amounts appropriated to, credited to, or transferred to the Fund.
"(B)
"(C)
"(2)
[Pub. L. 114–328, div. A, title X, §1081(c), Dec. 23, 2016, 130 Stat. 2419, provided that the amendment made by section 1081(c)(2) to section 804 of Pub. L. 114–92, set out above, is effective as of Nov. 25, 2015, and as if included in Pub. L. 114–92 as enacted.]
Pub. L. 114–92, div. A, title VIII, §805, Nov. 25, 2015, 129 Stat. 885, as amended by Pub. L. 114–328, div. A, title VIII, §849(b), Dec. 23, 2016, 130 Stat. 2293, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Secretary of Defense shall establish procedures for alternative acquisition pathways to acquire capital assets and services that meet critical national security needs. The procedures shall—
"(1) be separate from existing acquisition procedures;
"(2) be supported by streamlined contracting, budgeting, life-cycle cost management, and requirements processes;
"(3) establish alternative acquisition paths based on the capabilities being bought and the time needed to deploy these capabilities; and
"(4) maximize the use of flexible authorities in existing law and regulation."
Pub. L. 114–92, div. A, title VIII, §806, Nov. 25, 2015, 129 Stat. 885, as amended by Pub. L. 114–328, div. A, title VIII, §819, Dec. 23, 2016, 130 Stat. 2273, provided that:
"(a)
"(1) the acquisition of the capability is in the vital national security interest of the United States;
"(2) the application of the law or regulation to be waived would impede the acquisition of the capability in a manner that would undermine the national security of the United States; and
"(3) the underlying purpose of the law or regulation to be waived can be addressed in a different manner or at a different time.
"(b)
"(c)
"(1)
"(A) the establishment of a requirement or specification for the capability to be acquired;
"(B) research, development, test, and evaluation of the capability to be acquired;
"(C) production, fielding, and sustainment of the capability to be acquired; or
"(D) solicitation, selection of sources, and award of contracts for the capability to be acquired.
"(2)
"(A) the requirements of this section;
"(B) any provision of law imposing civil or criminal penalties; or
"(C) any provision of law governing the proper expenditure of appropriated funds.
"(d)
"(e)
Pub. L. 114–92, div. A, title VIII, §881, Nov. 25, 2015, 129 Stat. 942, as amended by Pub. L. 115–232, div. A, title X, §1081(f)(1)(A)(iv), Aug. 13, 2018, 132 Stat. 1986, provided that:
"(a)
"(b)
Pub. L. 113–291, div. A, title VIII, subtitle E, Dec. 19, 2014, 128 Stat. 3450, as amended by Pub. L. 115–232, div. A, title VIII, §872, title XII, §1251(b)(2), Aug. 13, 2018, 132 Stat. 1905, 2053, provided that:
"(a)
"(1) provide funds, including goods and services, received under a covered contract, grant, or cooperative agreement of an executive agency directly or indirectly to a covered person or entity; or
"(2) fail to exercise due diligence to ensure that none of the funds, including goods and services, received under a covered contract, grant, or cooperative agreement of an executive agency are provided directly or indirectly to a covered person or entity.
"(b)
"(1)
"(2)
"(3)
"(c)
"(1) Restrict the award of contracts, grants, or cooperative agreements of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contract, grant, or cooperative agreement would provide funds received under such contract, grant, or cooperative agreement directly or indirectly to a covered person or entity.
"(2) Terminate for default any contract, grant, or cooperative agreement of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contractor, or the recipient of the grant or cooperative agreement, has failed to exercise due diligence to ensure that none of the funds received under the contract, grant, or cooperative agreement are provided directly or indirectly to a covered person or entity.
"(3) Void in whole or in part any contract, grant, or cooperative agreement of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contract, grant, or cooperative agreement provides funds directly or indirectly to a covered person or entity.
"(d)
"(1)
"(A) the clause described in paragraph (2) shall be included in each covered contract, grant, and cooperative agreement of an executive agency that is awarded on or after the date that is 270 days after the date of the enactment of this Act; and
"(B) to the maximum extent practicable, each covered contract, grant, and cooperative agreement of an executive agency that is awarded before the date of the enactment of this Act shall be modified to include the clause described in paragraph (2).
"(2)
"(A) requires the contractor, or the recipient of the grant or cooperative agreement, to exercise due diligence to ensure that none of the funds, including goods and services, received under the contract, grant, or cooperative agreement are provided directly or indirectly to a covered person or entity; and
"(B) notifies the contractor, or the recipient of the grant or cooperative agreement, of the authority of the head of contracting activity, or other appropriate official, to terminate or void the contract, grant, or cooperative agreement, in whole or in part, as provided in subsection (c).
"(3)
"(A) A contract, grant, or cooperative agreement that is void is unenforceable as contrary to public policy.
"(B) A contract, grant, or cooperative agreement that is void in part is unenforceable as contrary to public policy with regard to a segregable task or effort under the contract, grant, or cooperative agreement.
"(4)
"(e)
"(1) To require that any head of contracting activity, or other appropriate official, taking an action under subsection (c) to terminate, void, or restrict a contract, grant, or cooperative agreement notify in writing the contractor or recipient of the grant or cooperative agreement, as applicable, of the action.
"(2) To permit the contractor or recipient of a grant or cooperative agreement subject to an action taken under subsection (c) to terminate or void the contract, grant, or cooperative agreement, as the case may be, an opportunity to challenge the action by requesting an administrative review of the action under the procedures of the executive agency concerned not later than 30 days after receipt of notice of the action.
"(f)
"(1)
"(2)
"(g)
"(1)
"(2)
"(h)
"(1)
"(2)
"(3)
"(i)
"(1)
"(A) For each instance in which an executive agency exercised the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (c), based on a notification under subsection (b), the following:
"(i) The executive agency taking such action.
"(ii) An explanation of the basis for the action taken.
"(iii) The value of the contract, grant, or cooperative agreement voided or terminated.
"(iv) The value of all contracts, grants, or cooperative agreements of the executive agency in force with the person or entity concerned at the time the contract, grant, or cooperative agreement was terminated or voided.
"(B) For each instance in which an executive agency did not exercise the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (c), based on a notification under subsection (b), the following:
"(i) The executive agency concerned.
"(ii) An explanation of the basis for not taking the action.
"(2)
"(A) be submitted in unclassified form, but with a classified annex; or
"(B) be submitted in classified form.
"(j)
"(k)
"(l)
"(m)
"(1)
"(2)
"(3)
"(n)
"(a)
"(1)
"(2)
"(3)
"(4)
"(b)
"(1)
"(2)
"(3)
"(c)
"(1)
"(2)
"In this subtitle:
"(1)
"(A) the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, and the Committee on Appropriations of the Senate; and
"(B) the Committee on Armed Services, the Committee on Oversight and Government Reform, the Committee on Foreign Affairs, and the Committee on Appropriations of the House of Representatives.
"(2)
"(3)
"(4)
"(A) The United States Africa Command.
"(B) The United States Central Command.
"(C) The United States European Command.
"(D) United States Indo-Pacific Command.
"(E) The United States Southern Command.
"(F) The United States Transportation Command.
"(5)
"(6)
"(7)
"(8)
"(9)
Pub. L. 113–66, div. A, title VIII, §831, Dec. 26, 2013, 127 Stat. 810, related to prohibition on contracting with the enemy, prior to repeal by Pub. L. 113–291, div. A, title VIII, §841(m)(2), Dec. 19, 2014, 128 Stat. 3454, effective 270 days after Dec. 19, 2014.
Pub. L. 112–81, div. A, title VIII, §841, Dec. 31, 2011, 125 Stat. 1510, related to prohibition on contracting with the enemy in the United States Central Command theater of operations, prior to repeal by Pub. L. 113–291, div. A, title VIII, §841(m)(1), Dec. 19, 2014, 128 Stat. 3454, effective 270 days after Dec. 19, 2014.
Pub. L. 113–291, div. A, title VIII, §851, Dec. 19, 2014, 128 Stat. 3457, provided that:
"(a)
"(1) urgently needed to react to an enemy threat or to respond to significant and urgent safety situations;
"(2) needed to avoid significant risk of loss of life or mission failure; or
"(3) needed to avoid collateral damage risk where the absence of collateral damage is a requirement for mission success.
"(b)
"(1) A process for streamlined communication between the Commander of the United States Special Operations Command and the acquisition and research and development communities, including—
"(A) a process for the Commander to communicate needs to the acquisition community and the research and development community; and
"(B) a process for the acquisition community and the research and development community to propose items that meet the needs communicated by the Commander.
"(2) Procedures for demonstrating, rapidly acquiring, and deploying items proposed pursuant to paragraph (1)(B), including—
"(A) a process for demonstrating performance and evaluating for current operational purposes the existing capability of an item;
"(B) a process for developing an acquisition and funding strategy for the deployment of an item; and
"(C) a process for making deployment determinations based on information obtained pursuant to subparagraphs (A) and (B).
"(c)
"(1)
"(A) an operational assessment in accordance with expedited procedures prescribed by the Director of Operational Testing and Evaluation; and
"(B) a requirement to provide information to the deployment decision-making authority about any deficiency of the item in meeting the original requirements for the item (as stated in an operational requirements document or similar document).
"(2)
"(3)
"(d)
"(e)
"(f)
"(g)
"(1)
"(2)
Pub. L. 113–291, div. A, title VIII, §852, Dec. 19, 2014, 128 Stat. 3458, provided that: "The Under Secretary of Defense for Acquisition, Technology, and Logistics shall ensure that Department of Defense Instruction 5000.02 and other applicable guidance require full consideration, during preliminary design review for a product, of metals, materials, and technologies that effectively prevent or control corrosion over the life cycle of the product."
Pub. L. 113–66, div. A, title XV, §1531(d), Dec. 26, 2013, 127 Stat. 938, as amended by Pub. L. 113–291, div. A, title XV, §1532(d), Dec. 19, 2014, 128 Stat. 3614, provided that:
"(1)
"(2)
Pub. L. 112–239, div. A, title VIII, §804, Jan. 2, 2013, 126 Stat. 1826, which required the Secretary to review profit guidelines to ensure an appropriate link between contractor profit and contractor performance, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(3), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 112–239, div. A, title VIII, §829, Jan. 2, 2013, 126 Stat. 1841, which related to extending existing guidance on personal conflicts of interest to certain contractor personnel, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(4), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 112–239, div. A, title VIII, §843, Jan. 2, 2013, 126 Stat. 1845, provided that:
"(a)
"(b)
"(1) specify the officials, offices, and components of the Department within the chain of authority and responsibility described in subsection (a);
"(2) identify for each official, office, and component specified under paragraph (1)—
"(A) requirements for policy, planning, and execution of contract support for operational contract support, including, at a minimum, requirements in connection with—
"(i) coordination of functions, authorities, and responsibilities related to operational contract support, including coordination with relevant Federal agencies;
"(ii) assessments of total force data in support of Department force planning scenarios, including the appropriateness of and necessity for the use of contractors for identified functions;
"(iii) determinations of capability requirements for nonacquisition community operational contract support, and identification of resources required for planning, training, and execution to meet such requirements; and
"(iv) determinations of policy regarding the use of contractors by function, and identification of the training exercises that will be required for operational contract support (including an assessment [of] whether or not such exercises will include contractors); and
"(B) roles, authorities, responsibilities, and lines of supervision for the achievement of the requirements identified under subparagraph (A); and
"(3) ensure that the chain of authority and responsibility described in subsection (a) is appropriately aligned with, and appropriately integrated into, the structure of the Department for the conduct of overseas contingency operations, including the military departments, the Joint Staff, and the commanders of the unified combatant commands."
Pub. L. 112–239, div. A, title VIII, §844, Jan. 2, 2013, 126 Stat. 1846, provided that:
"(a)
"(b)
"(1) The total number of contracts entered into as of the date of any report.
"(2) The total number of such contracts that are active as of such date.
"(3) The total value of contracts entered into as of such date.
"(4) The total value of such contracts that are active as of such date.
"(5) An identification of the extent to which the contracts entered into as of such date were entered into using competitive procedures.
"(6) The total number of contractor personnel working under contracts entered into as of the end of each calendar quarter during the one-year period ending on such date.
"(7) The total number of contractor personnel performing security functions under contracts entered into as of the end of each calendar quarter during the one-year period ending on such date.
"(8) The total number of contractor personnel killed or wounded under any contracts entered into.
"(c)
"(1)
"(A) identify each such data system and assess the resources needed to sustain such system;
"(B) determine if all such data systems are interoperable, use compatible data standards, and meet the requirements of section 2222 of title 10, United States Code; and
"(C) make recommendations on the steps that the Department of Defense, the Department of State, and the United States Agency for International Development should take to ensure that all such data systems—
"(i) meet the requirements of the guidance issued pursuant to subsections (a) and (b);
"(ii) are interoperable, use compatible data standards, and meet the requirements of section 2222 of such title; and
"(iii) are supported by appropriate business processes and rules to ensure the timeliness and reliability of data.
"(2)
"(A) The congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives].
"(B) The Committee on Foreign Relations and the Committee on Homeland Security and Governmental Affairs of the Senate.
"(C) The Committee on Foreign Affairs and the Committee on Oversight and Government Reform of the House of Representatives."
Pub. L. 112–239, div. A, title VIII, §846, Jan. 2, 2013, 126 Stat. 1848, provided that:
"(a)
"(b)
"(1)
"(2)
"(A) the operation is not expected to continue for more than one year; and
"(B) the total amount of obligations for contracts for support of the operation for the covered agency is not expected to exceed $250,000,000.
"(3)
"(A) the operation has continued for more than one year; or
"(B) the total amount of obligations for contracts for support of the operation for the covered agency exceeds $250,000,000.
"(c)
"(1) The goals and objectives of the operation (such as risks from contractor behavior or performance that may injure innocent members of the local population or offend their sensibilities).
"(2) The continuity of the operation (such as risks from contractors refusing to perform or being unable to perform when there may be no timely replacements available).
"(3) The safety of military and civilian personnel of the United States if the presence or performance of contractor personnel creates unsafe conditions or invites attack.
"(4) The safety of contractor personnel employed by the covered agency.
"(5) The managerial control of the Government over the operation (such as risks from over-reliance on contractors to monitor other contractors or inadequate means for Government personnel to monitor contractor performance).
"(6) The critical organic or core capabilities of the Government, including critical knowledge or institutional memory of key operations areas and subject-matter expertise.
"(7) The ability of the Government to control costs, avoid organizational or personal conflicts of interest, and minimize waste, fraud, and abuse.
"(d)
"(1) For each high-risk area identified in the comprehensive risk assessment for the operation performed under subsection (b)—
"(A) specific actions to mitigate or reduce such risk, including the development of alternative capabilities to reduce reliance on contractor performance of critical functions;
"(B) measurable milestones for the implementation of planned risk mitigation or risk reduction measures; and
"(C) a process for monitoring, measuring, and documenting progress in mitigating or reducing risk.
"(2) A continuing process for identifying and addressing new and changed risks arising in the course of the operation, including the periodic reassessment of risks and the development of appropriate risk mitigation or reduction plans for any new or changed high-risk area identified.
"(e)
"(1) Private security functions, as that term is defined in section 864(a)(6) of the National Defense Authorization Act for Fiscal Year 2008 [Pub. L. 110–181] (10 U.S.C. 2302 note).
"(2) Training and advising Government personnel, including military and security personnel, of a host nation.
"(3) Conducting intelligence or information operations.
"(4) Any other functions that are closely associated with inherently governmental functions, including the functions set forth in section 7.503(d) of the Federal Acquisition Regulation.
"(5) Any other functions that are deemed critical to the success of the operation.
"(f)
Pub. L. 112–239, div. A, title IX, §902, Jan. 2, 2013, 126 Stat. 1865, which related to the designation and responsibilities of the senior official responsible for leading the Department's actions on urgent operational needs and rapid acquisition, was repealed by Pub. L. 115–232, div. A, title VIII, §811(g), Aug. 13, 2018, 132 Stat. 1846.
Pub. L. 112–81, div. A, title III, §368, Dec. 31, 2011, 125 Stat. 1381, provided that:
"(a)
"(b)
Pub. L. 112–81, div. A, title VIII, §806, Dec. 31, 2011, 125 Stat. 1487, as amended by Pub. L. 112–239, div. A, title X, §1076(a)(11), Jan. 2, 2013, 126 Stat. 1948, provided that:
"(a)
"(b)
"(1) establish standards for the timeliness and completeness of past performance submissions for purposes of databases described in subsection (a);
"(2) assign responsibility and management accountability for the completeness of past performance submissions for such purposes; and
"(3) ensure that past performance submissions for such purposes are consistent with award fee evaluations in cases where such evaluations have been conducted.
"(c)
"(1) That affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases in accordance with subsection (a).
"(2) That such contractors are afforded up to 14 calendar days, from the date of delivery of the information provided in accordance with paragraph (1), to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases.
"(3) That agency evaluations of contractor past performance, including any information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1).
"(d)
"(e)
Pub. L. 112–81, div. A, title VIII, §818(a)–(g), Dec. 31, 2011, 125 Stat. 1493–1496, as amended by Pub. L. 112–239, div. A, title VIII, §833, Jan. 2, 2013, 126 Stat. 1844; Pub. L. 113–291, div. A, title VIII, §817, Dec. 19, 2014, 128 Stat. 3432; Pub. L. 114–92, div. A, title VIII, §885, Nov. 25, 2015, 129 Stat. 948; Pub. L. 114–328, div. A, title VIII, §815, Dec. 23, 2016, 130 Stat. 2271; Pub. L. 115–232, div. A, title VIII, §812(b)(5), Aug. 13, 2018, 132 Stat. 1848, provided that:
"(a)
"(b)
"(1) establish Department-wide definitions of the terms 'counterfeit electronic part' and 'suspect counterfeit electronic part', which definitions shall include previously used parts represented as new;
"(2) issue or revise guidance applicable to Department components engaged in the purchase of electronic parts to implement a risk-based approach to minimize the impact of counterfeit electronic parts or suspect counterfeit electronic parts on the Department, which guidance shall address requirements for training personnel, making sourcing decisions, ensuring traceability of parts, inspecting and testing parts, reporting and quarantining counterfeit electronic parts and suspect counterfeit electronic parts, and taking corrective actions (including actions to recover costs as described in subsection (c)(2));
"(3) issue or revise guidance applicable to the Department on remedial actions to be taken in the case of a supplier who has repeatedly failed to detect and avoid counterfeit electronic parts or otherwise failed to exercise due diligence in the detection and avoidance of such parts, including consideration of whether to suspend or debar a supplier until such time as the supplier has effectively addressed the issues that led to such failures;
"(4) establish processes for ensuring that Department personnel who become aware of, or have reason to suspect, that any end item, component, part, or material contained in supplies purchased by or for the Department contains counterfeit electronic parts or suspect counterfeit electronic parts provide a report in writing within 60 days to appropriate Government authorities and to the Government-Industry Data Exchange Program (or a similar program designated by the Secretary); and
"(5) establish a process for analyzing, assessing, and acting on reports of counterfeit electronic parts and suspect counterfeit electronic parts that are submitted in accordance with the processes under paragraph (4).
"(c)
"(1)
"(2)
"(A) covered contractors who supply electronic parts or products that include electronic parts are responsible for detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit electronic parts in such products and for any rework or corrective action that may be required to remedy the use or inclusion of such parts; and
"(B) the cost of counterfeit electronic parts and suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts are not allowable costs under Department contracts, unless—
"(i) the covered contractor has an operational system to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts that has been reviewed and approved by the Department of Defense pursuant to subsection (e)(2)(B);
"(ii) the counterfeit electronic parts or suspect counterfeit electronic parts were provided to the covered contractor as Government property in accordance with part 45 of the Federal Acquisition Regulation or were obtained by the covered contractor in accordance with regulations described in paragraph (3); and
"(iii) the covered contractor discovers the counterfeit electronic parts or suspect counterfeit electronic parts and provides timely notice to the Government pursuant to paragraph (4).
"(3)
"(A) require that the Department and Department contractors and subcontractors at all tiers—
"(i) obtain electronic parts that are in production or currently available in stock from the original manufacturers of the parts or their authorized dealers, or from suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations issued pursuant to subparagraph (C) or (D) and that obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers;
"(ii) obtain electronic parts that are not in production or currently available in stock from suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations issued pursuant to subparagraph (C) or (D); and
"(iii) obtain electronic parts from alternate suppliers if such parts are not available from original manufacturers, their authorized dealers, or suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations prescribed pursuant to subparagraph (C) or (D);
"(B) establish requirements for notification of the Department, and for inspection, testing, and authentication of electronic parts that the Department or a Department contractor or subcontractor obtains from any source other than a source described in clause (i) or (ii) of subparagraph (A), if obtaining the electronic parts in accordance with such clauses is not possible;
"(C) establish qualification requirements, consistent with the requirements of section 2319 of title 10, United States Code, pursuant to which the Department may identify suppliers that have appropriate policies and procedures in place to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts; and
"(D) authorize Department contractors and subcontractors to identify and use additional suppliers that meet anticounterfeiting requirements, provided that—
"(i) the standards and processes for identifying such suppliers comply with established industry standards;
"(ii) the contractor or subcontractor assumes responsibility for the authenticity of parts provided by such suppliers as provided in paragraph (2); and
"(iii) the selection of such suppliers is subject to review, audit, and approval by appropriate Department officials.
"(4)
"(5)
"(d)
"(e)
"(1)
"(2)
"(A) require covered contractors that supply electronic parts or systems that contain electronic parts to establish policies and procedures to eliminate counterfeit electronic parts from the defense supply chain, which policies and procedures shall address—
"(i) the training of personnel;
"(ii) the inspection and testing of electronic parts;
"(iii) processes to abolish counterfeit parts proliferation;
"(iv) mechanisms to enable traceability of parts;
"(v) the use of suppliers that meet applicable anticounterfeiting requirements;
"(vi) the reporting and quarantining of counterfeit electronic parts and suspect counterfeit electronic parts;
"(vii) methodologies to identify suspect counterfeit parts and to rapidly determine if a suspect counterfeit part is, in fact, counterfeit;
"(viii) the design, operation, and maintenance of systems to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts; and
"(ix) the flow down of counterfeit avoidance and detection requirements to subcontractors; and
"(B) establish processes for the review and approval of contractor systems for the detection and avoidance of counterfeit electronic parts and suspect counterfeit electronic parts, which processes shall be comparable to the processes established for contractor business systems under section 893 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat. 4311; 10 U.S.C. 2302 note).
"(f)
"(1) The term 'covered contractor' has the meaning given that term in section 893(f)(2) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011.
"(2) The term 'electronic part' means an integrated circuit, a discrete electronic component (including, but not limited to, a transistor, capacitor, resistor, or diode), or a circuit assembly."
[(g) Repealed. Pub. L. 115–232, div. A, title VIII, §812(b)(5), Aug. 13, 2018, 132 Stat. 1848.]
Pub. L. 112–81, div. A, title VIII, §843, Dec. 31, 2011, 125 Stat. 1514, provided that:
"(a)
"(b)
"(c)
"(1) The term 'overseas increased micro-purchase threshold' means the amount specified in paragraph (1)(B) of section 1903(b) of title 41, United States Code.
"(2) The term 'overseas increased simplified acquisition threshold' means the amount specified in paragraph (2)(B) of section 1903(b) of title 41, United States Code."
Pub. L. 112–81, div. A, title VIII, §844(a), (b), Dec. 31, 2011, 125 Stat. 1515, provided that:
"(a)
"(1) establish goals for competition in contracts awarded by the Secretary of Defense for the procurement of property or services to be used outside the United States in support of a contingency operation; and
"(2) develop processes by which to measure and monitor such competition, including in task-order categories for services, construction, and supplies.
"(b)
Pub. L. 111–383, div. A, title I, §127, Jan. 7, 2011, 124 Stat. 4161, provided that:
"(a)
"(b)
"(1) the Secretary submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] written certification that the waiver is in the national security interests of the United States; and
"(2) a period of 30 days has elapsed following the date on which the certification under paragraph (1) is submitted.
"(c)
Pub. L. 111–383, div. A, title VIII, §804, Jan. 7, 2011, 124 Stat. 4256, provided that:
"(a)
"(1)
"(2)
"(A) the Department's review of the improvement;
"(B) if the improvement is being implemented by the Department, a schedule for implementing the improvement; and
"(C) if the improvement is not being implemented by the Department, an explanation of why the improvement is not being implemented.
"(3)
"(A) Providing a streamlined, expedited, and tightly integrated iterative approach to—
"(i) the identification and validation of urgent operational needs;
"(ii) the analysis of alternatives and identification of preferred solutions;
"(iii) the development and approval of appropriate requirements and acquisition documents;
"(iv) the identification and minimization of development, integration, and manufacturing risks;
"(v) the consideration of operation and sustainment costs;
"(vi) the allocation of appropriate funding; and
"(vii) the rapid production and delivery of required capabilities.
"(B) Clearly defining the roles and responsibilities of the Office of the Secretary of Defense, the Joint Chiefs of Staff, the military departments, and other components of the Department of Defense for carrying out all phases of the process.
"(C) Designating a senior official within the Office of the Secretary of Defense with primary responsibility for making recommendations to the Secretary on the use of the authority provided by subsections (c) and (d) of section 806 of the Bob Stump National Defense Authorization Act for Fiscal Year 2003 [Pub. L. 107–314] (10 U.S.C. 2302 note), as amended by section 803 of this Act, in appropriate circumstances.
"(D) Establishing a target date for the fielding of a capability pursuant to each validated urgent operational need.
"(E) Implementing a system for—
"(i) documenting key process milestones, such as funding, acquisition, fielding, and assessment decisions and actions; and
"(ii) tracking the cost, schedule, and performance of acquisitions conducted pursuant to the process.
"(F) Establishing a formal feedback mechanism for the commanders of the combatant commands to provide information to the Joint Chiefs of Staff and senior acquisition officials on how well fielded solutions are meeting urgent operational needs.
"(G) Establishing a dedicated source of funding for the rapid fielding of capabilities in response to urgent operational needs.
"(H) Issuing guidance to provide for the appropriate transition of capabilities acquired through rapid fielding into the traditional budget, requirements, and acquisition process for purposes of contracts for follow-on production, sustainment, and logistics support.
"(I) Such other improvements as the Secretary considers appropriate.
"(b)
"(1)
"(2)
"(A) apply to the rapid fielding of capabilities in response to joint urgent operational need statements and to other urgent operational needs statements generated by the military departments and the combatant commands;
"(B) identify officials responsible for making determinations described in paragraph (1);
"(C) establish appropriate time periods for making such determinations;
"(D) set forth standards and criteria for making such determinations based on considerations of urgency, risk, and life-cycle management;
"(E) establish appropriate thresholds for the applicability of the review process, or of elements of the review process; and
"(F) authorize appropriate officials to make exceptions from standards and criteria established under subparagraph (D) in exceptional circumstances.
"(3)
"(A) can be fielded within a period of two to 24 months;
"(B) do not require substantial development effort;
"(C) are based on technologies that are proven and available; and
"(D) can appropriately be acquired under fixed price contracts.
"(4)
Pub. L. 111–383, div. A, title VIII, §833, Jan. 7, 2011, 124 Stat. 4276, provided that:
"(a)
"(1) determine whether the private sector has developed—
"(A) operational and business practice standards applicable to private security contractors; and
"(B) third-party certification processes for determining whether private security contractors adhere to standards described in subparagraph (A); and
"(2) review any standards and processes identified pursuant to paragraph (1) to determine whether the application of such standards and processes will make a substantial contribution to the successful performance of private security functions in areas of combat operations or other significant military operations.
"(b)
"(1) establish criteria for defining standard practices for the performance of private security functions, which shall reflect input from industry representatives as well as the Inspector General of the Department of Defense; and
"(2) establish criteria for weapons training programs for contractors performing private security functions, including minimum requirements for weapons training programs of instruction and minimum qualifications for instructors for such programs.
"(c)
"(1)
"(2)
"(d)
"(1)
"(A) a contract of the Department of Defense for the performance of services;
"(B) a subcontract at any tier under such a contract; or
"(C) a task order or delivery order issued under such a contract or subcontract.
"(2)
"(3)
"(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.
"(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.
"(e)
Pub. L. 111–383, div. A, title VIII, §866(a)–(f), Jan. 7, 2011, 124 Stat. 4296–4298, as amended by Pub. L. 113–66, div. A, title VIII, §814, Dec. 26, 2013, 127 Stat. 808; Pub. L. 113–291, div. A, title X, §1071(b)(1)(B), Dec. 19, 2014, 128 Stat. 3505; Pub. L. 114–92, div. A, title VIII, §892, Nov. 25, 2015, 129 Stat. 952; Pub. L. 115–91, div. A, title X, §1051(p)(3), Dec. 12, 2017, 131 Stat. 1564, provided that:
"(a)
"(1)
"(2)
"(b)
"(1) shall be a firm, fixed price contract, or a firm, fixed price contract with an economic price adjustment clause;
"(2) shall be in an amount not in excess of $100,000,000, including all options;
"(3) shall provide—
"(A) for the delivery of an initial lot of production quantities of completed items not later than nine months after the date of the award of such contract; and
"(B) that failure to make delivery as provided for under subparagraph (A) may result in the termination of such contract for default; and
"(4) shall be—
"(A) exempt from the requirement to submit certified cost or pricing data under section 2306a of title 10, United States Code, and the cost accounting standards under chapter 15 of title 41, United States Code; and
"(B) subject to the requirement to provide data other than certified cost or pricing data for the purpose of price reasonableness determinations, as provided in section 2306a(d) of title 10, United States Code.
"(c)
"(d)
"(1) enabled the Department to acquire items that otherwise might not have been available to the Department;
"(2) assisted the Department in the rapid acquisition and fielding of capabilities needed to meet urgent operational needs; and
"(3) protected the interests of the United States in paying fair and reasonable prices for the item or items acquired.
"(e)
"(1) The term 'military purpose nondevelopmental item' means a nondevelopmental item that meets a validated military requirement, as determined in writing by the responsible program manager, and has been developed exclusively at private expense. For purposes of this paragraph, an item shall not be considered to be developed exclusively at private expense if development of the item was paid for in whole or in part through—
"(A) independent research and development costs or bid and proposal costs that have been reimbursed directly or indirectly by a Federal agency or have been submitted to a Federal agency for reimbursement; or
"(B) foreign government funding.
"(2) The term 'nondevelopmental item'—
"(A) has the meaning given that term in section 110 of title 41, United States Code; and
"(B) also includes previously developed items of supply that require modifications other than those customarily available in the commercial marketplace if such modifications are consistent with the requirement in subsection (b)(3)(A).
"(3) The term 'nontraditional defense contractor' has the meaning given that term in section 2302(9) of title 10, United States Code (as added by subsection (g)).
"(4) The terms 'independent research and developments costs' and 'bid and proposal costs' have the meaning given such terms in section 31.205–18 of the Federal Acquisition Regulation.
"(f)
"(1)
"(2)
Pub. L. 115–232, div. A, title VIII, §824(b), Aug. 13, 2018, 132 Stat. 1856, provided that: "Not later than 120 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to conform with the amendments to section 893 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383; 10 U.S.C. 2302 note) made by this section."
Pub. L. 111–383, div. A, title VIII, §893, Jan. 7, 2011, 124 Stat. 4311, as amended by Pub. L. 112–81, div. A, title VIII, §816, Dec. 31, 2011, 125 Stat. 1493; Pub. L. 113–291, div. A, title X, §1071(b)(1)(C), Dec. 19, 2014, 128 Stat. 3505; Pub. L. 114–328, div. A, title VIII, §893, Dec. 23, 2016, 130 Stat. 2324; Pub. L. 115–91, div. A, title X, §1081(d)(8), Dec. 12, 2017, 131 Stat. 1600; Pub. L. 115–232, div. A, title VIII, §824(a), Aug. 13, 2018, 132 Stat. 1856, provided that:
"(a)
"(b)
"(1) include clear and specific business system requirements that are identified and made publicly available for each type of contractor business system covered by the program;
"(2) establish a process for reviewing contractor business systems and identifying significant deficiencies in such systems;
"(3) identify officials of the Department of Defense who are responsible for the approval or disapproval of contractor business systems;
"(4) provide for the approval of any contractor business system that does not have a significant deficiency; and
"(5) provide for—
"(A) the disapproval of any contractor business system that has a significant deficiency; and
"(B) reduced reliance on, and enhanced scrutiny of, data provided by a contractor business system that has been disapproved.
"(c)
"(1) if a registered public accounting firm attests to the internal control assessment of a contractor, pursuant to section 404(b) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7262(b)), allow the contractor, subject to paragraph (3), to submit certified documentation from such registered public accounting firm that the contractor business systems of the contractor meet the business system requirements referred to in subsection (b)(1) and to thereby eliminate the need for further review of the contractor business systems by the Secretary of Defense;
"(2) limit the review, subject to paragraph (3), of the contractor business systems of a contractor that is not a covered contractor to confirming that the contractor uses the same contractor business system for its Government and commercial work and that the outputs of the contractor business system based on statistical sampling are reasonable; and
"(3) allow a milestone decision authority to require a review of a contractor business system of a contractor that submits documentation pursuant to paragraph (1) or that is not a covered contractor after determining in writing that such a review is necessary to appropriately manage contractual risk.
"(d)
"(1) In the event a contractor business system is disapproved pursuant to subsection (b)(5), appropriate officials of the Department of Defense will be available to work with the contractor to develop a corrective action plan defining specific actions to be taken to address the significant deficiencies identified in the system and a schedule for the implementation of such actions.
"(2) An appropriate official of the Department of Defense may withhold up to 10 percent of progress payments, performance-based payments, and interim payments under covered contracts from a covered contractor, as needed to protect the interests of the Department and ensure compliance, if one or more of the contractor business systems of the contractor has been disapproved pursuant to subsection (b)(5) and has not subsequently received approval.
"(3) The amount of funds to be withheld under paragraph (2) shall be reduced if a contractor adopts an effective corrective action plan pursuant to paragraph (1) and is effectively implementing such plan.
"(e)
"(f)
"(g)
"(1) The term 'contractor business system' means an accounting system, estimating system, purchasing system, earned value management system, material management and accounting system, or property management system of a contractor.
"(2) The term 'covered contractor' means a contractor that has covered contracts with the United States Government accounting for greater than 1 percent of its total gross revenue, except that the term does not include any contractor that is exempt, under section 1502 of title 41, United States Code, or regulations implementing that section, from using full cost accounting standards established in that section.
"(3) The term 'covered contract' means a contract that is subject to the cost accounting standards promulgated pursuant to section 1502 of title 41, United States Code, that could be affected if the data produced by a contractor business system has a significant deficiency.
"(4) The term 'significant deficiency', in the case of a contractor business system, means a shortcoming in the system that materially affects the ability of officials of the Department of Defense and the contractor to rely upon information produced by the system that is needed for management purposes.
"(5) The term 'approved purchasing system' has the meaning given the term in section 44.101 of the Federal Acquisition Regulation (or any similar regulation).
"(h)
"(1)
"(A) the Defense Contract Audit Agency has sufficient legal resources and expertise to conduct its work in compliance with applicable Department of Defense policies and procedures; and
"(B) such resources and expertise are provided in a manner that is consistent with the audit independence of the Defense Contract Audit Agency.
"(2)
"(i)
[Pub. L. 115–91, div. A, title X, §1081(d), Dec. 12, 2017, 131 Stat. 1599, provided that the amendment made by section 1081(d)(8) to section 893(c) of Pub. L. 114–328 (which amended section 893 of Pub. L. 111–383, set out above) is effective as of Dec. 23, 2016, and as if included in Pub. L. 114–328 as enacted.]
Pub. L. 111–84, div. A, title VIII, §805, Oct. 28, 2009, 123 Stat. 2403, which directed the Secretary of Defense to issue comprehensive guidance on life-cycle management and the development and implementation of product support strategies for major weapon systems and required each major weapon system to be supported by a product support manager, was repealed by Pub. L. 112–239, div. A, title VIII, §823(b), Jan. 2, 2013, 126 Stat. 1832.
Pub. L. 111–84, div. A, title VIII, §819, Oct. 28, 2009, 123 Stat. 2409, as amended by Pub. L. 113–291, div. A, title VIII, §811, Dec. 19, 2014, 128 Stat. 3428, which authorized certain contracts for advanced component development or prototype units, was repealed by Pub. L. 115–91, div. A, title VIII, §861(b), Dec. 12, 2017, 131 Stat. 1494.
Pub. L. 111–84, div. A, title X, §1062, Oct. 28, 2009, 123 Stat. 2468, provided that:
"(a)
"(1)
"(2)
"(A) An identification of each covered earmark that has been included in a national defense authorization Act for three or more consecutive fiscal years as of the date of the enactment of this Act.
"(B) A description of the extent to which competitive or merit-based procedures were used to award funding, or to enter into a contract, grant, or other agreement, pursuant to each covered earmark.
"(C) An identification of the specific contracting vehicle used for each covered earmark.
"(D) In the case of any covered earmark for which competitive or merit-based procedures were not used to award funding, or to enter into the contract, grant, or other agreement, a statement of the reasons competitive or merit-based procedures were not used.
"(b)
"(c)
"(1) The term 'congressional earmark' means any congressionally directed spending item (Senate) or congressional earmark (House of Representatives) on a list published in compliance with rule XLIV of the Standing Rules of the Senate or rule XXI of the Rules of the House of Representatives.
"(2) The term 'covered earmark' means any congressional earmark identified in the joint explanatory statement to accompany the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417) that was printed in the Congressional Record on September 23, 2008.
"(3) The term 'national defense authorization Act' means an Act authorizing funds for a fiscal year for the military activities of the Department of Defense, and for other purposes."
Pub. L. 111–23, title II, §201(a), May 22, 2009, 123 Stat. 1719, provided that:
"(1)
"(2)
"(A) Department of Defense officials responsible for acquisition, budget, and cost estimating functions are provided an appropriate opportunity to develop estimates and raise cost and schedule matters before performance objectives are established for capabilities for which the Chairman of the Joint Requirements Oversight Council is the validation authority; and
"(B) the process for developing requirements is structured to enable incremental, evolutionary, or spiral acquisition approaches, including the deferral of technologies that are not yet mature and capabilities that are likely to significantly increase costs or delay production until later increments or spirals."
Pub. L. 111–23, title III, §301, May 22, 2009, 123 Stat. 1730, provided that:
"(a)
"(b)
"(1) Procedures for the nomination by the personnel of the military departments and the Defense Agencies of individuals and teams of members of the Armed Forces and civilian personnel of the Department of Defense for eligibility for recognition under the program.
"(2) Procedures for the evaluation of nominations for recognition under the program by one or more panels of individuals from the Government, academia, and the private sector who have such expertise, and are appointed in such manner, as the Secretary shall establish for purposes of the program.
"(c)
Pub. L. 110–417, [div. A], title II, §254, Oct. 14, 2008, 122 Stat. 4402, provided that:
"(a)
"(1) identify vulnerabilities at multiple levels of the electronics and information processing systems of the selected programs, including microcircuits, software, and firmware;
"(2) prioritize the potential vulnerabilities and effects of the various elements and stages of the system supply chain to identify the most effective balance of investments to minimize the effects of compromise;
"(3) provide recommendations regarding ways of managing supply chain risk for covered acquisition programs; and
"(4) identify the appropriate lead person, and supporting elements, within the Department of Defense for the development of an integrated strategy for managing risk in the supply chain for covered acquisition programs.
"(b)
"(1) An identification of various methods of verifying the trust of semiconductors, including methods under development at the Defense Agencies, government laboratories, institutions of higher education, and in the private sector.
"(2) A determination of the methods identified under paragraph (1) that are most suitable for the Department of Defense.
"(3) An assessment of the additional research and technology development needed to develop methods of verifying the trust of semiconductors that meet the needs of the Department of Defense.
"(4) Any other matters that the Under Secretary considers appropriate.
"(c)
"(1)
"(A) for managing risk—
"(i) in the supply chain of electronics and information processing systems for covered acquisition programs; and
"(ii) in the procurement of semiconductors; and
"(B) that ensures dependable, continuous, long-term access and trust for all mission-critical semiconductors procured from both foreign and domestic sources.
"(2)
"(A) address the vulnerabilities identified by the assessment under subsection (a);
"(B) reflect the priorities identified by such assessment;
"(C) provide guidance for the planning, programming, budgeting, and execution process in order to ensure that covered acquisition programs have the necessary resources to implement all appropriate elements of the strategy;
"(D) promote the use of verification tools, as appropriate, for ensuring trust of commercially acquired systems;
"(E) increase use of trusted foundry services, as appropriate; and
"(F) ensure sufficient oversight in implementation of the plan.
"(d)
"(1) develop policy requiring that trust assurance be a high priority for covered acquisition programs in all phases of the electronic component supply chain and integrated circuit development and production process, including design and design tools, fabrication of the semiconductors, packaging, final assembly, and test;
"(2) develop policy requiring that programs whose electronics and information systems are determined to be vital to operational readiness or mission effectiveness are to employ trusted foundry services to fabricate their custom designed integrated circuits, unless the Secretary specifically authorizes otherwise;
"(3) incorporate the strategies and policies of the Department of Defense regarding development and use of trusted integrated circuits into all relevant Department directives and instructions related to the acquisition of integrated circuits and programs that use such circuits; and
"(4) take actions to promote the use and development of tools that verify the trust in all phases of the integrated circuit development and production process of mission-critical parts acquired from non-trusted sources.
"(e)
"(1) the assessments required by subsections (a) and (b);
"(2) the strategy required by subsection (c); and
"(3) a description of the policies developed and actions taken under subsection (d).
"(f)
"(1) The term 'covered acquisition programs' means an acquisition program of the Department of Defense that is a major system for purposes of section 2302(5) of title 10, United States Code.
"(2) The terms 'trust' and 'trusted' refer, with respect to electronic and information processing systems, to the ability of the Department of Defense to have confidence that the systems function as intended and are free of exploitable vulnerabilities, either intentionally or unintentionally designed or inserted as part of the system at any time during its life cycle.
"(3) The term 'trusted foundry services' means the program of the National Security Agency and the Department of Defense, or any similar program approved by the Secretary of Defense, for the development and manufacture of integrated circuits for critical defense systems in secure industrial environments."
Pub. L. 110–417, [div. A], title III, §358, Oct. 14, 2008, 122 Stat. 4427, as amended by Pub. L. 111–84, div. A, title III, §341, Oct. 28, 2009, 123 Stat. 2260; Pub. L. 111–383, div. A, title X, §1075(e)(6), Jan. 7, 2011, 124 Stat. 4374; Pub. L. 112–81, div. A, title III, §349, Dec. 31, 2011, 125 Stat. 1375; Pub. L. 114–92, div. A, title X, §1073(h), Nov. 25, 2015, 129 Stat. 996, provided that:
"(a)
"(1) identify the number of military working dogs required to fulfill the various missions of the Department of Defense for which such dogs are used, including force protection, facility and check point security, and explosives and drug detection;
"(2) take such steps as are practicable to ensure an adequate number of military working dog teams are available to meet and sustain the mission requirements identified in paragraph (1);
"(3) ensure that the Department's needs and performance standards with respect to military working dogs are readily available to dog breeders and trainers; and
"(4) coordinate with other Federal, State, or local agencies, nonprofit organizations, universities, or private sector entities, as appropriate, to increase the training capacity for military working dog teams.
"(b)
"(c)
Pub. L. 110–417, [div. A], title VIII, §852, Oct. 14, 2008, 122 Stat. 4543, provided that:
"(a)
"(1) Department of Defense contracts, subcontracts, and task and delivery orders for—
"(A) depot overhaul and maintenance of equipment for the military in Iraq and Afghanistan; and
"(B) spare parts for military equipment used in Iraq and Afghanistan; and
"(2) Department of Defense in-house overhaul and maintenance of military equipment used in Iraq and Afghanistan.
"(b)
"(1)
"(2)
"(c)
"(d)
"(e)
Pub. L. 110–417, [div. A], title VIII, §884, Oct. 14, 2008, 122 Stat. 4560, provided that:
"(a)
"(b)
"(c)
"(d)
Pub. L. 110–181, div. A, title VIII, §815(b), Jan. 28, 2008, 122 Stat. 223, which required modification of commercial item procurement regulations so that the terms "general public" and "nongovernmental entities" would not include the Federal Government or a State, local, or foreign government, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(6), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 110–181, div. A, title VIII, §842, Jan. 28, 2008, 122 Stat. 234, provided that:
"(a)
"(1) Department of Defense contracts, subcontracts, and task and delivery orders for the logistical support of coalition forces in Iraq and Afghanistan; and
"(2) Federal agency contracts, subcontracts, and task and delivery orders for the performance of security and reconstruction functions in Iraq and Afghanistan.
"(b)
"(1) The Department of Defense Inspector General shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(1), consistent with the requirements of subsection (g), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
"(2) The Special Inspector General for Iraq Reconstruction shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(2) relating to Iraq, consistent with the requirements of subsection (h), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
"(3) The Special Inspector General for Afghanistan Reconstruction shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(2) relating to Afghanistan, consistent with the requirements of subsection (h), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
"(c)
"(d)
"(e)
"(f)
"(g)
"(1) The manner in which contract requirements were developed.
"(2) The procedures under which contracts or task or delivery orders were awarded.
"(3) The terms and conditions of contracts or task or delivery orders.
"(4) The staffing and method of performance of contractors, including cost controls.
"(5) The efficacy of Department of Defense management and oversight, including the adequacy of staffing and training of officials responsible for such management and oversight.
"(6) The flow of information from contractors to officials responsible for contract management and oversight.
"(h)
"(1) The manner in which contract requirements were developed and contracts or task and delivery orders were awarded.
"(2) The manner in which the Federal agency exercised control over the performance of contractors.
"(3) The extent to which operational field commanders were able to coordinate or direct the performance of contractors in an area of combat operations.
"(4) The degree to which contractor employees were properly screened, selected, trained, and equipped for the functions to be performed.
"(5) The nature and extent of any incidents of misconduct or unlawful activity by contractor employees.
"(6) The nature and extent of any activity by contractor employees that was inconsistent with the objectives of operational field commanders.
"(7) The extent to which any incidents of misconduct or unlawful activity were reported, documented, investigated, and (where appropriate) prosecuted.
"(i)
Pub. L. 111–383, div. A, title VIII, §831(b), Jan. 7, 2011, 124 Stat. 4274, provided that:
"(1)
"(2)
"(A) Any contract that is awarded on or after the date that is 120 days after the date of the enactment of this Act.
"(B) Any task or delivery order that is issued on or after the date that is 120 days after the date of the enactment of this Act pursuant to a contract that is awarded before, on, or after the date that is 120 days after the date of the enactment of this Act.
"(3)
"(A) Any contract described in paragraph (2)(A).
"(B) Any task or delivery order described in paragraph (2)(B)."
Pub. L. 111–383, div. A, title VIII, §832(b), Jan. 7, 2011, 124 Stat. 4275, provided that:
"(1)
"(A) The Horn of Africa region.
"(B) Yemen.
"(C) The Philippines.
"(2)
Pub. L. 110–417, [div. A], title VIII, §854(b), Oct. 14, 2008, 122 Stat. 4545, provided that:
"(1)
"(2)
Pub. L. 110–417, [div. A], title VIII, §854(c), Oct. 14, 2008, 122 Stat. 4545, provided that: "Beginning not later than 270 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall make publicly available a numerical accounting of alleged offenses described in section 861(b)(6) of Public Law 110–181 [set out below] that have been reported under that section that occurred after the date of the enactment of this Act. The information shall be updated no less frequently than semi-annually."
Pub. L. 110–181, div. A, title VIII, subtitle F, Jan. 28, 2008, 122 Stat. 253, as amended by Pub. L. 110–417, [div. A], title VIII, §§853, 854(a), (d), Oct. 14, 2008, 122 Stat. 4544, 4545; Pub. L. 111–84, div. A, title VIII, §813(a)–(c), Oct. 28, 2009, 123 Stat. 2406, 2407; Pub. L. 111–383, div. A, title VIII, §§831(a), 832(a), (c), 835, title X, §1075(d)(9), Jan. 7, 2011, 124 Stat. 4273, 4275, 4276, 4279, 4373; Pub. L. 112–81, div. A, title VIII, §844(c), Dec. 31, 2011, 125 Stat. 1515; Pub. L. 112–239, div. A, title VIII, §847, Jan. 2, 2013, 126 Stat. 1850; Pub. L. 113–291, div. A, title X, §1071(b)(2)(D), Dec. 19, 2014, 128 Stat. 3506, provided that:
"(a)
"(b)
"(1) Identification of the major categories of contracts in Iraq or Afghanistan being awarded by the Department of Defense, the Department of State, or the United States Agency for International Development.
"(2) Identification of the roles and responsibilities of each department or agency for matters relating to contracting for contracts in Iraq or Afghanistan.
"(3) Responsibility for establishing procedures for, and the coordination of, movement of contractor personnel in Iraq or Afghanistan.
"(4) Identification of common databases that will serve as repositories of information on contracts in Iraq or Afghanistan and contractor personnel in Iraq or Afghanistan, including agreement on the elements to be included in the databases, including, at a minimum—
"(A) with respect to each contract—
"(i) a brief description of the contract (to the extent consistent with security considerations);
"(ii) the total value of the contract; and
"(iii) whether the contract was awarded competitively; and
"(B) with respect to contractor personnel—
"(i) the total number of personnel employed on contracts in Iraq or Afghanistan;
"(ii) the total number of personnel performing security functions under contracts in Iraq or Afghanistan; and
"(iii) the total number of personnel working under contracts in Iraq or Afghanistan who have been killed or wounded.
"(5) Responsibility for maintaining and updating information in the common databases identified under paragraph (4).
"(6) Responsibility for the collection and referral to the appropriate Government agency of any information relating to offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) or chapter 212 of title 18, United States Code (commonly referred to as the Military Extraterritorial Jurisdiction Act), including a clarification of responsibilities under section 802(a)(10) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), as amended by section 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364).
"(7) Mechanisms for ensuring that contractors are required to report offenses described in paragraph (6) that are alleged to have been committed by or against contractor personnel to appropriate investigative authorities.
"(8) Responsibility for providing victim and witness protection and assistance to contractor personnel in connection with alleged offenses described in paragraph (6).
"(9) Development of a requirement that a contractor shall provide to all contractor personnel who will perform work on a contract in Iraq or Afghanistan, before beginning such work, information on the following:
"(A) How and where to report an alleged offense described in paragraph (6).
"(B) Where to seek the assistance required by paragraph (8).
"(c)
"(d)
"(1)
"(2)
"(3)
"(4)
"(a)
"(1)
"(2)
"(A) a process for registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations or other significant military operations;
"(B) a process for authorizing and accounting for weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations or other significant military operations;
"(C) a process for the registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors performing private security functions in an area of combat operations or other significant military operations;
"(D) a process under which contractors are required to report all incidents, and persons other than contractors are permitted to report incidents, in which—
"(i) a weapon is discharged by personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) personnel performing private security functions in an area of combat operations or other significant military operations are killed or injured;
"(iii) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;
"(iv) a weapon is discharged against personnel performing private security functions in an area of combat operations or other significant military operations or personnel performing such functions believe a weapon was so discharged; or
"(v) active, non-lethal countermeasures (other than the discharge of a weapon) are employed by the personnel performing private security functions in an area of combat operations or other significant military operations in response to a perceived immediate threat to such personnel;
"(E) a process for the independent review and, if practicable, investigation of—
"(i) incidents reported pursuant to subparagraph (D); and
"(ii) incidents of alleged misconduct by personnel performing private security functions in an area of combat operations or other significant military operations;
"(F) requirements for qualification, training, screening (including, if practicable, through background checks), and security for personnel performing private security functions in an area of combat operations or other significant military operations;
"(G) guidance to the commanders of the combatant commands on the issuance of—
"(i) orders, directives, and instructions to contractors performing private security functions relating to equipment, force protection, security, health, safety, or relations and interaction with locals;
"(ii) predeployment training requirements for personnel performing private security functions in an area of combat operations or other significant military operations, addressing the requirements of this section, resources and assistance available to contractor personnel, country information and cultural training, and guidance on working with host country nationals and military; and
"(iii) rules on the use of force for personnel performing private security functions in an area of combat operations or other significant military operations;
"(H) a process by which a commander of a combatant command may request an action described in subsection (b)(3); and
"(I) a process by which the training requirements referred to in subparagraph (G)(ii) shall be implemented.
"(3)
"(b)
"(1)
"(2)
"(A) ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with regulations prescribed under subsection (a), including any revisions or updates to such regulations, and follow the procedures established in such regulations for—
"(i) registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) authorizing and accounting of weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations or other significant military operations;
"(iii) registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors and subcontractors performing private security functions in an area of combat operations or other significant military operations; and
"(iv) the reporting of incidents in which—
"(I) a weapon is discharged by personnel performing private security functions in an area of combat operations or other significant military operations;
"(II) personnel performing private security functions in an area of combat operations or other significant military operations are killed or injured; or
"(III) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;
"(B) ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with—
"(i) qualification, training, screening (including, if practicable, through background checks), and security requirements established by the Secretary of Defense for personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) applicable laws and regulations of the United States and the host country, and applicable treaties and international agreements, regarding the performance of the functions of the contractor;
"(iii) orders, directives, and instructions issued by the applicable commander of a combatant command relating to equipment, force protection, security, health, safety, or relations and interaction with locals; and
"(iv) rules on the use of force issued by the applicable commander of a combatant command for personnel performing private security functions in an area of combat operations or other significant military operations;
"(C) cooperate with any investigation conducted by the Department of Defense pursuant to subsection (a)(2)(E) by providing access to employees of the contractor and relevant information in the possession of the contractor regarding the incident concerned; and
"(D) ensure that the contract clause is included in subcontracts awarded to any subcontractor at any tier who is responsible for performing private security functions under the contract.
"(3)
"(4)
"(5)
"(A) an assessment of the feasibility and advisability of carrying out the pilot program; and
"(B) if the Inspector General determines that carrying out the pilot program is feasible and advisable—
"(i) recommendations on the range of contracts and subcontracts to which the pilot program should apply; and
"(ii) a schedule of fines to be imposed under the pilot program for various types of personnel actions or failures.
"(c)
"(1) ensure that the contractor responsible for performing private security functions under such contract comply with the regulatory requirements prescribed pursuant to subsection (a) and the contract requirements established pursuant to subsection (b); and
"(2) make the determinations required by subsection (d).
"(d)
"(1) shall be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of the past performance of the contractor for the purpose of a contract award decision, as provided in section 1126 of title 41, United States Code;
"(2) in the case of an award fee contract—
"(A) shall be considered in any evaluation of contract performance by the contractor for the relevant award fee period; and
"(B) may be a basis for reducing or denying award fees for such period, or for recovering all or part of award fees previously paid for such period; and
"(3) in the case of a failure to comply that is severe, prolonged, or repeated—
"(A) shall be referred to the suspension or debarment official for the appropriate agency; and
"(B) may be a basis for suspension or debarment of the contractor.
"(e)
"(f)
"(1)
"(2)
"(3)
"(4)
"(5)
"(g)
"(h)
"(1)
"(2)
"(a)
"(b)
"(1) Total number of contracts awarded.
"(2) Total number of active contracts.
"(3) Total value of all contracts awarded.
"(4) Total value of active contracts.
"(5) The extent to which such contracts have used competitive procedures.
"(6) Percentage of contracts awarded on a competitive basis as compared to established goals for competition in contingency contracting actions.
"(7) Total number of contractor personnel working on contracts at the end of each quarter of the reporting period.
"(8) Total number of contractor personnel who are performing security functions at the end of each quarter of the reporting period.
"(9) Total number of contractor personnel killed or wounded.
"(c)
"(1) The sources of information and data used to compile the information required under subsection (b).
"(2) A description of any known limitations of the data reported under subsection (b), including known limitations of the methodology and data sources used to compile the report.
"(3) Any plans for strengthening collection, coordination, and sharing of information on contracts in Iraq and Afghanistan through improvements to the common databases identified under section 861(b)(4).
"(d)
"(e)
"(f)
"(g)
"(a)
"(1)
"(2)
"(3)
"(A) a contract of a Federal agency for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862;
"(B) a subcontract at any tier under such a contract;
"(C) a task order or delivery order issued under such a contract or subcontract;
"(D) a grant for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862; or
"(E) a cooperative agreement for the performance of services in such an area of combat operations.
"(4)
"(A) in the case of a covered contract that is a contract, subcontract, task order, or delivery order, the contractor or subcontractor carrying out the covered contract;
"(B) in the case of a covered contract that is a grant, the grantee; and
"(C) in the case of a covered contract that is a cooperative agreement, the recipient.
"(5)
"(6)
"(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.
"(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.
"(7)
"(A) The Committees on Armed Services of the Senate and the House of Representatives.
"(B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives.
"(C) The Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.
"(D) For purposes of contracts relating to the National Foreign Intelligence Program, the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
"(b)
Pub. L. 110–181, div. A, title VIII, §886, Jan. 28, 2008, 122 Stat. 266, as amended by Pub. L. 112–239, div. A, title VIII, §842, Jan. 2, 2013, 126 Stat. 1845; Pub. L. 114–92, div. A, title VIII, §886(a), Nov. 25, 2015, 129 Stat. 949, provided that:
"(a)
"(1) competition is limited to products or services that are from Afghanistan;
"(2) procedures other than competitive procedures are used to award a contract to a particular source or sources from Afghanistan; or
"(3) a preference is provided for products or services that are from Afghanistan.
"(b)
"(1) the product or service concerned is to be used only by the military forces, police, or other security personnel of Afghanistan; or
"(2) it is in the national security interest of the United States to limit competition, use procedures other than competitive procedures, or provide a preference as described in subsection (a) because—
"(A) such limitation, procedure, or preference is necessary to provide a stable source of jobs in Afghanistan; and
"(B) such limitation, procedure, or preference will not adversely affect—
"(i) military operations or stability operations in Afghanistan; or
"(ii) the United States industrial base.
"(c)
"(1) A product is from Afghanistan if it is mined, produced, or manufactured in Afghanistan.
"(2) A service is from Afghanistan if it is performed in Afghanistan by citizens or permanent resident aliens of Afghanistan.
"(3) A source is from Afghanistan if it—
"(A) is located in Afghanistan; and
"(B) offers products or services that are from Afghanistan.
"(d)
[Pub. L. 112–239, div. A, title VIII, §842(1), Jan. 2, 2013, 126 Stat. 1845, which directed amendment of section 886 of Pub. L. 110–181, set out above, by striking "Iraq or" in section heading, was executed by striking "Iraq and", to reflect the probable intent of Congress.]
Pub. L. 110–181, div. A, title VIII, §890, Jan. 28, 2008, 122 Stat. 269, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(6), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 111–383, div. A, title X, §1075(f)(6), Jan. 7, 2011, 124 Stat. 4376, provided that:
"(a)
"(b)
"(c)
"(1) requiring defense contractors (or subcontractors at any tier) to periodically report on measures taken to ensure compliance with the International Traffic in Arms Regulations and the Export Administration Regulations;
"(2) requiring periodic audits of defense contractors (or subcontractors at any tier) to ensure compliance with all provisions of the International Traffic in Arms Regulations and the Export Administration Regulations;
"(3) requiring defense contractors to maintain a corporate training plan to disseminate information to appropriate contractor personnel regarding the applicability of the Arms Export Control Act and the Export Administration Act of 1979; and
"(4) requiring a designated corporate liaison, available for training provided by the United States Government, whose primary responsibility would be contractor compliance with the Arms Export Control Act and the Export Administration Act of 1979.
"(d)
"(1)
"(2)
Pub. L. 109–364, div. A, title I, §130(a)–(c), Oct. 17, 2006, 120 Stat. 2110, provided that:
"(a)
"(1) Ship critical safety items.
"(2) Modifications, repair, and overhaul of ship critical safety items.
"(b)
"(1) That the head of the design control activity for ship critical safety items establish processes to identify and manage the procurement, modification, repair, and overhaul of such items.
"(2) That the head of the contracting activity for a ship critical safety item enter into a contract for the procurement, modification, repair, or overhaul of such item only with a source on a qualified manufacturers list or a source approved by the design control activity in accordance with section 2319 of title 10, United States Code (as amended by subsection (d)).
"(3) That the ship critical safety items delivered, and the services performed with respect to such items, meet all technical and quality requirements specified by the design control activity.
"(c)
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, provided that:
"(a)
"(b)
"(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)
"(1)
"(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)
"(A) the certification requirements of section 2366b of title 10, United States Code (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)
"(d)
"(e)
"(f)
"(1)
"(2)
"(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)
"(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)
"(5)
"(g)
"(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)
"(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)
"(1)
"(2)
"(j)
"(1)
"(2)
"(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)
[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, set out above, is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 as enacted.]
Pub. L. 111–84, div. A, title VIII, §823, Oct. 28, 2009, 123 Stat. 2412, as amended by Pub. L. 111–383, div. A, title VIII, §834(a)–(c), Jan. 7, 2011, 124 Stat. 4278, 4279, provided that:
"(a)
"(1) provide for the consideration of any incident described in subsection (b) in evaluations of contractor performance for the relevant award fee period; and
"(2) authorize the Secretary to reduce or deny award fees for the relevant award fee period, or to recover all or part of award fees previously paid for such period, on the basis of the negative impact of such incident on contractor performance.
"(b)
"(1) has been determined, through a criminal, civil, or administrative proceeding that results in a disposition listed in subsection (c), in the performance of a covered contract to have caused serious bodily injury or death to any civilian or military personnel of the Government through gross negligence or with reckless disregard for the safety of such personnel; or
"(2) has been determined, through a criminal, civil, or administrative proceeding that results in a disposition listed in subsection (c), to be liable for actions of a subcontractor of the contractor that caused serious bodily injury or death to any civilian or military personnel of the Government, through gross negligence or with reckless disregard for the safety of such personnel.
"(c)
"(1) In a criminal proceeding, a conviction.
"(2) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.
"(3) In an administrative proceeding, a finding of fault and liability that results in—
"(A) the payment of a monetary fine or penalty of $5,000 or more; or
"(B) the payment of a reimbursement, restitution, or damages in excess of $100,000.
"(4) To the maximum extent practicable and consistent with applicable laws and regulations, in a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the person if the proceeding could have led to any of the outcomes specified in paragraph (1), (2), or (3).
"(5) In an administrative proceeding, a final determination of contractor fault by the Secretary of Defense pursuant to subsection (d).
"(d)
"(1)
"(A) provide for an expeditious independent investigation of the causes of the serious bodily injury or death alleged to have been caused by the contractor as described in that paragraph; and
"(B) make a final determination, pursuant to procedures established by the Secretary for purposes of this subsection, whether the contractor, in the performance of a covered contract, caused such serious bodily injury or death through gross negligence or with reckless disregard for the safety of civilian or military personnel of the Government.
"(2)
"(A) a contractor, in the performance of a covered contract, may have caused the serious bodily injury or death of any civilian or military personnel of the Government; and
"(B) such contractor is not subject to the jurisdiction of United States courts.
"(3)
"(e)
"(1) The term 'contractor' means a company awarded a covered contract and a subcontractor at any tier under such contract.
"(2) The term 'covered contract' means a contract awarded by the Department of Defense for the procurement of goods or services.
"(3) The term 'serious bodily injury' means a grievous physical harm that results in a permanent disability.
"(f)
[Pub. L. 111–383, div. A, title VIII, §834(e), Jan. 7, 2011, 124 Stat. 4279, provided that: "The requirements of section 823 of the National Defense Authorization Act for Fiscal Year 2010 [Pub. L. 111–84, set out above], as amended by subsections (a) through (c), shall apply with respect to the following:
["(1) Any contract entered into on or after the date of the enactment of this Act [Jan. 7, 2011].
["(2) Any task order or delivery order issued on or after the date of the enactment of this Act under a contract entered into before, on, or after that date."]
Pub. L. 110–329, div. C, title VIII, §8105, Sept. 30, 2008, 122 Stat. 3644, provided that: "During the current fiscal year and hereafter, none of the funds appropriated or otherwise available to the Department of Defense may be obligated or expended to provide award fees to any defense contractor contrary to the provisions of section 814 of the National Defense Authorization Act, Fiscal Year 2007 (Public Law 109–364) [set out below]."
Pub. L. 109–364, div. A, title VIII, §814, Oct. 17, 2006, 120 Stat. 2321, provided that:
"(a)
"(b)
"(1) ensure that all new contracts using award fees link such fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance);
"(2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts;
"(3) provide guidance on the circumstances in which contractor performance may be judged to be 'excellent' or 'superior' and the percentage of the available award fee which contractors should be paid for such performance;
"(4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be 'acceptable', 'average', 'expected', 'good', or 'satisfactory';
"(5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract;
"(6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods;
"(7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the military departments and Defense Agencies;
"(8) ensure that the Department of Defense—
"(A) collects relevant data on award and incentive fees paid to contractors; and
"(B) has mechanisms in place to evaluate such data on a regular basis;
"(9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and
"(10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials.
"(c)
"(1)
"(2)
"(A) held in a separate fund or funds of the Department of Defense; and
"(B) allocated to a specific program only upon a determination by an independent board, charged with comparing contractor performance across programs, that such fees have been earned by the contractor for such program.
"(3)
Pub. L. 109–364, div. A, title VIII, §832, Oct. 17, 2006, 120 Stat. 2331, as amended by Pub. L. 110–181, div. A, title VIII, §883, Jan. 28, 2008, 122 Stat. 264; Pub. L. 110–417, [div. A], title X, §1061(b)(5), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 113–291, div. A, title X, §1071(b)(3)(A), Dec. 19, 2014, 128 Stat. 3506, provided that:
"(a)
"(b)
"(1) determines that a waiver is in the national interest; and
"(2) provides to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] an economic analysis as described in subsection (c) at least 30 days before the waiver takes effect.
"(c)
"(1) A clear explanation of the need for the contract.
"(2) An examination of at least two alternatives for fulfilling the requirements that the contract is meant to fulfill, including the following with respect to each alternative:
"(A) A rationale for including the alternative.
"(B) A cost estimate of the alternative and an analysis of the quality of each cost estimate.
"(C) A discussion of the benefits to be realized from the alternative.
"(D) A best value determination of each alternative and a detailed explanation of the life-cycle cost calculations used in the determination.
"(d)
"(1) The term 'military flight simulator' means any major system to simulate the form, fit, and function of a military aircraft that has no commonly available commercial variant.
"(2) The term 'service contract' means any contract entered into by the Department of Defense the principal purpose of which is to furnish services in the United States through the use of service employees.
"(3) The term 'service employees' has the meaning provided in section 6701(3) of title 41, United States Code.
"(e)
"(1) the contract was in effect as of October 17, 2006;
"(2) the number of flight simulators to be acquired under the contract (or renewal, extension, or follow-on) will not result in the total number of flight simulators acquired by the military department concerned through service contracts to exceed the total number of flight simulators to be acquired under all service contracts of such department for such simulators in effect as of October 17, 2006; and
"(3) in the case of a renewal or extension of, or follow-on contract to, the contract, the Secretary of the military department concerned provides to the congressional defense committees a written notice of the decision to exercise an option to renew or extend the contract, or to issue a solicitation for bids or proposals using competitive procedures for a follow-on contract, and an economic analysis as described in subsection (c) supporting the decision, at least 30 days before carrying out such decision."
Pub. L. 109–163, div. A, title VIII, §806, Jan. 6, 2006, 119 Stat. 3373, provided that:
"(a)
"(b)
"(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)
"(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."
Pub. L. 109–163, div. A, title VIII, §817, Jan. 6, 2006, 119 Stat. 3382, provided that:
"(a)
"(1)
"(2)
"(A) the designation of a senior commissioned officer in each military department with the responsibility for administering the policy;
"(B) the assignment of a senior commissioned officer with appropriate acquisition experience and qualifications to act as head of contingency contracting during combat operations, post-conflict operations, and contingency operations, who shall report directly to the commander of the combatant command in whose area of responsibility the operations occur;
"(C) an organizational approach to contingency contracting that is designed to ensure that each military department is prepared to conduct contingency contracting during combat operations and post-conflict operations;
"(D) a requirement to provide training (including training under a program to be created by the Defense Acquisition University) to contingency contracting personnel in—
"(i) the use of law, regulations, policies, and directives related to contingency contracting operations;
"(ii) the appropriate use of rapid acquisition methods, including the use of exceptions to competition requirements under section 2304 of title 10, United States Code, sealed bidding, letter contracts, indefinite delivery indefinite quantity task orders, set asides under section 8(a) of the Small Business Act (15 U.S.C. 637(a)), undefinitized contract actions, and other tools available to expedite the delivery of goods and services during combat operations or post-conflict operations;
"(iii) the appropriate use of rapid acquisition authority, commanders' emergency response program funds, and other tools unique to contingency contracting; and
"(iv) instruction on the necessity for the prompt transition from the use of rapid acquisition authority to the use of full and open competition and other methods of contracting that maximize transparency in the acquisition process;
"(E) appropriate steps to ensure that training is maintained for such personnel even when they are not deployed in a contingency operation; and
"(F) such steps as may be needed to ensure jointness and cross-service coordination in the area of contingency contracting.
"(b)
"(1)
"(A)
"(B)
"(i) Progress in the development of the joint policy under subsection (a).
"(ii) The ability of the Armed Forces to support contingency contracting.
"(iii) The ability of commanders of combatant commands to request contingency contracting support and the ability of the military departments and the acquisition support agencies to respond to such requests and provide such support, including the availability of rapid acquisition personnel for such support.
"(iv) The ability of the current civilian and military acquisition workforce to deploy to combat theaters of operations and to conduct contracting activities during combat and during post-conflict, reconstruction, or other contingency operations.
"(v) The effect of different periods of deployment on continuity in the acquisition process.
"(2)
"(c)
"(1)
"(2)
"(3)
"(4)
Pub. L. 109–163, div. A, title XII, §1211, Jan. 6, 2006, 119 Stat. 3461, as amended by Pub. L. 112–81, div. A, title XII, §1243(a), (b), Dec. 31, 2011, 125 Stat. 1645; Pub. L. 114–328, div. A, title XII, §1296, Dec. 23, 2016, 130 Stat. 2562, provided that:
"(a)
"(b)
"(1) in connection with a visit by a vessel or an aircraft of the United States Armed Forces to the People's Republic of China;
"(2) for testing purposes; or
"(3) for purposes of gathering intelligence.
"(c)
"(d)
"(e)
"(1) The term 'Communist Chinese military company' has the meaning provided that term by section 1237(b)(4) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 [Pub. L. 105–261] (50 U.S.C. 1701 note).
"(2) The term 'munitions list of the International Traffic in Arms Regulations' means the United States Munitions List contained in part 121 of subchapter M of title 22 of the Code of Federal Regulations.
"(3) The term '600 series of the control list of the Export Administration Regulations' means the 600 series of the Commerce Control List contained in Supplement No. 1 to part 774 of subtitle B of title 15 of the Code of Federal Regulations."
[Pub. L. 112–81, div. A, title XII, §1243(c), Dec. 31, 2011, 125 Stat. 1646, provided that: "The amendments made by this section [amending section 1211 of Pub. L. 109–163, set out above] take effect on the date of the enactment of this Act [Dec. 31, 2011] and apply with respect to contracts and subcontracts of the Department of Defense entered into on or after the date of the enactment of this Act."]
Pub. L. 108–375, div. A, title I, §141, Oct. 28, 2004, 118 Stat. 1829, which provided that development of deployable systems must include consideration of force protection in asymmetric threat environments, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(7), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 108–375, div. A, title VIII, §802, Oct. 28, 2004, 118 Stat. 2004, as amended by Pub. L. 109–313, §2(c)(2), Oct. 6, 2006, 120 Stat. 1735, provided that:
"(a)
"(A) review—
"(i) the policies, procedures, and internal controls of each GSA Client Support Center; and
"(ii) the administration of those policies, procedures, and internal controls; and
"(B) for each such Center, determine in writing whether—
"(i) the Center is compliant with defense procurement requirements;
"(ii) the Center is not compliant with defense procurement requirements, but the Center made significant progress during 2004 toward becoming compliant with defense procurement requirements; or
"(iii) neither of the conclusions stated in clauses (i) and (ii) is correct.
"(2) If the Inspectors General determine under paragraph (1) that the conclusion stated in clause (ii) or (iii) of subparagraph (B) of such paragraph is correct in the case of a GSA Client Support Center, those Inspectors General shall, not later than March 15, 2006, jointly—
"(A) conduct a second review regarding that GSA Client Support Center as described in paragraph (1)(A); and
"(B) determine in writing whether that GSA Client Support Center is or is not compliant with defense procurement requirements.
"(b)
"(c)
"(2) After March 15, 2006, no official of the Department of Defense may, except as provided in subsection (d) or (e), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through any GSA Client Support Center that has not been determined under this section as being compliant with defense procurement requirements.
"(d)
"(2) A written determination with respect to a GSA Client Support Center under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary of Defense for Acquisition, Technology, and Logistics shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect.
"(e)
"(f)
Pub. L. 108–136, div. A, title VIII, §801(b), Nov. 24, 2003, 117 Stat. 1540, which required revision of Department of Defense data collection systems to ensure their capability to identify each procurement that involved a consolidation of contract requirements with a total value in excess of $5,000,000, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(8), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 108–136, div. A, title VIII, §802(a)–(c), Nov. 24, 2003, 117 Stat. 1540, provided that:
"(a)
"(b)
"(1) That the head of the design control activity for aviation critical safety items establish processes to identify and manage the procurement, modification, repair, and overhaul of aviation critical safety items.
"(2) That the head of the contracting activity for an aviation critical safety item enter into a contract for the procurement, modification, repair, or overhaul of such item only with a source approved by the design control activity in accordance with section 2319 of title 10, United States Code.
"(3) That the aviation critical safety items delivered, and the services performed with respect to aviation critical safety items, meet all technical and quality requirements specified by the design control activity.
"(c)
Pub. L. 108–136, div. A, title VIII, §805(a), Nov. 24, 2003, 117 Stat. 1542, provided that: "The Department of Defense shall fully comply with chapter 137 of title 10, United States Code, and other applicable procurement laws and regulations for any contract awarded for reconstruction activities in Iraq, and shall conduct a full and open competition for performing work needed for the reconstruction of the Iraqi oil industry."
Pub. L. 115–232, div. A, title VIII, §888, Aug. 13, 2018, 132 Stat. 1916, provided that: "Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall update the Defense Federal Acquisition Regulatory Supplement to include an instruction on the pilot program regarding employment of persons with disabilities authorized under section 853 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136; 10 U.S.C. 2302 note)."
Pub. L. 108–136, div. A, title VIII, §853, Nov. 24, 2003, 117 Stat. 1557, as amended by Pub. L. 108–199, div. H, §110, Jan. 23, 2004, 118 Stat. 438; Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(i), Aug. 13, 2018, 132 Stat. 1846, provided that:
"(a)
"(b)
"(c)
"(d)
"(1)
"(A) employs severely disabled individuals at a rate that averages not less than 33 percent of its total workforce over a period prescribed by the Secretary;
"(B) pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) to the employees who are severely disabled individuals; and
"(C) provides for its employees health insurance and a retirement plan comparable to those provided for employees by business entities of similar size in its industrial sector or geographic region.
"(2)
Pub. L. 108–136, div. A, title XVI, §1602, Nov. 24, 2003, 117 Stat. 1682, as amended by Pub. L. 110–181, div. A, title X, §1063(g)(3), Jan. 28, 2008, 122 Stat. 324, provided that:
"(a)
"(A) assess current and emerging threats of use of biological, chemical, radiological, and nuclear agents; and
"(B) identify, on the basis of such assessment, those agents that present a material risk of use against the Armed Forces.
"(2) The Secretary shall on an ongoing basis—
"(A) assess the potential consequences to the health of members of the Armed Forces of use against the Armed Forces of the agents identified under paragraph (1)(B); and
"(B) identify, on the basis of such assessment, those agents for which countermeasures are necessary to protect the health of members of the Armed Forces.
"(b)
"(c)
"(2) The Secretary may not identify a specific countermeasure under paragraph (1) unless the Secretary determines that—
"(A) the countermeasure is a qualified countermeasure; and
"(B) it is reasonable to expect that producing and delivering, within 5 years, the quantity of that countermeasure required to meet the needs of the Department (as determined by the Secretary) is feasible.
"(d)
"(2) The Secretary may enter into an interagency agreement with the Secretaries of Homeland Security and Health and Human Services to provide for acquisition by the Secretary of Defense for use by the Armed Forces of biomedical countermeasures procured for the Strategic National Stockpile by the Secretary of Health and Human Services. The Secretary may transfer such funds to the Secretary of Health and Human Services as are necessary to carry out such agreements (including administrative costs of the Secretary of Health and Human Services), and the Secretary of Health and Human Services may expend any such transferred funds to procure such countermeasures for use by the Armed Forces, or to replenish the stockpile. The Secretaries are authorized to establish such terms and conditions for such agreements as the Secretaries determine to be in the public interest. The transfer authority provided under this paragraph is in addition to any other transfer authority available to the Secretary.
"(e)
"(1) The term 'qualified countermeasure' means a biomedical countermeasure—
"(A) that is approved under section 505(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) or licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or that is approved under section 515 or cleared under section 510(k) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360e and 360) for use as such a countermeasure to a biological, chemical, radiological, or nuclear agent identified as a material threat under subsection (a); or
"(B) with respect to which the Secretary of Health and Human Services makes a determination that sufficient and satisfactory clinical experience or research data (including data, if available, from preclinical and clinical trials) exists to support a reasonable conclusion that the product will qualify for such approval or licensing for use as such a countermeasure.
"(2) The term 'biomedical countermeasure' means a drug (as defined in section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)(1))), device (as defined in section 201(h) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(h))), or biological product (as defined in section 351(i) of the Public Health Service Act (42 U.S.C. 262(i))) that is—
"(A) used to treat, identify, or prevent harm from any biological, chemical, radiological, or nuclear agent that may cause a military health emergency affecting the Armed Forces; or
"(B) used to treat, identify, or prevent harm from a condition that may result in adverse health consequences or death and may be caused by administering a drug or biological product that is used as described in subparagraph (A).
"(3) The term 'Strategic National Stockpile' means the stockpile established under section 121(a) of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (42 U.S.C. 300hh–12(a)).
"(f)
Pub. L. 107–314, div. A, title II, §244, Dec. 2, 2002, 116 Stat. 2498, provided that during fiscal years 2003, 2004, and 2005, the Secretary of Defense, acting through the Under Secretary of Defense for Acquisition, Technology, and Logistics, was to carry out a program of outreach to small businesses and nontraditional defense contractors with the purpose of providing a process for reviewing and evaluating research activities of, and new technologies being developed by, small businesses and nontraditional defense contractors that had the potential for meeting a defense requirement or technology development goal of the Department of Defense that related to the mission of the Department of Defense to combat terrorism.
Pub. L. 107–314, div. A, title III, §314, Dec. 2, 2002, 116 Stat. 2508, as amended by Pub. L. 109–163, div. A, title X, §1056(e)(1), Jan. 6, 2006, 119 Stat. 3440, provided that:
"(a)
"(b)
"(c)
"(d)
"(e)
"(1) The term 'environmentally preferable', in the case of a procurement item, means that the item has a lesser or reduced effect on human health and the environment when compared with competing products that serve the same purpose. The comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product.
"(2) The terms 'procurement item' and 'recovered material' have the meanings given such terms in section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903)."
Pub. L. 107–314, div. A, title III, §352, Dec. 2, 2002, 116 Stat. 2518, which required the Secretary to establish a policy to limit the acquisition of information assurance and information assurance-enabled information technology products to those products already evaluated and validated in accordance with appropriate criteria, schemes, or programs, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(9), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 107–314, div. A, title III, §365, Dec. 2, 2002, 116 Stat. 2520, as amended by Pub. L. 109–163, div. A, title III, §331, Jan. 6, 2006, 119 Stat. 3195, authorized the Secretary of Defense to make certain logistics support and services available to weapon systems contractors and provided for the expiration of such authority on Sept. 30, 2010.
Pub. L. 107–314, div. A, title VIII, §804, Dec. 2, 2002, 116 Stat. 2604, provided that:
"(a)
"(2) The head of each Defense Agency that manages a major defense acquisition program with a substantial software component shall establish a program to improve the software acquisition processes of that Defense Agency.
"(3) The programs required by this subsection shall be established not later than 120 days after the date of the enactment of this Act [Dec. 2, 2002].
"(b)
"(1) A documented process for software acquisition planning, requirements development and management, project management and oversight, and risk management.
"(2) Efforts to develop appropriate metrics for performance measurement and continual process improvement.
"(3) A process to ensure that key program personnel have an appropriate level of experience or training in software acquisition.
"(4) A process to ensure that each military department and Defense Agency implements and adheres to established processes and requirements relating to the acquisition of software.
"(c)
"(1) prescribe uniformly applicable guidance for the administration of all of the programs established under subsection (a) and take such actions as are necessary to ensure that the military departments and Defense Agencies comply with the guidance; and
"(2) assist the Secretaries of the military departments and the heads of the Defense Agencies to carry out such programs effectively by—
"(A) ensuring that the criteria applicable to the selection of sources provides added emphasis on past performance of potential sources, as well as on the maturity of the software products offered by the potential sources; and
"(B) identifying, and serving as a clearinghouse for information regarding, best practices in software development and acquisition in both the public and private sectors.
"(d)
"(1) The term 'Defense Agency' has the meaning given the term in section 101(a)(11) of title 10, United States Code.
"(2) The term 'major defense acquisition program' has the meaning given such term in section 139(a)(2)(B) of title 10, United States Code."
Pub. L. 107–314, div. A, title VIII, §806, Dec. 2, 2002, 116 Stat. 2607, as amended by Pub. L. 108–136, div. A, title VIII, §845, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108–375, div. A, title VIII, §811, Oct. 28, 2004, 118 Stat. 2012; Pub. L. 109–364, div. A, title X, §1071(h), Oct. 17, 2006, 120 Stat. 2403; Pub. L. 111–383, div. A, title VIII, §803, Jan. 7, 2011, 124 Stat. 4255; Pub. L. 112–81, div. A, title VIII, §845(a), (b), Dec. 31, 2011, 125 Stat. 1515; Pub. L. 114–92, div. A, title VIII, §803, Nov. 25, 2015, 129 Stat. 880; Pub. L. 114–328, div. A, title VIII, §801, Dec. 23, 2016, 130 Stat. 2247, provided that:
"(a)
"(1)(A) currently under development by the Department of Defense or available from the commercial sector;
"(B) require only minor modifications to supplies described in subparagraph (A); or
"(C) developed or procured under the rapid fielding or rapid prototyping acquisition pathways under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note); and
"(2) urgently needed to react to an enemy threat or to respond to significant and urgent safety situations.
"(b)
"(1) A process for streamlined communications between the Chairman of the Joint Chiefs of Staff, the acquisition community, and the research and development community, including—
"(A) a process for the commanders of the combatant commands and the Joint Chiefs of Staff to communicate their needs to the acquisition community and the research and development community; and
"(B) a process for the acquisition community and the research and development community to propose supplies and associated support services that meet the needs communicated by the combatant commands and the Joint Chiefs of Staff.
"(2) Procedures for demonstrating, rapidly acquiring, and deploying supplies and associated support services proposed pursuant to paragraph (1)(B), including—
"(A) a process for demonstrating performance and evaluating for current operational purposes the existing capability of the supplies and associated support services;
"(B) a process for developing an acquisition and funding strategy for the deployment of the supplies and associated support services; and
"(C) a process for making deployment and utilization determinations based on information obtained pursuant to subparagraphs (A) and (B).
"(3) Specific procedures in accordance with the guidance developed under section 804(a) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note).
"(c)
"(1)
"(B) In the case of any supplies and associated support services that, as determined in writing by the Secretary of Defense, are urgently needed to eliminate a documented deficiency that impacts an ongoing or anticipated contingency operation and that, if left unfulfilled, could potentially result in loss of life or critical mission failure, the Secretary may use the procedures developed under this section in order to accomplish the rapid acquisition and deployment of the needed supplies and associated support services.
"(C)(i) In the case of any supplies and associated support services that, as determined in writing by the Secretary of Defense without delegation, are urgently needed to eliminate a deficiency that as the result of a cyber attack has resulted in critical mission failure, the loss of life, property destruction, or economic effects, or if left unfilled is likely to result in critical mission failure, the loss of life, property destruction, or economic effects, the Secretary may use the procedures developed under this section in order to accomplish the rapid acquisition and deployment of the needed offensive or defensive cyber capabilities, supplies, and associated support services.
"(ii) In this subparagraph, the term 'cyber attack' means a deliberate action to alter, disrupt, deceive, degrade, or destroy computer systems or networks or the information or programs resident in or transiting these systems or networks.
"(2)
"(ii) Clause (i) does not apply to acquisitions initiated in the case of a determination by the Secretary that funds are necessary to immediately initiate a project under the rapid fielding or rapid prototyping acquisition pathways under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note) if the designated official for acquisitions using such pathways is the service acquisition executive.
"(B) Upon designation of a senior official under subparagraph (A), the Secretary shall authorize that official to waive any provision of law, policy, directive, or regulation described in subsection (d) that such official determines in writing would unnecessarily impede the rapid acquisition and deployment of the needed supplies and associated support services. In a case in which the needed supplies and associated support services cannot be acquired without an extensive delay, the senior official shall require that an interim solution be implemented and deployed using the procedures developed under this section to minimize adverse consequences resulting from the urgent need.
"(3)
"(B) Except as provided under subparagraph (C), the authority of this section may only be used to acquire supplies and associated support services—
"(i) in the case of determinations by the Secretary under paragraph (1)(A), in an amount aggregating not more than $200,000,000 during any fiscal year;
"(ii) in the case of determinations by the Secretary under paragraph (1)(B), in an amount aggregating not more than $200,000,000 during any fiscal year;
"(iii) in the case of determinations by the Secretary under paragraph (1)(C), in an amount aggregating not more than $200,000,000 during any fiscal year; and
"(iv) in the case of a determination by the Secretary that funds are necessary to immediately initiate a project under the rapid fielding or rapid prototyping acquisition pathways under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note), in an amount not more than $200,000,000 during any fiscal year.
"(C) For each of fiscal years 2017 and 2018, the limits set forth in clauses (i) and (ii) of subparagraph (B) do not apply to the exercise of authority under such clauses provided that the total amount of supplies and associated support services acquired as provided under such subparagraph does not exceed $800,000,000 during such fiscal year.
"(4)
"(B) In the case of a determination by the Secretary under paragraph (1)(B) the Secretary shall notify the congressional defense committees of the determination at least 10 days before the date on which the determination is effective.
"(C) In the case of a determination by the Secretary under paragraph (3)(A) that funds are necessary to immediately initiate a project under the rapid fielding or rapid prototyping acquisition pathways under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note), the Secretary shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of the determination within 10 days after the date of the use of such funds.
"(D) A notice under this paragraph shall include the following:
"(i) The supplies and associated support services to be acquired.
"(ii) The amount anticipated to be expended for the acquisition.
"(iii) The source of funds for the acquisition.
"(E) A notice under this paragraph shall be sufficient to fulfill any requirement to provide notification to Congress for a new start program.
"(F) A notice under this paragraph shall be provided in consultation with the Director of the Office of Management and Budget.
"(5)
"(B) Subparagraph (A) does not apply to acquisitions initiated in the case of a determination by the Secretary that funds are necessary to immediately initiate a project under the rapid fielding or rapid prototyping acquisition pathways under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note).
"(6)
"(d)
"(A) the establishment of the requirement for the supplies and associated support services;
"(B) the research, development, test, and evaluation of the supplies and associated support services; or
"(C) the solicitation and selection of sources, and the award of the contract, for procurement of the supplies and associated support services.
"(2) Nothing in this subsection authorizes the waiver of—
"(A) the requirements of this section or the regulations implementing this section; or
"(B) any provision of law imposing civil or criminal penalties.
"(e)
"(A) an operational assessment in accordance with procedures prescribed by the Director of Operational Test and Evaluation; and
"(B) a requirement to provide information about any deficiency of the supplies and associated support services in meeting the original requirements for the supplies and associated support services (as stated in a statement of the urgent operational need or similar document) to the deployment decisionmaking authority.
"(2) The process may not include a requirement for any deficiency of supplies and associated support services to be the determining factor in deciding whether to deploy the supplies and associated support services.
"(3) If supplies and associated support services are deployed under the rapid acquisition and deployment procedures prescribed pursuant to this section, or under any other authority, before the completion of operational test and evaluation of the supplies and associated support services, the Director of Operational Test and Evaluation shall have access to operational records and data relevant to such supplies and associated support services in accordance with section 139(e)(3) of title 10, United States Code, for the purpose of completing operational test and evaluation of the supplies and associated support services. The access to the operational records and data shall be provided in a time and manner determined by the Secretary of Defense consistent with requirements of operational security and other relevant operational requirements.
"(f)
"(g)
[Pub. L. 115–245, div. A, title VIII, §8069, Sept. 28, 2018, 132 Stat. 3017, provided that: "Any notice that is required to be submitted to the Committees on Appropriations of the Senate and the House of Representatives under section 806(c)(4) of the Bob Stump National Defense Authorization Act for Fiscal Year 2003 [Pub. L. 107–314] (10 U.S.C. 2302 note) after the date of the enactment of this Act [div. A of Pub. L. 115–245, approved Sept. 28, 2018] shall be submitted pursuant to that requirement concurrently to the Subcommittees on Defense of the Committees on Appropriations of the Senate and the House of Representatives."]
[Similar provisions were contained in the following prior appropriation act:
[Pub. L. 115–141, div. C, title VIII, §8070, Mar. 23, 2018, 132 Stat. 480.]
[Pub. L. 112–81, div. A, title VIII, §845(c), Dec. 31, 2011, 125 Stat. 1515, provided that: "The authority to acquire associated support services pursuant to section 806 of the Bob Stump National Defense Authorization Act for Fiscal Year 2003 [Pub. L. 107–314, set out above], as amended by this section, shall not take effect until the Secretary of Defense certifies to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that the Secretary has developed and implemented an expedited review process in compliance with the requirements of section 804 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat. 4256; 10 U.S.C. 2302 note)."]
Pub. L. 107–107, div. A, title III, §318, Dec. 28, 2001, 115 Stat. 1055, provided that:
"(a)
"(2) The Secretary, in consultation with the Administrator, may waive the policy regarding the procurement of hybrid vehicles in paragraph (1) to the extent that the Secretary determines necessary—
"(A) in the case of trucks that are exempt from the requirements of section 303 of the Energy Policy Act of 1992 for national security reasons under subsection (b)(3)(E) of such section, to meet specific requirements of the Department of Defense for capabilities of light duty trucks;
"(B) to procure vehicles consistent with the standards applicable to the procurement of fleet vehicles for the Federal Government; or
"(C) to adjust to limitations on the commercial availability of light duty trucks that are hybrid vehicles.
"(3) This subsection applies with respect to procurements of light duty trucks in fiscal year 2005 and subsequent fiscal years.
"(b)
"(A) five percent of the total number of such trucks that are procured in each of fiscal years 2005 and 2006 are alternative fueled vehicles or hybrid vehicles; and
"(B) ten percent of the total number of such trucks that are procured in each fiscal year after fiscal year 2006 are alternative fueled vehicles or hybrid vehicles.
"(2) Light duty trucks acquired for the Department of Defense that are counted to comply with section 303 of the Energy Policy Act of 1992 for a fiscal year shall be counted to determine the total number of light duty trucks procured for the Department of Defense for that fiscal year for the purposes of paragraph (1), but shall not be counted to satisfy the requirement in that paragraph.
"(c)
"(d)
"(1) The term 'hybrid vehicle' means a motor vehicle that draws propulsion energy from onboard sources of stored energy that are both—
"(A) an internal combustion or heat engine using combustible fuel; and
"(B) a rechargeable energy storage system.
"(2) The term 'alternative fueled vehicle' has the meaning given that term in section 301 of the Energy Policy Act of 1992 (42 U.S.C. 13211)."
Pub. L. 107–107, div. A, title VIII, §836, Dec. 28, 2001, 115 Stat. 1192, provided special authorities relating to increased flexibility for use of streamlined procedures and commercial item treatment for procurements of biotechnology to facilitate the defense against terrorism or biological or chemical attack which would be applicable to procurements for which funds had been obligated during fiscal years 2002 and 2003, directed the Secretary of Defense to submit to committees of Congress, not later than Mar. 1, 2002, a report containing the Secretary's recommendations for additional emergency procurement authority that the Secretary had determined necessary to support operations carried out to combat terrorism, and provided that no contract could be entered into pursuant to such authority after Sept. 30, 2003.
Pub. L. 106–398, §1 [[div. A], title VIII, §821], Oct. 30, 2000, 114 Stat. 1654, 1654A–217, as amended by Pub. L. 108–136, div. A, title XIV, §1431(c), Nov. 24, 2003, 117 Stat. 1672; Pub. L. 115–232, div. A, title VIII, §836(f)(2), Aug. 13, 2018, 132 Stat. 1871, provided that:
"(a)
"(1) A performance-based contract or performance-based task order that contains firm fixed prices for the specific tasks to be performed.
"(2) Any other performance-based contract or performance-based task order.
"(3) Any contract or task order that is not a performance-based contract or a performance-based task order.
"[(b) Repealed. Pub. L. 108–136, div. A, title XIV, §1431(c), Nov. 24, 2003, 117 Stat. 1672.]
"(c)
"(d)
"(2) The Secretary of each military department and the head of each Defense Agency shall ensure that the personnel of the department or agency, as the case may be, who are responsible for the awarding and management of contracts for services receive appropriate training that is focused specifically on contracting for services.
"(e)
"(1) The term 'performance-based', with respect to a contract, a task order, or contracting, means that the contract, task order, or contracting, respectively, includes the use of performance work statements that set forth contract requirements in clear, specific, and objective terms with measurable outcomes.
"(2) The term 'commercial item' has the meaning given the term in section 4(12) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(12)) [see 41 U.S.C. 103].
"(3) The term 'Defense Agency' has the meaning given the term in section 101(a)(11) of title 10, United States Code."
[Pub. L. 115–232, div. A, title VIII, §836(f)(2), (h), Aug. 13, 2018, 132 Stat. 1871, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, section 1 [[div. A], title VIII, §821] of Pub. L. 106–398, set out above, is amended in subsec. (e) by striking paragraph (2) and by redesignating paragraph (3) as paragraph (2).]
Pub. L. 106–65, div. A, title VIII, §812(a)–(c), (e), Oct. 5, 1999, 113 Stat. 709, 710, provided that:
"(a)
"(b)
"(c)
"(1) Procedures through which commercial private sector entities, including small-business concerns, may submit proposals recommending cost-saving and innovative ideas to acquisition program managers.
"(2) A review process designed to make recommendations on the merit and viability of the proposals submitted under paragraph (1) at appropriate times during the acquisition cycle.
"(3) Measures to limit potential disruptions to existing contracts and programs from proposals accepted and incorporated into acquisition programs of the Department of Defense.
"(4) Measures to ensure that research and development efforts of small-business concerns are considered as early as possible in a program's acquisition planning process to accommodate potential technology insertion without disruption to existing contracts and programs.
"(e)
Pub. L. 104–201, div. A, title VIII, §831, Sept. 23, 1996, 110 Stat. 2615, directed the Secretary of Defense to ensure that all information technology acquired by the Department of Defense pursuant to contracts entered into after Sept. 30, 1996, would have the capabilities to process date and date-related data in 2000, and directed the Secretary to assess all information technology within the Department to determine the extent to which such technology would have the capabilities to operate effectively, and to submit to Congress a detailed plan for eliminating any deficiencies not later than Jan. 1, 1997.
Pub. L. 104–106, div. A, title VIII, §822, Feb. 10, 1996, 110 Stat. 396, as amended by Pub. L. 106–65, div. A, title X, §1067(6), Oct. 5, 1999, 113 Stat. 774, provided that:
"(a)
"(b)
"(2) The Secretary may designate for participation in the pilot program only those facilities that are authorized to be so designated in a law authorizing appropriations for national defense programs that is enacted after the date of the enactment of this Act [Feb. 10, 1996].
"(c)
"(1) All contracts and subcontracts for defense supplies and services that are performed at the facility.
"(2) All Department of Defense contracts and all subcontracts under Department of Defense contracts performed elsewhere that the Secretary determines are directly and substantially related to the production of defense supplies and services at the facility and are necessary for the pilot program.
"(d)
"(1) The number of existing and anticipated contracts and subcontracts performed at the facility—
"(A) for which contractors are required to provide certified cost or pricing data pursuant to section 2306a of title 10, United States Code; and
"(B) which are administered with the application of cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)].
"(2) The relationship of the facility to other organizations and facilities performing under contracts with the Department of Defense and subcontracts under such contracts.
"(3) The impact that the participation of the facility under the pilot program would have on competing domestic manufacturers.
"(4) Such other factors as the Secretary considers appropriate.
"(e)
"(2) The Secretary shall include in the notification regarding a facility designated for participation in the program a management plan addressing the following:
"(A) The proposed treatment of research and development contracts or subcontracts to be performed at the facility during the pilot program.
"(B) The proposed treatment of the cost impact of the use of commercial practices on the award and administration of contracts and subcontracts performed at the facility.
"(C) The proposed method for reimbursing the contractor for existing and new contracts.
"(D) The proposed method for measuring the performance of the facility for meeting the management goals of the Secretary.
"(E) Estimates of the annual amount and the total amount of the contracts and subcontracts covered under the pilot program.
"(3)(A) The Secretary shall ensure that the management plan for a facility provides for attainment of the following objectives:
"(i) A significant reduction of the cost to the Government for programs carried out at the facility.
"(ii) A reduction of the schedule associated with programs carried out at the facility.
"(iii) An increased use of commercial practices and procedures for programs carried out at the facility.
"(iv) Protection of a domestic manufacturer competing for contracts at such facility from being placed at a significant competitive disadvantage by the participation of the facility in the pilot program.
"(B) The management plan for a facility shall also require that all or substantially all of the contracts to be awarded and performed at the facility after the designation of that facility under subsection (b), and all or substantially all of the subcontracts to be awarded under those contracts and performed at the facility after the designation, be—
"(i) for the production of supplies or services on a firm-fixed price basis;
"(ii) awarded without requiring the contractors or subcontractors to provide certified cost or pricing data pursuant to section 2306a of title 10, United States Code; and
"(iii) awarded and administered without the application of cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)].
"(f)
"(1) is within the scope of the pilot program (as described in subsection (c)); and
"(2) is fairly and reasonably priced based on information other than certified cost and pricing data.
"(g)
"(1) to apply any amendment or repeal of a provision of law made in this Act [see Tables for classification] to the pilot program before the effective date of such amendment or repeal; and
"(2) to apply to a procurement of items other than commercial items under such program—
"(A) the authority provided in section 34 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 430) [now 41 U.S.C. 1906] to waive a provision of law in the case of commercial items, and
"(B) any exception applicable under this Act or the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355) [see Tables for classification] (or an amendment made by a provision of either Act) in the case of commercial items,
before the effective date of such provision (or amendment) to the extent that the Secretary determines necessary to test the application of such waiver or exception to procurements of items other than commercial items.
"(h)
"(A) A contract that is awarded or modified during the period described in paragraph (2).
"(B) A contract that is awarded before the beginning of such period, that is to be performed (or may be performed), in whole or in part, during such period, and that may be modified as appropriate at no cost to the Government.
"(2) The period referred to in paragraph (1), with respect to a facility designated under subsection (b), is the period that—
"(A) begins 45 days after the date of the enactment of the Act authorizing the designation of that facility in accordance with paragraph (2) of such subsection; and
"(B) ends on September 30, 2000.
"(i)
"(1) Substitution of commercial oversight and inspection procedures for Government audit and access to records.
"(2) Incorporation of commercial oversight, inspection, and acceptance procedures.
"(3) Use of alternative dispute resolution techniques (including arbitration).
"(4) Elimination of contract provisions authorizing the Government to make unilateral changes to contracts."
Pub. L. 102–484, div. A, title III, §326, Oct. 23, 1992, 106 Stat. 2368, as amended by Pub. L. 104–106, div. A, title XV, §§1502(c)(2)(A), 1504(c)(1), Feb. 10, 1996, 110 Stat. 506, 514; Pub. L. 106–65, div. A, title X, §1067(8), Oct. 5, 1999, 113 Stat. 774; Pub. L. 113–291, div. A, title X, §1071(b)(14), Dec. 19, 2014, 128 Stat. 3508, provided that:
"(a)
"(2)(A)(i) Not later than 60 days after the completion of the first modification, amendment, or extension after June 1, 1993, of a contract referred to in clause (ii), the senior acquisition official (or the designee of that official) shall carry out an evaluation of the contract in order to determine—
"(I) whether the contract includes a specification or standard that requires the use of a class I ozone-depleting substance or can be met only through the use of such a substance; and
"(II) in the event of a determination that the contract includes such a specification or standard, whether the contract can be carried out through the use of an economically feasible substitute for the ozone-depleting substance or through the use of an economically feasible alternative technology for a technology involving the use of the ozone-depleting substance.
"(ii) A contract referred to in clause (i) is any contract in an amount in excess of $10,000,000 that—
"(I) was awarded before June 1, 1993; and
"(II) as a result of the modification, amendment, or extension described in clause (i), will expire more than 1 year after the effective date of the modification, amendment, or extension.
"(iii) A contract under evaluation under clause (i) may not be further modified, amended, or extended until the evaluation described in that clause is complete.
"(B) If the acquisition official (or designee) determines that an economically feasible substitute substance or alternative technology is available for use in a contract under evaluation, the appropriate contracting officer shall enter into negotiations to modify the contract to require the use of the substitute substance or alternative technology.
"(C) A determination that a substitute substance or technology is not available for use in a contract under evaluation shall be made in writing by the senior acquisition official (or designee).
"(D) The Secretary of Defense may, consistent with the Federal Acquisition Regulation, adjust the price of a contract modified under subparagraph (B) to take into account the use by the contractor of a substitute substance or alternative technology in the modified contract.
"(3) The senior acquisition official authorized to grant an approval under paragraph (1) and the senior acquisition official and designees authorized to carry out an evaluation and make a determination under paragraph (2) shall be determined under regulations prescribed by the Secretary of Defense. A senior acquisition official may not delegate the authority provided in paragraph (1).
"(4) Each official who grants an approval authorized under paragraph (1) or makes a determination under paragraph (2)(B) shall submit to the Secretary of Defense a report on that approval or determination, as the case may be, as follows:
"(A) Beginning on October 1, 1993, and continuing for 8 calendar quarters thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding quarter not later than 30 days after the end of such quarter.
"(B) Beginning on January 1, 1997, and continuing for 4 years thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding year not later than 30 days after the end of such year.
"(5) The Secretary shall promptly transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives each report submitted to the Secretary under paragraph (4). The Secretary shall transmit the report in classified and unclassified forms.
"(b)
"(c)
"(1) The term 'class I ozone-depleting substance' means any substance listed under section 602(a) of the Clean Air Act (42 U.S.C. 7671a(a)).
"(2) The term 'Federal Acquisition Regulation' means the single Government-wide procurement regulation issued under section 1303(a) of title 41, United States Code."
Pub. L. 102–190, div. A, title VIII, §806, Dec. 5, 1991, 105 Stat. 1417, as amended by Pub. L. 102–484, div. A, title X, §1053(5), Oct. 23, 1992, 106 Stat. 2502; Pub. L. 103–355, title II, §2091, title VIII, §8105(k), Oct. 13, 1994, 108 Stat. 3306, 3393; Pub. L. 113–291, div. A, title X, §1071(b)(15), Dec. 19, 2014, 128 Stat. 3508; Pub. L. 115–232, div. A, title VIII, §836(f)(1), Aug. 13, 2018, 132 Stat. 1870, provided that:
"(a)
"(1)
"(i) Whether requests for progress payments or other payments have been submitted by the contractor to the Department of Defense in connection with that contract.
"(ii) Whether final payment to the contractor has been made by the Department of Defense in connection with that contract.
"(B) This paragraph shall apply with respect to any Department of Defense contract that is in effect on the date which is 270 days after the date of enactment of this Act [Dec. 5, 1991] or that is awarded after such date.
"(2)
"(i) The name and address of the surety or sureties on the payment bond.
"(ii) The penal amount of the payment bond.
"(iii) A copy of the payment bond.
"(B) Subparagraph (A) applies to—
"(i) a subcontractor or supplier having a subcontract, purchase order, or other agreement to furnish labor or material for the performance of a Department of Defense contract with respect to which a payment bond has been furnished to the United States pursuant to the Miller Act; and
"(ii) a prospective subcontractor or supplier offering to furnish labor or material for the performance of such a Department of Defense contract.
"(C) With respect to the information referred to in subparagraphs (A)(i) and (A)(ii), the regulations shall include authority for such information to be provided verbally to the subcontractor or supplier.
"(D) With respect to the information referred to in subparagraph (A)(iii), the regulations may impose reasonable fees to cover the cost of copying and providing requested bonds.
"(E) This paragraph shall apply with respect to any Department of Defense contract covered by the Miller Act that is in effect on the date which is 270 days after the date of enactment of this Act [Dec. 5, 1991] or that is awarded after such date.
"(3)
"(B) This paragraph shall apply with respect to any Department of Defense contract covered by the Miller Act for which a solicitation is issued after the expiration of the 60-day period beginning on the effective date of the regulations promulgated under this subsection.
"(4)
"(i) With respect to a construction contract, whether the contractor has made progress payments to the subcontractor or supplier in compliance with chapter 39 of title 31, United States Code.
"(ii) With respect to a contract other than a construction contract, whether the contractor has made progress or other payments to the subcontractor or supplier in compliance with the terms of the subcontract, purchase order, or other agreement with the prime contractor.
"(iii) With respect to either a construction contract or a contract other than a construction contract, whether the contractor has made final payment to the subcontractor or supplier in compliance with the terms of the subcontract, purchase order, or other agreement with the prime contractor.
"(iv) With respect to either a construction contract or a contract other than a construction contract, whether any certification of payment of the subcontractor or supplier accompanying the contractor's payment request to the Government is accurate.
"(B) If the contracting officer determines that the prime contractor is not in compliance with any matter referred to in clause (i), (ii), or (iii) of subparagraph (A), the contracting officer may, under procedures established in the regulations—
"(i) encourage the prime contractor to make timely payment to the subcontractor or supplier; or
"(ii) reduce or suspend progress payments with respect to amounts due to the prime contractor.
"(C) If the contracting officer determines that a certification referred to in clause (iv) of subparagraph (A) is inaccurate in any material respect, the contracting officer shall, under procedures established in the regulations, initiate appropriate administrative or other remedial action.
"(D) This paragraph shall apply with respect to any Department of Defense contract that is in effect on the date of promulgation of the regulations under this subsection or that is awarded after such date.
"(b)
"(c)
"(d)
"(e)
"(2) In addition to such other related matters as the Comptroller General considers appropriate, the matters to be assessed pursuant to paragraph (1) are the following:
"(A) Timely payment of progress or other periodic payments to subcontractors and suppliers by prime contractors on Federal contracts by—
"(i) identifying all existing statutory and regulatory provisions, categorized by types of contracts covered by such provisions;
"(ii) evaluating the feasibility and desirability of requiring that a prime contractor (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) be required to—
"(I) include in its subcontracts a payment term requiring payment within 7 days (or some other fixed term) after receiving payment from the Government; and
"(II) submit with its payment request to the Government a certification that it has timely paid its subcontractors in accordance with their subcontracts from funds previously received as progress payments and will timely make required payments to such subcontractors from the proceeds of the progress payment covered by the certification;
"(iii) evaluating the feasibility and desirability of requiring that all prime contractors (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) furnish with its payment request to the Government proof of payment of the amounts included in such payment request for payments made to subcontractors and suppliers;
"(iv) evaluating the feasibility and desirability of requiring a prime contractor to establish an escrow account at a federally insured financial institution and requiring direct disbursements to subcontractors and suppliers of amounts certified by the prime contractor in its payment request to the Government as being payable to such subcontractors and suppliers in accordance with their subcontracts; and
"(v) evaluating the feasibility and desirability of requiring direct disbursement of amounts certified by a prime contractor as being payable to its subcontractors and suppliers in accordance with their subcontracts (using techniques such as joint payee checks, escrow accounts, or direct payment by the Government), if the contracting officer has determined that the prime contractor is failing to make timely payments to its subcontractors and suppliers.
"(B) Payment protection of subcontractors and suppliers through the use of payment bonds or alternatives methods by—
"(i) evaluating the effectiveness of the modifications to part 28.2 of the Federal Acquisition Regulation Part 28.2 (48 C.F.R. 28.200) relating to the use of individual sureties, which became effective February 26, 1990;
"(ii) evaluating the effectiveness of requiring payment bonds pursuant to the Miller Act as a means of affording protection to construction subcontractors and suppliers relating to receiving—
"(I) timely payment of progress payments due in accordance with their subcontracts; and
"(II) ultimate payment of such amounts due;
"(iii) evaluating the feasibility and desirability of increasing the payment bond amounts required under the Miller Act from the current maximum amounts to an amount equal to 100 percent of the amount of the contract;
"(iv) evaluating the feasibility and desirability of requiring payment bonds for supply and services contracts (other than construction), and, if feasible and desirable, the amounts of such bonds; and
"(v) evaluating the feasibility and desirability of using letters of credit issued by federally insured financial institutions (or other alternatives) as substitutes for payment bonds in providing payment protection to subcontractors and suppliers on construction contracts (and other contracts).
"(C) Any evaluation of feasibility and desirability carried out pursuant to subparagraph (A) or (B) shall include the appropriateness of—
"(i) any differential treatment of, or impact on, small business concerns as opposed to concerns other than small business concerns;
"(ii) any differential treatment of subcontracts relating to commercial products entered into by the contractor in furtherance of its non-Government business, especially those subcontracts entered into prior to the award of a contract by the Government; and
"(iii) extending the protections regarding payment to all tiers of subcontractors or restricting them to first-tier subcontractors and direct suppliers.
"(3) The report required by paragraph (1) shall include a description of the results of the assessment carried out pursuant to paragraph (2) and may include recommendations pertaining to any of the following:
"(A) Statutory and regulatory changes providing payment protections for subcontractors and suppliers (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) that the Comptroller General believes to be desirable and feasible.
"(B) Proposals to assess the desirability and utility of a specific payment protection on a test basis.
"(C) Such other recommendations as the Comptroller General considers appropriate in light of the matters assessed pursuant to paragraph (2).
"(4) The report required by paragraph (1) shall be submitted not later than by February 1, 1993, to the Committees on Armed Services and on Small Business [now the Committee on Small Business and Entrepreneurship of the Senate] of the Senate and House of Representatives.
"(f)
"(2) The report required by paragraph (1) shall be submitted to the Secretary of Defense not later than March 1, 1993. The report may include recommendations by the Inspector General on ways to improve the effectiveness of existing methods of preventing false statements.
"(g)
[Pub. L. 115–232, div. A, title VIII, §836(f)(1), (h), Aug. 13, 2018, 132 Stat. 1870, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, section 806(b) of Pub. L. 102–190, set out above, is amended by striking "commercial items (as defined in section 103 of title 41, United States Code)" and inserting "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of title 41, United States Code)".]
Pub. L. 101–510, div. A, title VIII, §800, Nov. 5, 1990, 104 Stat. 1587, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729, directed Under Secretary of Defense for Acquisition and Technology, not later than Jan. 15, 1991, to establish under sponsorship of Defense Systems Management College an advisory panel on streamlining and codifying acquisition laws, to review the acquisition laws applicable to Department of Defense with a view toward streamlining the defense acquisition process, to make any recommendations for repeal or amendment of such laws that the panel considers necessary, as a result of such review, and to prepare a proposed code of relevant acquisition laws, directed the advisory panel, not later than Dec. 15, 1992, to transmit a final report on the actions of the panel to the Under Secretary of Defense for Acquisition and Technology, and directed the Secretary of Defense, not later than Jan. 15, 1993, to transmit the final report, together with such comments as he deems appropriate, to Congress.
Pub. L. 114–92, div. A, title VIII, §861(b), Nov. 25, 2015, 129 Stat. 925, provided that:
"(1)
"(2)
Pub. L. 106–65, div. A, title VIII, §811(d)(2), (3), Oct. 5, 1999, 113 Stat. 708, 709, as amended by Pub. L. 107–107, div. A, title X, §1048(g)(5), Dec. 28, 2001, 115 Stat. 1228, directed the Secretary of Defense to conduct a review of the Mentor-Protege Program established in Pub. L. 101–510, §831, set out below, to assess the feasibility of transitioning such program to operation without a specific appropriation or authority to provide reimbursement to a mentor firm and to assess additional incentives that could be extended to mentor firms to ensure adequate support and participation in the Program, directed the Secretary to submit to committees of Congress a report on the results of the review and recommendations not later than Sept. 30, 2000, and directed the Comptroller General to conduct a study on the implementation of the Program and the extent to which the Program was achieving its purposes in a cost-effective manner and to submit to committees of Congress a report on the results of the study not later than Jan. 1, 2002.
Pub. L. 102–484, div. A, title VIII, §807(a), Oct. 23, 1992, 106 Stat. 2448, directed the Secretary of Defense, within 15 days after Oct. 23, 1992, to publish in the Department of Defense Supplement to the Federal Acquisition Regulation the Department of Defense policy for the pilot Mentor-Protege Program and the regulations, directives, and administrative guidance pertaining to such program as such policy, regulations, directives, and administrative guidance had existed on Dec. 6, 1991, and directed that proposed modifications to that policy and any amendments proposed in order to implement any of the amendments made by this section, amending Pub. L. 101–510, §831, set out below, were to be published in final form within 120 days after Oct. 23, 1992.
Pub. L. 101–510, div. A, title VIII, §831, Nov. 5, 1990, 104 Stat. 1607, as amended by Pub. L. 102–25, title VII, §704(c), Apr. 6, 1991, 105 Stat. 119; Pub. L. 102–172, title VIII, §8064A, Nov. 26, 1991, 105 Stat. 1186; Pub. L. 102–190, div. A, title VIII, §814(b), Dec. 5, 1991, 105 Stat. 1425; Pub. L. 102–484, div. A, title VIII, §§801(h)(4), 807(b)(1), title X, §1054(d), Oct. 23, 1992, 106 Stat. 2445, 2448, 2503; Pub. L. 103–160, div. A, title VIII, §813(b)(1), (c), Nov. 30, 1993, 107 Stat. 1703; Pub. L. 104–106, div. A, title VIII, §824, Feb. 10, 1996, 110 Stat. 399; Pub. L. 104–201, div. A, title VIII, §802, Sept. 23, 1996, 110 Stat. 2604; Pub. L. 105–85, div. A, title VIII, §821(a), title X, §1073(c)(6), Nov. 18, 1997, 111 Stat. 1840, 1904; Pub. L. 106–65, div. A, title VIII, §811(a)–(d)(1), (e), Oct. 5, 1999, 113 Stat. 706, 707, 709; Pub. L. 106–398, §1 [[div. A], title VIII, §807], Oct. 30, 2000, 114 Stat. 1654, 1654A–208; Pub. L. 107–107, div. A, title VIII, §812, Dec. 28, 2001, 115 Stat. 1181; Pub. L. 108–375, div. A, title VIII, §§841(a), (b), 842, Oct. 28, 2004, 118 Stat. 2018, 2019; Pub. L. 112–10, div. A, title VIII, §8016, Apr. 15, 2011, 125 Stat. 60; Pub. L. 112–81, div. A, title VIII, §867, title X, §1062(n), Dec. 31, 2011, 125 Stat. 1526, 1586; Pub. L. 112–239, div. A, title X, §1076(a)(17), Jan. 2, 2013, 126 Stat. 1948; Pub. L. 113–291, div. A, title X, §1071(b)(16), Dec. 19, 2014, 128 Stat. 3508; Pub. L. 114–92, div. A, title VIII, §861(a), Nov. 25, 2015, 129 Stat. 921; Pub. L. 114–328, div. A, title XVIII, §§1813(b), 1823, Dec. 23, 2016, 130 Stat. 2652, 2656; Pub. L. 115–91, div. A, title XVII, §1701(a)(4)(A), Dec. 12, 2017, 131 Stat. 1796; Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(ii), Aug. 13, 2018, 132 Stat. 1846, provided that:
"(a)
"(b)
"(1) enhance the capabilities of disadvantaged small business concerns to perform as subcontractors and suppliers under Department of Defense contracts and other contracts and subcontracts; and
"(2) increase the participation of such business concerns as subcontractors and suppliers under Department of Defense contracts, other Federal Government contracts, and commercial contracts.
"(c)
"(2) A disadvantaged small business concern eligible for the award of Federal contracts may obtain assistance from a mentor firm upon entering into an agreement with the mentor firm as provided in subsection (e). A disadvantaged small business concern may not be a party to more than one agreement concurrently, and the authority to enter into agreements under subsection (e) shall only be available to such concern during the 5-year period beginning on the date such concern enters into the first such agreement. A disadvantaged small business concern receiving such assistance shall be known, for the purposes of the program, as a 'protege firm'.
"(3) In entering into an agreement pursuant to subsection (e), a mentor firm may rely in good faith on a written representation of a business concern that such business concern is a disadvantaged small business concern. The Small Business Administration shall determine the status of such business concern as a disadvantaged small business concern in the event of a protest regarding the status of such business concern. If at any time the business concern is determined by the Small Business Administration not to be a disadvantaged small business concern, assistance furnished such business concern by the mentor firm after the date of the determination may not be considered assistance furnished under the program.
"(d)
"(1) Subject to subsection (c)(1), a mentor firm may enter into an agreement with one or more protege firms under subsection (e) and provide assistance under the program pursuant to that agreement if the mentor firm—
"(A) is eligible for award of Federal contracts; and
"(B) demonstrates that it—
"(i) is qualified to provide assistance that will contribute to the purpose of the program;
"(ii) is of good financial health and character and does not appear on a Federal list of debarred or suspended contractors; and
"(iii) can impart value to a protege firm because of experience gained as a Department of Defense contractor or through knowledge of general business operations and government contracting, as demonstrated by evidence that—
"(I) during the fiscal year preceding the fiscal year in which the mentor firm enters into the agreement, the total amount of the Department of Defense contracts awarded such mentor firm and the subcontracts awarded such mentor firm under Department of Defense contracts was equal to or greater than $100,000,000; or
"(II) the mentor firm demonstrates the capability to assist in the development of protege firms, and is approved by the Secretary of Defense pursuant to criteria specified in the regulations prescribed pursuant to subsection (k).
"(2) A mentor firm may not enter into an agreement with a protege firm if the Administrator of the Small Business Administration has made a determination finding affiliation between the mentor firm and the protege firm.
"(3) If the Administrator of the Small Business Administration has not made such a determination and if the Secretary has reason to believe (based on the regulations promulgated by the Administrator regarding affiliation) that the mentor firm is affiliated with the protege firm, the Secretary shall request a determination regarding affiliation from the Administrator of the Small Business Administration.
"(e)
"(1) A developmental program for the protege firm, in such detail as may be reasonable, including—
"(A) factors to assess the protege firm's developmental progress under the program;
"(B) a description of the quantitative and qualitative benefits to the Department of Defense from the agreement, if applicable;
"(C) goals for additional awards that [the] protege firm can compete for outside the Mentor-Protege Program; and
"(D) the assistance the mentor firm will provide to the protege firm in understanding contract regulations of the Federal Government and the Department of Defense (including the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement) after award of a subcontract under this section, if applicable.
"(2) A program participation term for any period of not more than three years, except that the term may be a period of up to five years if the Secretary of Defense determines in writing that unusual circumstances justify a program participation term in excess of three years.
"(3) Procedures for the protege firm to terminate the agreement voluntarily and for the mentor firm to terminate the agreement for cause.
"(f)
"(1) Assistance, by using mentor firm personnel, in—
"(A) general business management, including organizational management, financial management, and personnel management, marketing, and overall business planning;
"(B) engineering and technical matters such as production, inventory control, and quality assurance; and
"(C) any other assistance designed to develop the capabilities of the protege firm under the developmental program referred to in subsection (e).
"(2) Award of subcontracts on a noncompetitive basis to the protege firm under the Department of Defense or other contracts.
"(3) Payment of progress payments for performance of the protege firm under such a subcontract in amounts as provided for in the subcontract, but in no event may any such progress payment exceed 100 percent of the costs incurred by the protege firm for the performance.
"(4) Advance payments under such subcontracts.
"(5) Loans.
"(6) Assistance obtained by the mentor firm for the protege firm from one or more of the following—
"(A) small business development centers established pursuant to section 21 of the Small Business Act (15 U.S.C. 648);
"(B) entities providing procurement technical assistance pursuant to chapter 142 of title 10, United States Code;
"(C) a historically Black college or university or a minority institution of higher education; or
"(D) women's business centers described in section 29 of the Small Business Act (15 U.S.C. 656).
"(g)
"(2)(A) The Secretary of Defense may provide to a mentor firm reimbursement for the costs of the assistance furnished to a protege firm pursuant to paragraphs (1) and (6) of subsection (f) (except as provided in subparagraph (D)) as provided for in a line item in a Department of Defense contract under which the mentor firm is furnishing products or services to the Department, subject to a maximum amount of reimbursement specified in such contract, except that this sentence does not apply in a case in which the Secretary of Defense determines in writing that unusual circumstances justify reimbursement using a separate contract.
"(B) The determinations made in annual performance reviews of a mentor firm's mentor-protege agreement shall be a major factor in the determinations of amounts of reimbursement, if any, that the mentor firm is eligible to receive in the remaining years of the program participation term under the agreement.
"(C) The total amount reimbursed under this paragraph to a mentor firm for costs of assistance furnished in a fiscal year to a protege firm may not exceed $1,000,000, except in a case in which the Secretary of Defense determines in writing that unusual circumstances justify a reimbursement of a higher amount.
"(D) The Secretary may not reimburse any fee assessed by the mentor firm for services provided to the protege firm pursuant to subsection (f)(6) or for business development expenses incurred by the mentor firm under a contract awarded to the mentor firm while participating in a joint venture with the protege firm.
"(3)(A) Costs incurred by a mentor firm in providing assistance to a protege firm that are not reimbursed pursuant to paragraph (2) shall be recognized as credit in lieu of subcontract awards for purposes of determining whether the mentor firm attains a subcontracting participation goal applicable to such mentor firm under a Department of Defense contract, under a contract with another executive agency, or under a divisional or company-wide subcontracting plan negotiated with the Department of Defense or another executive agency.
"(B) The amount of the credit given a mentor firm for any such unreimbursed costs shall be equal to—
"(i) four times the total amount of such costs attributable to assistance provided by entities described in subsection (f)(6);
"(ii) three times the total amount of such costs attributable to assistance furnished by the mentor firm's employees; and
"(iii) two times the total amount of any other such costs.
"(C) Under regulations prescribed pursuant to subsection (k), the Secretary of Defense shall adjust the amount of credit given a mentor firm pursuant to subparagraphs (A) and (B) if the Secretary determines that the firm's performance regarding the award of subcontracts to disadvantaged small business concerns has declined without justifiable cause.
"(4) A mentor firm shall receive credit toward the attainment of a subcontracting participation goal applicable to such mentor firm for each subcontract for a product or service awarded under such contract by a mentor firm to a business concern that, except for its size, would be a small business concern owned and controlled by socially and economically disadvantaged individuals, but only if—
"(A) the size of such business concern is not more than two times the maximum size specified by the Administrator of the Small Business Administration for purposes of determining whether a business concern furnishing such product or service is a small business concern; and
"(B) the business concern formerly had a mentor-protege agreement with such mentor firm that was not terminated for cause.
"(h)
"(2) Notwithstanding section 8 of the Small Business Act (15 U.S.C. 637), the Small Business Administration may not determine a disadvantaged small business concern to be ineligible to receive any assistance authorized under the Small Business Act on the basis that such business concern has participated in the Mentor-Protege Program or has received assistance pursuant to any developmental assistance agreement authorized under such program.
"(3) The Small Business Administration may not require a firm that is entering into, or has entered into, an agreement under subsection (e) as a protege firm to submit the agreement, or any other document required by the Secretary of Defense in the administration of the Mentor-Protege Program, to the Small Business Administration for review, approval, or any other purpose.
"(i)
"(j)
"(2) No reimbursement may be paid, and no credit toward the attainment of a subcontracting goal may be granted, under subsection (g) for any cost incurred after September 30, 2021.
"(k)
"(l)
"(1) all technical or management assistance provided by mentor firm personnel for the purposes described in subsection (f)(1);
"(2) any new awards of subcontracts on a competitive or noncompetitive basis to the protege firm under Department of Defense contracts or other contracts, including the value of such subcontracts;
"(3) any extensions, increases in the scope of work, or additional payments not previously reported for prior awards of subcontracts on a competitive or noncompetitive basis to the protege firm under Department of Defense contracts or other contracts, including the value of such subcontracts;
"(4) the amount of any payment of progress payments or advance payments made to the protege firm for performance under any subcontract made under the Mentor-Protege Program;
"(5) any loans made by [the] mentor firm to the protege firm;
"(6) all Federal contracts awarded to the mentor firm and the protege firm as a joint venture, designating whether the award was a restricted competition or a full and open competition;
"(7) any assistance obtained by the mentor firm for the protege firm from one or more—
"(A) small business development centers established pursuant to section 21 of the Small Business Act (15 U.S.C. 648);
"(B) entities providing procurement technical assistance pursuant to chapter 142 of title 10, United States Code; or
"(C) historically Black colleges or universities or minority institutions of higher education;
"(8) whether there have been any changes to the terms of the mentor-protege agreement; and
"(9) a narrative describing the success assistance provided under subsection (f) has had in addressing the developmental needs of the protege firm, the impact on Department of Defense contracts, and addressing any problems encountered.
"(m)
"(n)
"(1) The term 'small business concern' has the meaning given such term under section 3 of the Small Business Act (15 U.S.C. 632).
"(2) The term 'disadvantaged small business concern' means a firm that has less than half the size standard corresponding to its primary North American Industry Classification System code, is not owned or managed by individuals or entities that directly or indirectly have stock options or convertible securities in the mentor firm, and is—
"(A) a small business concern owned and controlled by socially and economically disadvantaged individuals;
"(B) a business entity owned and controlled by an Indian tribe as defined by section 8(a)(13) of the Small Business Act (15 U.S.C. 637(a)(13));
"(C) a business entity owned and controlled by a Native Hawaiian Organization as defined by section 8(a)(15) of the Small Business Act (15 U.S.C. 637(a)(15));
"(D) a qualified organization employing severely disabled individuals;
"(E) a small business concern owned and controlled by women, as defined in section 8(d)(3)(D) of the Small Business Act (15 U.S.C. 637(d)(3)(D));
"(F) a small business concern owned and controlled by service–disabled veterans (as defined in section 8(d)(3) of the Small Business Act [15 U.S.C. 637(d)(3)]); and [sic]
"(G) a qualified HUBZone small business concern (as defined in section 3(p) of the Small Business Act (15 U.S.C. 632(p))); or
"(H) a small business concern that—
"(i) is a nontraditional defense contractor, as such term is defined in section 2302 of title 10, United States Code; or
"(ii) currently provides goods or services in the private sector that are critical to enhancing the capabilities of the defense supplier base and fulfilling key Department of Defense needs.
"(3) The term 'small business concern owned and controlled by socially and economically disadvantaged individuals' has the meaning given such term in section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 637(d)(3)(C)).
"(4) The term 'historically Black college and university' means any of the historically Black colleges and universities referred to in section 2323 of title 10, United States Code, as in effect on March 1, 2018.
"(5) The term 'minority institution of higher education' means an institution of higher education with a student body that reflects the composition specified in section 312(b)(3), (4), and (5) of the Higher Education Act of 1965 (20 U.S.C. 1058(b)(3), (4), and (5)).
"(6) The term 'subcontracting participation goal', with respect to a Department of Defense contract, means a goal for the extent of the participation by disadvantaged small business concerns in the subcontracts awarded under such contract, as established pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)).
"(7) The term 'qualified organization employing the severely disabled' means a business entity operated on a for-profit or nonprofit basis that—
"(A) uses rehabilitative engineering to provide employment opportunities for severely disabled individuals and integrates severely disabled individuals into its workforce;
"(B) employs severely disabled individuals at a rate that averages not less than 20 percent of its total workforce;
"(C) employs each severely disabled individual in its workforce generally on the basis of 40 hours per week; and
"(D) pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act (29 U.S.C. 206) to those employees who are severely disabled individuals.
"(8) The term 'severely disabled individual' means an individual who is blind (as defined in section 8501 of title 41, United States Code) or a severely disabled individual (as defined in such section).
"(9) The term 'affiliation', with respect to a relationship between a mentor firm and a protege firm, means a relationship described under section 121.103 of title 13, Code of Federal Regulations (or any successor regulation)."
[Pub. L. 115–91, div. A, title XVII, §1701(a)(4)(A), (j), Dec. 12, 2017, 131 Stat. 1796, 1803, provided that, effective Jan. 1, 2020, section 831(n)(2)(G) of Pub. L. 101–510, set out above, is amended by striking "section 3(p) of the Small Business Act (15 U.S.C. 632(p))" and inserting "section 31(b) of the Small Business Act".]
[Pub. L. 114–92, §861(a)(11)(B)(iii), which directed amendment of section 831(n)(2)(G) of Pub. L. 101–510, set out above, by substituting "Small Business Act (15 U.S.C. 632(p)); or" for "Small Business Act.", was executed by substituting "Small Business Act (15 U.S.C. 632(p))); or" for "Small Business Act)." to reflect the probable intent of Congress.]
[Pub. L. 106–65, div. A, title VIII, §811(f), Oct. 5, 1999, 113 Stat. 709, provided that:
["(1) The amendments made by this section [amending section 831 of Pub. L. 101–510, set out above] shall take effect on October 1, 1999, and shall apply with respect to mentor-protege agreements that are entered into under section 831(e) of the National Defense Authorization Act for Fiscal Year 1991 [Pub. L. 101–510, set out above] on or after that date.
["(2) Section 831 of the National Defense Authorization Act for Fiscal Year 1991, as in effect on September 30, 1999, shall continue to apply with respect to mentor-protege agreements entered into before October 1, 1999."]
[Section 807(b)(2) of Pub. L. 102–484 provided that: "The amendment made by this subsection [amending section 831 of Pub. L. 101–510, set out above] shall take effect as of November 5, 1990."]
Pub. L. 101–189, div. A, title VIII, §832, Nov. 29, 1989, 103 Stat. 1508, which provided credit for Indian contracting in meeting certain minority contracting goals, was repealed and restated in section 2323a of this title by Pub. L. 102–484, §801(g)(1)(B), (h)(5).
Pub. L. 101–165, title IX, §9004, Nov. 21, 1989, 103 Stat. 1129, which related to the equitable participation of American small and minority-owned businesses in furnishing commodities and services, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(10), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 100–180, div. A, title VIII, §806(a)–(c), Dec. 4, 1987, 101 Stat. 1126, 1127, directed Secretary of Defense to issue regulations to ensure that substantial progress was made in increasing awards of Department of Defense contracts to small business concerns, historically Black colleges and universities, and minority institutions described in section 1207(a) of Pub. L. 99–661 [formerly set out below], prior to repeal by Pub. L. 102–484, div. A, title VIII, §801(h)(7), Oct. 23, 1992, 106 Stat. 2446.
Pub. L. 100–26, §§2, 6, Apr. 21, 1987, 101 Stat. 273, 274, provided that:
"For purposes of this Act [Pub. L. 100–26, see Short Title of 1987 Amendment note set out under section 101 of this title]:
"(1) The term 'Defense Authorization Act' means the Department of Defense Authorization Act, 1987 (division A of Public Law 99–661; 100 Stat. 3816 et seq.).
"(2) The term 'Defense Appropriations Act' means the Department of Defense Appropriations Act, 1987 (as contained in identical form in section 101(c) of Public Law 99–500 (100 Stat. 1783–82 et seq.) and section 101(c) of Public Law 99–591 (100 Stat. 3341–82 et seq.)).
"(3) The term 'Defense Acquisition Improvement Act' means title X of the Defense Appropriations Act [100 Stat. 1783–130, 3341–130] and title IX of the Defense Authorization Act [100 Stat. 3910] (as designated by the amendment made by section 3(5) [section 3(5) of Pub. L. 100–26]). Any reference in this Act to the Defense Acquisition Improvement Act shall be considered to be a reference to each such title."
"(a)
"(A) the identical provisions of those public laws referred to in such paragraph shall be treated as having been enacted only once, and
"(B) in executing to the United States Code and other statutes of the United States the amendments made by such identical provisions, such amendments shall be executed so as to appear only once in the law as amended.
"(2) Paragraph (1) applies with respect to the provisions of the Defense Appropriations Act and the Defense Authorization Act (as amended by sections 3, 4, 5, and 10(a)) referred to across from each other in the following table:
| "Section 101(c) of Public Law 99–500 | Section 101(c) of Public Law 99–591 | Division A of Public Law 99–661 |
|---|---|---|
| "Title X | Title X | Title IX |
| "Sec. 9122 | Sec. 9122 | Sec. 522 |
| "Sec. 9036(b) | Sec. 9036(b) | Sec. 1203 |
| "Sec. 9115 | Sec. 9115 | Sec. 1311 |
"(b)
"(2) Any reference in a provision of law referred to in paragraph (1) to 'the date of the enactment of this Act' shall be treated as a reference to October 18, 1986."
[For classification of provisions listed in the table, see Tables.]
Pub. L. 99–661, div. A, title XII, §1207, Nov. 14, 1986, 100 Stat. 3973, as amended by Pub. L. 100–180, div. A, title VIII, §806(d), 101 Stat. 1127; Pub. L. 100–456, div. A, title VIII, §844, Sept. 29, 1988, 102 Stat. 2027; Pub. L. 101–189, div. A, title VIII, §831, Nov. 29, 1989, 103 Stat. 1507; Pub. L. 101–510, div. A, title VIII, §§811, 832, title XIII, §§1302(d), 1312(b), Nov. 5, 1990, 104 Stat. 1596, 1612, 1669, 1670; Pub. L. 102–25, title VII, §§704(a)(6), 705(e), Apr. 6, 1991, 105 Stat. 118, 120, which set contract goals for small disadvantaged businesses and certain institutions of higher education, was repealed and restated in former section 2323 of this title by Pub. L. 102–484, §801(a)(1)(B), (h)(1).
Pub. L. 99–145, title IX, §913, Nov. 8, 1985, 99 Stat. 687, as amended by Pub. L. 101–510, div. A, title XIII, §1322(d)(1), Nov. 5, 1990, 104 Stat. 1672, provided that:
"(a)
"(b)
Pub. L. 98–525, title XII, §1202, Oct. 19, 1984, 98 Stat. 2588, as amended by Pub. L. 99–500, §101(c) [title X, §953(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–172, and Pub. L. 99–591, §101(c) [title X, §953(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–172; Pub. L. 99–661, div. A, title IX, formerly title IV, §953(c), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The Congress finds that recent disclosures of excessive payments by the Department of Defense for replenishment parts have undermined confidence by the public and Congress in the defense procurement system. The Secretary of Defense should make every effort to reform procurement practices relating to replenishment parts. Such efforts should, among other matters, be directed to the elimination of excessive pricing of replenishment spare parts and the recovery of unjustified payments. Specifically, the Secretary should—
"(1) direct that officials in the Department of Defense refuse to enter into contracts unless the proposed prices are fair and reasonable;
"(2) continue and accelerate ongoing efforts to improve defense contracting procedures in order to encourage effective competition and assure fair and reasonable prices;
"(3) direct that replenishment parts be acquired in economic order quantities and on a multiyear basis whenever feasible, practicable, and cost effective;
"(4) direct that standard or commercial parts be used whenever such use is technically acceptable and cost effective; and
"(5) vigorously continue reexamination of policies relating to acquisition, pricing, and management of replenishment parts and of technical data related to such parts."
Pub. L. 97–86, title IX, §909(d), Dec. 1, 1981, 95 Stat. 1120, directed Secretary of Defense, not later than the end of the 90-day period beginning Dec. 1, 1981, to issue such modifications to existing regulations governing defense acquisitions as might be necessary to implement the amendments made by subsections (a), (b), and (c) [amending sections 139, 2301, and 2306 of this title] and directed Director of the Office of Management and Budget to issue such modifications to existing Office of Management and Budget directives as might be necessary to take into account the amendments made by subsections (a) and (b) [amending sections 2301 and 2306 of this title].
Pub. L. 93–365, title VII, §707, Aug. 5, 1974, 88 Stat. 406, which prohibited contracts by the Department of Defense for other than American goods after Aug. 5, 1974, unless adequate consideration was first given to bids of firms in labor surplus areas of the United States, of small business firms, and of all other United States firms which had offered to furnish American goods, balance of payments, cost of shipping other than American goods, and any duty, tariff, or surcharge on such goods, was repealed and restated in section 2501 of this title by Pub. L. 100–370, §3(a), (c). Section 2501 of this title was renumbered section 2506 by Pub. L. 100–456, §821(b)(1)(A). Section 2506 of this title was renumbered section 2533 by Pub. L. 102–484, §4202(a).
(a)
(b)
(Added and amended Pub. L. 103–355, title IV, §§4002(a), 4102(a), Oct. 13, 1994, 108 Stat. 3338, 3340; Pub. L. 111–350, §5(b)(9), Jan. 4, 2011, 124 Stat. 3843.)
2011—Subsec. (a). Pub. L. 111–350, §5(b)(9)(A), substituted "section 134 of title 41" for "section 4(11) of the Office of Federal Procurement Policy Act".
Subsec. (b). Pub. L. 111–350, §5(b)(9)(B), substituted "section 1905 of title 41" for "section 33 of the Office of Federal Procurement Policy Act".
1994—Subsec. (b). Pub. L. 103–355, §4102(a), added subsec. (b).
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
The simplified acquisition procedures contained in the Federal Acquisition Regulation pursuant to section 1901 of title 41 shall apply as provided in such section to the agencies named in section 2303(a) of this title.
(Added Pub. L. 103–355, title IV, §4203(a)(1), Oct. 13, 1994, 108 Stat. 3345; amended Pub. L. 111–350, §5(b)(10), Jan. 4, 2011, 124 Stat. 3843.)
2011—Pub. L. 111–350 substituted "section 1901 of title 41" for "section 31 of the Office of Federal Procurement Policy Act".
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
Section, added Pub. L. 103–355, title IX, §9002(a), Oct. 13, 1994, 108 Stat. 3402; amended Pub. L. 105–85, div. A, title VIII, §850(f)(3)(A), Nov. 18, 1997, 111 Stat. 1850; Pub. L. 105–129, §1(a)(1), Dec. 1, 1997, 111 Stat. 2551; Pub. L. 106–65, div. A, title X, §1066(a)(18), Oct. 5, 1999, 113 Stat. 771; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 111–350, §5(b)(11), Jan. 4, 2011, 124 Stat. 3843, related to implementation of electronic commerce capability.
(a)
(1) the total expenditures for research, development, test, and evaluation for the system are estimated to be more than $115,000,000 (based on fiscal year 1990 constant dollars); or
(2) the eventual total expenditure for procurement for the system is estimated to be more than $540,000,000 (based on fiscal year 1990 constant dollars).
(b)
(1) $750,000 (based on fiscal year 1980 constant dollars); or
(2) the dollar threshold for a "major system" established by the agency pursuant to Office of Management and Budget (OMB) Circular A–109, entitled "Major Systems Acquisitions".
(c)
(2) 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.
(3) An adjustment under this subsection 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 Pub. L. 104–201, div. A, title VIII, §805(a)(2), Sept. 23, 1996, 110 Stat. 2605; amended Pub. L. 105–85, div. A, title X, §1073(a)(41), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774.)
1999—Subsec. (c)(3). Pub. L. 106–65 substituted "and the Committee on Armed Services" for "and the Committee on National Security".
1997—Subsec. (a)(2). Pub. L. 105–85 substituted "procurement for the system is estimated to be" for "procurement of".
(a)
(1) the provision of advanced component development, prototype, or initial production of technology developed under the contract; or
(2) the delivery of initial or additional items if the item or a prototype thereof is created as the result of work performed under the contract.
(b)
(1)
(2)
(3)
(4)
(Added Pub. L. 115–91, div. A, title VIII, §861(a)(1), Dec. 12, 2017, 131 Stat. 1493.)
(a) This chapter applies to the procurement by any of the following agencies, for its use or otherwise, of all property (other than land) and all services for which payment is to be made from appropriated funds:
(1) The Department of Defense.
(2) The Department of the Army.
(3) The Department of the Navy.
(4) The Department of the Air Force.
(5) The Coast Guard.
(6) The National Aeronautics and Space Administration.
(b) The provisions of this chapter that apply to the procurement of property apply also to contracts for its installation or alteration.
(Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85–568, title III, §301(b), July 29, 1958, 72 Stat. 432; Pub. L. 98–369, div. B, title VII, §2722(b), July 18, 1984, 98 Stat. 1187.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2303(a) 2303(b) |
41:151(a). 41:158 (clause (b), less last 5 words). |
Feb. 19, 1948, ch. 65, §§2(a), 9 (clause (b)), 62 Stat. 21, 24. |
| 2303(c) | 41:158 (last 5 words of clause (b)). |
In subsection (a), the words "all property named in subsection (b), and all services" are substituted for the words "for supplies or services". The words "(each being hereinafter called the agency)", are omitted, since the revised sections of this chapter make specific reference to the agencies named in this revised section. The words "United States" before the words "Coast Guard" are omitted, since they are not a part of the official name of the Coast Guard under section 1 of title 14.
In subsection (b), the introductory clause is substituted for the word "supplies". Throughout the revised chapter reference is made to "property or services covered by this chapter", instead of "supplies", since the word "supplies" is defined in section 101(26) of this title in its usual and narrower sense, rather than the sense of the source statute for this revised chapter. It is desirable to avoid a usage which conflicts with the definition in section 101(26) of this title. The word "ships" and the words "of every character, type, and description", after the word "vessels", are omitted as covered by the definition of "vessel" in section 1 of title 1.
1984—Subsec. (a). Pub. L. 98–369, §2722(b)(1)(A), (B), substituted in provisions preceding cl. (1) "procurement" for "purchase, and contract to purchase," and "(other than land) and all services" for "named in subsection (b), and all services,".
Subsec. (a)(1) to (6). Pub. L. 98–369, §2722(b)(1)(C), (D), added cl. (1) and redesignated existing cls. (1) to (5) as (2) to (6), respectively.
Subsecs. (b), (c). Pub. L. 98–369, §2722(b)(2), (3), redesignated subsec. (c) as (b). Former subsec. (b), which had provided that this chapter did not cover land but did cover public works, buildings, facilities, vessels, floating equipment, aircraft, parts, accessories, equipment, and machine tools, was struck out.
1958—Subsec. (a)(5). Pub. L. 85–568 substituted "The National Aeronautics and Space Administration" for "The National Advisory Committee for Aeronautics".
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Amendment by Pub. L. 85–568 effective 90 days after July 29, 1958, or on any earlier date on which the Administrator of the National Aeronautics and Space Administration determines, and announces by proclamation, that the Administration has been organized and is prepared to discharge the duties and exercise the powers conferred upon it, see note set out under section 2302 of this title.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 90–500, title IV, §404, Sept. 20, 1968, 82 Stat. 851, which provided that no funds for the armed forces were to be used to buy or lease buses other than those manufactured in the United States, except as regulation from the Secretary of Defense might authorize solely to avoid uneconomical procurement or one contrary to the national interest, was repealed and restated as section 2400 of this title by Pub. L. 97–295, §§1(29)(A), 6(b), Oct. 12, 1982, 96 Stat. 1294, 1314.
Section, Pub. L. 98–525, title XII, §1212(a), Oct. 19, 1984, 98 Stat. 2590, related to publication of proposed regulations.
Section, pursuant to section 1212(b) of Pub. L. 98–525, was to have taken effect with respect to procurement policies, regulations, procedures, or forms first proposed to be issued by an agency on or after the date which was 30 days after the date of enactment of Pub. L. 98–525. Pub. L. 98–525 was approved Oct. 19, 1984. However, before that effective date, the section was repealed by Pub. L. 98–577.
(a)(1) Except as provided in subsections (b), (c), and (g) and except in the case of procurement procedures otherwise expressly authorized by statute, the head of an agency in conducting a procurement for property or services—
(A) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this chapter and the Federal Acquisition Regulation; and
(B) shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.
(2) In determining the competitive procedure appropriate under the circumstances, the head of an agency—
(A) shall solicit sealed bids if—
(i) time permits the solicitation, submission, and evaluation of sealed bids;
(ii) the award will be made on the basis of price and other price-related factors;
(iii) it is not necessary to conduct discussions with the responding sources about their bids; and
(iv) there is a reasonable expectation of receiving more than one sealed bid; and
(B) shall request competitive proposals if sealed bids are not appropriate under clause (A).
(b)(1) The head of an agency may provide for the procurement of property or services covered by this chapter using competitive procedures but excluding a particular source in order to establish or maintain an alternative source or sources of supply for that property or service if the head of the agency determines that to do so—
(A) would increase or maintain competition and would likely result in reduced overall costs for such procurement, or for any anticipated procurement, of property or services;
(B) would be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in case of a national emergency or industrial mobilization;
(C) would be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center;
(D) would ensure the continuous availability of a reliable source of supply of such property or service;
(E) would satisfy projected needs for such property or service determined on the basis of a history of high demand for the property or service; or
(F) in the case of medical supplies, safety supplies, or emergency supplies, would satisfy a critical need for such supplies.
(2) The head of an agency may provide for the procurement of property or services covered by this section using competitive procedures, but excluding concerns other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638, 644).
(3) A contract awarded pursuant to the competitive procedures referred to in paragraphs (1) and (2) shall not be subject to the justification and approval required by subsection (f)(1).
(4) A determination under paragraph (1) may not be made for a class of purchases or contracts.
(c) The head of an agency may use procedures other than competitive procedures only when—
(1) the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency;
(2) the agency's need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals;
(3) it is necessary to award the contract to a particular source or sources in order (A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization, (B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center, or (C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify;
(4) the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of procedures other than competitive procedures;
(5) subject to subsection (k), a statute expressly authorizes or requires that the procurement be made through another agency or from a specified source, or the agency's need is for a brand-name commercial item for authorized resale;
(6) the disclosure of the agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or
(7) the head of the agency—
(A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned, and
(B) notifies the Congress in writing of such determination not less than 30 days before the award of the contract.
(d)(1) For the purposes of applying subsection (c)(1)—
(A) in the case of a contract for property or services to be awarded on the basis of acceptance of an unsolicited research proposal, the property or services shall be considered to be available from only one source if the source has submitted an unsolicited research proposal that demonstrates a concept—
(i) that is unique and innovative or, in the case of a service, for which the source demonstrates a unique capability of the source to provide the service; and
(ii) the substance of which is not otherwise available to the United States, and does not resemble the substance of a pending competitive procurement; and
(B) in the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in—
(i) substantial duplication of cost to the United States which is not expected to be recovered through competition; or
(ii) unacceptable delays in fulfilling the agency's needs.
(2) The authority of the head of an agency under subsection (c)(7) may not be delegated.
(3)(A) The contract period of a contract described in subparagraph (B) that is entered into by an agency pursuant to the authority provided under subsection (c)(2)—
(i) may not exceed the time necessary—
(I) to meet the unusual and compelling requirements of the work to be performed under the contract; and
(II) for the agency to enter into another contract for the required goods or services through the use of competitive procedures; and
(ii) may not exceed one year unless the head of the agency entering into such contract determines that exceptional circumstances apply.
(B) This paragraph applies to any contract in an amount greater than the simplified acquisition threshold.
(e) The head of an agency using procedures other than competitive procedures to procure property or services by reason of the application of subsection (c)(2) or (c)(6) shall request offers from as many potential sources as is practicable under the circumstances.
(f)(1) Except as provided in paragraph (2) and paragraph (6), the head of an agency may not award a contract using procedures other than competitive procedures unless—
(A) the contracting officer for the contract justifies the use of such procedures in writing and certifies the accuracy and completeness of the justification;
(B) the justification is approved—
(i) in the case of a contract for an amount exceeding $500,000 (but equal to or less than $10,000,000), by the competition advocate for the procuring activity (without further delegation) or by an official referred to in clause (ii) or (iii);
(ii) in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $75,000,000), by the head of the procuring activity (or the head of the procuring activity's delegate designated pursuant to paragraph (6)(A)); or
(iii) in the case of a contract for an amount exceeding $75,000,000, by the senior procurement executive of the agency designated pursuant to section 1702(c) of title 41 (without further delegation) or in the case of the Under Secretary of Defense for Acquisition, Technology, and Logistics, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(B); and
(C) any required notice has been published with respect to such contract pursuant to section 1708 of title 41 and all bids or proposals received in response to that notice have been considered by the head of the agency.
(2) In the case of a procurement permitted by subsection (c)(2), the justification and approval required by paragraph (1) may be made after the contract is awarded. The justification and approval required by paragraph (1) is not required—
(A) when a statute expressly requires that the procurement be made from a specified source;
(B) when the agency's need is for a brand-name commercial item for authorized resale;
(C) in the case of a procurement permitted by subsection (c)(7);
(D) in the case of a procurement conducted under (i) chapter 85 of title 41, or (ii) section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or
(E) in the case of a procurement permitted by subsection (c)(4), but only if the head of the contracting activity prepares a document in connection with such procurement that describes the terms of an agreement or treaty, or the written directions, referred to in that subsection that have the effect of requiring the use of procedures other than competitive procedures.
(3) The justification required by paragraph (1)(A) shall include—
(A) a description of the agency's needs;
(B) an identification of the statutory exception from the requirement to use competitive procedures and a demonstration, based on the proposed contractor's qualifications or the nature of the procurement, of the reasons for using that exception;
(C) a determination that the anticipated cost will be fair and reasonable;
(D) a description of the market survey conducted or a statement of the reasons a market survey was not conducted;
(E) a listing of the sources, if any, that expressed in writing an interest in the procurement; and
(F) a statement of the actions, if any, the agency may take to remove or overcome any barrier to competition before a subsequent procurement for such needs.
(4) In no case may the head of an agency—
(A) enter into a contract for property or services using procedures other than competitive procedures on the basis of the lack of advance planning or concerns related to the amount of funds available to the agency for procurement functions; or
(B) procure property or services from another agency unless such other agency complies fully with the requirements of this chapter in its procurement of such property or services.
The restriction contained in clause (B) is in addition to, and not in lieu of, any other restriction provided by law.
(5)(A) The authority of the head of a procuring activity under paragraph (1)(B)(ii) may be delegated only to an officer or employee who—
(i) if a member of the armed forces, is a general or flag officer; or
(ii) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of brigadier general or rear admiral (lower half).
(B) The authority of the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (1)(B)(iii) may be delegated only to—
(i) an Assistant Secretary of Defense; or
(ii) with respect to the element of the Department of Defense (as specified in section 111(b) of this title), other than a military department, carrying out the procurement action concerned, an officer or employee serving in or assigned or detailed to that element who—
(I) if a member of the armed forces, is serving in a grade above brigadier general or rear admiral (lower half); or
(II) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of major general or rear admiral.
(6) The justification and approval required by paragraph (1) is not required in the case of a Phase III award made pursuant to section 9(r)(4) of the Small Business Act (15 U.S.C. 638(r)(4)).
(g)(1) In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for—
(A) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and
(B) special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial items.
(2) A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures required by paragraph (1).
(3) In using simplified procedures, the head of an agency shall promote competition to the maximum extent practicable.
(4) The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 1901(e) of title 41.
(h) For the purposes of the following, purchases or contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed-bid procedures:
(1) Chapter 65 of title 41.
(2) Sections 3141–3144, 3146, and 3147 of title 40.
(i)(1) The Secretary of Defense shall prescribe by regulation the manner in which the Department of Defense negotiates prices for supplies to be obtained through the use of procedures other than competitive procedures, as defined in section 2302(2) of this title.
(2) The regulations required by paragraph (1) shall—
(A) specify the incurred overhead a contractor may appropriately allocate to supplies referred to in that paragraph; and
(B) require the contractor to identify those supplies which it did not manufacture or to which it did not contribute significant value.
(3) Such regulations shall not apply to an item of supply included in a contract or subcontract for which the price is based on established catalog or market prices of commercial items sold in substantial quantities to the general public.
(j) The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government's requirements.
(k)(1) It is the policy of Congress that an agency named in section 2303(a) of this title should not be required by legislation to award a new contract to a specific non-Federal Government entity. It is further the policy of Congress that any program, project, or technology identified in legislation be procured through merit-based selection procedures.
(2) A provision of law may not be construed as requiring a new contract to be awarded to a specified non-Federal Government entity unless that provision of law—
(A) specifically refers to this subsection;
(B) specifically identifies the particular non-Federal Government entity involved; and
(C) specifically states that the award to that entity is required by such provision of law in contravention of the policy set forth in paragraph (1).
(3) For purposes of this subsection, a contract is a new contract unless the work provided for in the contract is a continuation of the work performed by the specified entity under a preceding contract.
(4) This subsection shall not apply with respect to any contract that calls upon the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an agency named in section 2303(a) of this title and to report on such matters to the Congress or any agency of the Federal Government.
(l)(1)(A) Except as provided in subparagraph (B), in the case of a procurement permitted by subsection (c), the head of an agency shall make publicly available, within 14 days after the award of the contract, the documents containing the justification and approval required by subsection (f)(1) with respect to the procurement.
(B) In the case of a procurement permitted by subsection (c)(2), subparagraph (A) shall be applied by substituting "30 days" for "14 days".
(2) The documents shall be made available on the website of the agency and through a government-wide website selected by the Administrator for Federal Procurement Policy.
(3) This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5.
(Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85–800, §8, Aug. 28, 1958, 72 Stat. 967; Pub. L. 85–861, §33(a)(12), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 87–653, §1(a)–(c), Sept. 10, 1962, 76 Stat. 528; Pub. L. 90–268, §5, Mar. 16, 1968, 82 Stat. 50; Pub. L. 90–500, title IV, §405, Sept. 20, 1968, 82 Stat. 851; Pub. L. 93–356, §4, July 25, 1974, 88 Stat. 390; Pub. L. 96–513, title V, §511(76), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97–86, title IX, §907(a), Dec. 1, 1981, 95 Stat. 1117; Pub. L. 97–295, §1(24), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 97–375, title I, §114, Dec. 21, 1982, 96 Stat. 1821; Pub. L. 98–369, div. B, title VII, §§2723(a), 2727(b), July 18, 1984, 98 Stat. 1187, 1194; Pub. L. 98–577, title V, §504(b)(1), (2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99–145, title IX, §961(a)(1), title XIII, §1303(a)(13), Nov. 8, 1985, 99 Stat. 703, 739; Pub. L. 99–500, §101(c) [title X, §§923(a)–(c), 927(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–152, 1783–155, and Pub. L. 99–591, §101(c) [title X, §§923(a)–(c), 927(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–152, 3341–155; Pub. L. 99–661, div. A, title IX, formerly title IV, §§923(a)–(c), 927(a), title XIII, §1343(a)(14), Nov. 14, 1986, 100 Stat. 3932, 3935, 3993, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §7(d)(3), Apr. 21, 1987, 101 Stat. 281; Pub. L. 100–456, div. A, title VIII, §803, Sept. 29, 1988, 102 Stat. 2008; Pub. L. 101–189, div. A, title VIII, §§812, 817, 818, 853(d), Nov. 29, 1989, 103 Stat. 1493, 1501, 1502, 1519; Pub. L. 101–510, div. A, title VIII, §806(b), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 102–25, title VII, §701(d)(2), Apr. 6, 1991, 105 Stat. 114; Pub. L. 102–484, div. A, title VIII, §§801(h)(2), 816, title X, §1052(23), Oct. 23, 1992, 106 Stat. 2445, 2454, 2500; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–355, title I, §§1001–1003, 1004(b), 1005, title IV, §4401(a), title VII, §7203(a)(1), Oct. 13, 1994, 108 Stat. 3249, 3253, 3254, 3347, 3379; Pub. L. 104–106, div. D, title XLI, §§4101(a), 4102(a), title XLII, §4202(a)(1), title XLIII, §4321(b)(4), (5), Feb. 10, 1996, 110 Stat. 642, 643, 652, 672; Pub. L. 104–320, §§7(a)(1), 11(c)(1), Oct. 19, 1996, 110 Stat. 3871, 3873; Pub. L. 105–85, div. A, title VIII, §§841(b), 850(f)(3)(B), title X, §1073(a)(42), (43), Nov. 18, 1997, 111 Stat. 1843, 1850, 1902; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 107–217, §3(b)(3), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–375, div. A, title VIII, §815, Oct. 28, 2004, 118 Stat. 2015; Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 110–181, div. A, title VIII, §844(b), Jan. 28, 2008, 122 Stat. 239; Pub. L. 110–417, [div. A], title VIII, §862(b), Oct. 14, 2008, 122 Stat. 4546; Pub. L. 111–350, §5(b)(12), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 115–91, div. A, title XVII, §1709(b)(2), Dec. 12, 2017, 131 Stat. 1809; Pub. L. 115–232, div. A, title VIII, §§812(a)(2)(C)(v), 836(c)(2), Aug. 13, 2018, 132 Stat. 1847, 1864.)
Pub. L. 115–232, div. A, title VIII, §836(c)(2), (h), Aug. 13, 2018, 132 Stat. 1864, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, this section is amended as follows:
(1) in subsections (c)(5) and (f)(2)(B), by striking "brand-name commercial item" and inserting "brand-name commercial product";
(2) in subsection (g)(1)(B), by striking "commercial items" and inserting "commercial products or commercial services"; and
(3) in subsection (i)(3), by striking "commercial items" and inserting "commercial products".
See 2018 Amendment notes below.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2304(a) 2304(b) |
41:151(c) (less proviso of clause (11) and proviso of clause (16)). 41:156(d). |
Feb. 19, 1948, ch. 65, §§2(b) (less 1st sentence), (c), (e), 7(d), 8, 62 Stat. 21, 22, 24. |
| 2304(c) | 41:151(e). | |
| 2304(d) | 41:151(b) (less 1st sentence). | |
| 2304(e) | 41:151(c) (proviso of clause (11) and proviso of clause (16)). | |
| 2304(f) | 41:157. |
In subsection (a)(1), the words "the period of" are omitted as surplusage.
In subsections (a)(4)–(10), and (12)–(15), the words "the purchase or contract is" are inserted for clarity.
In subsection (a)(5), the words "to be rendered" are omitted as surplusage.
In subsection (a)(6), the words "its Territories" are inserted for clarity. The words "the limits of" are omitted as surplusage.
In subsection (a)(14), the words "and for which" are substituted for the word "when".
In subsection (a)(15), the words "and for which" are substituted for 41:151(c)(15) (1st 22 words of proviso).
In subsection (a)(16), the words "to have" are substituted for the words "be made or kept".
In subsection (a)(17), the first 7 words are inserted for clarity.
In subsection (b), the words "shall be kept" are substituted for the words "shall be preserved in the files". The words "six years after the date" are substituted for the words "a period of six years following".
In subsection (c), the words "but such authorization shall be required in the same manner as heretofore" and "continental", in 41:151(e), are omitted as surplusage.
In subsection (d), the words "before making" are substituted for the words "Whenever it is proposed to make".
In subsection (e), the words "beginning six months after the effective date of this chapter" are omitted as executed. The words "on May 19 and November 19 of each year" are substituted for the words "and at the end of each six-month period thereafter", since the effective date of the source statute was May 19, 1948, and the first report was made on November 19, 1948. The words "property and services covered by each contract" are substituted for the words "work required to be performed thereunder".
The change is necessary to reflect the present Commonwealth status of Puerto Rico.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2304(a) (1st sentence) | 10:2304 (note). | Mar. 16, 1967, Pub. L. 90–5, §304, 81 Stat. 6. |
| 2304(f)(1) | 10:2304(f)(1). | |
| 2304(i) | 10:2304 (note). | Sept. 21, 1977, Pub. L. 95–111, §836, 91 Stat. 906. |
In subsection (a), the words "The Secretary of Defense is hereby directed that insofar as practicable all contracts shall be formally advertised" are omitted as unnecessary because of 10:2304(a) (1st sentence).
Subsection (f)(1) is amended to correct a mistake in spelling.
In subsection (i)(1)(B), the words "or States" are omitted because of 1:1.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
2018—Subsec. (b)(2). Pub. L. 115–232, §812(a)(2)(C)(v), struck out "and concerns other than small business concerns, historically Black colleges and universities, and minority institutions in furtherance of section 2323 of this title" before period at end.
Subsecs. (c)(5), (f)(2)(B). Pub. L. 115–232, §836(c)(2)(A), substituted "brand-name commercial product" for "brand-name commercial item".
Subsec. (g)(1)(B). Pub. L. 115–232, §836(c)(2)(B), substituted "commercial products or commercial services" for "commercial items".
Subsec. (i)(3). Pub. L. 115–232, §836(c)(2)(C), substituted "commercial products" for "commercial items".
2017—Subsec. (f)(1). Pub. L. 115–91, §1709(b)(2)(A), inserted "and paragraph (6)" after "paragraph (2)" in introductory provisions.
Subsec. (f)(6). Pub. L. 115–91, §1709(b)(2)(B), added par. (6).
2011—Subsec. (f)(1)(B)(iii). Pub. L. 111–350, §5(b)(12)(A), substituted "section 1702(c) of title 41" for "section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))".
Subsec. (f)(1)(C). Pub. L. 111–350, §5(b)(12)(B), substituted "section 1708 of title 41" for "section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)".
Subsec. (f)(2)(D)(i). Pub. L. 111–350, §5(b)(12)(C), substituted "chapter 85 of title 41" for "the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.)".
Subsec. (g)(4). Pub. L. 111–350, §5(b)(12)(D), substituted "section 1901(e) of title 41" for "section 31(f) of the Office of Federal Procurement Policy Act (41 U.S.C. 427)".
Subsec. (h)(1). Pub. L. 111–350, §5(b)(12)(E), substituted "Chapter 65 of title 41" for "The Walsh-Healey Act (41 U.S.C. 35 et seq.)".
2008—Subsec. (d)(3). Pub. L. 110–417 added par. (3).
Subsec. (f)(4) to (6). Pub. L. 110–181, §844(b)(2), redesignated pars. (5) and (6) as (4) and (5), respectively, and struck out former par. (4) which read as follows: "The justification required by paragraph (1)(A) and any related information, and any document prepared pursuant to paragraph (2)(E), shall be made available for inspection by the public consistent with the provisions of section 552 of title 5."
Subsec. (l). Pub. L. 110–181, §844(b)(1), added subsec. (l).
2006—Subsec. (f)(1)(B)(iii). Pub. L. 109–364 substituted "section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))" for "section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))".
2004—Subsec. (f)(1)(B)(ii), (iii). Pub. L. 108–375 substituted "$75,000,000" for "$50,000,000".
2002—Subsec. (h). Pub. L. 107–217, §3(b)(3)(A), struck out "laws" after "following" in introductory provisions.
Subsec. (h)(2). Pub. L. 107–217, §3(b)(3)(B), substituted "Sections 3141–3144, 3146, and 3147 of title 40" for "The Act entitled 'An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes', approved March 3, 1931 (commonly referred to as the 'Davis-Bacon Act') (40 U.S.C. 276a—276a–5)".
2001—Subsec. (f)(1)(B)(iii), (6)(B). Pub. L. 107–107 substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".
1997—Subsec. (c)(5). Pub. L. 105–85, §1073(a)(42), substituted "subsection (k)" for "subsection (j)".
Subsec. (f)(1)(B)(iii). Pub. L. 105–85, §1073(a)(43)(A), substituted "(6)(B)" for "(6)(C)".
Subsec. (f)(2)(E). Pub. L. 105–85, §841(b), struck out "and such document is approved by the competition advocate for the procuring activity" after "requiring the use of procedures other than competitive procedures".
Subsec. (f)(6)(B), (C). Pub. L. 105–85, §1073(a)(43)(B), redesignated subpar. (C) as (B), substituted "paragraph (1)(B)(iii)" for "paragraph (1)(B)(iv)" in introductory provisions, and struck out former subpar. (B), which read as follows: "The authority of the senior procurement executive under paragraph (1)(B)(iii) may be delegated only to an officer or employee within the senior procurement executive's organization who—
"(i) if a member of the armed forces, is a general or flag officer; or
"(ii) if a civilian, is serving in a position in grade GS–16 or above (or in a comparable or higher position under any other schedule for civilian officers or employees)."
Subsec. (g)(4). Pub. L. 105–85, §850(f)(3)(B), substituted "31(f)" for "31(g)".
1996—Subsec. (c)(3)(C). Pub. L. 104–320 substituted "agency, or to procure the services of an expert or neutral for use" for "agency, or" and inserted "or negotiated rulemaking" after "alternative dispute resolution".
Subsec. (f)(1)(B)(i). Pub. L. 104–106, §4102(a)(1), substituted "$500,000 (but equal to or less than $10,000,000)" for "$100,000 (but equal to or less than $1,000,000)" and "(ii) or (iii)" for "(ii), (iii), or (iv)".
Subsec. (f)(1)(B)(ii). Pub. L. 104–106, §4102(a)(2), substituted "$10,000,000 (but equal to or less than $50,000,000)" for "$1,000,000 (but equal to or less than $10,000,000)" and inserted "or" at end.
Subsec. (f)(1)(B)(iii), (iv). Pub. L. 104–106, §4102(a)(3), (4), redesignated cl. (iv) as (iii) and struck out former cl. (iii) which read as follows: "in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $50,000,000), by the senior procurement executive of the agency designated pursuant to section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3)) or the senior procurement executive's delegate designated pursuant to paragraph (6)(B), or in the case of the Under Secretary of Defense for Acquisition and Technology, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(C); or".
Subsec. (f)(2)(D). Pub. L. 104–106, §4321(b)(4), substituted "the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.)," for "the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the Wagner-O'Day Act,".
Subsec. (g)(1). Pub. L. 104–106, §4202(a)(1)(A), substituted "shall provide for—" and subpars. (A) and (B) for "shall provide for special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold."
Subsec. (g)(4). Pub. L. 104–106, §4202(a)(1)(B), added par. (4).
Subsec. (h)(1). Pub. L. 104–106, §4321(b)(5), added par. (1) and struck out former par. (1) which read as follows: "The Act entitled 'An Act to provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes', approved June 30, 1936 (commonly referred to as the 'Walsh-Healey Act') (41 U.S.C. 35–45)."
Subsecs. (j), (k). Pub. L. 104–106, §4101(a), added subsec. (j) and redesignated former subsec. (j) as (k).
1994—Subsec. (a)(1)(A). Pub. L. 103–355, §1001(1), substituted "Federal Acquisition Regulation" for "modifications to regulations promulgated pursuant to section 2752 of the Competition in Contracting Act of 1984 (41 U.S.C. 403 note)".
Subsec. (b)(1)(D) to (F). Pub. L. 103–355, §1002(a), added subpars. (D) to (F).
Subsec. (b)(4). Pub. L. 103–355, §1002(b), added par. (4).
Subsec. (c)(3)(C). Pub. L. 103–355, §1005, added subpar. (C).
Subsec. (c)(5). Pub. L. 103–355, §7203(a)(1)(A), inserted "subject to subsection (j)," after "(5)".
Subsec. (f)(1)(B)(i). Pub. L. 103–355, §1003, inserted before semicolon at end "or by an official referred to in clause (ii), (iii), or (iv)".
Subsec. (g)(1). Pub. L. 103–355, §§1001(2), 4401(a)(1), substituted "Federal Acquisition Regulation" for "regulations modified in accordance with section 2752 of the Competition in Contracting Act of 1984 (41 U.S.C. 403 note)" and "purchases of property and services for amounts not greater than the simplified acquisition threshold" for "small purchases of property and services".
Subsec. (g)(2). Pub. L. 103–355, §4401(a)(4), substituted "simplified acquisition threshold" for "small purchase threshold" and "simplified procedures" for "small purchase procedures".
Pub. L. 103–355, §4401(a)(2), (3), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: "For the purposes of this subsection, a small purchase is a purchase or contract for an amount which does not exceed the small purchase threshold."
Subsec. (g)(3). Pub. L. 103–355, §4401(a)(5), substituted "simplified procedures" for "small purchase procedures".
Pub. L. 103–355, §4401(a)(3), redesignated par. (4) as (3). Former par. (3) redesignated (2).
Subsec. (g)(4). Pub. L. 103–355, §4401(a)(3), redesignated par. (4) as (3).
Subsec. (j). Pub. L. 103–355, §7203(a)(1)(B), added subsec. (j).
Pub. L. 103–355, §1004(b), struck out subsec. (j) which related to authority of Secretary of Defense to enter into master agreements for advisory and assistance services.
1993—Subsec. (f)(1)(B)(iii), (iv), (6)(C). Pub. L. 103–160 substituted "Under Secretary of Defense for Acquisition and Technology" for "Under Secretary of Defense for Acquisition".
1992—Subsec. (b)(2). Pub. L. 102–484, §801(h)(2), substituted "section 2323 of this title" for "section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)".
Subsec. (j)(3)(A). Pub. L. 102–484, §1052(23), substituted "section 8(d) of the Small Business Act (15 U.S.C. 637(d))" for "section 8(e) of the Small Business Act (15 U.S.C. 637(e))".
Subsec. (j)(5). Pub. L. 102–484, §816, substituted "on September 30, 1994." for "at the end of the three-year period beginning on the date on which final regulations prescribed to carry out this subsection take effect."
1991—Subsec. (g)(2). Pub. L. 102–25, §701(d)(2)(A)(i), substituted "subsection" for "chapter".
Subsec. (g)(5). Pub. L. 102–25, §701(d)(2)(A)(ii), struck out par. (5) which provided that in this subsection, the term "small purchase threshold" has the meaning given such term in section 403(11) of title 41. See section 2302(7) of this title.
Subsec. (j)(3)(A). Pub. L. 102–25, §701(d)(2)(B), substituted "the small purchase threshold" for "$25,000".
1990—Subsec. (g). Pub. L. 101–510 substituted "the small purchase threshold" for "$25,000" in pars. (2) and (3) and added par. (5).
1989—Subsec. (b)(2). Pub. L. 101–189, §853(d), substituted "The head of an agency" for "An executive agency" and "concerns other than" for "other than" and inserted before period at end "and concerns other than small business concerns, historically Black colleges and universities, and minority institutions in furtherance of section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)".
Subsec. (f)(1)(B)(iii). Pub. L. 101–189, §818(a)(1), (3), added cl. (iii). Former cl. (iii) redesignated (iv).
Subsec. (f)(1)(B)(iv). Pub. L. 101–189, §818(a)(2), (c)(1), redesignated cl. (iii) as (iv) and substituted "$50,000,000" for "$10,000,000" and "paragraph (6)(C)" for "paragraph (6)(B)".
Subsec. (f)(2)(E). Pub. L. 101–189, §817(a), added subpar. (E).
Subsec. (f)(4). Pub. L. 101–189, §817(b), inserted ", and any document prepared pursuant to paragraph (2)(E)," after "any related information".
Subsec. (f)(6)(B). Pub. L. 101–189, §818(b)(2), added subpar. (B). Former subpar. (B) redesignated (C).
Subsec. (f)(6)(C). Pub. L. 101–189, §818(b)(1), (c)(2), redesignated subpar. (B) as (C) and substituted "paragraph (1)(B)(iv)" for "paragraph (1)(B)(iii)".
Subsec. (j). Pub. L. 101–189, §812, added subsec. (j).
1988—Subsec. (f)(1)(B)(ii). Pub. L. 100–456, §803(1), substituted "(or the head of the procuring activity's delegate designated pursuant to paragraph (6)(A));" for "or a delegate who, if a member of the armed forces, is a general or flag officer or, if a civilian, is serving in a position in grade GS–16 or above under the General Schedule (or in a comparable or higher position under another schedule);".
Subsec. (f)(1)(B)(iii). Pub. L. 100–456, §803(2), inserted "or in the case of the Under Secretary of Defense for Acquisition, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(B)" before semicolon at end.
Subsec. (f)(6). Pub. L. 100–456, §803(3), added par. (6).
1987—Subsec. (a)(1)(A). Pub. L. 100–26, §7(d)(3)(A), inserted "(41 U.S.C. 403 note)" after "Competition in Contracting Act of 1984".
Subsec. (f)(1)(C). Pub. L. 100–26, §7(d)(3)(B), inserted "(41 U.S.C. 416)" after "Policy Act".
Subsec. (g)(1). Pub. L. 100–26, §7(d)(3)(A), inserted "(41 U.S.C. 403 note)" after "Act of 1984".
1986—Subsec. (b)(2). Pub. L. 99–661, §1343(a)(14), substituted "15 U.S.C. 638," for "15 U.S.C. 639;".
Subsec. (c)(1). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§923(a)], Pub. L. 99–661, §923(a), amended par. (1) identically, inserting "or only from a limited number of responsible sources".
Subsec. (d)(1)(A). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§923(b)], Pub. L. 99–661, §923(b), amended subpar. (A) identically, substituting "a concept—" for "a unique and innovative concept", adding cl. (i), and designating provision relating to nonavailability to the United States and nonresemblance to a pending competitive procurement as cl. (ii).
Subsec. (d)(1)(B). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§923(c)], Pub. L. 99–661, §923(c), amended subpar. (B) identically, inserting ", or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures" after "highly specialized equipment", inserted a one-em dash after "would result in", paragraphed cls. (i) and (ii), in cl. (i) substituted "competition;" for "competition,", and in cl. (ii) struck out ", such property may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures" after "agency's needs".
Subsec. (i). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§927(a)], Pub. L. 99–661, §927(a), amended section identically, adding subsec. (i).
1985—Subsec. (a)(1)(B). Pub. L. 99–145, §1303(a)(13), substituted "procedures" for "krocedures".
Subsec. (f)(2). Pub. L. 99–145, §961(a)(1), amended second sentence generally. Prior to amendment, second sentence read as follows: "The justification and approval required by paragraph (1) is not required in the case of a procurement permitted by subsection (c)(7) or in the case of a procurement conducted under—
"(A) the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the Wagner-O'Day Act; or
"(B) the authority of section 8(a) of the Small Business Act (15 U.S.C. 637)."
1984—Pub. L. 98–369, §2723(a), substituted "Contracts: competition requirements" for "Purchases and contracts: formal advertising; exceptions" in section catchline and struck out subsecs. (a) to (e) and (g) to (i), redesignated subsec. (f) as (h), and added new subsecs. (a) through (g), thereby removing the prior statutory preference for formal advertising and installing instead more competitive procurement procedures, including dual sourcing, but with provision for the use of other than competitive procedures in specified situations.
Subsec. (b)(2). Pub. L. 98–577, §504(b)(1), substituted provisions to the effect that executive agencies may provide for procurement of property or services covered by this section using competitive procedures but excluding other than small business concerns for provisions which provided that executive agencies shall use competitive procedures but may restrict a solicitation to allow only small business concerns to compete.
Subsec. (b)(3). Pub. L. 98–577, §504(b)(1), added par. (3).
Subsec. (f)(2). Pub. L. 98–577, §504(b)(2), designated existing provisions as subpar. (A) and added subpar. (B).
Subsec. (h). Pub. L. 98–369, §2727(b), substituted "contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed bid procedures" for "contracts negotiated under this section shall be treated as if they were made with formal advertising".
Pub. L. 98–369, §2723(a)(1)(B), redesignated subsec. (f) as (h).
1982—Subsec. (a). Pub. L. 97–295, §1(24)(A), inserted ", and shall be awarded on a competitive bid basis to the lowest responsible bidder," after "formal advertising".
Subsec. (e). Pub. L. 97–375 repealed subsec. (e) which directed that a report be made on May and November 19 of each year of purchases and contracts under cls. (11) and (16) of subsec. (a) since the last report, and that the report name each contractor, state the amount of each contract, and describe, with consideration of the national security, the property and services covered by each contract.
Subsec. (f)(1). Pub. L. 97–295, §1(24)(B), substituted "Healey" for "Healy" after "Walsh–".
Subsec. (i). Pub. L. 97–295, §1(24)(C), added subsec. (i).
1981—Subsecs. (a)(3), (g). Pub. L. 97–86 substituted "$25,000" for "$10,000".
1980—Subsec. (f). Pub. L. 96–513 substituted "(1) The Act entitled 'An Act to provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes', approved June 30, 1936 (commonly referred to as the 'Walsh-Healy Act') (41 U.S.C. 35–45).", for "(1) Sections 35–45 of title 41.", and "(2) The Act entitled 'An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes', approved March 3, 1931 (commonly referred to as the 'Davis-Bacon Act') (40 U.S.C. 276a—276a–5)." for "(2) Sections 276a—276a–5 of title 40.", and struck out "(3) Sections 324 and 325a of title 40".
1974—Subsec. (a)(3). Pub. L. 93–356, §4(a), substituted "$10,000" for "$2,500".
Subsec. (g). Pub. L. 93–356, §4(b), substituted "$10,000" for "$2,500".
1968—Subsec. (g). Pub. L. 90–500 required that the proposals solicited from the maximum number of qualified sources, consistent with the nature and requirements of the supplies or services to be procured, include price.
Subsec. (h). Pub. L. 90–268 added subsec. (h).
1962—Subsec. (a). Pub. L. 87–653, §1(a), (b), provided that formal advertising be used where feasible and practicable under existing conditions and circumstances, subjected the agency head to the requirements of section 2310 of this title before negotiating a contract where formal advertising is not feasible and practicable and, in par. (14), substituted "would be likely to result in additional cost to the Government by reason of duplication of investment or would result in duplication of necessary preparation which would unduly delay the procurement of the property;" for "and competitive bidding might require duplication of investment or preparation already made or would unduly delay the procurement of that property; or".
Subsec. (g). Pub. L. 87–653, §1(c), added subsec. (g).
1958—Subsec. (a). Pub. L. 85–861 included Commonwealths in cl. (6).
Pub. L. 85–800 substituted "$2,500" for "$1,000" in cl. (3) and inserted "or nonperishable" in cl. (9).
Amendment by section 836(c)(2) of Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
Pub. L. 105–85, div. A, title VIII, §850(g), Nov. 18, 1997, 111 Stat. 1850, provided that:
"(1) Except as provided in paragraph (2), the amendments made by this section [amending this section, former section 2302c of this title, section 637 of Title 15, Commerce and Trade, section 1501 of former Title 40, Public Buildings, Property, and Works, and sections 252c, 253, 416, 426, and 427 of Title 41, Public Contracts, repealing section 426a of Title 41, amending provisions set out as a note under section 413 of Title 41, and repealing provisions set out as a note under section 426a of Title 41] shall take effect 180 days after the date of the enactment of this Act [Nov. 18, 1997].
"(2) The repeal made by subsection (c) of this section [repealing provisions set out as a note under section 426a of Title 41] shall take effect on the date of the enactment of this Act."
For effective date and applicability of amendments by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 99–500, §101(c) [title X, §923(d)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, Pub. L. 99–591, §101(c) [title X, §923(d)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153, and Pub. L. 99–661, div. A, title IX, formerly title IV, §923(d), Nov. 14, 1986, 100 Stat. 3932, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that:
"(1) The amendment made by subsection (a) [amending this section] shall apply with respect to contracts for which solicitations are issued after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].
"(2) The amendment made by subsection (b) [amending this section] shall apply with respect to contracts awarded on the basis of unsolicited research proposals after the end of the 180-day period beginning on the date of the enactment of this Act.
"(3) The amendments made by subsection (c) [amending this section] shall apply with respect to follow-on contracts awarded after the end of the 180-day period beginning on the date of the enactment of this Act."
Pub. L. 99–145, title IX, §961(e), Nov. 8, 1985, 99 Stat. 704, provided that: "The amendments made by subsections (a) [amending this section and section 253 of Title 41, Public Contracts], (b) [amending section 2323 (now section 2343) of this title], and (c) [amending section 759 of former Title 40, Public Buildings, Property, and Works] shall take effect as if included in the enactment of the Competition in Contracting Act of 1984 (title VII of division B of Public Law 98–369) [see Effective Date of 1984 Amendment note set out under section 2302 of this title]."
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
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.
Pub. L. 87–653, §1(h), Sept. 10, 1962, 76 Stat. 529, provided that: "The amendments made by this Act [amending this section and sections 2306, 2310, and 2311 of this title] shall take effect on the first day of the third calendar month which begins after the date of enactment of this Act [Sept. 10, 1962]."
Amendment by Pub. L. 85–861 effective Aug. 10, 1956, see section 33(g) of Pub. L. 85–861, set out as a note under section 101 of this title.
Repeal of prior subsec. (j) of this section by section 1004(b) of Pub. L. 103–355 not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former section 759 or former subchapter VI (§541 et seq.) of chapter 10 of Title 40 [now chapter 11 of Title 40, Public Buildings, Property, and Works], see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
Pub. L. 98–369, div. B, title VII, §2723(c), July 18, 1984, 98 Stat. 1192, provided that: "The amendments made by this section [amending this section and section 2305 of this title] do not supersede or affect the provisions of section 8(a) of the Small Business Act (15 U.S.C. 637(a))."
Pub. L. 115–91, div. A, title VIII, §827, Dec. 12, 2017, 131 Stat. 1467, provided that:
"(a)
"(b)
"(1) begin on the date that is two years after the date of the enactment of this Act [Dec. 12, 2017]; and
"(2) end on the date that is five years after the date of the enactment of this Act.
"(c)
"(d)
"(1) denied in an opinion issued by the Government Accountability Office;
"(2) filed by a party with revenues in excess of $250,000,000 (based on fiscal year 2017 constant dollars) during the previous year; and
"(3) filed on or after October 1, 2019 and on or before September 30, 2022."
Pub. L. 115–91, div. A, title XVII, §1710, Dec. 12, 2017, 131 Stat. 1810, provided that:
"(a)
"(1) the terms 'commercialization', 'Federal agency', 'Phase I', 'Phase II', 'Phase III', 'SBIR', and 'STTR' have the meanings given those terms in section 9(e) of the Small Business Act (15 U.S.C. 638(e));
"(2) the term 'covered small business concern' means—
"(A) a small business concern that completed a Phase II award under the SBIR or STTR program of the Department; or
"(B) a small business concern that—
"(i) completed a Phase I award under the SBIR or STTR program of the Department; and
"(ii) a contracting officer for the Department recommended for inclusion in a multiple award contract described in subsection (b);
"(1) [sic] the term 'Department' means the Department of Defense;
"(2) [sic] the term 'military department' has the meaning given the term in section 101 of title 10, United States Code;
"(3) the term 'multiple award contract' has the meaning given the term in section 3302(a) of title 41, United States Code;
"(4) the term 'pilot program' means the pilot program established under subsection (b); and
"(5) the term 'small business concern' has the meaning given the term in section 3 of the Small Business Act (15 U.S.C. 632).
"(b)
"(c)
"(d)
"(e)
"(f)
"(1) direct awards for Phase III of an SBIR or STTR program; or
"(2) any other contract vehicle."
Pub. L. 114–113, div. C, title VIII, §8039, Dec. 18, 2015, 129 Stat. 2359, provided that:
"None of the funds appropriated by this Act [div. C of Pub. L. 114–113, see Tables for classification] and hereafter shall be available for a contract for studies, analysis, or consulting services entered into without competition on the basis of an unsolicited proposal unless the head of the activity responsible for the procurement determines—
"(1) as a result of thorough technical evaluation, only one source is found fully qualified to perform the proposed work;
"(2) the purpose of the contract is to explore an unsolicited proposal which offers significant scientific or technological promise, represents the product of original thinking, and was submitted in confidence by one source; or
"(3) the purpose of the contract is to take advantage of unique and significant industrial accomplishment by a specific concern, or to insure that a new product or idea of a specific concern is given financial support: Provided, That this limitation shall not apply to contracts in an amount of less than $25,000, contracts related to improvements of equipment that is in development or production, or contracts as to which a civilian official of the Department of Defense, who has been confirmed by the Senate, determines that the award of such contract is in the interest of the national defense."
Pub. L. 114–92, div. A, title VIII, §895, Nov. 25, 2015, 129 Stat. 954, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Under Secretary of Defense for Acquisition, Technology, and Logistics shall review, and as necessary revise or issue, policy guidance pertaining to the identification, mitigation, and prevention of potential unfair competitive advantage conferred to technical advisors to acquisition programs."
Pub. L. 114–92, div. A, title VIII, §898, Nov. 25, 2015, 129 Stat. 955, provided that: "The Department of Defense may not preclude a non-profit organization from competing for a contract for religious related services on a United States military installation."
Pub. L. 113–291, div. A, title VIII, §824, Dec. 19, 2014, 128 Stat. 3436, provided that:
"(a)
"(1) single bid contracts may not be entered into resulting from reverse auctions unless compliant with existing Federal regulations and Department of Defense memoranda providing guidance on single bid offers;
"(2) all reverse auctions provide offerors with the ability to submit revised bids throughout the course of the auction;
"(3) if a reverse auction is conducted by a third party—
"(A) inherently governmental functions are not performed by private contractors, including by the third party; and
"(B) past performance or financial responsibility information created by the third party is made available to offerors; and
"(4) reverse auctions resulting in design-build military construction contracts specifically authorized in law are prohibited.
"(b)
"(c)
Pub. L. 112–239, div. A, title VIII, §802, Jan. 2, 2013, 126 Stat. 1824, provided that: "Not later than 180 days after the date of the enactment of this Act [Jan. 2, 2013], the Secretary of Defense, the Secretary of State, and the Administrator of the United States Agency for International Development shall issue such guidance and regulations as may be necessary to ensure that in any case in which an offeror for a contract or a task or delivery order informs the agency pursuant to section 52.215-22 of the Federal Acquisition Regulation that the offeror intends to award subcontracts for more than 70 percent of the total cost of work to be performed under the contract, task order, or delivery order, the contracting officer for the contract is required to—
"(1) consider the availability of alternative contract vehicles and the feasibility of contracting directly with a subcontractor or subcontractors that will perform the bulk of the work;
"(2) make a written determination that the contracting approach selected is in the best interest of the Government; and
"(3) document the basis for such determination."
Pub. L. 111–383, div. A, title VIII, §806, Jan. 7, 2011, 124 Stat. 4260, as amended by Pub. L. 112–239, div. A, title VIII, §806, Jan. 2, 2013, 126 Stat. 1827; Pub. L. 115–232, div. A, title VIII, §881(b), Aug. 13, 2018, 132 Stat. 1913, provided that:
"(a)
"(1) carry out a covered procurement action; and
"(2) limit, notwithstanding any other provision of law, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action.
"(b)
"(1) obtaining a joint recommendation by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Chief Information Officer of the Department of Defense, on the basis of a risk assessment by the Under Secretary of Defense for Intelligence, that there is a significant supply chain risk to a covered system;
"(2) making a determination in writing, in unclassified or classified form, with the concurrence of the Under Secretary of Defense for Acquisition, Technology, and Logistics, that—
"(A) use of the authority in subsection (a)(1) is necessary to protect national security by reducing supply chain risk;
"(B) less intrusive measures are not reasonably available to reduce such supply chain risk; and
"(C) in a case where the head of the covered agency plans to limit disclosure of information under subsection (a)(2), the risk to national security due to the disclosure of such information outweighs the risk due to not disclosing such information; and
"(3) providing a classified or unclassified notice of the determination made under paragraph (2) to the appropriate congressional committees, which notice shall include—
"(A) the information required by section 2304(f)(3) of title 10, United States Code;
"(B) the joint recommendation by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Chief Information Officer of the Department of Defense as specified in paragraph (1);
"(C) a summary of the risk assessment by the Under Secretary of Defense for Intelligence that serves as the basis for the joint recommendation specified in paragraph (1); and
"(D) a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why they were not reasonably available to reduce supply chain risk.
"(c)
"(d)
"(1) no action undertaken by the agency head under such authority shall be subject to review in a bid protest before the Government Accountability Office or in any Federal court; and
"(2) the agency head shall—
"(A) notify appropriate parties of a covered procurement action and the basis for such action only to the extent necessary to effectuate the covered procurement action;
"(B) notify other Department of Defense components or other Federal agencies responsible for procurements that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and
"(C) ensure the confidentiality of any such notifications.
"(e)
"(1)
"(A) The Secretary of Defense.
"(B) The Secretary of the Army.
"(C) The Secretary of the Navy.
"(D) The Secretary of the Air Force.
"(2)
"(A) The exclusion of a source that fails to meet qualification standards established in accordance with the requirements of section 2319 of title 10, United States Code, for the purpose of reducing supply chain risk in the acquisition of covered systems.
"(B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.
"(C) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract.
"(3)
"(A) a source selection for a covered system or a covered item of supply involving either a performance specification, as provided in section 2305(a)(1)(C)(ii) of title 10, United States Code, or an evaluation factor, as provided in section 2305(a)(2)(A) of such title, relating to supply chain risk;
"(B) the consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 2304c(d)(3) of title 10, United States Code, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk; or
"(C) any contract action involving a contract for a covered system or a covered item of supply where such contract includes a clause establishing requirements relating to supply chain risk.
"(4)
"(5)
"(6)
"(7)
"(A) in the case of a covered system included in the National Intelligence Program or the Military Intelligence Program, the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and
"(B) in the case of a covered system not otherwise included in subparagraph (A), the congressional defense committees.
"(f)
"(1) contracts that are awarded on or after such date; and
"(2) task and delivery orders that are issued on or after such date pursuant to contracts that are awarded before, on, or after such date.
"[(g) Repealed. Pub. L. 115–232, div. A, title VIII, §881(b), Aug. 13, 2018, 132 Stat. 1913.]
"(h)
"(1)
"(A) establish criteria for measuring the effectiveness of the authority provided by this section; and
"(B) collect data to evaluate the implementation of this section using such criteria.
"(2)
"(A) not later than March 1, 2013, a report on the criteria established under paragraph (1)(A); and
"(B) not later than January 1, 2017, a report on the effectiveness of the implementation of this section, based on data collected under paragraph (1)(B)."
Pub. L. 111–84, div. A, title VIII, §820, Oct. 28, 2009, 123 Stat. 2410, provided that:
"(a)
"(b)
"(1) funded entirely using funds of the Department of Defense; and
"(2) covered by subpart 7.107 of the Federal Acquisition Regulation (relating to acquisitions involving bundling).
"(c)
"(1)
"(2)
"(3)
Pub. L. 110–417, [div. A], title I, §143, Oct. 14, 2008, 122 Stat. 4381, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(1), Jan. 7, 2011, 124 Stat. 4374, provided that:
"(a)
"(1) An assessment of Department of Defense-wide small arms requirements in terms of capabilities and quantities, based on an analysis of the small arms capability assessments of each military department.
"(2) An assessment of plans for small arms research, development, and acquisition programs to meet the requirements identified under paragraph (1).
"(3) An assessment of capabilities, capacities, and risks in the small arms industrial base of the United States to meet the requirements of the Department of Defense for pistols, carbines, rifles, and light, medium, and heavy machine guns during the 20 years following the date of the report.
"(4) An assessment of the costs, benefits, and risks of full and open competition for the procurement of non-developmental pistols and carbines that are not technically compatible with the M9 pistol or M4 carbine to meet the requirements identified under paragraph (1).
"(b)
"(1)
"(2)
"(A) is open to all developmental item solutions and non-developmental item solutions; and
"(B) provides for the award of a contract based on selection criteria that reflect the key performance parameters and attributes identified in a service requirements document approved by the Army.
"(c)
"(1) means man-portable or vehicle-mounted light weapons, designed primarily for use by individual military personnel for anti-personnel use; and
"(2) includes pistols, carbines, rifles, and light, medium, and heavy machine guns."
Pub. L. 110–417, [div. A], title VIII, §802, Oct. 14, 2008, 122 Stat. 4518, which required guidance from the Secretary on certain statutory requirements regarding major defense acquisition programs and the national technology and industrial base, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(11), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 110–181, div. A, title VIII, §821, Jan. 28, 2008, 122 Stat. 226, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(2)(B), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 115–232, div. A, title VIII, §836(f)(3), Aug. 13, 2018, 132 Stat. 1871, provided that:
"(a)
"(1) Government-unique clauses authorized by law or regulation.
"(2) Any additional clauses that are relevant and necessary to a specific contract.
"(b)
"(1) The term 'commercial contract' means a contract awarded by the Federal Government for the procurement of a commercial item.
"(2) The term 'commercial item' has the meaning provided by section 103 of title 41, United States Code."
[Pub. L. 115–232, div. A, title VIII, §836(f)(3), (h), Aug. 13, 2018, 132 Stat. 1871, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, section 821(b) of Pub. L. 110–181, set out above, is amended:
[(1) in paragraph (1), by striking "a commercial item" and inserting "a commercial product or a commercial service";
[(2) in paragraph (2), by striking "commercial item" and inserting "commercial product"; and
[(3) by adding at the end the following new paragraph:
["(3) The term 'commercial service' has the meaning provided by section 103a of title 41, United States Code."]
Pub. L. 110–181, div. A, title VIII, §885, Jan. 28, 2008, 122 Stat. 265, as amended by Pub. L. 111–383, div. A, title VI, §641, Jan. 7, 2011, 124 Stat. 4241; Pub. L. 112–81, div. A, title X, §1062(c), Dec. 31, 2011, 125 Stat. 1585, provided that:
"(a)
"(1)
"(2)
"(b)
"(1)
"(2)
"(c)
Pub. L. 110–181, div. A, title VIII, §892, Jan. 28, 2008, 122 Stat. 270, provided that:
"(a)
"(1) full and open competition is obtained to the maximum extent practicable;
"(2) no responsible United States manufacturer is excluded from competing for such procurements; and
"(3) products manufactured in the United States are not excluded from the competition.
"(b)
"(1) Pistols and other weapons less than 0.50 caliber for assistance to the Army of Iraq, the Iraqi Police Forces, and other Iraqi security organizations.
"(2) Pistols and other weapons less than 0.50 caliber for assistance to the Army of Afghanistan, the Afghani Police Forces, and other Afghani security organizations."
Pub. L. 110–417, [div. A], title VIII, §804(a)–(c), Oct. 14, 2008, 122 Stat. 4519, provided that:
"(a)
"(b)
"(1) The review and determination required by subsection (a)(1) of such section shall be completed by not later than March 15, 2009.
"(2) The review and determination required by subsection (a)(2) of such section, if necessary, shall be completed by not later than June 15, 2010, and such review and determination shall be a review and determination of such agency's procurement of property and services on behalf of the Department of Defense in fiscal year 2009.
"(3) The memorandum of understanding required by subsection (c)(1) of such section shall be entered into by not later than 60 days after the date of the enactment of this Act [Oct. 14, 2008].
"(4) The limitation specified in subsection (d)(1) of such section shall apply after March 15, 2009, and before June 16, 2010.
"(5) The limitation specified in subsection (d)(2) of such section shall apply after June 15, 2010.
"(6) The limitation required by subsection (d)(3) of such section shall commence, if necessary, on the date that is 60 days after the date of the enactment of this Act.
"(c)
"(1) The Department of Commerce.
"(2) The Department of Energy."
Pub. L. 110–181, div. A, title VIII, §801, Jan. 28, 2008, 122 Stat. 202, as amended by Pub. L. 110–417, [div. A], title VIII, §804(d), Oct. 14, 2008, 122 Stat. 4519; Pub. L. 111–84, div. A, title VIII, §806, Oct. 28, 2009, 123 Stat. 2404; Pub. L. 112–81, div. A, title VIII, §817, Dec. 31, 2011, 125 Stat. 1493; Pub. L. 112–239, div. A, title VIII, §§801, 805, Jan. 2, 2013, 126 Stat. 1824, 1826; Pub. L. 113–291, div. A, title X, §1071(d)(1)(B), Dec. 19, 2014, 128 Stat. 3509, provided that:
"(a)
"(1)
"(A) review—
"(i) the procurement policies, procedures, and internal controls of such covered non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such covered non-defense agency; and
"(ii) the administration of such policies, procedures, and internal controls; and
"(B) determine in writing whether such covered non-defense agency is or is not compliant with applicable procurement requirements.
"(2)
"(3)
"(4)
"(A) determine that the non-defense agency is compliant with applicable procurement requirements; and
"(B) notify the Secretary of Defense of that determination.
"(5)
"(b)
"(1) Except as provided in paragraph (2), an acquisition official of the Department of Defense may place an order, make a purchase, or otherwise procure property or services for the Department of Defense in excess of the simplified acquisition threshold through a non-defense agency only if—
"(A) in the case of a procurement by any non-defense agency in any fiscal year, the head of the non-defense agency has certified that the non-defense agency will comply with applicable procurement requirements for the fiscal year;
"(B) in the case of—
"(i) a procurement by a covered non-defense agency in a fiscal year for which a memorandum of understanding is to be entered into under subsection (a)(3), the Inspector General of the Department of Defense and the Inspector General of the covered non-defense agency have entered into such a memorandum of understanding; or
"(ii) a procurement by a covered non-defense agency in a fiscal year following the Inspectors General review and determination provided for under subsection (a), the Inspectors General have determined that a covered non-defense agency is compliant with applicable procurement requirements or have terminated a prior determination of non-compliance in accordance with subsection (a)(4); and
"(C) the procurement is not otherwise prohibited by section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364) or section 811 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163) [see notes below].
"(2)
"(A)
"(B)
"(3)
"(c)
"(1)
"(2)
"(A) the circumstances in which it is appropriate for such acquisition officials to use direct acquisitions;
"(B) the circumstances in which it is appropriate for such acquisition officials to use assisted acquisitions;
"(C) the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items unique to the Department of Defense and the procedures for approving such interagency contracting;
"(D) the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items that are already being provided under a contract awarded by the Department of Defense;
"(E) tools that should be used by such acquisition officials to determine whether items are already being provided under a contract awarded by the Department of Defense; and
"(F) procedures for ensuring that applicable procurement requirements are identified and communicated to outside agencies involved in interagency contracting.
"(d)
"(1) Except as provided in paragraph (2), for the purposes of this section, a non-defense agency is compliant with applicable procurement requirements if the procurement policies, procedures, and internal controls of the non-defense agency applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure the compliance of the non-defense agency with the following:
"(A) The Federal Acquisition Regulation and other laws and regulations that apply to procurements of property and services by Federal agencies.
"(B) Laws and regulations (including applicable Department of Defense financial management regulations) that apply to procurements of property and services made by the Department of Defense through other Federal agencies.
"(2) In the case of the procurement of property or services on behalf of the Department of Defense through the Work for Others program of the Department of Energy, the laws and regulations applicable under paragraph (1)(B) are the Department of Energy Acquisition Regulations, pertinent interagency agreements, and Department of Defense and Department of Energy policies related to the Work for Others program.
"(e)
"(f)
"(1)
"(2)
"(A) The General Services Administration.
"(B) The Department of the Interior.
"(C) The Department of Veterans Affairs.
"(D) The National Institutes of Health.
"(E) The Department of Commerce.
"(F) The Department of Energy.
"(3)
"(A) is entered into by a non-defense agency; and
"(B) may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government.
"(4)
"(5)
"(6)
"(A) a contracting officer of the Department of Defense; or
"(B) any other Department of Defense official authorized to approve a direct acquisition or an assisted acquisition on behalf of the Department of Defense.
"(7)
"(8)
Pub. L. 109–364, div. A, title VIII, §817, Oct. 17, 2006, 120 Stat. 2326, provided that:
"(a)
"(1)
"(A) review—
"(i) the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and
"(ii) the administration of those policies, procedures, and internal controls; and
"(B) determine in writing whether—
"(i) such non-defense agency is compliant with defense procurement requirements;
"(ii) such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements;
"(iii) neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency; or
"(iv) such non-defense agency is not compliant with defense procurement requirements to such an extent that the interests of the Department of Defense are at risk in procurements conducted by such non-defense agency.
"(2)
"(A) conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency's procurement of property or services on behalf of the Department of Defense in fiscal year 2007; and
"(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.
"(b)
"(c)
"(1)
"(2)
"(d)
"(1)
"(2)
"(3)
"(e)
"(1)
"(2)
"(f)
"(1) determine that such non-defense agency is compliant with defense procurement requirements; and
"(2) notify the Secretary of Defense of that determination.
"(g)
"(h)
"(i)
"(1) The term 'covered non-defense agency' means each of the following:
"(A) The Department of Veterans Affairs.
"(B) The National Institutes of Health.
"(2) The term 'governmentwide acquisition contract', with respect to a covered non-defense agency, means a task or delivery order contract that—
"(A) is entered into by the non-defense agency; and
"(B) may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government."
Pub. L. 109–163, div. A, title VIII, §811, Jan. 6, 2006, 119 Stat. 3374, provided that:
"(a)
"(1)
"(A) review—
"(i) the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and
"(ii) the administration of those policies, procedures, and internal controls; and
"(B) determine in writing whether—
"(i) such non-defense agency is compliant with defense procurement requirements;
"(ii) such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements; or
"(iii) neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency.
"(2)
"(A) conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency's procurement of property or services on behalf of the Department of Defense in fiscal year 2006; and
"(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.
"(b)
"(c)
"(1)
"(2)
"(d)
"(1)
"(2)
"(3)
"(e)
"(1)
"(2)
"(f)
"(1) determine that such non-defense agency is compliant with defense procurement requirements; and
"(2) notify the Secretary of Defense of that determination.
"(g)
"(h)
"(1) The term 'covered non-defense agency' means each of the following:
"(A) The Department of the Treasury.
"(B) The Department of the Interior.
"(C) The National Aeronautics and Space Administration.
"(2) The term 'governmentwide acquisition contract', with respect to a covered non-defense agency, means a task or delivery order contract that—
"(A) is entered into by the non-defense agency; and
"(B) may be used as the contract under which property or services are procured for 1 or more other departments or agencies of the Federal Government."
Pub. L. 109–364, div. A, title VIII, §813, Oct. 17, 2006, 120 Stat. 2320, as amended by Pub. L. 111–23, title II, §207(d), May 22, 2009, 123 Stat. 1730, which established the Panel on Contracting Integrity and its composition and duties, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(12), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 109–289, div. A, title VIII, §8048, Sept. 29, 2006, 120 Stat. 1284, provided that: "Notwithstanding any other provision of law, each contract awarded by the Department of Defense during the current fiscal year and hereafter for construction or service performed in whole or in part in a State (as defined in section 381(d) [now 281(d)] of title 10, United States Code) which is not contiguous with another State and has an unemployment rate in excess of the national average rate of unemployment as determined by the Secretary of Labor, shall include a provision requiring the contractor to employ, for the purpose of performing that portion of the contract in such State that is not contiguous with another State, individuals who are residents of such State and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills: Provided, That the Secretary of Defense may waive the requirements of this section, on a case-by-case basis, in the interest of national security."
Pub. L. 108–375, div. A, title VIII, §851, Oct. 28, 2004, 118 Stat. 2019, provided that:
"(a)
"(2) In conducting the review, the Secretary shall—
"(A) identify potential weaknesses and areas for improvement in existing policies, procedures, practices, and penalties;
"(B) develop and implement reforms to strengthen, upgrade, and improve policies, procedures, practices, and penalties of the Department of Defense and its contractors; and
"(C) review and analyze reforms developed pursuant to this paragraph to identify for purposes of national implementation those which are most efficient and effective.
"(3) The review under this subsection shall be completed not later than 180 days after the date of the enactment of this Act [Oct. 28, 2004].
"(b)
"(c)
"(1) reliable, effective workforce programs offered by prospective contractors that provide background checks and other measures to ensure the contractor is in compliance with the Immigration and Nationality Act; and
"(2) reliable, effective project staffing plans offered by prospective contractors that specify for all contract employees (including management employees, professionals, and craft labor personnel) the skills, training, and qualifications of such persons and the labor supply sources and hiring plans or procedures used for employing such persons.
"(d)
"(e)
"(f)
Pub. L. 108–375, div. A, title VIII, §854, Oct. 28, 2004, 118 Stat. 2022, provided that:
"(a)
"(b)
"(c)
"(1) Printing, binding, or blank-book work to which section 502 of title 44, United States Code, applies.
"(2) Services available under programs pursuant to section 103 of the Library of Congress Fiscal Operations Improvement Act of 2000 (Public Law 106–481; 114 Stat. 2187; 2 U.S.C. 182c).
"(d)
"(2) In the case of procurements made on orders issued by the head of a Defense Agency, Department of Defense Field Activity, or any other organization within the Department of Defense (other than a military department) under the authority of the Secretary of Defense as the head of an agency, the report under paragraph (1) shall be submitted by the head of that Defense Agency, Department of Defense Field Activity, or other organization, respectively.
"(3) The report for a fiscal year under this subsection shall be submitted not later than December 31 of the calendar year in which such fiscal year ends.
"(e)
"(1) The term 'head of an agency' means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force.
"(2) The term 'Defense Agency' has the meaning given such term in section 101(a)(11) of title 10, United States Code.
"(3) The term 'Department of Defense Field Activity' has the meaning given such term in section 101(a)(12) of such title."
Pub. L. 108–136, div. A, title III, §334, Nov. 24, 2003, 117 Stat. 1443, provided that:
"(a)
"(b)
"(2) A determination under this subsection shall be made pursuant to procedures prescribed by the Secretary of Defense."
Pub. L. 107–107, div. A, title VIII, §803, Dec. 28, 2001, 115 Stat. 1178, which required the Secretary of Defense to promulgate in the Department of Defense Supplement to the Federal Acquisition Regulation, not later than 180 days after Dec. 28, 2001, regulations requiring competition in the purchase of services by the Department of Defense pursuant to multiple award contracts, was repealed by Pub. L. 110–417, [div. A], title VIII, §863(f), Oct. 14, 2008, 122 Stat. 4548.
Pub. L. 106–398, §1 [[div. A], title VIII, §826], Oct. 30, 2000, 114 Stat. 1654, 1654A–220, provided that: "In accordance with the requirements contained in the amendments enacted in the Competition in Contracting Act of 1984 (title VII of division B of Public Law 98–369; 98 Stat. 1175) [see Tables for classification], the Secretary of Defense may not, in awarding a contract for the purchase of firearms or ammunition, take into account whether a manufacturer or vendor of firearms or ammunition is a party to an agreement under which the manufacturer or vendor agrees to adopt limitations with respect to importing, manufacturing, or dealing in firearms or ammunition in the commercial market."
Pub. L. 106–65, div. A, title VIII, §806(b), Oct. 5, 1999, 113 Stat. 705, directed the Comptroller General, not later than Mar. 1, 2001, to submit to Congress an evaluation of the test program authorized by the provisions in Pub. L. 104–106, §4202 (amending this section and section 2305 of this title and sections 253, 253a, 416, and 427 of Title 41, Public Contracts, and enacting provisions set out as a note below), together with any recommendations that the Comptroller General considered appropriate regarding the test program or the use of special simplified procedures for purchases of commercial items in excess of the simplified acquisition threshold.
Pub. L. 105–261, div. A, title VIII, §806, Oct. 17, 1998, 112 Stat. 2084, provided that:
"(a)
"(b)
"(c)
Pub. L. 105–85, div. A, title III, §391, Nov. 18, 1997, 111 Stat. 1716, as amended by Pub. L. 106–65, div. A, title III, §382, Oct. 5, 1999, 113 Stat. 583; Pub. L. 107–107, div. A, title III, §364, Dec. 28, 2001, 115 Stat. 1068; Pub. L. 107–314, div. A, title III, §368, Dec. 2, 2002, 116 Stat. 2524; Pub. L. 108–375, div. A, title III, §343, Oct. 28, 2004, 118 Stat. 1857, which authorized the Secretary of Defense to carry out a pilot program to use commercial sources of services to improve the collection of Department of Defense claims under aircraft engine warranties, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(13), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 105–85, div. A, title VIII, §848, Nov. 18, 1997, 111 Stat. 1846, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(10), Dec. 19, 2014, 128 Stat. 3507, provided that:
"(a)
"(2) Not later than October 1, 2000, at least 90 percent of all eligible purchases made by the Department of Defense for an amount less than the micro-purchase threshold shall be made through streamlined micro-purchase procedures.
"(b)
"(c)
"(d)
"(A) the total dollar amount of all Department of Defense purchases for an amount less than the micro-purchase threshold in the fiscal year preceding the year in which the report is submitted;
"(B) the total dollar amount of such purchases that were considered to be eligible purchases;
"(C) the total amount of such eligible purchases that were made through a streamlined micro-purchase method; and
"(D) a description of the categories of purchases excluded from the definition of eligible purchases established under subsection (b).
"(e)
"(1) The term 'micro-purchase threshold' has the meaning provided in section 1902 of title 41, United States Code.
"(2) The term 'streamlined micro-purchase procedures' means procedures providing for the use of the Government-wide commercial purchase card or any other method for carrying out micro-purchases that the Secretary of Defense prescribes in the regulations implementing this subsection."
Pub. L. 104–106, div. D, title XLII, §4202(e), Feb. 10, 1996, 110 Stat. 654, as amended by Pub. L. 106–65, div. A, title VIII, §806(a), Oct. 5, 1999, 113 Stat. 705; Pub. L. 107–107, div. A, title VIII, §823, Dec. 28, 2001, 115 Stat. 1183; Pub. L. 107–314, div. A, title VIII, §812(a), Dec. 2, 2002, 116 Stat. 2609; Pub. L. 108–136, div. A, title XIV, §1443(b), Nov. 24, 2003, 117 Stat. 1676; Pub. L. 108–375, div. A, title VIII, §817, Oct. 28, 2004, 118 Stat. 2015; Pub. L. 110–181, div. A, title VIII, §822(a), Jan. 28, 2008, 122 Stat. 226; Pub. L. 111–84, div. A, title VIII, §816, Oct. 28, 2009, 123 Stat. 2408; Pub. L. 112–239, div. A, title VIII, §822, Jan. 2, 2013, 126 Stat. 1830; Pub. L. 113–66, div. A, title X, §1091(b)(4), Dec. 26, 2013, 127 Stat. 876, which related to termination of authority to issue solicitations for purchases of commercial items in excess of simplified acquisition threshold, was repealed by Pub. L. 113–291, div. A, title VIII, §815, Dec. 19, 2014, 128 Stat. 3430.
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.
Pub. L. 100–180, div. A, title XI, §1111, Dec. 4, 1987, 101 Stat. 1146, directed the Secretary of Defense to authorize the commander of each military installation to (1) prepare an inventory each fiscal year of commercial activities carried out by Government personnel on the military installation, (2) decide which commercial activities were to be reviewed pursuant to Office of Management and Budget Circular A–76 or any successor administrative regulation or policy, (3) conduct a solicitation for contracts for those commercial activities selected for conversion to contractor performance under the Circular A–76 process, and (4) assist in finding suitable employment for any employee of the Department of Defense who had been displaced because of a contract entered into with a contractor for performance of a commercial activity on the military installation; directed the Secretary to prescribe regulations required by the preceding authority no later than 60 days after Dec. 4, 1987; and provided for termination of the authority on Oct. 1, 1989.
Pub. L. 100–456, div. A, title VIII, §804, Sept. 29, 1988, 102 Stat. 2009, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729, directed Secretary of Defense, within 120 days after Sept. 29, 1988, to establish criteria to ensure that proposals for contracts for professional and technical services be evaluated on a basis which does not encourage contractors to propose mandatory uncompensated overtime for professional and technical employees and, within 30 days after Sept. 29, 1988, to establish an advisory committee to make recommendations on the criteria.
Pub. L. 100–456, div. A, title VIII, §807, Sept. 29, 1988, 102 Stat. 2011, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729, which provided that not later than 120 days after Sept. 29, 1988, the Secretary of Defense was to make certain revisions to Department of Defense regulations that provide for the use of fixed-price type contracts in a development program, was repealed by Pub. L. 109–364, div. A, title VIII, §818(a), Oct. 17, 2006, 120 Stat. 2329.
Pub. L. 102–484, div. A, title VIII, §842, Oct. 23, 1992, 106 Stat. 2468, provided that: "The prohibition in section 316 of the National Defense Authorization Act for Fiscal Year 1987 [Pub. L. 99–661] (100 Stat. 3855; 10 U.S.C. 2304 note) shall cease to be effective on the date on which the President certifies to Congress that free, fair, and democratic elections have taken place in Angola."
Determination of President of the United States, No. 93–32, July 19, 1993, 58 F.R. 40309, provided:
Pursuant to the authority vested in me by Public Law 102–484, section 842 [set out as a note above], I hereby certify that free, fair, and democratic elections have taken place in Angola.
You are authorized and directed to report this determination to the Congress and publish it in the Federal Register.
William J. Clinton.
Pub. L. 99–661, div. A, title III, §316, Nov. 14, 1986, 100 Stat. 3855, provided that:
"(a)
"(b)
"(c)
"(1) natural or synthetic crude;
"(2) blends of natural or synthetic crude; and
"(3) products refined or derived from natural or synthetic crude or from such blends.
"(d)
Pub. L. 99–500, §101(c) [title X, §927(b)], Oct. 18, 1986, 100 Stat. 1783–82, 100 Stat. 1783–156, Pub. L. 99–591, §101(c) [title X, §927(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–156, and Pub. L. 99–661, div. A, title IX, formerly title IV, §927(b), Nov. 14, 1986, 100 Stat. 3935, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, which set a deadline for prescribing the regulations required by subsec. (i) of this section, were repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(14), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 99–661, div. A, title XII, §1222(b), Nov. 14, 1986, 100 Stat. 3976, which provided that, with exceptions, funds appropriated to the Department of Defense were not to be obligated or expended before Oct. 1, 1987, for the purpose of entering into a contract for the performance of security-guard functions at any military facility, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(15), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 99–661, div. A, title XII, §1223, Nov. 14, 1986, 100 Stat. 3977, which required Secretary to contract for Department of Defense supplies and services from private sector after a cost comparison demonstrates lower cost than Department of Defense can provide, and to ensure that overhead costs considered are realistic and fair, was repealed and restated in former section 2462 of this title by Pub. L. 100–370, §2(a)(1), (c)(3), July 19, 1988, 102 Stat. 853, 854.
Pub. L. 99–661, div. A, title XII, §1224, Nov. 14, 1986, 100 Stat. 3977, which required Secretary to maintain cost comparison data on performance of a commercial or industrial type activity taken over by Department of Defense comparing performance by employees of private contractor to that of civilian employees of Department of Defense, and to submit semi-annual report on savings or loss to United States, was repealed and restated in section 2463 of this title by Pub. L. 100–370, §2(a)(1), (c)(3), July 19, 1988, 102 Stat. 853, 854.
Pub. L. 101–225, title II, §205, Dec. 12, 1989, 103 Stat. 1912, provided that: "Notwithstanding any other provision of law, an officer or employee of the United States may not enter into a contract for procurement of performance of any function being performed by Coast Guard personnel as of January 1, 1989, before—
"(1) a study has been performed by the Secretary of Transportation under the Office of Management and Budget Circular A–76 with respect to that procurement;
"(2) the Secretary of Transportation has performed a study, in addition to the study required by paragraph (1) of this subsection, to determine the impact of that procurement on the multimission capabilities of the Coast Guard; and
"(3) copies of the studies required by paragraphs (1) and (2) of this subsection are submitted to the Committee on Merchant Marine and Fisheries [now Committee on Transportation and Infrastructure] of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate."
Pub. L. 100–448, §5, Sept. 28, 1988, 102 Stat. 1837, as amended by Pub. L. 104–66, title I, §1121(b), Dec. 21, 1995, 109 Stat. 724, provided that:
"(a)
"(1)
"[(2) Repealed. Pub. L. 104–66, title I, §1121(b), Dec. 21, 1995, 109 Stat. 724.]
"[(b) Repealed. Pub. L. 104–66, title I, §1121(b), Dec. 21, 1995, 109 Stat. 724.]
"(c)
"(d)
"(1)
"(2)
[For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.]
Similar provisions were contained in the following prior authorization act:
Pub. L. 99–640, §5, Nov. 10, 1986, 100 Stat. 3546.
Pub. L. 99–145, title IX, §918, Nov. 8, 1985, 99 Stat. 690, which provided that Secretary of Defense require each military department to establish accounting procedure to aid in control of expenditures for contracted advisory and assistance services, prescribe regulations to identify such services and which services are in direct support of a weapons system, consider specific list of factors in prescribing regulations, and identify total amount requested and separate category amount requested in budget documents for Department of Defense presented to Congress, was repealed and restated in section 2212 of this title by Pub. L. 100–370, §1(d)(2), July 19, 1988, 102 Stat. 842.
Pub. L. 99–145, title IX, §925, Nov. 8, 1985, 99 Stat. 699, required Secretary of Defense to develop a policy regarding mobility and regular rotation of principal administrative and corporate administrative contracting officers in Department of Defense and to report to Committees on Armed Services of Senate and House of Representatives not later than January 1, 1986, on such policy, prior to repeal by Pub. L. 101–510, div. A, title XII, §1207(a), Nov. 5, 1990, 104 Stat. 1665.
Pub. L. 99–145, title IX, §932, Nov. 8, 1985, 99 Stat. 699, prohibited certain felons from working on defense contracts and penalized employment of such persons by defense contractors, prior to repeal by Pub. L. 99–500, §101(c) [title X, §941(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–162, and Pub. L. 99–591, §101(c) [title X, §941(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–162; Pub. L. 99–661, div. A, title IX, formerly title IV, §941(b), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273.
Pub. L. 99–145, title IX, §934(a), Nov. 8, 1985, 99 Stat. 700, which provided for interest payments and penalties for overpayments due to faulty cost and pricing data, was repealed by Pub. L. 99–500, §101(c) [title X, §952(b)(2), (d)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, and Pub. L. 99–591, §101(c) [title X, §952(b)(2), (d)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(b)(2), (d), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, effective with respect to contracts or modifications on contracts entered into after the end of the 120-day period beginning on Oct. 18, 1986.
Pub. L. 99–145, title XII, §1233, Nov. 8, 1985, 99 Stat. 734, related to services and activities to be performed by non-Government personnel, prior to repeal by Pub. L. 99–661, div. A, title XII, §1222(c), Nov. 14, 1986, 100 Stat. 3977.
Pub. L. 99–145, title XII, §1231(a)–(e), Nov. 8, 1985, 99 Stat. 731–733, declared that certain specifically described functions of the Department of Defense shall be deemed logistics activities necessary to maintain the logistics capability described in section 307(a)(1) of Pub. L. 98–525, formerly set out below; contained a description of the functions, i.e., depot-level maintenance of mission-essential materiel at specifically located activities of the Army, the Navy, the Marine Corps, the Air Force, the Defense Logistics Agency, and the Defense Mapping Agency; included certain matters within the specified functions and excluded certain functions; and defined "mission-essential materiel" as related to such functions.
Pub. L. 98–525, title III, §307, Oct. 19, 1984, 98 Stat. 2514, as amended by Pub. L. 99–145, title XII, §1231(f), Nov. 8, 1985, 99 Stat. 733, which prohibited contracting to non-Government personnel of logistics activities necessary for effective response to national emergencies unless Secretary waives such prohibition after a determination that Government performance of such activity is no longer required for national defense reasons, and reports to Congress on waiver, was repealed and restated in former section 2464 of this title by Pub. L. 100–370, §2(a)(1), (c)(2), July 19, 1988, 102 Stat. 853, 854.
Pub. L. 98–473, title I, §101(h) [title VIII, §8078], Oct. 12, 1984, 98 Stat. 1904, 1938, prohibited expenditure of funds to adjust any contract price in any shipbuilding claim, request for equitable adjustment, or demand for payment incurred due to the preparation, submission, or adjudication of any such shipbuilding claim, request, or demand under a contract entered into after Oct. 12, 1984, arising out of events occurring more than eighteen months prior to the submission of such shipbuilding claim, request, or demand, prior to repeal by Pub. L. 100–370, §1(p)(2), July 19, 1988, 102 Stat. 851.
Pub. L. 98–212, title VII, §787, Dec. 8, 1983, 97 Stat. 1453, which contained similar provisions relating to shipbuilding claims for contract price adjustments, was repealed and restated in section 2405 of this title by Pub. L. 98–525, title XII, §1234(a), (b)(2), Oct. 19, 1984, 98 Stat. 2604, effective Oct. 19, 1984.
Pub. L. 98–212, title VII, §794, Dec. 8, 1983, 97 Stat. 1454, provided for weapon system guarantees, Government-as-Source exception, and waiver, prior to repeal by Pub. L. 98–525, title XII, §1234(b)(1), Oct. 19, 1984, 98 Stat. 2604, effective Jan. 1, 1985.
Pub. L. 97–377, title I, §101(c) [title VII, §797], Dec. 21, 1982, 96 Stat. 1865, provided that: "None of the funds made available in the Act or any subsequent Act shall be available for the purchase of the alternate or new model fighter aircraft engine that does not have a written warranty or guarantee attesting that it will perform not less than 3,000 tactical cycles. The warranty will provide that the manufacturer must perform the necessary improvements or replace any parts to achieve the required performance at no cost to the Government."
Pub. L. 97–12, title I, §100, June 5, 1981, 95 Stat. 29, and Pub. L. 97–114, title VII, §770, Dec. 29, 1981, 95 Stat. 1590, which provided that no funds authorized for the Department of Defense in fiscal year 1981 and thereafter would be available to reimburse a contractor for the cost of commercial insurance, except for that normally maintained in the conduct of his business, that would protect against the cost for correction for the contractor's own defects in materials or workmanship such as were not a fortuitous casualty or loss, were repealed and restated in section 2399 of this title by Pub. L. 97–295, §§1(29)(A), 6(b), Oct. 12, 1982, 96 Stat. 1293, 1315.
Pub. L. 96–342, title V, §502, Sept. 8, 1980, 94 Stat. 1086, as amended by Pub. L. 97–252, title XI, §1112(a), Sept. 8, 1982, 96 Stat. 747; Pub. L. 99–145, title XII, §1234(a), Nov. 8, 1985, 99 Stat. 734; Pub. L. 99–661, div. A, title XII, §1221, Nov. 14, 1986, 100 Stat. 3976, which provided that no commercial or industrial type function of the Department of Defense that on October 1, 1980, was being performed by Department of Defense civilian employees could be converted to performance by a private contractor to circumvent any civilian personnel ceiling unless Secretary of Defense submitted favorable cost comparisons and certifications, and reported annually to Congress with regard to such conversions, was repealed and restated in section 2461 of this title by Pub. L. 100–370, §2(a)(1), (c)(1), July 19, 1988, 102 Stat. 851, 854.
Similar provisions for fiscal year 1980 were contained in Pub. L. 96–107, title VIII, §806, Nov. 9, 1979, 93 Stat. 813.
Pub. L. 95–485, title VIII, §813, Oct. 20, 1978, 92 Stat. 1624, which prohibited payment of a contract claim, request for equitable adjustment, or request for relief which exceeded $100,000 unless a senior company official certified that request was made in good faith and that supporting data was accurate and complete, was repealed and restated in section 2410 of this title by Pub. L. 100–370, §1(h)(2), (p)(4), July 19, 1988, 102 Stat. 847, 851.
Pub. L. 95–485, title VIII, §814, Oct. 20, 1978, 92 Stat. 1625, directed the Secretary of Defense to report to the House and Senate Committees on Armed Services any proposed change in policy or regulations from those in effect before June 30, 1976, as to whether commercial or industrial functions at Defense Department installations in the United States, Puerto Rico, and Guam should be performed by Department of Defense personnel or by private contractors during the period Oct. 1, 1978 to Sept. 30, 1979; prohibited such functions to be performed privately unless such contractor performance began before Oct. 20, 1978 or performance would have been allowed by policy and regulations in effect before June 30, 1976; and provided that such prohibition would apply until the end of the 60 day period beginning on the date the report by the Secretary of Defense is received by the House and Senate Committees.
Pub. L. 95–111, title VIII, §836, Sept. 21, 1977, 91 Stat. 906, which directed the Secretary of Defense to require all prime contractors with more than $500,000 of defense contract awards to report in dollars at the end of each year the amount of work done in that year and the State where performed, and requiring the Secretary of Defense to report annually to Congress the amount of funds spent for such work in each State, was repealed and restated in subsec. (i) of this section by Pub. L. 97–295, §§1(24)(C), 6(b), Oct. 12, 1982, 96 Stat. 1291, 1315.
Pub. L. 95–79, title VIII, §809, July 30, 1977, 91 Stat. 334, directed the Secretary of Defense and the Director of the Office of Management and Budget to review criteria used in determining whether commercial or industrial type functions at Department of Defense installations within the United States, Puerto Rico, and Guam should be performed by Department of Defense personnel or by private contractors and to report to the House and Senate Armed Services Committees before Jan. 1, 1978, the results of the review; prohibited commercial or industrial type functions being performed on July 30, 1977 by Department of Defense personnel from being converted to performance by private contractors before the earlier of Mar. 15, 1978 or the end of the 90-day period beginning on the date the report is received by the House and Senate Committees; exempted from such prohibition the conversion to performance by private contractors of industrial or commercial type functions if the conversion would have been made under policies and regulations in effect before June 30, 1976; and required the Secretary of Defense to report to the House and Senate Committees on Armed Services before Jan. 1, 1978, detailing the Department's rationale for establishing goals for the percentage of work at defense research installations to be performed by private contractors and for any direction in effect on July 30, 1977 establishing a minimum or maximum percentage for the allocation of work at any defense research installation to be performed by private contractors or directing a change in any such allocation in effect on July 30, 1977.
Pub. L. 94–106, title VIII, §816, Oct. 7, 1975, 89 Stat. 540, as amended by Pub. L. 98–620, title IV, §402(8), Nov. 8, 1984, 98 Stat. 3357, provided a remedy for discrimination by citizens of nationals of the United States or corporations organized or operating within the United States, and by organizations controlled by them, against the Department of Defense in the supply of petroleum products for two years after Oct. 7, 1975.
Pub. L. 91–441, title V, §507, Oct. 7, 1970, 84 Stat. 913, which had provided that the identity or location of a recipient of a contract from the Department of Defense may not be revealed prior to the public announcement of such identity by the Secretary of Defense, was repealed and restated in section 2316 of this title by Pub. L. 97–295, §§1(26)(A), 6(b), Oct. 12, 1982, 96 Stat. 1291, 1314.
Pub. L. 90–5, title III, §304, Mar. 16, 1967, 81 Stat. 6, which had provided that the Secretary of Defense was directed, insofar as practicable, that all contracts be formally advertised and awarded on a competitive bid basis to the lowest responsible bidder, was repealed and restated in subsec. (a) of this section by Pub. L. 97–295, §§1(24)(A), 6(b), Oct. 12, 1982, 96 Stat. 1290, 1314.
Provisions of the National Emergencies Act not applicable to the powers and authorities conferred by subsec. (a)(1) of this section and actions taken hereunder, see section 1651(a)(5) of Title 50, War and National Defense.
(a)
(b)
(1) The period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option, if any.
(2) The maximum quantity or dollar value of the services or property to be procured under the contract.
(3) A statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract.
(c)
(d)
(A) to award a single task or delivery order contract; or
(B) if the solicitation states that the head of the agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to two or more sources.
(2) No determination under section 2304(b) of this title is required for award of multiple task or delivery order contracts under paragraph (1)(B).
(3) No task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source unless the head of the agency determines in writing that—
(A) the task or delivery orders expected under the contract are so integrally related that only a single source can efficiently perform the work;
(B) the contract provides only for firm, fixed price task orders or delivery orders for—
(i) products for which unit prices are established in the contract; or
(ii) services for which prices are established in the contract for the specific tasks to be performed;
(C) only one source is qualified and capable of performing the work at a reasonable price to the government; or
(D) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.
(4) The regulations implementing this subsection shall—
(A) establish a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property under the authority of paragraph (1)(B); and
(B) establish criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government.
(e)
(f)
(g)
(h)
(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3249; amended Pub. L. 108–136, div. A, title VIII, §843(b), Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108–375, div. A, title VIII, §813(a), Oct. 28, 2004, 118 Stat. 2014; Pub. L. 110–181, div. A, title VIII, §843(a)(1), Jan. 28, 2008, 122 Stat. 236; Pub. L. 111–84, div. A, title VIII, §814(a), Oct. 28, 2009, 123 Stat. 2407; Pub. L. 112–81, div. A, title VIII, §809(b), Dec. 31, 2011, 125 Stat. 1490; Pub. L. 115–232, div. A, title VIII, §816, Aug. 13, 2018, 132 Stat. 1852.)
Another section 2304a was renumbered section 2304e of this title.
2018—Subsec. (d)(3)(A). Pub. L. 115–232 substituted "efficiently perform the work" for "reasonably perform the work".
2011—Subsec. (d)(3). Pub. L. 112–81 struck out subpar. (A) designation before "No task", redesignated cls. (i) to (iv) of former subpar. (A) as subpars. (A) to (D), respectively, of par. (3), redesignated subcls. (I) and (II) of former cl. (ii) as cls. (i) and (ii), respectively, of subpar. (B), and struck out former subpar. (B) which read as follows: "The head of the agency shall notify the congressional defense committees within 30 days after any determination under clause (i), (ii), (iii), or (iv) of subparagraph (A)."
2009—Subsec. (d)(3)(B). Pub. L. 111–84 amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "The head of the agency shall notify Congress within 30 days after any determination under subparagraph (A)(iv)."
2008—Subsec. (d)(3), (4). Pub. L. 110–181 added par. (3) and redesignated former par. (3) as (4).
2004—Subsec. (f). Pub. L. 108–375 substituted "any period up to five years and may extend the contract period for one or more successive periods pursuant to an option provided in the contract or a modification of the contract. The total contract period as extended may not exceed 10 years unless such head of an agency determines in writing that exceptional circumstances necessitate a longer contract period" for "a total period of not more than five years".
2003—Subsecs. (f) to (h). Pub. L. 108–136 added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.
Pub. L. 110–181, div. A, title VIII, §843(a)(3)(A), Jan. 28, 2008, 122 Stat. 237, provided that: "The amendments made by paragraph (1) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 28, 2008], and shall apply with respect to any contract awarded on or after such date."
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
Pub. L. 111–84, div. A, title VIII, §814(b), Oct. 28, 2009, 123 Stat. 2407, which set out an additional congressional notification requirement pursuant to former subsec. (d)(3)(B) of this section, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(16), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 103–355, title I, §1004(d), Oct. 13, 1994, 108 Stat. 3253, as amended by Pub. L. 108–136, div. A, title X, §1045(f), Nov. 24, 2003, 117 Stat. 1613, provided that: "Nothing in section 2304a, 2304b, 2304c, or 2304d of title 10, United States Code, as added by subsection (a), and nothing in the amendments made by subsections (b) and (c) [amending sections 2304 and 2331 of this title], shall be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under chapter 11 of title 40, United States Code."
(a)
(2) The head of an agency may enter into a task order contract for procurement of advisory and assistance services only under the authority of this section.
(b)
(c)
(d)
(2) A task order contract entered into under this section shall contain the same information that is required by paragraph (1) to be included in the solicitation of offers for that contract.
(e)
(2) If, in the case of a task order contract for advisory and assistance services to be entered into under this section, the contract period is to exceed three years and the contract amount is estimated to exceed $10,000,000 (including all options), the solicitation shall—
(A) provide for a multiple award authorized under paragraph (1); and
(B) include a statement that the head of the agency may also elect to award only one task order contract if the head of the agency determines in writing that only one of the offerers is capable of providing the services required at the level of quality required.
(3) Paragraph (2) does not apply in the case of a solicitation for which the head of the agency concerned determines in writing that, because the services required under the task order contract are unique or highly specialized, it is not practicable to award more than one contract.
(f)
(2) Unless use of procedures other than competitive procedures is authorized by an exception in subsection (c) of section 2304 of this title and approved in accordance with subsection (f) of such section, competitive procedures shall be used for making such a modification.
(3) Notice regarding the modification shall be provided in accordance with section 1708 of title 41 and section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
(g)
(A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the initial contract was entered into; and
(B) the extension is necessary in order to ensure continuity of the receipt of services pending the award of, and commencement of performance under, the follow-on contract.
(2) A task order contract may be extended under the authority of paragraph (1) only once and only in accordance with the limitations and requirements of this subsection.
(h)
(i)
(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3251; amended Pub. L. 111–350, §5(b)(13), Jan. 4, 2011, 124 Stat. 3843.)
2011—Subsecs. (c), (f)(3). Pub. L. 111–350 substituted "section 1708 of title 41" for "section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)".
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
Pub. L. 109–364, div. A, title VIII, §834, Oct. 17, 2006, 120 Stat. 2332, which temporarily allowed for waivers to extend certain task order contracts for advisory and assistance services, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(17), Aug. 13, 2018, 132 Stat. 1848.
(a)
(1) A separate notice for such order under section 1708 of title 41 or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
(2) Except as provided in subsection (b), a competition (or a waiver of competition approved in accordance with section 2304(f) of this title) that is separate from that used for entering into the contract.
(b)
(1) the agency's need for the services or property ordered is of such unusual urgency that providing such opportunity to all such contractors would result in unacceptable delays in fulfilling that need;
(2) only one such contractor is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;
(3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis;
(4) it is necessary to place the order with a particular contractor in order to satisfy a minimum guarantee; or
(5) the task or delivery order satisfies one of the exceptions in section 2304(c) of this title to the requirement to use competitive procedures.
(c)
(d)
(1) a notice of the task or delivery order that includes a clear statement of the agency's requirements;
(2) a reasonable period of time to provide a proposal in response to the notice;
(3) disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating such proposals, and their relative importance;
(4) in the case of an award that is to be made on a best value basis, a written statement documenting the basis for the award and the relative importance of quality and price or cost factors; and
(5) an opportunity for a post-award debriefing consistent with the requirements of section 2305(b)(5) of this title.
(e)
(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
(B) a protest of an order valued in excess of $25,000,000.
(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).
(f)
(g)
(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3252; amended Pub. L. 110–181, div. A, title VIII, §843(a)(2), Jan. 28, 2008, 122 Stat. 237; Pub. L. 111–350, §5(b)(14), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 111–383, div. A, title VIII, §825, title X, §1075(f)(5)(A), Jan. 7, 2011, 124 Stat. 4270, 4376; Pub. L. 112–239, div. A, title VIII, §830, Jan. 2, 2013, 126 Stat. 1842; Pub. L. 114–328, div. A, title VIII, §§825(b), 835(a), Dec. 23, 2016, 130 Stat. 2280, 2285.)
2016—Subsec. (b)(5). Pub. L. 114–328, §825(b), added par. (5).
Subsec. (e)(1)(B). Pub. L. 114–328, §835(a), substituted "$25,000,000" for "$10,000,000".
2013—Subsec. (e)(3). Pub. L. 112–239 struck out par. (3) which read as follows: "Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016."
2011—Subsec. (a)(1). Pub. L. 111–350 substituted "section 1708 of title 41" for "section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)".
Subsec. (e). Pub. L. 111–383, §1075(f)(5)(A), made technical correction to directory language of Pub. L. 110–181, §843(a)(2)(C). See 2008 Amendment note below.
Subsec. (e)(3). Pub. L. 111–383, §825, amended par. (3) generally. Prior to amendment, par. (3) read as follows: "This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008."
2008—Subsec. (d). Pub. L. 110–181, §843(a)(2), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 110–181, §843(a)(2)(C), as amended by Pub. L. 111–383, §1075(f)(5)(A), added subsec. (e) and struck out former subsec. (e). Former text read as follows: "A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued."
Pub. L. 110–181, §843(a)(2)(A), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsecs. (f), (g). Pub. L. 110–181, §843(a)(2)(A), redesignated subsecs. (e) and (f) as (f) and (g), respectively.
Pub. L. 110–181, div. A, title VIII, §843(a)(3)(B), Jan. 28, 2008, 122 Stat. 238, provided that: "The amendments made by paragraph (2) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 28, 2008], and shall apply with respect to any task or delivery order awarded on or after such date."
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
In sections 2304a, 2304b, and 2304c of this title:
(1) The term "task order contract" means a contract for services that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity) and that provides for the issuance of orders for the performance of tasks during the period of the contract.
(2) The term "delivery order contract" means a contract for property that does not procure or specify a firm quantity of property (other than a minimum or maximum quantity) and that provides for the issuance of orders for the delivery of property during the period of the contract.
(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3253.)
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
(a)
(b)
(Added Pub. L. 103–160, div. A, title VIII, §848(a)(1), Nov. 30, 1993, 107 Stat. 1724, §2304a; renumbered §2304e, Pub. L. 104–106, div. D, title XLIII, §4321(b)(6)(A), Feb. 10, 1996, 110 Stat. 672; amended Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(vi), Aug. 13, 2018, 132 Stat. 1847.)
2018—Subsec. (b). Pub. L. 115–232 substituted "other than" for "other than—", struck out par. (1) designation before "small business", and struck out par. (2) which read as follows: "entities described in subsection (a)(1) of section 2323 of this title in furtherance of the goal specified in that subsection."
1996—Pub. L. 104–106 renumbered section 2304a of this title as this section.
Pub. L. 103–160, div. A, title VIII, §848(b), Nov. 30, 1993, 107 Stat. 1725, provided that: "Section 2304a [now 2304e] of title 10, United States Code, as added by subsection (a), shall take effect on the date of the enactment of this Act [Nov. 30, 1993]."
(a)(1)(A) In preparing for the procurement of property or services, the head of an agency shall—
(i) specify the agency's needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement;
(ii) use advance procurement planning and market research; and
(iii) develop specifications in such manner as is necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired.
(B) Each solicitation under this chapter shall include specifications which—
(i) consistent with the provisions of this chapter, permit full and open competition; and
(ii) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency or as authorized by law.
(C) For the purposes of subparagraphs (A) and (B), the type of specification included in a solicitation shall depend on the nature of the needs of the agency and the market available to satisfy such needs. Subject to such needs, specifications may be stated in terms of—
(i) function, so that a variety of products or services may qualify;
(ii) performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or
(iii) design requirements.
(2) In addition to the specifications described in paragraph (1), a solicitation for sealed bids or competitive proposals (other than for a procurement for commercial items using special simplified procedures or a purchase for an amount not greater than the simplified acquisition threshold) shall at a minimum include—
(A) a statement of—
(i) all significant factors and significant subfactors which the head of the agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and
(ii) the relative importance assigned to each of those factors and subfactors; and
(B)(i) in the case of sealed bids—
(I) a statement that sealed bids will be evaluated without discussions with the bidders; and
(II) the time and place for the opening of the sealed bids; or
(ii) in the case of competitive proposals—
(I) either a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and
(II) the time and place for submission of proposals.
(3)(A) In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency—
(i) shall (except as provided in subparagraph (C)) clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);
(ii) shall (except as provided in subparagraph (C)) include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and
(iii) shall disclose to offerors whether all evaluation factors other than cost or price, when combined, are—
(I) significantly more important than cost or price;
(II) approximately equal in importance to cost or price; or
(III) significantly less important than cost or price.
(B) The regulations implementing clause (iii) of subparagraph (A) may not define the terms "significantly more important" and "significantly less important" as specific numeric weights that would be applied uniformly to all solicitations or a class of solicitations.
(C) If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 2304a(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror—
(i) cost or price to the Federal Government need not, at the Government's discretion, be considered under clause (ii) of subparagraph (A) as an evaluation factor for the contract award; and
(ii) if, pursuant to clause (i), cost or price to the Federal Government is not considered as an evaluation factor for the contract award—
(I) the disclosure requirement of clause (iii) of subparagraph (A) shall not apply; and
(II) cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to section 2304c(b) of this title of a task or delivery order under any contract resulting from the solicitation.
(D) In subparagraph (C), the term "qualifying offeror" means an offeror that—
(i) is determined to be a responsible source;
(ii) submits a proposal that conforms to the requirements of the solicitation; and
(iii) the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing.
(E) Subparagraph (C) shall not apply to multiple task or delivery order contracts if the solicitation provides for sole source task or delivery order contracts pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)).
(4) Nothing in this subsection prohibits an agency from—
(A) providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or
(B) stating in a solicitation that award will be made to the offeror that meets the solicitation's mandatory requirements at the lowest cost or price.
(5) The head of an agency, in issuing a solicitation for a contract to be awarded using sealed bid procedures, may not include in such solicitation a clause providing for the evaluation of prices for options to purchase additional property or services under the contract unless the head of the agency has determined that there is a reasonable likelihood that the options will be exercised.
(b)(1) The head of an agency shall evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation.
(2) All sealed bids or competitive proposals received in response to a solicitation may be rejected if the head of the agency determines that such action is in the public interest.
(3) Sealed bids shall be opened publicly at the time and place stated in the solicitation. The head of the agency shall evaluate the bids in accordance with paragraph (1) without discussions with the bidders and, except as provided in paragraph (2), shall award a contract with reasonable promptness to the responsible bidder whose bid conforms to the solicitation and is most advantageous to the United States, considering only price and the other price-related factors included in the solicitation. The award of a contract shall be made by transmitting, in writing or by electronic means, notice of the award to the successful bidder. Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded.
(4)(A) The head of an agency shall evaluate competitive proposals in accordance with paragraph (1) and may award a contract—
(i) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or
(ii) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary.
(B) If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subparagraph (A)(i) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with such criteria.
(C) Except as provided in paragraph (2), the head of the agency shall award a contract with reasonable promptness to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation. The head of the agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to such source and, within three days after the date of contract award, shall notify, in writing or by electronic means, all other offerors of the rejection of their proposals. This subparagraph does not apply with respect to the award of a contract for the acquisition of perishable subsistence items.
(5)(A) When a contract is awarded by the head of an agency on the basis of competitive proposals, an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award. The head of the agency shall debrief the offeror within, to the maximum extent practicable, five days after receipt of the request by the agency.
(B) The debriefing shall include, at a minimum—
(i) the agency's evaluation of the significant weak or deficient factors in the offeror's offer;
(ii) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror;
(iii) the overall ranking of all offers;
(iv) a summary of the rationale for the award;
(v) in the case of a proposal that includes a commercial item that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract;
(vi) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency; and
(vii) an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.
(C) The agency shall respond in writing to any additional question submitted under subparagraph (B)(vii) within five business days after receipt of the question. The agency shall not consider the debriefing to be concluded until the agency delivers its written responses to the disappointed offeror.
(D) The debriefing may not include point-by-point comparisons of the debriefed offeror's offer with other offers and may not disclose any information that is exempt from disclosure under section 552(b) of title 5.
(E) Each solicitation for competitive proposals shall include a statement that information described in subparagraph (B) may be disclosed in post-award debriefings.
(F) If, within one year after the date of the contract award and as a result of a successful procurement protest, the agency seeks to fulfill the requirement under the protested contract either on the basis of a new solicitation of offers or on the basis of new best and final offers requested for that contract, the agency shall make available to all offerors—
(i) the information provided in debriefings under this paragraph regarding the offer of the contractor awarded the contract; and
(ii) the same information that would have been provided to the original offerors.
(6)(A) When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes such an offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within three days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award. The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as practicable but may refuse the request for a debriefing if it is not in the best interests of the Government to conduct a debriefing at that time.
(B) The contracting officer is required to debrief an excluded offeror in accordance with paragraph (5) only if that offeror requested and was refused a preaward debriefing under subparagraph (A).
(C) The debriefing conducted under subparagraph (A) shall include—
(i) the executive agency's evaluation of the significant elements in the offeror's offer;
(ii) a summary of the rationale for the offeror's exclusion; and
(iii) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.
(D) The debriefing conducted under subparagraph (A) may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors' proposals.
(7) The contracting officer shall include a summary of any debriefing conducted under paragraph (5) or (6) in the contract file.
(8) The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract.
(9) If the head of an agency considers that a bid or proposal evidences a violation of the antitrust laws, he shall refer the bid or proposal to the Attorney General for appropriate action.
(c) The Secretary of Defense shall ensure that before a contract for the delivery of supplies to the Department of Defense is entered into—
(1) when the appropriate officials of the Department are making an assessment of the most advantageous source for acquisition of the supplies (considering quality, price, delivery, and other factors), there is a review of the availability and cost of each item of supply—
(A) through the supply system of the Department of Defense; and
(B) under standard Government supply contracts, if the item is in a category of supplies defined under regulations of the Secretary of Defense as being potentially available under a standard Government supply contract; and
(2) there is a review of both the procurement history of the item and a description of the item, including, when necessary for an adequate description of the item, a picture, drawing, diagram, or other graphic representation of the item.
(d)(1)(A) The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a development contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in subparagraph (B). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system's required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror's price.
(B) Proposals referred to in the first sentence of subparagraph (A) are the following:
(i) Proposals to incorporate in the design of the major system items which are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source.
(ii) With respect to items that are likely to be required in substantial quantities during the system's service life, proposals to incorporate in the design of the major system items which the United States will be able to acquire competitively in the future.
(2)(A) The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a production contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in subparagraph (B). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system's required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror's price.
(B) Proposals referred to in the first sentence of subparagraph (A) are proposals identifying opportunities to ensure that the United States will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals submitted in response to such requirement may include the following:
(i) Proposals to provide to the United States the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the United States, if any, of acquiring such technical data and the right to use such data.
(ii) Proposals for the qualification or development of multiple sources of supply for the item.
(3) If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in paragraphs (1) and (2) to be considered in evaluating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. Such objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.
(4)(A) Whenever the head of an agency requires that proposals described in paragraph (1)(B) or (2)(B) be submitted by an offeror in its offer, the offeror shall not be required to provide a proposal that enables the United States to acquire competitively in the future an identical item if the item was developed exclusively at private expense unless the head of the agency determines that—
(i) the original supplier of such item will be unable to satisfy program schedule or delivery requirements; or
(ii) proposals by the original supplier of such item to meet the mobilization requirements are insufficient to meet the agency's mobilization needs.
(B) In considering offers in response to a solicitation requiring proposals described in paragraph (1)(B) or (2)(B), the head of an agency shall base any evaluation of items developed exclusively at private expense on an analysis of the total value, in terms of innovative design, life-cycle costs, and other pertinent factors, of incorporating such items in the system.
(e)
(2) Information exempt from disclosure under section 552 of title 5 may be redacted in a file established pursuant to paragraph (1) unless an applicable protective order provides otherwise.
(f)
(1) may take any action set out in subparagraphs (A) through (F) of subsection (b)(1) of section 3554 of title 31; and
(2) may pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits referred to in paragraph (2) of such section.
(g)
(2) Paragraph (1) does not apply to any proposal that is set forth or incorporated by reference in a contract entered into between the Department and the contractor that submitted the proposal.
(3) In this subsection, the term "proposal" means any proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal.
(Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 85–861, §1(44), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 90–268, §3, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, div. B, title VII, §2723(b), July 18, 1984, 98 Stat. 1191; Pub. L. 98–525, title XII, §1213(a), Oct. 19, 1984, 98 Stat. 2591; Pub. L. 99–145, title XIII, §1303(a)(14), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99–500, §101(c) [title X, §924(a), (b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, and Pub. L. 99–591, §101(c) [title X, §924(a), (b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153; Pub. L. 99–661, div. A, title III, §313(b), title IX, formerly title IV, §924(a), (b), Nov. 14, 1986, 100 Stat. 3853, 3932, 3933, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–456, div. A, title VIII, §806, Sept. 29, 1988, 102 Stat. 2010; Pub. L. 101–189, div. A, title VIII, §853(f), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 101–510, div. A, title VIII, §802(a)–(d), Nov. 5, 1990, 104 Stat. 1588, 1589; Pub. L. 103–160, div. A, title XI, §1182(a)(5), Nov. 30, 1993, 107 Stat. 1771; Pub. L. 103–355, title I, §§1011–1016, title IV, §4401(b), Oct. 13, 1994, 108 Stat. 3254–3257, 3347; Pub. L. 104–106, div. D, title XLI, §§4103(a), 4104(a), title XLII, §4202(a)(2), div. E, title LVI, §5601(a), Feb. 10, 1996, 110 Stat. 643, 644, 653, 699; Pub. L. 104–201, div. A, title VIII, §821(a), title X, §1074(a)(11), (b)(4)(A), Sept. 23, 1996, 110 Stat. 2609, 2659, 2660; Pub. L. 106–65, div. A, title VIII, §821, Oct. 5, 1999, 113 Stat. 714; Pub. L. 114–328, div. A, title VIII, §825(a), Dec. 23, 2016, 130 Stat. 2279; Pub. L. 115–91, div. A, title VIII, §818(b), Dec. 12, 2017, 131 Stat. 1463; Pub. L. 115–232, div. A, title VIII, §836(c)(3), Aug. 13, 2018, 132 Stat. 1864.)
Pub. L. 115–232, div. A, title VIII, §836(c)(3), (h), Aug. 13, 2018, 132 Stat. 1864, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, this section is amended as follows:
(1) in subsection (a)(2), by striking "commercial items" and inserting "commercial products or commercial services"; and
(2) in subsection (b)(5)(B)(v), by striking "commercial item" and inserting "commercial product".
See 2018 Amendment notes below.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2305(a) 2305(b) |
41:152 (less clause (b)). 41:152 (clause (b)). |
Feb. 19, 1948, ch. 65, §§2(d), 3, 62 Stat. 22. |
| 2305(c) | 41:151(d). |
In subsection (a), the word "needed" is substituted for the words "necessary to meet the requirements".
In subsection (b), the words "United States" are substituted for the word "Government".
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2305 | 41:152(c). | Aug. 9, 1955, ch. 628, §15, 69 Stat. 551. |
Reference to bids is omitted as surplusage (see opinion of the Judge Advocate General of the Army (JAGT 1956/9122, 21 Dec. 1956)). The word "attachments" is substituted for the words "material required". The words "the specifications in" are inserted in the second sentence for clarity. The word "available" is omitted as covered by the word "accessible." The words "no award may be made" are substituted for the words "and any award or awards made to any bidder in such case shall be invalidated and rejected".
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
2018—Subsec. (a)(2). Pub. L. 115–232, §836(c)(3)(A), substituted "commercial products or commercial services" for "commercial items" in introductory provisions.
Subsec. (b)(5)(B)(v). Pub. L. 115–232, §836(c)(3)(B), substituted "commercial product" for "commercial item".
2017—Subsec. (b)(5)(B)(vii). Pub. L. 115–91, §818(b)(2), added cl. (vii).
Subsec. (b)(5)(C) to (F). Pub. L. 115–91, §818(b)(1), (3), added subpar. (C) and redesignated former subpars. (C) to (E) as (D) to (F), respectively.
2016—Subsec. (a)(3)(A)(i), (ii). Pub. L. 114–328, §825(a)(1), inserted "(except as provided in subparagraph (C))" after "shall".
Subsec. (a)(3)(C) to (E). Pub. L. 114–328, §825(a)(2), added subpars. (C) to (E).
1999—Subsec. (g)(1). Pub. L. 106–65 substituted "an agency named in section 2303 of this title" for "the Department of Defense".
1996—Subsec. (a)(2). Pub. L. 104–106, §4202(a)(2), inserted "a procurement for commercial items using special simplified procedures or" after "(other than for".
Subsec. (b)(4)(B). Pub. L. 104–106, §4103(a)(3), added subpar. (B). Former subpar. (B) redesignated (C).
Pub. L. 104–106, §4103(a)(1), transferred text of subpar. (C) to end of subpar. (B) and substituted "This subparagraph" for "Subparagraph (B)" at beginning of that text.
Subsec. (b)(4)(C). Pub. L. 104–106, §4103(a)(2), redesignated subpar. (B) as (C).
Pub. L. 104–106, §4103(a)(1), struck out "(C)" before "Subparagraph (B)" and transferred text of subpar. (C) to end of subpar. (B).
Subsec. (b)(5)(F). Pub. L. 104–106, §4104(a)(1), struck out subpar. (F) which read as follows: "The contracting officer shall include a summary of the debriefing in the contract file."
Subsec. (b)(6). Pub. L. 104–106, §4104(a)(3), added par. (6). Former par. (6) redesignated (9).
Subsec. (b)(6)(B). Pub. L. 104–201, §1074(a)(11)(A), struck out "of this section" after "paragraph (5)" and "of this paragraph" after "subparagraph (A)".
Subsec. (b)(6)(C). Pub. L. 104–201, §1074(a)(11)(B), substituted "subparagraph (A)" for "this subsection" in introductory provisions.
Subsec. (b)(6)(D). Pub. L. 104–201, §1074(a)(11)(C), substituted "under subparagraph (A)" for "pursuant to this subsection".
Subsec. (b)(7), (8). Pub. L. 104–106, §4104(a)(3), added pars. (7) and (8).
Subsec. (b)(9). Pub. L. 104–106, §4104(a)(2), redesignated par. (6) as (9).
Subsec. (e)(3). Pub. L. 104–106, §5601(a), as amended by Pub. L. 104–201, §1074(b)(4)(A), struck out par. (3) which read as follows: "Regulations implementing this subsection shall be consistent with the regulations regarding the preparation and submission of an agency's protest file (the so-called 'rule 4 file') for protests to the General Services Board of Contract Appeals under section 111 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 759)."
Subsec. (g). Pub. L. 104–201, §821(a), added subsec. (g).
1994—Subsec. (a)(2). Pub. L. 103–355, §4401(b), substituted "a purchase for an amount not greater than the simplified acquisition threshold)" for "small purchases)" in introductory provisions.
Subsec. (a)(2)(A)(i). Pub. L. 103–355, §1011(a)(1), substituted "and significant subfactors" for "(and significant subfactors)" and "cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors" for "cost- or price-related factors, and noncost- or nonprice-related factors".
Subsec. (a)(2)(A)(ii). Pub. L. 103–355, §1011(a)(2), substituted "and subfactors" for "(and subfactors)".
Subsec. (a)(2)(B)(ii)(I). Pub. L. 103–355, §1011(a)(3), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: "a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), unless discussions are determined to be necessary; and".
Subsec. (a)(3). Pub. L. 103–355, §1011(b), added par. (3) and struck out former par. (3), which read as follows: "In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency shall clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, and prior experience of the offeror)."
Subsec. (a)(4). Pub. L. 103–355, §1011(b), added par. (4).
Subsec. (a)(5). Pub. L. 103–355, §1012, added par. (5).
Subsec. (b)(3). Pub. L. 103–355, §1013(a), substituted "transmitting, in writing or by electronic means, notice" for "transmitting written notice" and inserted at end "Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded."
Subsec. (b)(4)(B). Pub. L. 103–355, §1013(b), substituted "transmitting, in writing or by electronic means, notice" for "transmitting written notice" and ", within three days after the date of contract award, shall notify, in writing or by electronic means," for "shall promptly notify".
Subsec. (b)(5), (6). Pub. L. 103–355, §1014, added par. (5) and redesignated former par. (5) as (6).
Subsec. (e). Pub. L. 103–355, §1015, added subsec. (e).
Subsec. (f). Pub. L. 103–355, §1016, added subsec. (f).
1993—Subsec. (b)(4)(A). Pub. L. 103–160 realigned margins of cls. (i) and (ii).
1990—Subsec. (a)(2)(A)(i). Pub. L. 101–510, §802(a)(1), inserted "(and significant subfactors)" after "significant factors" and substituted "(including cost or price, cost- or price-related factors, and noncost- or nonprice-related factors)" for "(including cost or price)".
Subsec. (a)(2)(A)(ii). Pub. L. 101–510, §802(a)(2), inserted "(and subfactors)" after "those factors".
Subsec. (a)(2(B)(ii)(I). Pub. L. 101–510, §802(b), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: "a statement that the proposals are intended to be evaluated with, and awards made after, discussions with the offerors, but might be evaluated and awarded without discussions with the offerors; and".
Subsec. (a)(3). Pub. L. 101–510, §802(c), substituted "the evaluation factors and subfactors, including the quality of the product or services" for "the quality of the services".
Subsec. (b)(1). Pub. L. 101–510, §802(d)(1), inserted "and make an award" after "competitive proposals".
Subsec. (b)(3). Pub. L. 101–510, §802(d)(2), inserted "in accordance with paragraph (1)" after "shall evaluate the bids".
Subsec. (b)(4)(A). Pub. L. 101–510, §802(d)(3)(A), substituted "competitive proposals in accordance with paragraph (1)" for "competitive proposals" in introductory provisions, added cls. (i) and (ii), and struck out former cls. (i) and (ii) which read as follows:
"(i) after discussions conducted with the offerors at any time after receipt of the proposals and before the award of the contract; or
"(ii) without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) when it can be clearly demonstrated from the existence of full and open competition or accurate prior cost experience with the product or service that acceptance of an initial proposal without discussions would result in the lowest overall cost to the United States."
Subsec. (b)(4)(B) to (E). Pub. L. 101–510, §802(d)(3)(B)–(D), redesignated subpars. (D) and (E) as (B) and (C), respectively, substituted "Subparagraph (B)" for "Subparagraph (D)" in subpar. (C), and struck out former subpars. (B) and (C) which read as follows:
"(B) In the case of award of a contract under subparagraph (A)(i), the head of the agency shall conduct, before such award, written or oral discussions with all responsible sources who submit proposals within the competitive range, considering only cost or price and the other factors included in the solicitation.
"(C) In the case of award of a contract under subparagraph (A)(ii), the head of the agency shall award the contract based on the proposals received (and as clarified, if necessary, in discussions conducted for the purpose of minor clarification)."
1989—Subsec. (b)(4)(D). Pub. L. 101–189 inserted "cost or" after "considering only".
1988—Subsec. (d)(1)(B). Pub. L. 100–456, §806(b), substituted "Proposals referred to in the first sentence of subparagraph (A) are" for "The proposals that the head of an agency is to consider requiring in a solicitation for the award of a development contract are".
Subsec. (d)(2)(B). Pub. L. 100–456, §806(b), substituted "Proposals referred to in the first sentence of subparagraph (A) are" for "The proposals that the head of an agency is to consider requiring in a solicitation for the award of a production contract are".
Subsec. (d)(3). Pub. L. 100–456, §806(a)(2), inserted provision that objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.
Subsec. (d)(4). Pub. L. 100–456, §806(a)(1), added par. (4).
1986—Subsec. (a). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§924(a)], Pub. L. 99–661, §924(a), amended subsec. (a) identically, in par. (2)(A)(i) striking out "(including price)" after "factors" and inserting "(including price)" and "(including cost and price)" and adding par. (3).
Subsec. (b)(4)(B). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§924(b)], Pub. L. 99–661, §924(b), amended subpar. (B) identically, inserting "cost or".
Subsec. (b)(4)(E). Pub. L. 99–661, §313(b), added subpar. (E).
1985—Subsec. (b)(5). Pub. L. 99–145 aligned the margin of par. (5).
1984—Subsecs. (c), (d). Pub. L. 98–525 added subsecs. (c) and (d).
Catchline, subsecs. (a) to (d). Pub. L. 98–369 substituted "Contracts: planning, solicitation, evaluation, and award procedures" for "Formal advertisements for bids; time; opening; award; rejection" and completely revised the text to substitute a program using solicitation requirements covering military procurement for former provisions which had used the approach of utilizing formal advertisements, struck out former provisions which had directed that, except in cases where the Secretary of Defense had determined that military requirements necessitated the specification of container size, no advertisement or invitation to bid for the carriage of government property in other than government-owned cargo containers could specify carriage of such property in cargo containers of any stated length, height, or width, and carried forward into new subsecs. (a)(1)(A)(iii), (B)(i), and (b)(2) and (5) the content of former section.
1968—Subsec. (a). Pub. L. 90–268 inserted provision that, except in cases where the Secretary of Defense determines that military requirements necessitate such specification, no advertisement or invitation to bid for the carriage of Government property in other than Government-owned cargo containers shall specify carriage of such property in cargo containers of any stated length, height, or width.
1958—Subsecs. (b) to (d). Pub. L. 85–861 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.
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.
For effective date and applicability of amendment by sections 4103(a), 4104(a), and 4202(a)(2) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Amendment by section 5601(a) of Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, Feb. 10, 1996, 110 Stat. 702.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 101–510, div. A, title VIII, §802(e), Nov. 5, 1990, 104 Stat. 1589, provided that:
"(1) Except as provided in paragraph (2), the amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 120-day period beginning on the date of the enactment of this Act [Nov. 5, 1990].
"(2) The Secretary of Defense may require the amendments made by this section to apply with respect to solicitations issued before the end of the period referred to in paragraph (1). The Secretary of Defense shall publish in the Federal Register notice of any such earlier effective date."
Pub. L. 99–500, §101(c) [title X, §924(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, Pub. L. 99–591, §101(c) [title X, §924(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153, and Pub. L. 99–661, div. A, title IX, formerly title IV, §924(c), Nov. 14, 1986, 100 Stat. 3933, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]."
Pub. L. 98–525, title XII, §1213(b), Oct. 19, 1984, 98 Stat. 2592, provided that: "The amendment made by subsection (a) [amending this section] shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984]."
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Pub. L. 115–232, div. A, title VIII, §822, Aug. 13, 2018, 132 Stat. 1853, provided that:
"(a)
"(1) the number of protests that have been filed with both tribunals and results;
"(2) the number of such protests where the tribunals differed in denying or sustaining the action;
"(3) the length of time, in average time and median time—
"(A) from initial filing at the Government Accountability Office to decision in the United States Court of Federal Claims;
"(B) from filing with each tribunal to decision by such tribunal;
"(C) from the time at which the basis of the protest is known to the time of filing in each tribunal; and
"(D) in the case of an appeal from a decision of the United States Court of Federal Claims, from the date of the initial filing of the appeal to decision in the appeal;
"(4) the number of protests where performance was stayed or enjoined and for how long;
"(5) if performance was stayed or enjoined, whether the requirement was obtained in the interim through another vehicle or in-house, or whether during the period of the stay or enjoining the requirement went unfulfilled;
"(6) separately for each tribunal, the number of protests where performance was stayed or enjoined and monetary damages were awarded, which shall include for how long performance was stayed or enjoined and the amount of monetary damages;
"(7) whether the protestor was a large or small business; and
"(8) whether the protestor was the incumbent in a prior contract for the same or similar product or service.
"(b)
"(c)
"(d)
"(1)
"(2)
"(3)
Pub. L. 115–232, div. A, title VIII, §823, Aug. 13, 2018, 132 Stat. 1855, provided that: "Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense, in consultation with the Federal Acquisition Regulatory Council and the Administrator for Federal Procurement Policy, shall develop policies for the Department of Defense to ensure the best information regarding past performance of certain subcontractors and joint venture partners is available when awarding Department of Defense contracts. The policies shall include proposed revisions to the Defense Federal Acquisition Regulation Supplement as follows:
"(1) Required performance evaluations, as part of a government-wide evaluation reporting tool, for first-tier subcontractors on construction and architect-engineer contracts performing a portion of the contract valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, or 20 percent of the value of the prime contract, whichever is higher, provided—
"(A) the information included in rating the subcontractor is not inconsistent with the information included in the rating for the prime contractor;
"(B) the subcontractor evaluation is conducted consistent with the provisions of section 42.15 of the Federal Acquisition Regulation;
"(C) negative evaluations of a subcontractor in no way obviate the prime contractor's responsibility for successful completion of the contract and management of its subcontractors; and
"(D) that in the judgment of the contracting officer, the overall execution of the work is impacted by the performance of the subcontractor or subcontractors.
"(2) Required performance evaluations, as part of a government-wide evaluation reporting tool, of individual partners of joint venture-awarded construction and architect-engineer contracts valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, to ensure that past performance on joint venture projects is considered in future awards to individual joint venture partners, provided—
"(A) at a minimum, the rating for joint ventures includes an identification that allows the evaluation to be retrieved for each partner of the joint venture;
"(B) each partner, through the joint venture, is given the same opportunity to submit comments, rebutting statements, or additional information, consistent with the provisions of section 42.15 of the Federal Acquisition Regulation; and
"(C) the rating clearly identifies the responsibilities of joint venture partners for discrete elements of the work where the partners are not jointly and severally responsible for the project.
"(3) Processes to request exceptions from the annual evaluation requirement under section 42.1502(a) of the Federal Acquisition Regulation for construction and architect-engineer contracts where submission of the annual evaluations would not provide the best representation of the performance of a contractor, including subcontractors and joint venture partners, including—
"(A) where no severable element of the work has been completed;
"(B) where the contracting officer determines that—
"(i) an insubstantial portion of the contract work has been completed in the preceding year; and
"(ii) the lack of performance is at no fault to the contractor; or
"(C) where the contracting officer determines that there is an issue in dispute which, until resolved, would likely cause the annual rating to inaccurately reflect the past performance of the contractor."
Pub. L. 115–91, div. A, title VIII, §818(a), Dec. 12, 2017, 131 Stat. 1463, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to require that all required post-award debriefings, while protecting the confidential and proprietary information of other offerors, include, at a minimum, the following:
"(1) In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agency's written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000 with a small business or nontraditional contractor, an option for the small business or nontraditional contractor to request such disclosure.
"(2) A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher.
"(3) Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure described in paragraph (1) and the debriefing described in paragraph (2).
"(4) Robust procedures, consistent with section 2305(b)(5)(D) of title 10, United States Code, and provisions implementing that section in the Federal Acquisition Regulation, to protect the confidential and proprietary information of other offerors."
Pub. L. 114–328, div. A, title VIII, §813, Dec. 23, 2016, 130 Stat. 2270, as amended by Pub. L. 115–91, div. A, title VIII, §822(a), (b)(1), Dec. 12, 2017, 131 Stat. 1465, provided that:
"(a)
"(b)
"(1) the Department of Defense is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;
"(2) the Department of Defense would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;
"(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;
"(4) the source selection authority has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the Department;
"(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file;
"(6) the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support;
"(7) the Department of Defense would realize no, or minimal, additional innovation or future technological advantage by using a different methodology; and
"(8) with respect to a contract for procurement of goods, the goods procured are predominantly expendable in nature, nontechnical, or have a short life expectancy or short shelf life.
"(c)
"(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services;
"(2) personal protective equipment; or
"(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
"(d)
[Pub. L. 115–91, div. A, title VIII, §822(b)(2), Dec. 12, 2017, 131 Stat. 1465, provided that: "The amendment made by this subsection [amending section 813 of Pub. L. 114–328, set out above] shall apply with respect to the second, third, and fourth reports submitted under subsection (d) of section 813 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat 2271; 10 U.S.C. 2305 note)."]
Pub. L. 114–328, div. A, title VIII, §875, Dec. 23, 2016, 130 Stat. 2310, provided that:
"(a)
"(b)
"(1)
"(2)
"(c)
"(d)
"(e)
"(f)
Pub. L. 114–328, div. A, title VIII, §888, Dec. 23, 2016, 130 Stat. 2322, provided that:
"(a)
"(b)
"(1)
"(2)
"(3)
Pub. L. 109–163, div. A, title VIII, §816, Jan. 6, 2006, 119 Stat. 3382, provided that:
"(a)
"(b)
"(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the award of such contract or task or delivery order under applicable law and regulations;
"(2) is unable, after conducting market research under paragraph (1), to make the determination described in that paragraph; and
"(3) includes in the contract file a written explanation of why such contracting officer was unable to make such determination."
Pub. L. 109–163, div. A, title VIII, §819, Jan. 6, 2006, 119 Stat. 3385, provided that:
"(a)
"(b)
"(c)
Pub. L. 102–484, div. A, title VIII, §804, Oct. 23, 1992, 106 Stat. 2447, provided that, in case of contract to be entered into pursuant to this chapter, other than pursuant to simplified procedures under section 2304(g) of this title, solicitation was to contain notice of right of bidding small business concern, in case of determination by contracting officer that concern was nonresponsible, to request Small Business Administration to make determination of responsibility under section 637(b)(7) of Title 15, Commerce and Trade, that if contracting officer determined that concern was nonresponsible, such officer was to notify concern in writing, of such determination, that concern had right to request Small Business Administration to make determination, and that, if concern desired to request such determination, concern was to inform officer in writing, within 14 days after receipt of notice, of such desire, and that, after being so informed, officer was to transmit request to Administration, or, if not so informed, officer was to proceed with award of contract, and contained provisions relating to effective and termination dates and report to be submitted to Congress, prior to repeal by Pub. L. 103–355, title VII, §7101(b), Oct. 13, 1994, 108 Stat. 3367.
Amendment by Pub. L. 98–369 as not superseding or affecting the provisions of section 637(a) of Title 15, Commerce and Trade, see section 2723(c) of Pub. L. 98–369, set out as a note under section 2304 of this title.
(a)
(b)
(1) The extent to which the project requirements have been adequately defined.
(2) The time constraints for delivery of the project.
(3) The capability and experience of potential contractors.
(4) The suitability of the project for use of the two-phase selection procedures.
(5) The capability of the agency to manage the two-phase selection process.
(6) Other criteria established by the agency.
(c)
(1) The agency develops, either in-house or by contract, a scope of work statement for inclusion in the solicitation that defines the project and provides prospective offerors with sufficient information regarding the Government's requirements (which may include criteria and preliminary design, budget parameters, and schedule or delivery requirements) to enable the offerors to submit proposals which meet the Government's needs. If the agency contracts for development of the scope of work statement, the agency shall contract for architectural and engineering services as defined by and in accordance with chapter 11 of title 40.
(2) The contracting officer solicits phase-one proposals that—
(A) include information on the offeror's—
(i) technical approach; and
(ii) technical qualifications; and
(B) do not include—
(i) detailed design information; or
(ii) cost or price information.
(3) The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include specialized experience and technical competence, capability to perform, past performance of the offeror's team (including the architect-engineer and construction members of the team) and other appropriate factors, except that cost-related or price-related evaluation factors are not permitted. Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals. The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation.
(4) The contracting officer selects as the most highly qualified the number of offerors specified in the solicitation to provide the property or services under the contract and requests the selected offerors to submit phase-two competitive proposals that include technical proposals and cost or price information. Each solicitation establishes with respect to phase two—
(A) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work (or both), and
(B) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with paragraphs (2), (3), and (4) of section 2305(a) of this title.
The contracting officer separately evaluates the submissions described in subparagraphs (A) and (B).
(5) The agency awards the contract in accordance with section 2305(b)(4) of this title.
(d)
(1) the solicitation is issued pursuant to a 1 indefinite delivery-indefinite quantity contract for design-build construction; or
(2)(A) the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a maximum number greater than 5 is in the interest of the Federal Government; and
(B) the contracting officer provides written documentation of how a maximum number greater than 5 is consistent with the purposes and objectives of the two-phase selection procedures.
(e)
(1) regarding the factors that may be considered in determining whether the two-phase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;
(2) regarding the factors that may be used in selecting contractors; and
(3) providing for a uniform approach to be used Government-wide.
(f)
(2) Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience before funds are first made available for construction may not exceed an amount attributable to the final design of the project.
(3) For each fiscal year during which the authority provided by this subsection is in effect, the Secretary of a military department may select not more than two military construction projects to include the accelerated design effort authorized by paragraph (1) for each armed force under the jurisdiction of the Secretary. To be eligible for selection under this subsection, a request for the authorization of the project, and for the authorization of appropriations for the project, must have been included in the annual budget of the President for a fiscal year submitted to Congress under section 1105(a) of title 31.
(4) Not later than March 1, 2008, the Secretary of Defense shall submit to the congressional defense committees a report evaluating the usefulness of the authority provided by this subsection in expediting the design and construction of military construction projects. The authority provided by this subsection expires September 30, 2008, except that, if the report required by this paragraph is not submitted by March 1, 2008, the authority shall expire on that date.
(Added Pub. L. 104–106, div. D, title XLI, §4105(a)(1), Feb. 10, 1996, 110 Stat. 645; amended Pub. L. 105–85, div. A, title X, §1073(a)(44), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 107–217, §3(b)(4), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–178, §4(b)(3), Dec. 15, 2003, 117 Stat. 2641; Pub. L. 108–375, div. B, title XXVIII, §2807, Oct. 28, 2004, 118 Stat. 2123; Pub. L. 109–163, div. B, title XXVIII, §2807, Jan. 6, 2006, 119 Stat. 3508; Pub. L. 113–291, div. A, title VIII, §814, Dec. 19, 2014, 128 Stat. 3430; Pub. L. 115–91, div. A, title VIII, §823, Dec. 12, 2017, 131 Stat. 1465.)
A prior section 2305a was renumbered section 2438 of this title.
2017—Subsec. (d). Pub. L. 115–91 substituted "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless—" and pars. (1) and (2) for "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a number greater than 5 is in the Federal Government's interest. The contracting officer shall provide written documentation of how a maximum number exceeding 5 is consistent with the purposes and objectives of the two-phase selection procedures."
2014—Subsec. (d). Pub. L. 113–291 substituted "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a number greater than 5 is in the Federal Government's interest. The contracting officer shall provide written documentation of how a maximum number exceeding 5 is consistent with the purposes and objectives of the two-phase selection procedures." for "The maximum number specified in the solicitation shall not exceed 5 unless the agency determines with respect to an individual solicitation that a specified number greater than 5 is in the Government's interest and is consistent with the purposes and objectives of the two-phase selection process."
2006—Subsec. (f)(2). Pub. L. 109–163, §2807(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience may not exceed the actual costs incurred as of the termination date."
Subsec. (f)(4). Pub. L. 109–163, §2807(b), substituted "2008" for "2007" wherever appearing.
2004—Subsec. (f). Pub. L. 108–375 added subsec. (f).
2003—Subsec. (c)(1). Pub. L. 108–178 substituted "chapter 11 of title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)".
2002—Subsec. (a). Pub. L. 107–217 substituted "chapter 11 of title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)".
1997—Subsec. (a). Pub. L. 105–85 substituted "(40 U.S.C." for "(41 U.S.C.".
Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees.
For effective date and applicability of section, see section 4401 of Pub. L. 104–106, set out as an Effective Date of 1996 Amendment note under section 2302 of this title.
1 So in original. Probably should be "an".
(a) The cost-plus-a-percentage-of-cost system of contracting may not be used. Subject to the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into any kind of contract that he considers will promote the best interests of the United States.
(b) Each contract awarded under this chapter after using procedures other than sealed-bid procedures shall contain a warranty, determined to be suitable by the head of the agency, that the contractor has employed or retained no person or selling agency to solicit or obtain the contract under an understanding or agreement for a commission, percentage, brokerage, or contingent fee, except a bona fide employee or established commercial or selling agency maintained by him to obtain business. If a contractor breaks such a warranty the United States may annul the contract without liability or may deduct the commission, percentage, brokerage, or contingent fee from the contract price or consideration. This subsection does not apply to a contract that is for an amount not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items.
(c) A contract entered into by the United States in connection with a military construction project or a military family housing project may not use any form of cost-plus contracting. This prohibition is in addition to the prohibition specified in subsection (a) on the use of the cost-plus-a-percentage-of-cost system of contracting and applies notwithstanding a declaration of war or the declaration by the President of a national emergency under section 201 of the National Emergencies Act (50 U.S.C. 1621) that includes the use of the armed forces.
(d) The fee for performing a cost-plus-a-fixed-fee contract for experimental, developmental, or research work may not be more than 15 percent of the estimated cost of the contract, not including the fee. The fee for performing a cost-plus-a-fixed-fee contract for architectural or engineering services for a public work or utility plus the cost of those services to the contractor may not be more than 6 percent of the estimated cost of that work or project, not including fees. The fee for performing any other cost-plus-a-fixed-fee contract may not be more than 10 percent of the estimated cost of the contract, not including the fee. Determinations under this subsection of the estimated costs of a contract or project shall be made by the head of the agency at the time the contract is made.
(e)(1) Except as provided in paragraph (2), each cost contract and each cost-plus-a-fixed-fee contract shall provide for notice to the agency by the contractor before the making, under the prime contract, of—
(A) a cost-plus-a-fixed-fee subcontract; or
(B) a fixed-price subcontract or purchase order involving more than the greater of (i) the simplified acquisition threshold, or (ii) 5 percent of the estimated cost of the prime contract.
(2) Paragraph (1) shall not apply to a prime contract with a contractor that maintains a purchasing system approved by the contracting officer for the contract.
(f) So-called "truth-in-negotiations" provisions relating to cost or pricing data to be submitted by certain contractors and subcontractors are provided in section 2306a of this title.
(g) Multiyear contracting authority for the acquisition of services is provided in section 2306c of this title.
(h) Multiyear contracting authority for the purchase of property is provided in section 2306b of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 87–653, §1(d), (e), Sept. 10, 1962, 76 Stat. 528; Pub. L. 90–378, §1, July 5, 1968, 82 Stat. 289; Pub. L. 90–512, Sept. 25, 1968, 82 Stat. 863; Pub. L. 96–513, title V, §511(77), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97–86, title IX, §§907(b), 909(b), Dec. 1, 1981, 95 Stat. 1117, 1118; Pub. L. 98–369, div. B, title VII, §2724, July 18, 1984, 98 Stat. 1192; Pub. L. 99–145, title XIII, §1303(a)(15), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99–500, §101(c) [title X, §952(b)(1), (c)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, and Pub. L. 99–591, §101(c) [title X, §952(b)(1), (c)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(b)(1), (c)(1), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–189, div. A, title VIII, §805(a), Nov. 29, 1989, 103 Stat. 1488; Pub. L. 101–510, div. A, title VIII, §808, Nov. 5, 1990, 104 Stat. 1593; Pub. L. 102–25, title VII, §701(d)(3), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title I, §§1021, 1022(b), title IV, §§4102(b), 4401(c), title VIII, §8105(a), Oct. 13, 1994, 108 Stat. 3257, 3260, 3340, 3348, 3392; Pub. L. 105–85, div. A, title X, §1073(a)(45), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 106–398, §1 [[div. A], title VIII, §802(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–205; Pub. L. 108–136, div. A, title VIII, §842, Nov. 24, 2003, 117 Stat. 1552; Pub. L. 112–81, div. B, title XXVIII, §2801(a), Dec. 31, 2011, 125 Stat. 1684; Pub. L. 115–232, div. A, title VIII, §836(c)(4), Aug. 13, 2018, 132 Stat. 1865.)
Pub. L. 115–232, div. A, title VIII, §836(c)(4), (h), Aug. 13, 2018, 132 Stat. 1865, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, subsection (b) of this section is amended by striking "commercial items" and inserting "commercial products or commercial services". See 2018 Amendment note below.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2306(a) 2306(b) |
41:153(a) (1st sentence). 41:153(b) (1st 14 words of 1st sentence). 41:153(a) (less 1st sentence). |
Feb. 19, 1948, ch. 65, §4 (less words after semicolon of last sentence of (b), and less (c)), 62 Stat. 23. |
| 2306(c) | 41:153(b) (2d sentence). | |
| 2306(d) | 41:153(b) (1st sentence, less 1st 14 words). | |
| 2306(e) | 41:153(b) (less 1st and 2d sentences; and less words after semicolon of last sentence). |
In subsection (a), the words "subject to subsections (b)–(e)" are substituted for the words "Except as provided in subsection (b) of this section". The words "United States" are substituted for the word "Government".
In subsection (b), the words "under section 2304 of this title" are substituted for the words "pursuant to section 151(c) of this title". The words "full amount of such" and "violation" are omitted as surplusage.
In subsection (c), the words "under section 2304 of this title" are inserted for clarity.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Provisions similar to those in subsec. (h)(11) of this section were contained in Pub. L. 100–526, title I, §104(a), Oct. 24, 1988, 102 Stat. 2624, which was set out below, prior to repeal by Pub. L. 101–189, §805(b).
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
2011—Subsec. (c). Pub. L. 112–81 added subsec. (c).
2003—Subsec. (e). Pub. L. 108–136 substituted "(1) Except as provided in paragraph (2), each" for "Each", redesignated former pars. (1) and (2) as subpars. (A) and (B) of par. (1), respectively, redesignated cls. (A) and (B) of former par. (2) as cls. (i) and (ii) of subpar. (B) of par. (1), respectively, and added par. (2).
2000—Subsec. (g). Pub. L. 106–398 amended subsec. (g) generally. Prior to amendment, subsec. (g) consisted of pars. (1) to (3) authorizing the head of an agency to enter into contracts for periods of not more than five years for certain types of services.
1997—Subsec. (h). Pub. L. 105–85 inserted "for the purchase of property" after "Multiyear contracting authority".
1994—Subsec. (b). Pub. L. 103–355, §§4102(b), 8105(a), inserted at end "This subsection does not apply to a contract that is for an amount not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items."
Subsec. (c). Pub. L. 103–355, §1021, struck out subsec. (c) which read as follows: "No cost contract, cost-plus-a-fixed-fee contract, or incentive contract may be made under this chapter unless the head of the agency determines that such a contract is likely to be less costly to the United States than any other kind of contract or that it is impracticable to obtain property or services of the kind or quality required except under such a contract."
Subsec. (e)(2)(A). Pub. L. 103–355, §4401(c), substituted "simplified acquisition threshold" for "small purchase threshold".
Subsec. (h). Pub. L. 103–355, §1022(b), amended subsec. (h) generally. Prior to amendment, subsec. (h) related to requirements for multiyear contracts for purchase of property, including weapon systems and items and services associated with weapons systems.
1991—Subsec. (e)(2)(A). Pub. L. 102–25 substituted "the small purchase threshold" for "the small purchase amount under section 2304(g) of this title".
1990—Subsec. (h)(1). Pub. L. 101–510, §808(a), struck out "(other than contracts described in paragraph (6))" after "multiyear contracts" in introductory provisions and substituted "substantial savings of the total anticipated costs of carrying out the program through annual contracts" for "reduced total costs under the contract" in subpar. (A).
Subsec. (h)(6). Pub. L. 101–510, §808(b), struck out "contracts for the construction, alteration, or major repair of improvements to real property or" after "not apply to".
Subsec. (h)(9). Pub. L. 101–510, §808(c)(1), inserted "for a defense acquisition program that has been specifically authorized by law to be carried out using multiyear contract authority" after "under this subsection" in introductory provisions.
Subsec. (h)(9)(C). Pub. L. 101–510, §808(c)(2), struck out subpar. (C) which read as follows: "The proposed multiyear contract—
"(i) achieves a 10 percent savings as compared to the cost of current negotiated contracts, adjusted for changes in quantity and for inflation; or
"(ii) achieves a 10 percent savings as compared to annual contracts if no recent contract experience exists."
1989—Subsec. (h)(9) to (11). Pub. L. 101–189 added pars. (9) to (11).
1986—Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§952(c)(1)], Pub. L. 99–661, §952(c)(1), amended section identically, striking out ": cost or pricing data: truth in negotiation" after "contracts" in section catchline.
Subsec. (f). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§952(b)(1)], Pub. L. 99–661, §952(b)(1), amended generally subsec. (f) identically, substituting provision that "truth-in-negotiations" provisions relating to cost and pricing data for contractors and subcontractors are provided in section 2306a of this title for provision relating to certification by contractors and subcontractors on cost and pricing data, circumstances under which such certification will be required, circumstances under which such certification, although not required, may be requested, and evaluation of the accuracy of the data submitted.
1985—Subsec. (a). Pub. L. 99–145, §1303(a)(15)(A), inserted a period at end.
Subsec. (b). Pub. L. 99–145, §1303(a)(15)(B), struck out "of this title" before "shall contain".
1984—Pub. L. 98–369, §2724(f), substituted "Kinds of contracts; cost or pricing data: truth in negotiation" for "Kinds of contracts" in section catchline.
Subsec. (a). Pub. L. 98–369, §2724(a), substituted "the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into" for "this limitation and subject to subsections (b)–(f), the head of any agency may, in negotiating contracts under section 2304 of this title, make".
Subsec. (b). Pub. L. 98–369, §2724(b), substituted "awarded under this chapter after using procedures other than sealed-bid procedures" for "negotiated under section 2304".
Subsec. (c). Pub. L. 98–369, §2724(c), substituted "this chapter" for "section 2304 of this title,".
Subsec. (e)(2). Pub. L. 98–369, §2724(d), substituted "the greater of (A) the small purchase amount under section 2304(g) of this title, or (B)" for "$25,000 or".
Subsec. (f)(1). Pub. L. 98–369, §2724(e)(A)(i), (ii), substituted "such contractor's or subcontractor's" for "his" and struck out "he" before "submitted was accurate" in provisions preceding subpar. (A).
Subsec. (f)(1)(A). Pub. L. 98–369, §2724(3)(A)(iii), (vi), (vii), substituted "prime contract under this chapter entered into after using procedures other than sealed-bid procedures, if" for "negotiated prime contract under this title where", "$100,000" for "$500,000", and "before" for "prior to".
Subsec. (f)(1)(B). Pub. L. 98–369, §2724(e)(A)(iv), (vi), (vii), substituted "if" for "for which", "$100,000" for "$500,000", and "before" for "prior to".
Subsec. (f)(1)(C). Pub. L. 98–369, §2724(e)(A)(v)–(vii), substituted "when" for "where", "$100,000" for "$500,000", and "before" for "prior to".
Subsec. (f)(1)(D). Pub. L. 98–369, §2724(e)(A)(iv), (vi), (vii), substituted "if" for "for which", "$100,000" for "$500,000", and "before" for "prior to".
Subsec. (f)(2). Pub. L. 98–369, §2724(e)(B), (D), (E), struck out "negotiated" before "price as is practicable" and before "is based on adequate price competition", redesignated as par. (3) the proviso formerly set out in this par., and as part of the redesignation substituted a period for ": Provided, That" after "or noncurrent".
Subsec. (f)(3). Pub. L. 98–369, §2724(e)(E), designated as par. (3) the proviso formerly set out in par. (2). Former par. (3) redesignated (5).
Subsec. (f)(4). Pub. L. 98–369, §2724(e)(F), added par. (4).
Subsec. (f)(5). Pub. L. 98–369, §2724(e)(C), redesignated former par. (3) as (5) and substituted "proposal for the contract, the discussions conducted on the proposal" for "negotiation".
1981—Subsec. (f)(1). Pub. L. 97–86, §907(b), substituted "$500,000" for "$100,000" in subpars. (A) to (D).
Subsec. (g)(1). Pub. L 97–86, §909(b)(1), struck out "to be performed outside the forty-eight contiguous States and the District of Columbia" after "(and items of supply related to such services)" in provisions preceding subpar. (A).
Subsec. (h). Pub. L. 97–86, §909(b)(2), added subsec. (h).
1980—Subsec. (f). Pub. L. 96–513, §511(77)(A), designated existing provisions as pars. (1) to (3) and in par. (1), as so designated, substituted "(A)" to "(D)" for "(1)" to "(4)", respectively, "prior" for "Prior" wherever appearing, and "clause (C)" for "(3) above".
Subsec. (g). Pub. L. 96–513, §511(77)(B), in par. (1) substituted "that—" for "that:", in par. (2) substituted "(A) The" for "(A) the", "(B) Consideration" for "(B) consideration", and "(C) Consideration" for "(C) consideration", and in par. (3) substituted "from—" for "from:".
1968—Subsec. (f). Pub. L. 90–512 inserted last par.
Subsec. (g). Pub. L. 90–378 added subsec. (g).
1962—Subsec. (a). Pub. L. 87–653, §1(d), substituted "subsections (b)–(f)" for "subsections (b)–(e)".
Subsec. (f). Pub. L. 87–653, §1(e), added subsec. (f).
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.
Pub. L. 112–81, div. B, title XXVIII, §2801(b), Dec. 31, 2011, 125 Stat. 1684, provided that: "Subsection (c) of section 2306 of title 10, United States Code, as added by subsection (a), shall apply with respect to any contract entered into by the United States in connection with a military construction project or a military family housing project after the date of the enactment of this Act [Dec. 31, 2011]."
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by section 101(c) [title X, §952(b)(1)] of Pub. L. 99–500 and Pub. L. 99–591, and section 952(b)(1) of Pub. L. 99–661 applicable with respect to contracts or modifications on contracts entered into after end of 120-day period beginning Oct. 18, 1986, see section 101(c) of Pub. L. 99–500 and Pub. L. 99–591, and section 952(d) of Pub. L. 99–661, set out as a note under section 2306a of this title.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
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.
For effective date of amendment by Pub. L. 87–653 see section 1(h) of Pub. L. 87–653, set out as a note under section 2304 of this title.
Pub. L. 101–189, div. A, title VIII, §805(c), Nov. 29, 1989, 103 Stat. 1489, provided that: "Subparagraph (C) of paragraph (9) of section 2306(h) of title 10, United States Code, as added by subsection (a), does not apply to programs that are under a multiyear contract on the date of the enactment of this Act [Nov. 29, 1989]."
Pub. L. 114–328, div. A, title VIII, §829, Dec. 23, 2016, 130 Stat. 2281, provided that:
"(a)
"(b)
"(1)
"(2)
"(A) a cost-type contract in excess of $50,000,000, in the case of a contract entered into on or after October 1, 2018, and before October 1, 2019; and
"(B) a cost-type contract in excess of $25,000,000, in the case of a contract entered into on or after October 1, 2019."
Pub. L. 109–364, div. A, title VIII, §818(b)–(e), Oct. 17, 2006, 120 Stat. 2329, 2330, provided that:
"(b)
"(c)
"(1) a fixed-price type contract (including a fixed price incentive contract); or
"(2) a cost type contract.
"(d)
"(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.
"(e)
Pub. L. 100–526, title I, §104(a), Oct. 24, 1988, 102 Stat. 2624, which provided that if for any fiscal year a multiyear contract was to be entered into under 10 U.S.C. 2306(h) was authorized by law for a particular procurement program and that authorization was subject to certain conditions established by law (including a condition as to cost savings to be achieved under the multiyear contract in comparison to specified other contracts) and if it appeared (after negotiations with contractors) that such savings could not be achieved, but that substantial savings could nevertheless be achieved through the use of a multiyear contract rather than specified other contracts, the President was to submit to Congress a request for relief from the specified cost savings that was to be achieved through multiyear contracting for that program and that any such request by the President was to include details about the request for a multiyear contract, including details about the negotiated contract terms and conditions, was repealed and restated as subsec. (h)(11) of this section by Pub. L. 101–189, §805(b), (c).
Pub. L. 94–361, title VIII, §805, July 14, 1976, 90 Stat. 932, required that military contracts entered into during Oct. 1, 1976 to Sept. 30, 1978 for development or procurement of a major system include a deferred ordering clause with an option to purchase from the contractor technical data and computer software packages relating to the system, directed that such clause require such packages to be sufficiently detailed so as to enable procurement of such system or subsystem from another contractor, authorized that a particular contract may be exempted from the deferred ordering clause if the procuring authority reports to the House and Senate Committees on Armed Services his intent to so contract with an explanation for the exemption, and set out definitions for "major system", "deferred ordering", and "technical data".
(a)
(A) An offeror for a prime contract under this chapter to be entered into using procedures other than sealed-bid procedures that is only expected to receive one bid shall be required to submit cost or pricing data before the award of a contract if—
(i) in the case of a prime contract entered into after June 30, 2018, the price of the contract to the United States is expected to exceed $2,000,000; and
(ii) in the case of a prime contract entered into on or before June 30, 2018, the price of the contract to the United States is expected to exceed $750,000.
(B) The contractor for a prime contract under this chapter shall be required to submit cost or pricing data before the pricing of a change or modification to the contract if—
(i) in the case of a change or modification made to a prime contract referred to in subparagraph (A)(i), the price adjustment is expected to exceed $2,000,000;
(ii) in the case of a change or modification made after July 1, 2018, to a prime contract that was entered into on or before June 30, 2018, and that has been modified pursuant to paragraph (6), the price adjustment is expected to exceed $750,000; and
(iii) in the case of a change or modification not covered by clause (i) or (ii), the price adjustment is expected to exceed $750,000.
(C) An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section and—
(i) in the case of a subcontract under a prime contract referred to in subparagraph (A)(i), the price of the subcontract is expected to exceed $2,000,000;
(ii) in the case of a subcontract entered into after July 1, 2018, under a prime contract that was entered into on or before June 30, 2018, and that has been modified pursuant to paragraph (6), the price of the subcontract is expected to exceed $2,000,000; and
(iii) in the case of a subcontract not covered by clause (i) or (ii), the price of the subcontract is expected to exceed $750,000.
(D) The subcontractor for a subcontract covered by subparagraph (C) shall be required to submit cost or pricing data before the pricing of a change or modification to the subcontract if—
(i) in the case of a change or modification to a subcontract referred to in subparagraph (C)(i) or (C)(ii), the price adjustment is expected to exceed $2,000,000; and
(ii) in the case of a change or modification to a subcontract referred to in subparagraph (C)(iii), the price adjustment is expected to exceed $750,000.
(2) A person required, as an offeror, contractor, or subcontractor, to submit cost or pricing data under paragraph (1) (or required by the head of the agency concerned to submit such data under subsection (c)) shall be required to certify that, to the best of the person's knowledge and belief, the cost or pricing data submitted are accurate, complete, and current.
(3) Cost or pricing data required to be submitted under paragraph (1) (or under subsection (c)), and a certification required to be submitted under paragraph (2), shall be submitted—
(A) in the case of a submission by a prime contractor (or an offeror for a prime contract), to the contracting officer for the contract (or to a designated representative of the contracting officer); or
(B) in the case of a submission by a subcontractor (or an offeror for a subcontract), to the prime contractor.
(4) Except as provided under subsection (b), this section applies to contracts entered into by the head of an agency on behalf of a foreign government.
(5) A waiver of requirements for submission of certified cost or pricing data that is granted under subsection (b)(1)(C) in the case of a contract or subcontract does not waive the requirement under paragraph (1)(C) for submission of cost or pricing data in the case of subcontracts under that contract or subcontract unless the head of the procuring activity granting the waiver determines that the requirement under that paragraph should be waived in the case of such subcontracts and justifies in writing the reasons for the determination.
(6) Upon the request of a contractor that was required to submit cost or pricing data under paragraph (1) in connection with a prime contract entered into on or before June 30, 2018, the head of the agency that entered into such contract shall modify the contract to reflect subparagraphs (B)(ii) and (C)(ii) of paragraph (1). All such modifications shall be made without requiring consideration.
(7) Effective on October 1 of each year that is divisible by 5, each amount set forth in paragraph (1) shall be adjusted in accordance with section 1908 of title 41.
(b)
(1)
(A) for which the price agreed upon is based on—
(i) adequate competition that results in at least two or more responsive and viable competing bids; or
(ii) prices set by law or regulation;
(B) for the acquisition of a commercial item;
(C) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this section may be waived and justifies in writing the reasons for such determination; or
(D) to the extent such data—
(i) relates to an offset agreement in connection with a contract for the sale of a weapon system or defense-related item to a foreign country or foreign firm; and
(ii) does not relate to a contract or subcontract under the offset agreement for work performed in such foreign country or by such foreign firm that is directly related to the weapon system or defense-related item being purchased under the contract.
(2)
(A) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1)(A) or (1)(B); and
(B) the modification would not change the contract or subcontract, as the case may be, from a contract or subcontract for the acquisition of a commercial item to a contract or subcontract for the acquisition of an item other than a commercial item.
(3)
(B) In this paragraph, the term "noncommercial modification", with respect to a commercial item, means a modification of such item that is not a modification described in section 103(3)(A) of title 41.
(C) Nothing in subparagraph (A) shall be construed—
(i) to limit the applicability of the exception in subparagraph (A) or (C) of paragraph (1) to cost or pricing data on a noncommercial modification of a commercial item; or
(ii) to require the submission of cost or pricing data on any aspect of an acquisition of a commercial item other than the cost and pricing of noncommercial modifications of such item.
(4)
(B) If the contracting officer does not make the presumption described in subparagraph (A) and instead chooses to proceed with a procurement of an item previously determined to be a commercial item using procedures other than the procedures authorized for the procurement of a commercial item, the contracting officer shall request a review of the commercial item determination by the head of the contracting activity.
(C) Not later than 30 days after receiving a request for review of a commercial item determination under subparagraph (B), the head of a contracting activity shall—
(i) confirm that the prior determination was appropriate and still applicable; or
(ii) issue a revised determination with a written explanation of the basis for the revision.
(5) A contracting officer shall consider evidence provided by an offeror of recent purchase prices paid by the Government for the same or similar commercial items in establishing price reasonableness on a subsequent purchase if the contracting officer is satisfied that the prices previously paid remain a valid reference for comparison after considering the totality of other relevant factors such as the time elapsed since the prior purchase and any differences in the quantities purchased or applicable terms and conditions.
(6)
(c)
(1)
(2)
(3)
(d)
(1)
(2)
(A) Reasonable limitations on requests for sales data relating to commercial items.
(B) A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial items from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations.
(C) A statement that any information received relating to commercial items that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.
(e)
(B) For the purposes of this section, defective cost or pricing data are cost or pricing data which, as of the date of agreement on the price of the contract (or another date agreed upon between the parties), were inaccurate, incomplete, or noncurrent. If for purposes of the preceding sentence the parties agree upon a date other than the date of agreement on the price of the contract, the date agreed upon by the parties shall be as close to the date of agreement on the price of the contract as is practicable.
(2) In determining for purposes of a contract price adjustment under a contract provision required by paragraph (1) whether, and to what extent, a contract price was increased because the contractor (or a subcontractor) submitted defective cost or pricing data, it shall be a defense that the United States did not rely on the defective data submitted by the contractor or subcontractor.
(3) It is not a defense to an adjustment of the price of a contract under a contract provision required by paragraph (1) that—
(A) the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted by the contractor or subcontractor because the contractor or subcontractor—
(i) was the sole source of the property or services procured; or
(ii) otherwise was in a superior bargaining position with respect to the property or services procured;
(B) the contracting officer should have known that the cost and pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting officer;
(C) the contract was based on an agreement between the contractor and the United States about the total cost of the contract and there was no agreement about the cost of each item procured under such contract; or
(D) the prime contractor or subcontractor did not submit a certification of cost and pricing data relating to the contract as required under subsection (a)(2).
(4)(A) A contractor shall be allowed to offset an amount against the amount of a contract price adjustment under a contract provision required by paragraph (1) if—
(i) the contractor certifies to the contracting officer (or to a designated representative of the contracting officer) that, to the best of the contractor's knowledge and belief, the contractor is entitled to the offset; and
(ii) the contractor proves that the cost or pricing data were available before the date of agreement on the price of the contract (or price of the modification) or, if applicable consistent with paragraph (1)(B), another date agreed upon between the parties, and that the data were not submitted as specified in subsection (a)(3) before such date.
(B) A contractor shall not be allowed to offset an amount otherwise authorized to be offset under subparagraph (A) if—
(i) the certification under subsection (a)(2) with respect to the cost or pricing data involved was known to be false when signed; or
(ii) the United States proves that, had the cost or pricing data referred to in subparagraph (A)(ii) been submitted to the United States before the date of agreement on the price of the contract (or price of the modification) or, if applicable consistent with paragraph (1)(B), another date agreed upon between the parties, the submission of such cost or pricing data would not have resulted in an increase in that price in the amount to be offset.
(f)
(A) for interest on the amount of such overpayment, to be computed—
(i) for the period beginning on the date the overpayment was made to the contractor and ending on the date the contractor repays the amount of such overpayment to the United States; and
(ii) at the current rate prescribed by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986; and
(B) if the submission of such defective data was a knowing submission, for an additional amount equal to the amount of the overpayment.
(2) Any liability under this subsection of a contractor that submits cost or pricing data but refuses to submit the certification required by subsection (a)(2) with respect to the cost or pricing data shall not be affected by the refusal to submit such certification.
(g)
(h)
(1)
(2)
(3)
(Added Pub. L. 99–500, §101(c) [title X, §952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–166, and Pub. L. 99–591, §101(c) [title X, §952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–166; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–180, div. A, title VIII, §804(a), (b), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 101–510, div. A, title VIII, §803(a)(1), (d), Nov. 5, 1990, 104 Stat. 1589, 1590; Pub. L. 102–25, title VII, §701(b), (f)(8), Apr. 6, 1991, 105 Stat. 113, 115; Pub. L. 102–190, div. A, title VIII, §804(a)–(c)(1), title X, §1061(a)(9), Dec. 5, 1991, 105 Stat. 1415, 1416, 1472; Pub. L. 103–355, title I, §§1201–1209, Oct. 13, 1994, 108 Stat. 3273–3277; Pub. L. 104–106, div. D, title XLII, §4201(a), title XLIII, §4321(a)(2), (b)(7), Feb. 10, 1996, 110 Stat. 649, 671, 672; Pub. L. 104–201, div. A, title X, §1074(a)(12), Sept. 23, 1996, 110 Stat. 2659; Pub. L. 105–85, div. A, title X, §1073(a)(46), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 105–261, div. A, title VIII, §§805(a), 808(a), Oct. 17, 1998, 112 Stat. 2083, 2085; Pub. L. 108–375, div. A, title VIII, §818(a), Oct. 28, 2004, 118 Stat. 2015; Pub. L. 110–181, div. A, title VIII, §814, Jan. 28, 2008, 122 Stat. 222; Pub. L. 111–350, §5(b)(15), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 113–291, div. A, title X, §1071(a)(3), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §§812, 851(b), 852(e), 853, Nov. 25, 2015, 129 Stat. 891, 916, 918, 919; Pub. L. 114–328, div. A, title VIII, §822, Dec. 23, 2016, 130 Stat. 2276; Pub. L. 115–91, div. A, title VIII, §811(a)(1), (b), Dec. 12, 2017, 131 Stat. 1459; Pub. L. 115–232, div. A, title VIII, §836(c)(5), Aug. 13, 2018, 132 Stat. 1865.)
Pub. L. 115–232, div. A, title VIII, §836(c)(5), (h), Aug. 13, 2018, 132 Stat. 1865, 1874, made amendments to subsections (b), (d), and (h) of this section, effective Jan. 1, 2020, subject to a savings provision. After Jan. 1, 2020, subsections (b), (d), and (h) of this section will read as follows:
(b)
(1)
(A) for which the price agreed upon is based on—
(i) adequate competition that results in at least two or more responsive and viable competing bids; or
(ii) prices set by law or regulation;
(B) for the acquisition of a commercial product or a commercial service;
(C) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this section may be waived and justifies in writing the reasons for such determination; or
(D) to the extent such data—
(i) relates to an offset agreement in connection with a contract for the sale of a weapon system or defense-related item to a foreign country or foreign firm; and
(ii) does not relate to a contract or subcontract under the offset agreement for work performed in such foreign country or by such foreign firm that is directly related to the weapon system or defense-related item being purchased under the contract.
(2)
(A) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1)(A) or (1)(B); and
(B) the modification would not change the contract or subcontract, as the case may be, from a contract or subcontract for the acquisition of a commercial product or commercial services to a contract or subcontract for the acquisition of an item other than a commercial product or commercial services.
(3)
(B) In this paragraph, the term "noncommercial modification", with respect to a commercial product, means a modification of such product that is not a modification described in section 103(3)(A) of title 41.
(C) Nothing in subparagraph (A) shall be construed—
(i) to limit the applicability of the exception in subparagraph (A) or (C) of paragraph (1) to cost or pricing data on a noncommercial modification of a commercial product; or
(ii) to require the submission of cost or pricing data on any aspect of an acquisition of a commercial product other than the cost and pricing of noncommercial modifications of such product.
(4)
(B) If the contracting officer does not make the presumption described in subparagraph (A) and instead chooses to proceed with a procurement of a product or service previously determined to be a commercial product or a commercial service using procedures other than the procedures authorized for the procurement of a commercial product or a commercial service, as the case may be, the contracting officer shall request a review of the commercial item determination by the head of the contracting activity.
(C) Not later than 30 days after receiving a request for review of a determination under subparagraph (B), the head of a contracting activity shall—
(i) confirm that the prior determination was appropriate and still applicable; or
(ii) issue a revised determination with a written explanation of the basis for the revision.
(5) A contracting officer shall consider evidence provided by an offeror of recent purchase prices paid by the Government for the same or similar commercial products or commercial services in establishing price reasonableness on a subsequent purchase if the contracting officer is satisfied that the prices previously paid remain a valid reference for comparison after considering the totality of other relevant factors such as the time elapsed since the prior purchase and any differences in the quantities purchased or applicable terms and conditions.
(6)
(d)
(1)
(2)
(A) Reasonable limitations on requests for sales data relating to commercial products or commercial services.
(B) A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial products or commercial services from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations.
(C) A statement that any information received relating to commercial products or commercial services that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.
(h)
(1)
(2)
See 2018 Amendment notes below.
Section 6621 of the Internal Revenue Code of 1986, referred to in subsec. (f)(1)(A)(ii), is classified to section 6621 of Title 26, Internal Revenue Code.
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.
2018—Subsec. (b)(1)(B). Pub. L. 115–232, §836(c)(5)(A)(i), substituted "a commercial product or a commercial service" for "a commercial item".
Subsec. (b)(2). Pub. L. 115–232, §836(c)(5)(A)(ii), in heading, substituted "commercial products or commercial services" for "commercial items" and, in text, substituted "commercial product or commercial services" for "commercial item" wherever appearing.
Subsec. (b)(3). Pub. L. 115–232, §836(c)(5)(A)(iii), in heading, substituted "commercial products" for "commercial items" and, in text, substituted "product" for "item" wherever appearing.
Subsec. (b)(4). Pub. L. 115–232, §836(c)(5)(A)(iv)(I), substituted "Commercial product or commercial service" for "Commercial item" in heading.
Subsec. (b)(4)(A). Pub. L. 115–232, §836(c)(5)(A)(iv)(II)–(IV), struck out "commercial item" after "applying the" and substituted "prior commercial product or commercial service determination" for "prior commercial item determination" and "of such product or service" for "of such item".
Subsec. (b)(4)(B). Pub. L. 115–232, §836(c)(5)(A)(iv)(V)–(VII), substituted "of a product or service previously determined to be a commercial product or a commercial service using procedures other than the procedures authorized for the procurement of a commercial product or a commercial service, as the case may be, the contracting officer shall request a review of the commercial product or commercial service determination" for "of an item previously determined to be a commercial item using procedures other than the procedures authorized for the procurement of a commercial item, the contracting officer shall request a review of the commercial item determination".
Subsec. (b)(4)(C). Pub. L. 115–232, §836(c)(5)(A)(iv)(VIII), struck out "commercial item" before "determination" in introductory provisions.
Subsec. (b)(5). Pub. L. 115–232, §836(c)(5)(A)(v), substituted "commercial products or commercial services" for "commercial items".
Subsec. (d)(2). Pub. L. 115–232, §836(c)(5)(B), substituted "commercial products or commercial services" for "commercial items" wherever appearing.
Subsec. (h)(2). Pub. L. 115–232, §836(c)(5)(C)(i), substituted "commercial products or commercial services" for "commercial items".
Subsec. (h)(3). Pub. L. 115–232, §836(c)(5)(C)(ii), struck out par. (3) which defined "commercial item".
2017—Subsec. (a)(1)(A)(i). Pub. L. 115–91, §811(a)(1)(A), (D)(i), substituted "June 30, 2018" for "December 5, 1990" and "$2,000,000" for "$500,000".
Subsec. (a)(1)(A)(ii). Pub. L. 115–91, §811(a)(1)(A), (C), substituted "June 30, 2018" for "December 5, 1990" and "$750,000" for "$100,000".
Subsec. (a)(1)(B)(i). Pub. L. 115–91, §811(a)(1)(D)(i), substituted "$2,000,000" for "$500,000".
Subsec. (a)(1)(B)(ii). Pub. L. 115–91, §811(a)(1)(A), (B), (D)(ii), substituted "July 1, 2018" for "December 5, 1991", "June 30, 2018" for "December 5, 1990", and "$750,000" for "$500,000".
Subsec. (a)(1)(B)(iii). Pub. L. 115–91, §811(a)(1)(C), substituted "$750,000" for "$100,000".
Subsec. (a)(1)(C)(i). Pub. L. 115–91, §811(a)(1)(D)(i), substituted "$2,000,000" for "$500,000".
Subsec. (a)(1)(C)(ii). Pub. L. 115–91, §811(a)(1)(A), (B), (D)(i), substituted "July 1, 2018" for "December 5, 1991", "June 30, 2018" for "December 5, 1990", and "$2,000,000" for "$500,000".
Subsec. (a)(1)(C)(iii). Pub. L. 115–91, §811(a)(1)(C), substituted "$750,000" for "$100,000".
Subsec. (a)(1)(D)(i). Pub. L. 115–91, §811(a)(1)(D)(i), substituted "$2,000,000" for "$500,000".
Subsec. (a)(1)(D)(ii). Pub. L. 115–91, §811(a)(1)(C), substituted "$750,000" for "$100,000".
Subsec. (a)(6). Pub. L. 115–91, §811(a)(1)(A), (E), amended par. (6) identically, substituting "June 30, 2018" for "December 5, 1990".
Subsec. (a)(7). Pub. L. 115–91, §811(a)(1)(F), substituted "in accordance with section 1908 of title 41." for "to the amount that is equal to the fiscal year 1994 constant dollar value of the amount set forth. Any amount, as so adjusted, that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. In the case of an amount that is evenly divisible by $25,000 but not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000."
Subsec. (d)(1). Pub. L. 115–91, §811(b), substituted "the offeror shall be required to submit to the contracting officer data other than certified cost or pricing data (if requested by the contracting officer), to the extent necessary" for "the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary".
2016—Subsec. (a)(1)(A). Pub. L. 114–328, §822(1), inserted "that is only expected to receive one bid" after "entered into using procedures other than sealed-bid procedures" in introductory provisions.
Subsec. (b)(1)(A)(i). Pub. L. 114–328, §822(2)(A), substituted "competition that results in at least two or more responsive and viable competing bids" for "price competition".
Subsec. (b)(6). Pub. L. 114–328, §822(2)(B), added par. (6).
2015—Subsec. (b)(1)(D). Pub. L. 114–92, §812, added subpar. (D).
Subsec. (b)(4). Pub. L. 114–92, §851(b), added par. (4).
Subsec. (b)(5). Pub. L. 114–92, §853, added par. (5).
Subsec. (d)(1). Pub. L. 114–92, §852(e), inserted at end "If the contracting officer determines that the offeror does not have access to and cannot provide sufficient information on prices for the same or similar items to determine the reasonableness of price, the contracting officer shall require the submission of information on prices for similar levels of work or effort on related products or services, prices for alternative solutions or approaches, and other information that is relevant to the determination of a fair and reasonable price."
2014—Subsec. (b)(3)(B). Pub. L. 113–291 substituted "section 103(3)(A) of title 41" for "section 4(12)(C)(i) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)(C)(i))".
2011—Subsec. (h)(3). Pub. L. 111–350 substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".
2008—Subsec. (b)(3)(A). Pub. L. 110–181 substituted "the amount specified in subsection (a)(1)(A)(i), as adjusted from time to time under subsection (a)(7)," for "$500,000" and inserted "(at the time of contract award)" after "total price of the contract".
2004—Subsec. (b)(3). Pub. L. 108–375 added par. (3).
1998—Subsec. (a)(5). Pub. L. 105–261, §805(a), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "For purposes of paragraph (1)(C), a contractor or subcontractor granted a waiver under subsection (b)(1)(C) shall be considered as having been required to make available cost or pricing data under this section."
Subsec. (d)(1). Pub. L. 105–261, §808(a), substituted "the contracting officer shall require that the data submitted" for "the data submitted shall".
1997—Subsec. (a)(5). Pub. L. 105–85 substituted "subsection (b)(1)(C)" for "subsection (b)(1)(B)".
1996—Subsec. (b). Pub. L. 104–106, §4321(a)(2), made technical correction to directory language of Pub. L. 103–355, §1202(a). See 1994 Amendment note below.
Pub. L. 104–106, §4201(a)(1), amended subsec. (b) generally, revising and restating as pars. (1) and (2) the provisions of former pars. (1) and (2) and striking out par. (3).
Subsec. (c). Pub. L. 104–106, §4201(a)(1), amended subsec. (c) generally, revising and restating as subsec. (c) the provisions of former subsec. (c)(1).
Subsec. (d). Pub. L. 104–106, §4321(b)(7)(A), which directed amendment of subsec. (d)(2)(A)(ii), by inserting "to" after "The information referred", could not be executed because subsec. (d)(2)(A) did not contain a cl. (ii) or the language "The information referred" subsequent to amendment by Pub. L. 104–106, §4201(a)(1). See below.
Pub. L. 104–106, §4201(a)(1), amended subsec. (d) generally, revising and restating as pars. (1) and (2) provisions of former subsecs. (c)(2) and (d)(2), (4) and striking out provisions of former subsec. (d)(1), (3) relating to procurements based on adequate price competition and authority to audit.
Subsec. (e)(4)(B)(ii). Pub. L. 104–106, §4321(b)(7)(B), struck out second comma after "parties".
Subsec. (h). Pub. L. 104–106, §4201(a)(2), redesignated subsec. (i) as (h) and struck out former subsec. (h) which read as follows: "
Subsec. (h)(3). Pub. L. 104–201 inserted "(41 U.S.C. 403(12))" before period at end.
Subsec. (i). Pub. L. 104–106, §4201(a)(2)(B), redesignated subsec. (i) as (h).
Subsec. (i)(3). Pub. L. 104–106, §4321(b)(7)(C), which directed amendment of subsec. (i)(3) by inserting "(41 U.S.C. 403(12))" before period at end, could not be executed because section did not contain a subsec. (i) subsequent to the amendment by Pub. L. 104–106, §4201(a)(2)(B), redesignating subsec. (i) as (h). See above.
1994—Subsec. (a)(1)(A)(i). Pub. L. 103–355, §1201(a)(1), struck out "and before January 1, 1996," after "December 5, 1990,".
Subsec. (a)(1)(A)(ii). Pub. L. 103–355, §1201(a)(2), struck out "or after December 31, 1995," after "December 5, 1990,".
Subsec. (a)(5). Pub. L. 103–355, §1202(b), substituted "subsection (b)(1)(B)" for "subsection (b)(2)".
Subsec. (a)(6). Pub. L. 103–355, §1201(c), struck out subpar. (A) designation and subpar. (B) which read as follows: "The head of an agency is not required to modify a contract under subparagraph (A) if that head of an agency determines that the submission of cost or pricing data with respect to that contract should be required under subsection (c)."
Subsec. (a)(7). Pub. L. 103–355, §1201(b), added par. (7).
Subsec. (b). Pub. L. 103–355, §1202(a), as amended by Pub. L. 104–106, §4321(a)(2), amended heading and text of subsec. (b) generally. Prior to amendment, text read as follows: "This section need not be applied to a contract or subcontract—
"(1) for which the price agreed upon is based on—
"(A) adequate price competition;
"(B) established catalog or market prices of commercial items sold in substantial quantities to the general public; or
"(C) prices set by law or regulation; or
"(2) in an exceptional case when the head of the agency determines that the requirements of this section may be waived and states in writing his reasons for such determination."
Subsec. (c). Pub. L. 103–355, §1203, amended heading and text of subsec. (c) generally. Prior to amendment, text read as follows: "When cost or pricing data are not required to be submitted by subsection (a), such data may nevertheless be required to be submitted by the head of the agency if the head of the agency determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract or subcontract. In any case in which the head of the agency requires such data to be submitted under this subsection, the head of the agency shall document in writing the reasons for such requirement."
Subsec. (d). Pub. L. 103–355, §1204, added subsec. (d) and redesignated former subsec. (d) as (e).
Subsec. (e). Pub. L. 103–355, §1204(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(4)(A)(ii), (B)(ii). Pub. L. 103–355, §1207, inserted "or, if applicable consistent with paragraph (1)(B), another date agreed upon between the parties," after "(or price of the modification)".
Subsec. (f). Pub. L. 103–355, §1204(1), redesignated subsec. (e) as (f). Former subsec. (f) redesignated (g).
Subsec. (f)(1). Pub. L. 103–355, §1209, struck out "with the Department of Defense" before "subject to this section" in introductory provisions.
Subsec. (g). Pub. L. 103–355, §1205, added subsec. (g) and struck out heading and text of former subsec. (g). Text read as follows:
"(1) For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this section with respect to a contract or subcontract, the head of the agency, acting through any authorized representative of the head of the agency who is an employee of the United States or a member of the armed forces, shall have the right to examine all records of the contractor or subcontractor related to—
"(A) the proposal for the contract or subcontract;
"(B) the discussions conducted on the proposal;
"(C) pricing of the contract or subcontract; or
"(D) performance of the contract or subcontract.
"(2) The right of the head of an agency under paragraph (1) shall expire three years after final payment under the contract or subcontract.
"(3) In this subsection, the term 'records' includes books, documents, and other data."
Pub. L. 103–355, §1204(1), redesignated subsec. (f) as (g). Former subsec. (g) redesignated (i).
Subsec. (h). Pub. L. 103–355, §1206, added subsec. (h).
Subsec. (i). Pub. L. 103–355, §1208, amended heading and text of subsec. (i) generally. Prior to amendment, text read as follows: "In this section, the term 'cost or pricing data' means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification), a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived."
Pub. L. 103–355, §1204(1), redesignated subsec. (g) as (i).
1991—Subsec. (a)(1)(A). Pub. L. 102–190, §804(a), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "An offeror for a prime contract under this chapter to be entered into using procedures other than sealed-bid procedures shall be required to submit cost or pricing data before the award of the contract if the price of the contract to the United States is expected to exceed $500,000 or, in the case of a contract to be awarded after December 31, 1995, $100,000."
Subsec. (a)(1)(B). Pub. L. 102–190, §804(a), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "The contractor for a contract under this chapter shall be required to submit cost or pricing data before the pricing of a change or modification to the contract if the price adjustment is expected to exceed the dollar amount applicable under subparagraph (A) to that contract (or such lesser amount as may be prescribed by the head of the agency)."
Pub. L. 102–25, §701(b)(1), substituted "the dollar amount applicable under subparagraph (A) to that contract" for "$500,000 (or such lesser amount as may be prescribed by the head of the agency) or, in the case of a change or modification to a contract to be made after December 31, 1995, $100,000".
Subsec. (a)(1)(C). Pub. L. 102–190, §804(a), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: "An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if—
"(i) the price of the subcontract is expected to exceed the dollar amount applicable under subparagraph (A) to the prime contract of that subcontract; and
"(ii) the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section."
Subsec. (a)(1)(C)(i). Pub. L. 102–25, §701(b)(2), substituted "the dollar amount applicable under subparagraph (A) to the prime contract of that subcontract" for "$500,000 or, in the case of a subcontract to be awarded after December 31, 1995, $100,000".
Subsec. (a)(1)(D). Pub. L. 102–190, §804(a), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: "The subcontractor for a subcontract covered by subparagraph (C) shall be required to submit cost or pricing data before the pricing of a change or modification to the subcontract if the price adjustment is expected to exceed the dollar amount applicable under subparagraph (A) to the prime contract of that subcontract (or such lesser amount as may be prescribed by the head of the agency)."
Pub. L. 102–25, §701(b)(3), substituted "the dollar amount applicable under subparagraph (A) to the prime contract of that subcontract" for "$500,000 (or such lesser amount as may be prescribed by the head of the agency) or, in the case of a change or modification to be made after December 31, 1995, $100,000".
Subsec. (a)(5). Pub. L. 102–190, §804(c)(1), substituted "paragraph (1)(C)" for "paragraph (1)(C)(ii)".
Subsec. (a)(6). Pub. L. 102–190, §804(b), added par. (6).
Subsec. (e)(1)(A)(i). Pub. L. 102–25, §701(f)(8), which directed the substitution of "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954", could not be executed because "Internal Revenue Code of 1954" does not appear.
Subsec. (e)(1)(A)(ii). Pub. L. 102–190, §1061(a)(9), substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954".
1990—Subsec. (a)(1)(A). Pub. L. 101–510, §803(a)(1)(A), substituted "$500,000 or, in the case of a contract to be awarded after December 31, 1995, $100,000" for "$100,000".
Subsec. (a)(1)(B). Pub. L. 101–510, §803(a)(1)(B), substituted "$500,000 (or such lesser amount as may be prescribed by the head of the agency) or, in the case of a change or modification to a contract to be made after December 31, 1995, $100,000" for "$100,000".
Subsec. (a)(1)(C)(i). Pub. L. 101–510, §803(a)(1)(C), substituted "$500,000 or, in the case of a subcontract to be awarded after December 31, 1995, $100,000" for "$100,000".
Subsec. (a)(1)(D). Pub. L. 101–510, §803(a)(1)(D), substituted "$500,000 (or such lesser amount as may be prescribed by the head of the agency) or, in the case of a change or modification to be made after December 31, 1995, $100,000" for "$100,000".
Subsec. (c). Pub. L. 101–510, §803(d), inserted at end "In any case in which the head of the agency requires such data to be submitted under this subsection, the head of the agency shall document in writing the reasons for such requirement."
1987—Subsec. (a)(5). Pub. L. 100–180, §804(b)(1), substituted "a waiver under subsection (b)(2)" for "such a waiver", and struck out first sentence authorizing head of an agency to waive requirement under this subsection for contractor, subcontractor, or offeror to submit cost or pricing data.
Subsec. (e)(2). Pub. L. 100–180, §804(b)(2), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Except as provided under subsection (d), the liability of a contractor under this subsection shall not be affected by the contractor's refusal to submit a certification under subsection (a)(2) with respect to the cost or pricing data involved."
Subsec. (g). Pub. L. 100–180, §804(a), amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: "In this section, the term 'cost or pricing data' means all information that is verifiable and that, as of the date of agreement on the price of a contract (or the price of a contract modification), a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived."
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.
Pub. L. 108–375, div. A, title VIII, §818(b), Oct. 28, 2004, 118 Stat. 2016, as amended by Pub. L. 109–364, div. A, title X, §1071(g)(11), Oct. 17, 2006, 120 Stat. 2403, provided that: "Paragraph (3) of subsection (b) of section 2306a of title 10, United States Code (as added by subsection (a)), shall take effect on June 1, 2005, and shall apply with respect to offers submitted, and to modifications of contracts or subcontracts made, on or after that date."
For effective date and applicability of amendment by sections 4201(a) and 4321(b)(7) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Pub. L. 104–106, div. D, title XLIII, §4321(a), Feb. 10, 1996, 110 Stat. 671, provided that the amendment made by that section is effective as of Oct. 13, 1994, and as if included in Pub. L. 103–355 as enacted.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 101–510, div. A, title VIII, §803(a)(2), Nov. 5, 1990, 104 Stat. 1590, as amended by Pub. L. 102–25, title VII, §704(a)(4), Apr. 6, 1991, 105 Stat. 118, provided that the amendments to this section by Pub. L. 101–510 would apply to contracts entered into after Dec. 5, 1990, subcontracts under such contracts, and modifications or changes to such contracts and subcontracts, prior to repeal by Pub. L. 102–190, div. A, title VIII, §804(c)(2), Dec. 5, 1991, 105 Stat. 1416.
Pub. L. 100–180, div. A, title VIII, §804(c), Dec. 4, 1987, 101 Stat. 1125, provided that:
"(1) Subsection (a) [amending this section] shall apply to any contract, or modification of a contract, entered into after the end of the 30-day period beginning on the date of the enactment of this Act [Dec. 4, 1987].
"(2) The amendments made by subsection (b) [amending this section] shall apply with respect to contracts, or modifications of contracts, entered into after the end of the 120-day period beginning on October 18, 1986."
Pub. L. 99–500, §101(c) [title X, §952(d)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, Pub. L. 99–591, §101(c) [title X, §952(d)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169, and Pub. L. 99–661, div. A, title IX, formerly title IV, §952(d), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that:
"(1) Except as provided in paragraph (2), section 2306a of title 10, United States Code (as added by subsection (a)), and the amendment and repeal made by subsection (b) [amending section 2306 of this title and repealing a provision set out as a note under section 2304 of this title], shall apply with respect to contracts or modifications on contracts entered into after the end of the 120-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].
"(2) Subsection (e) of such section shall apply with respect to contracts or modifications on contracts entered into after November 7, 1985."
Pub. L. 114–92, div. A, title VIII, §851(d), Nov. 25, 2015, 129 Stat. 917, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Defense Federal Acquisition Regulation Supplement shall be updated to reflect the requirements of this section [enacting section 2380 of this title, amending this section, and enacting provisions set out as notes under this section] and the amendments made by this section."
Pub. L. 101–510, div. A, title VIII, §803(c), Nov. 5, 1990, 104 Stat. 1590, directed Secretary of Defense to prescribe regulations identifying type of procurements for which contracting officers should consider requiring submission of certified cost or pricing data under subsec. (c) of this section, and also directed Secretary to prescribe regulations concerning types of information that offerors had to submit for contracting officer to consider in determining whether price of procurement to Government was fair and reasonable when certified cost or pricing data were not required to be submitted under this section because price of procurement to the United States was not expected to exceed $500,000, such information, at minimum, to include appropriate information on prices at which such offeror had previously sold same or similar products, with such regulations to be prescribed not later than six months after Nov. 5, 1990, prior to repeal by Pub. L. 103–355, title I, §1210, Oct. 13, 1994, 108 Stat. 3277.
Pub. L. 114–92, div. A, title VIII, §851(e), Nov. 25, 2015, 129 Stat. 917, provided that: "Nothing in this section [enacting section 2380 of this title, amending this section, and enacting provisions set out as notes under this section] or the amendments made by this section shall be construed to preclude the contracting officer for the procurement of a commercial item from requiring the contractor to supply information that is sufficient to determine the reasonableness of price, regardless of whether or not the contractor was required to provide such information in connection with any earlier procurement."
Pub. L. 115–232, div. A, title VIII, §890, Aug. 13, 2018, 132 Stat. 1919, provided that:
"(a)
"(1) basing price reasonableness determinations on actual cost and pricing data for purchases of the same or similar products for the Department of Defense; and
"(2) reducing the cost and pricing data to be submitted in accordance with section 2306a of title 10, United States Code.
"(b)
"(c)
"(d)
Pub. L. 114–92, div. A, title VIII, §873(a)–(g), Nov. 25, 2015, 129 Stat. 939, 940, as amended by Pub. L. 114–328, div. A, title VIII, §896, Dec. 23, 2016, 130 Stat. 2326, provided that:
"(a)
"(1) a technical, merit-based selection procedure, such as a broad agency announcement, or
"(2) the Small Business Innovation Research Program or Small Business Technology Transfer Program,
unless the head of the agency determines that submission of cost and pricing data should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.
"(b)
"(1) a technical, merit-based selection procedure, such as a broad agency announcement, or
"(2) the Small Business Innovation Research Program,
unless the head of the agency determines that auditing of records should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award, and if such performance audit is initiated within 18 months of the contract completion.
"(c)
"(d)
"(e)
"(f)
"(g)
"(1)
"(2)
[Section 896(2)(B) of Pub. L. 114–328, which directed amendment of par. (2) of subsec. (b) of section 873 of Pub. L. 114–92, set out above, by inserting ", and if such performance audit is initiated within 18 months of the contract completion" before the period at the end, was executed by making the insertion before the period at the end of the concluding provisions of subsec. (b), to reflect the probable intent of Congress.]
Pub. L. 114–92, div. A, title VIII, §899, Nov. 25, 2015, 129 Stat. 955, provided that:
"(a)
"(b)
"(1) The requirement under subparagraph (A) of such paragraph to submit cost or pricing data for a prime contract entered into during the pilot program period.
"(2) The requirement under subparagraph (B) of such paragraph to submit cost or pricing data for the change or modification to a prime contract made during the pilot program period.
"(3) The requirement under subparagraph (C) of such paragraph to submit cost or pricing data for a subcontract entered into during the pilot program period.
"(4) The requirement under subparagraph (D) of such paragraph to submit cost or pricing data for the change or modification to a subcontract made during the pilot program period.
"(c)
"(1)
"(A) determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract; or
"(B) requires the submission of such data in accordance with a risk-based contracting approach established pursuant to paragraph (3).
"(2)
"(3)
"(4)
"(5)
"(d)
"(e)
"(1)
"(2)
Pub. L. 112–239, div. A, title VIII, §831, Jan. 2, 2013, 126 Stat. 1842, provided that:
"(a)
"(1) include standards for determining whether information on the prices at which the same or similar items have previously been sold is adequate for evaluating the reasonableness of price;
"(2) include standards for determining the extent of uncertified cost information that should be required in cases in which price information is not adequate for evaluating the reasonableness of price;
"(3) ensure that in cases in which such uncertified cost information is required, the information shall be provided in the form in which it is regularly maintained by the offeror in its business operations; and
"(4) provide that no additional cost information may be required by the Department of Defense in any case in which there are sufficient non-Government sales to establish reasonableness of price.
"(b)
"(1) train the acquisition workforce on the use of the authority provided by sections 2306a(d) and 2379 of title 10, United States Code, in evaluating reasonableness of price in procurements of commercial items; and
"(2) develop a cadre of experts within the Department of Defense to provide expert advice to the acquisition workforce in the use of the authority provided by such sections in accordance with the guidance issued pursuant to subsection (a).
"(c)
"(1) A justification of the need for additional cost information.
"(2) A copy of any request from the Department of Defense to a contractor for additional cost information.
"(3) Any response received from the contractor to the request, including any rationale or justification provided by the contractor for a failure to provide the requested information.
"(d)
"(1)
"(2)
"(A) the extent to which the Department of Defense needed access to additional cost information pursuant to sections 2306a(d) and 2379 of title 10, United States Code, during such two-year period in order to determine price reasonableness;
"(B) the extent to which acquisition officials of the Department of Defense complied with the guidance issued pursuant to subsection (a) during such two-year period;
"(C) the extent to which the Department of Defense needed access to additional cost information during such two-year period to determine reasonableness of price, but was not provided such information by the contractor on request; and
"(D) recommendations for improving evaluations of reasonableness of price by Department of Defense acquisition professionals, including recommendations for any amendments to law, regulations, or guidance."
Pub. L. 111–383, div. A, title VIII, §892, Jan. 7, 2011, 124 Stat. 4310, which provided for the analysis of information on price trends for certain supplies and equipment purchased by the Department of Defense, was repealed by Pub. L. 114–92, div. A, title X, §1073(f), Nov. 25, 2015, 129 Stat. 996.
Pub. L. 107–314, div. A, title VIII, §817, Dec. 2, 2002, 116 Stat. 2610, as amended by Pub. L. 112–81, div. A, title VIII, §809(a), Dec. 31, 2011, 125 Stat. 1490; Pub. L. 113–291, div. A, title X, §1071(b)(7), Dec. 19, 2014, 128 Stat. 3507; Pub. L. 115–91, div. A, title X, §1051(j), Dec. 12, 2017, 131 Stat. 1563; Pub. L. 115–232, div. A, title VIII, §§825, 836(f)(4), Aug. 13, 2018, 132 Stat. 1856, 1871, provided that:
"(a)
"(b)
"(1) the property or services cannot reasonably be obtained under the contract, subcontract, or modification, as the case may be, without the grant of the exception or waiver;
"(2) the price can be determined to be fair and reasonable without the submission of certified cost and pricing data or the application of cost accounting standards, as the case may be; or
"(3) there are demonstrated benefits to granting the exception or waiver.
"(c)
"(d)
"(1) The term 'exceptional case exception or waiver' means either of the following:
"(A) An exception pursuant to section 2306a(b)(1)(C) of title 10, United States Code, relating to submission of certified cost and pricing data.
"(B) A waiver pursuant to section 1502(b)(3)(B) of title 41, United States Code, relating to the applicability of cost accounting standards to contracts and subcontracts.
"(2) The term 'commercial item exception' means an exception pursuant to section 2306a(b)(1)(B) of title 10, United States Code, relating to submission of certified cost and pricing data."
[Pub. L. 115–232, div. A, title VIII, §836(f)(4), (h), Aug. 13, 2018, 132 Stat. 1871, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, section 817(d) of Pub. L. 107–314, set out above, is amended:
[in paragraph (1), by striking "commercial item exceptions" and inserting "commercial product-commercial service exceptions"; and
[in paragraph (2), by striking "commercial item exception" and inserting "commercial product-commercial service exception".]
Pub. L. 105–261, div. A, title VIII, §803, Oct. 17, 1998, 112 Stat. 2081, as amended by Pub. L. 106–65, div. A, title X, §1067(3), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title VIII, §823, Dec. 2, 2002, 116 Stat. 2615; Pub. L. 109–364, div. A, title VIII, §819, Oct. 17, 2006, 120 Stat. 2330; Pub. L. 113–291, div. A, title X, §1071(b)(9), Dec. 19, 2014, 128 Stat. 3507, which required revision of the Federal Acquisition Regulation to clarify the procedures and methods to be used for determining the reasonableness of prices of certain commercial items, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(18), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 101–510, div. A, title VIII, §803(b), Nov. 5, 1990, 104 Stat. 1590, provided that (1) after increase in threshold for submission of cost or pricing data under subsec. (a) of this section, as amended by section 803(a) of Pub. L. 101–510, had been in effect for three years, Inspector General of Department of Defense was to conduct review of effects of increase in threshold, (2) that such review was to address whether increasing threshold improved acquisition process in terms of reduced paperwork, financial or other savings to government, an increase in number of contractors participating in defense contracting process, and adequacy of information available to contracting officers in cases in which certified cost or pricing data were not required under this section, (3) that Inspector General was to submit to Secretary of Defense a report on review conducted under paragraph (1), with Secretary of Defense required to submit such report to Congress, along with appropriate comments, upon completion of report (and comments) but not later than date on which President submitted budget to Congress pursuant to section 1105 of Title 31, Money and Finance, for fiscal year 1996, prior to repeal by Pub. L. 103–355, title I, §1210, Oct. 13, 1994, 108 Stat. 3277.
Pub. L. 114–92, div. A, title VIII, §851(c), Nov. 25, 2015, 129 Stat. 917, provided that: "Nothing in this section [enacting section 2380 of this title, amending this section, and enacting provisions set out as notes under this section] or the amendments made by this section shall affect the meaning of the term 'commercial item' under subsection (a)(5) of section 2464 of title 10, United States Code, or any requirement under subsection (a)(3) or subsection (c) of such section."
(a)
(1) That the use of such a contract will result in significant savings of the total anticipated costs of carrying out the program through annual contracts.
(2) That the minimum need for the property to be purchased is expected to remain substantially unchanged during the contemplated contract period in terms of production rate, procurement rate, and total quantities.
(3) That there is a reasonable expectation that throughout the contemplated contract period the head of the agency will request funding for the contract at the level required to avoid contract cancellation.
(4) That there is a stable design for the property to be acquired and that the technical risks associated with such property are not excessive.
(5) That the estimates of both the cost of the contract and the anticipated cost avoidance through the use of a multiyear contract are realistic.
(6) In the case of a purchase by the Department of Defense, that the use of such a contract will promote the national security of the United States.
(7) In the case of a contract in an amount equal to or greater than $500,000,000, that the conditions required by subparagraphs (C) through (F) of subsection (i)(3) will be met, in accordance with the Secretary's certification and determination under such subsection, by such contract.
(b)
(2)(A) The Secretary of Defense shall prescribe the regulations applicable to the Department of Defense.
(B) The Secretary of Homeland Security shall prescribe the regulations applicable to the Coast Guard, except that the regulations prescribed by the Secretary of Defense shall apply to the Coast Guard when it is operating as a service in the Navy.
(C) The Administrator of the National Aeronautics and Space Administration shall prescribe the regulations applicable to the National Aeronautics and Space Administration.
(c)
(d)
(1) multiyear contracting under subsection (a) shall be used in such a manner as to seek, retain, and promote the use under such contracts of companies that are subcontractors, vendors, or suppliers; and
(2) upon accrual of any payment or other benefit under such a multiyear contract to any subcontractor, vendor, or supplier company participating in such contract, such payment or benefit shall be delivered to such company in the most expeditious manner practicable.
(e)
(1) to provide for competition in the production of items to be delivered under such a contract; or
(2) to provide for termination of a prime contract the performance of which is deficient with respect to cost, quality, or schedule.
(f)
(1) appropriations originally available for the performance of the contract concerned;
(2) appropriations currently available for procurement of the type of property concerned, and not otherwise obligated; or
(3) funds appropriated for those payments.
(g)
(2) In the case of a contract described in subsection (a) with a cancellation ceiling described in paragraph (1), if the budget for the contract does not include proposed funding for the costs of contract cancellation up to the cancellation ceiling established in the contract, the head of the agency concerned shall, as part of the certification required by subsection (i)(1)(A),1 give written notification to the congressional defense committees of—
(A) the cancellation ceiling amounts planned for each program year in the proposed multiyear procurement contract, together with the reasons for the amounts planned;
(B) the extent to which costs of contract cancellation are not included in the budget for the contract; and
(C) a financial risk assessment of not including budgeting for costs of contract cancellation.
(h)
(1) A multiyear contract for the purchase of a weapon system, items and services associated with a weapon system, and logistics support for a weapon system.
(2) A multiyear contract for advance procurement of components, parts, and materials necessary to the manufacture of a weapon system, including a multiyear contract for such advance procurement that is entered into in order to achieve economic-lot purchases and more efficient production rates.
(i)
(2) In submitting a request for a specific authorization by law to carry out a defense acquisition program using multiyear contract authority under this section, the Secretary of Defense shall include in the request the following:
(A) A report containing preliminary findings of the agency head required in paragraphs (1) through (6) of subsection (a), together with the basis for such findings.
(B) Confirmation that the preliminary findings of the agency head under subparagraph (A) were supported by a preliminary cost analysis performed by the Director of Cost Assessment and Program Evaluation.
(3) A multiyear contract may not be entered into under this section for a defense acquisition program that has been specifically authorized by law to be carried out using multiyear contract authority unless the Secretary of Defense certifies in writing, not later than 30 days before entry into the contract, that each of the following conditions is satisfied:
(A) The Secretary has determined that each of the requirements in paragraphs (1) through (6) of subsection (a) will be met by such contract and has provided the basis for such determination to the congressional defense committees.
(B) The Secretary's determination under subparagraph (A) was made after completion of a cost analysis conducted on the basis of section 2334(e)(2) 1 of this title, and the analysis supports the determination.
(C) The system being acquired pursuant to such contract has not been determined to have experienced cost growth in excess of the critical cost growth threshold pursuant to section 2433(d) of this title within 5 years prior to the date the Secretary anticipates such contract (or a contract for advance procurement entered into consistent with the authorization for such contract) will be awarded.
(D) A sufficient number of end items of the system being acquired under such contract have been delivered at or within the most current estimates of the program acquisition unit cost or procurement unit cost for such system to determine that current estimates of such unit costs are realistic.
(E) During the fiscal year in which such contract is to be awarded, sufficient funds will be available to perform the contract in such fiscal year, and the future-years defense program for such fiscal year will include the funding required to execute the program without cancellation.
(F) The contract is a fixed price type contract.
(G) The proposed multiyear contract provides for production at not less than minimum economic rates given the existing tooling and facilities.
(4) If for any fiscal year a multiyear contract to be entered into under this section is authorized by law for a particular procurement program and that authorization is subject to certain conditions established by law (including a condition as to cost savings to be achieved under the multiyear contract in comparison to specified other contracts) and if it appears (after negotiations with contractors) that such savings cannot be achieved, but that significant savings could nevertheless be achieved through the use of a multiyear contract rather than specified other contracts, the President may submit to Congress a request for relief from the specified cost savings that must be achieved through multiyear contracting for that program. Any such request by the President shall include details about the request for a multiyear contract, including details about the negotiated contract terms and conditions.
(5)(A) The Secretary may obligate funds for procurement of an end item under a multiyear contract for the purchase of property only for procurement of a complete and usable end item.
(B) The Secretary may obligate funds appropriated for any fiscal year for advance procurement under a contract for the purchase of property only for the procurement of those long-lead items necessary in order to meet a planned delivery schedule for complete major end items that are programmed under the contract to be acquired with funds appropriated for a subsequent fiscal year (including an economic order quantity of such long-lead items when authorized by law).
(6) The Secretary may make the certification under paragraph (3) notwithstanding the fact that one or more of the conditions of such certification are not met, if the Secretary determines that, due to exceptional circumstances, proceeding with a multiyear contract under this section is in the best interest of the Department of Defense and the Secretary provides the basis for such determination with the certification.
(7) The Secretary may not delegate the authority to make the certification under paragraph (3) or the determination under paragraph (6) to an official below the level of Under Secretary of Defense for Acquisition, Technology, and Logistics.
(j)
(k)
(l)
(B) Subparagraph (A) applies to the following contracts:
(i) A multiyear contract—
(I) that employs economic order quantity procurement in excess of $20,000,000 in any one year of the contract; or
(II) that includes an unfunded contingent liability in excess of $20,000,000.
(ii) Any contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year.
(2) The head of an agency may not initiate a multiyear contract for which the economic order quantity advance procurement is not funded at least to the limits of the Government's liability.
(3) The head of an agency may not initiate a multiyear procurement contract for any system (or component thereof) if the value of the multiyear contract would exceed $500,000,000 unless authority for the contract is specifically provided in an appropriations Act.
(4) Each report required by paragraph (5) with respect to a contract (or contract extension) shall contain the following:
(A) The amount of total obligational authority under the contract (or contract extension) and the percentage that such amount represents of—
(i) the applicable procurement account; and
(ii) the agency procurement total.
(B) The amount of total obligational authority under all multiyear procurements of the agency concerned (determined without regard to the amount of the multiyear contract (or contract extension)) under multiyear contracts in effect at the time the report is submitted and the percentage that such amount represents of—
(i) the applicable procurement account; and
(ii) the agency procurement total.
(C) The amount equal to the sum of the amounts under subparagraphs (A) and (B), and the percentage that such amount represents of—
(i) the applicable procurement account; and
(ii) the agency procurement total.
(D) The amount of total obligational authority under all Department of Defense multiyear procurements (determined without regard to the amount of the multiyear contract (or contract extension)), including any multiyear contract (or contract extension) that has been authorized by the Congress but not yet entered into, and the percentage that such amount represents of the procurement accounts of the Department of Defense treated in the aggregate.
(5) The head of an agency may not enter into a multiyear contract (or extend an existing multiyear contract), the value of which would exceed $500,000,000 (when entered into or when extended, as the case may be), until the Secretary of Defense submits to the congressional defense committees a report containing the information described in paragraph (4) with respect to the contract (or contract extension).
(6) The head of an agency may not terminate a multiyear procurement contract until 10 days after the date on which notice of the proposed termination is provided to the congressional defense committees.
(7) The execution of multiyear contracting authority shall require the use of a present value analysis to determine lowest cost compared to an annual procurement.
(8) This subsection does not apply to the National Aeronautics and Space Administration or to the Coast Guard.
(9) In this subsection:
(A) The term "applicable procurement account" means, with respect to a multiyear procurement contract (or contract extension), the appropriation account from which payments to execute the contract will be made.
(B) The term "agency procurement total" means the procurement accounts of the agency entering into a multiyear procurement contract (or contract extension) treated in the aggregate.
(m)
(Added Pub. L. 103–355, title I, §1022(a)(1), Oct. 13, 1994, 108 Stat. 3257; amended Pub. L. 104–106, div. A, title XV, §1502(a)(10), div. E, title LVI, §5601(b), Feb. 10, 1996, 110 Stat. 503, 699; Pub. L. 105–85, div. A, title VIII, §806(a)(1), (b)(1), (c), title X, §1073(a)(47), (48)(A), Nov. 18, 1997, 111 Stat. 1834, 1835, 1903; Pub. L. 106–65, div. A, title VIII, §809, title X, §1067(1), Oct. 5, 1999, 113 Stat. 705, 774; Pub. L. 106–398, §1 [[div. A], title VIII, §§802(c), 806], Oct. 30, 2000, 114 Stat. 1654, 1654A–205, 1654A–207; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107–314, div. A, title VIII, §820(a), Dec. 2, 2002, 116 Stat. 2613; Pub. L. 108–136, div. A, title X, §1043(b)(10), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 108–375, div. A, title VIII, §814(a), title X, §1084(b)(2), Oct. 28, 2004, 118 Stat. 2014, 2060; Pub. L. 110–181, div. A, title VIII, §811(a), Jan. 28, 2008, 122 Stat. 217; Pub. L. 111–23, title I, §101(d)(2), May 22, 2009, 123 Stat. 1709; Pub. L. 113–291, div. A, title VIII, §816(a), (b), Dec. 19, 2014, 128 Stat. 3430, 3432; Pub. L. 114–92, div. A, title VIII, §811, Nov. 25, 2015, 129 Stat. 891; Pub. L. 115–91, div. A, title X, §1051(a)(14), Dec. 12, 2017, 131 Stat. 1561; Pub. L. 115–232, div. A, title VIII, §817, Aug. 13, 2018, 132 Stat. 1852.)
Subsection (i)(1)(A), referred to in subsec. (g)(2), related to certification of full funding of support costs in multiyear contracts, prior to the general amendment of subsec. (i) by Pub. L. 113–291, div. A, title VIII, §816(a), Dec. 19, 2014, 128 Stat. 3430. As amended, subsec. (i) no longer contains a par. (1)(A).
Section 2334(e)(2) of this title, referred to in subsec. (i)(3)(B), was redesignated as section 2334(f)(2) of this title by Pub. L. 114–328, div. A, title VIII, §842(a)(3), Dec. 23, 2016, 130 Stat. 2288.
2018—Subsec. (i)(2)(B). Pub. L. 115–232 substituted "supported by a preliminary cost analysis" for "made after the completion of a cost analysis" and struck out "for the purpose of section 2334(e)(1) of this title, and that the analysis supports those preliminary findings" after "Evaluation".
2017—Subsec. (l)(4). Pub. L. 115–91, in introductory provisions, substituted "Each report required by paragraph (5) with respect to a contract (or contract extension) shall contain the following:" for "Not later than the date of the submission of the President's budget request under section 1105 of title 31, the Secretary of Defense shall submit a report to the congressional defense committees each year, providing the following information with respect to each multiyear contract (and each extension of an existing multiyear contract) entered into, or planned to be entered into, by the head of an agency during the current or preceding year, shown for each year in the current future-years defense program and in the aggregate over the period of the current future-years defense program:".
2015—Subsecs. (a)(1), (i)(4). Pub. L. 114–92 substituted "significant" for "substantial".
2014—Subsec. (a)(7). Pub. L. 113–291, §816(b), substituted "subparagraphs (C) through (F) of subsection (i)(3)" for "subparagraphs (C) through (F) of paragraph (1) of subsection (i)".
Subsec. (i). Pub. L. 113–291, §816(a), amended subsec. (i) generally. Prior to amendment, subsec. (i) related to defense acquisitions specifically authorized by law.
2009—Subsec. (i)(1)(B). Pub. L. 111–23 substituted "Director of Cost Assessment and Program Analysis" for "Cost Analysis Improvement Group of the Department of Defense".
2008—Subsec. (a)(7). Pub. L. 110–181, §811(a)(1), added par. (7).
Subsec. (i)(1). Pub. L. 110–181, §811(a)(2), (3), inserted "the Secretary of Defense certifies in writing by no later than March 1 of the year in which the Secretary requests legislative authority to enter into such contract that" after "unless" in introductory provisions, added subpars. (A) to (F), redesignated former subpar. (B) as (G), and struck out former subpar. (A) which read as follows: "The Secretary of Defense certifies to Congress that the current future-years defense program fully funds the support costs associated with the multiyear program."
Subsec. (i)(5) to (7). Pub. L. 110–181, §811(a)(4), added pars. (5) to (7).
Subsec. (m). Pub. L. 110–181, §811(a)(5), added subsec. (m).
2004—Subsec. (g). Pub. L. 108–375, §814(a)(1), designated existing provisions as par. (1).
Subsec. (g)(1). Pub. L. 108–375, §§814(a)(2), 1084(b)(2), amended par. (1) identically, substituting "congressional defense committees" for "Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives".
Subsec. (g)(2). Pub. L. 108–375, §814(a)(3), added par. (2).
2003—Subsec. (l)(9), (10). Pub. L. 108–136 redesignated par. (10) as (9) and struck out former par. (9) which read as follows: "In this subsection, the term 'congressional defense committees' means the following:
"(A) The Committee on Armed Services of the Senate and the Subcommittee on Defense of the Committee on Appropriations of the Senate.
"(B) The Committee on Armed Services of the House of Representatives and the Subcommittee on National Security of the Committee on Appropriations of the House of Representatives."
2002—Subsec. (b)(2)(B). Pub. L. 107–296 substituted "of Homeland Security" for "of Transportation".
Subsec. (i)(4). Pub. L. 107–314 added par. (4).
2000—Subsec. (k). Pub. L. 106–398, §1 [[div. A], title VIII, §802(c)], struck out "or services" after "purchase of property".
Subsec. (l)(4). Pub. L. 106–398, §1 [[div. A], title VIII, §806(1)(A)], in introductory provisions, substituted "Not later than the date of the submission of the President's budget request under section 1105 of title 31, the Secretary of Defense shall submit a report to the congressional defense committees each year, providing the following information with respect to each multiyear contract (and each extension of an existing multiyear contract) entered into, or planned to be entered into, by the head of an agency during the current or preceding year" for "The head of an agency may not enter into a multiyear contract (or extend an existing multiyear contract) until the Secretary of Defense submits to the congressional defense committees a report with respect to that contract (or contract extension) that provides the following information".
Subsec. (l)(4)(B). Pub. L. 106–398, §1 [[div. A], title VIII, §806(1)(B)], substituted "in effect at the time the report is submitted" for "in effect immediately before the contract (or contract extension) is entered into" in introductory provisions.
Subsec. (l)(5) to (10). Pub. L. 106–398, §1 [[div. A], title VIII, §806(2), (3)], added par. (5) and redesignated former pars. (5) to (9) as (6) to (10), respectively.
1999—Subsec. (g). Pub. L. 106–65, §1067(1), substituted "and the Committee on Armed Services" for "and the Committee on National Security".
Subsec. (l)(4) to (7). Pub. L. 106–65, §809(1), (2), added par. (4) and redesignated former pars. (4) to (6) as (5) to (7), respectively. Former par. (7) redesignated (8).
Subsec. (l)(8). Pub. L. 106–65, §809(1), redesignated par. (7) as (8).
Subsec. (l)(8)(B). Pub. L. 106–65, §1067(1), substituted "Committee on Armed Services" for "Committee on National Security".
Subsec. (l)(9). Pub. L. 106–65, §809(3), added par. (9).
1997—Pub. L. 105–85, §1073(a)(48)(A), inserted ": acquisition of property" in section catchline.
Subsec. (a). Pub. L. 105–85, §806(c)(1), substituted "finds each of the following:" for "finds—" in introductory provisions, capitalized first letter of first word in pars. (1) to (6), and substituted a period for semicolon at end of pars. (1) to (4) and for "; and" at end of par. (5).
Subsec. (d)(1). Pub. L. 105–85, §806(c)(2), substituted "subsection (a)" for "paragraph (1)".
Subsec. (i)(1)(A). Pub. L. 105–85, §806(c)(3), substituted "future-years" for "five-year".
Subsec. (i)(3). Pub. L. 105–85, §806(a)(1), added par. (3).
Subsec. (k). Pub. L. 105–85, §1073(a)(47), substituted "this section" for "this subsection".
Subsec. (l). Pub. L. 105–85, §806(b)(1), added subsec. (l).
1996—Subsec. (g). Pub. L. 104–106, §1502(a)(10), substituted "the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on National Security and the Committee on Appropriations of the" for "the Committees on Armed Services and on Appropriations of the Senate and".
Subsecs. (k), (l). Pub. L. 104–106, §5601(b), redesignated subsec. (l) as (k) and struck out former subsec. (k) which read as follows: "
Pub. L. 113–291, div. A, title VIII, §816(c), Dec. 19, 2014, 128 Stat. 3432, provided that: "The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Dec. 19, 2014], and shall apply with respect to requests for specific authorization by law to carry out defense acquisition programs using multiyear contract authority that are made on or after that date."
Pub. L. 110–181, div. A, title VIII, §811(b), Jan. 28, 2008, 122 Stat. 219, provided that: "The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Jan. 28, 2008] and shall apply with respect to multiyear contracts for the purchase of major systems for which legislative authority is requested on or after that date."
Pub. L. 107–314, div. A, title VIII, §820(b), Dec. 2, 2002, 116 Stat. 2614, provided that:
"(1) Paragraph (4) of section 2306b(i) of title 10, United States Code, as added by subsection (a), shall not apply with respect to any contract awarded before the date of the enactment of this Act [Dec. 2, 2002].
"(2) Nothing in this section [amending this section] shall be construed to authorize the expenditure of funds under any contract awarded before the date of the enactment of this Act for any purpose other than the purpose for which such funds have been authorized and appropriated."
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Pub. L. 105–85, div. A, title VIII, §806(a)(2), Nov. 18, 1997, 111 Stat. 1834, provided that: "Paragraph (3) of section 2306b(i) of title 10, United States Code, as added by paragraph (1), shall not apply with respect to a contract authorized by law before the date of the enactment of this Act [Nov. 18, 1997]."
Pub. L. 105–85, div. A, title VIII, §806(b)(2), Nov. 18, 1997, 111 Stat. 1835, provided that: "The amendment made by paragraph (1) [amending this section] shall take effect on October 1, 1998."
Amendment by section 5601(b) of Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, Feb. 10, 1996, 110 Stat. 702.
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
Pub. L. 114–328, div. A, title VIII, §853, Dec. 23, 2016, 130 Stat. 2296, provided that:
"(a)
"(b)
"(c)
"(d)
"(1) The term 'high rate' means total annual production across the multiple defense programs of more than 200 end-items per year.
"(2) The term 'common facilities' means production facilities operating within the same general and allowable rate structure.
"(e)
Pub. L. 105–56, title VIII, §8008, Oct. 8, 1997, 111 Stat. 1221, provided that:
"(a) None of the funds provided in this Act [see Tables for classification] shall be available to initiate: (1) a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year of the contract or that includes an unfunded contingent liability in excess of $20,000,000; or (2) a contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year, unless the congressional defense committees [Committee on Armed Services and Subcommittee on National Security of the Committee on Appropriations of the House of Representatives and Committee on Armed Services and Subcommittee on Defense of the Committee on Appropriations of the Senate] have been notified at least 30 days in advance of the proposed contract award: Provided, That no part of any appropriation contained in this Act shall be available to initiate a multiyear contract for which the economic order quantity advance procurement is not funded at least to the limits of the Government's liability: Provided further, That no part of any appropriation contained in this Act shall be available to initiate multiyear procurement contracts for any systems or component thereof if the value of the multiyear contract would exceed $500,000,000 unless specifically provided in this Act: Provided further, That no multiyear procurement contract can be terminated without 10-day prior notification to the congressional defense committees: Provided further, That the execution of multiyear authority shall require the use of a present value analysis to determine lowest cost compared to an annual procurement.
"Funds appropriated in title III of this Act [111 Stat. 1211] may be used for multiyear procurement contracts as follows:
"Apache Longbow radar;
"AV–8B aircraft; and
"Family of Medium Tactical Vehicles.
"(b) None of the funds provided in this Act and hereafter may be used to submit to Congress (or to any committee of Congress) a request for authority to enter into a contract covered by those provisions of subsection (a) that precede the first proviso of that subsection unless—
"(1) such request is made as part of the submission of the President's Budget for the United States Government for any fiscal year and is set forth in the Appendix to that budget as part of proposed legislative language for appropriations bills for the next fiscal year; or
"(2) such request is formally submitted by the President as a budget amendment; or
"(3) the Secretary of Defense makes such request in writing to the congressional defense committees."
Similar provisions were contained in the following appropriation acts:
Pub. L. 115–245, div. A, title VIII, §8010, Sept. 28, 2018, 132 Stat. 3000.
Pub. L. 115–141, div. C, title VIII, §8010, Mar. 23, 2018, 132 Stat. 464.
Pub. L. 115–31, div. C, title VIII, §8010, May 5, 2017, 131 Stat. 247.
Pub. L. 114–113, div. C, title VIII, §8010, Dec. 18, 2015, 129 Stat. 2352.
Pub. L. 113–235, div. C, title VIII, §8010, Dec. 16, 2014, 128 Stat. 2253.
Pub. L. 113–76, div. C, title VIII, §8010, Jan. 17, 2014, 128 Stat. 105.
Pub. L. 113–6, div. C, title VIII, §8010, Mar. 26, 2013, 127 Stat. 297.
Pub. L. 112–74, div. A, title VIII, §8010, Dec. 23, 2011, 125 Stat. 806.
Pub. L. 112–10, div. A, title VIII, §8010, Apr. 15, 2011, 125 Stat. 57.
Pub. L. 111–118, div. A, title VIII, §8011, Dec. 19, 2009, 123 Stat. 3428, as amended by Pub. L. 111–212, title I, §305, July 29, 2010, 124 Stat. 2311.
Pub. L. 110–329, div. C, title VIII, §8011, Sept. 30, 2008, 122 Stat. 3621.
Pub. L. 110–116, div. A, title VIII, §8010, Nov. 13, 2007, 121 Stat. 1315.
Pub. L. 109–289, div. A, title VIII, §8008, Sept. 29, 2006, 120 Stat. 1273.
Pub. L. 109–148, div. A, title VIII, §8008, Dec. 30, 2005, 119 Stat. 2698.
Pub. L. 108–287, title VIII, §8008, Aug. 5, 2004, 118 Stat. 970.
Pub. L. 108–87, title VIII, §8008, Sept. 30, 2003, 117 Stat. 1072.
Pub. L. 107–248, title VIII, §8008, Oct. 23, 2002, 116 Stat. 1537.
Pub. L. 107–117, div. A, title VIII, §8008, Jan. 10, 2002, 115 Stat. 2248.
Pub. L. 106–259, title VIII, §8008, Aug. 9, 2000, 114 Stat. 675.
Pub. L. 106–79, title VIII, §8008, Oct. 25, 1999, 113 Stat. 1232.
Pub. L. 105–262, title VIII, §8008, Oct. 17, 1998, 112 Stat. 2298.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8009], Sept. 30, 1996, 110 Stat. 3009–71, 3009–89.
Pub. L. 104–61, title VIII, §8010, Dec. 1, 1995, 109 Stat. 653.
Pub. L. 103–335, title VIII, §8010, Sept. 30, 1994, 108 Stat. 2618.
Pub. L. 103–139, title VIII, §8011, Nov. 11, 1993, 107 Stat. 1439.
Pub. L. 102–396, title IX, §9013, Oct. 6, 1992, 106 Stat. 1903.
Pub. L. 102–172, title VIII, §8013, Nov. 26, 1991, 105 Stat. 1173.
Pub. L. 101–511, title VIII, §8014, Nov. 5, 1990, 104 Stat. 1877.
Pub. L. 101–165, title IX, §9021, Nov. 21, 1989, 103 Stat. 1133.
1 See References in Text note below.
(a)
(1) there will be a continuing requirement for the services consonant with current plans for the proposed contract period;
(2) the furnishing of such services will require a substantial initial investment in plant or equipment, or the incurrence of substantial contingent liabilities for the assembly, training, or transportation of a specialized work force; and
(3) the use of such a contract will promote the best interests of the United States by encouraging effective competition and promoting economies in operation.
(b)
(1) Operation, maintenance, and support of facilities and installations.
(2) Maintenance or modification of aircraft, ships, vehicles, and other highly complex military equipment.
(3) Specialized training necessitating high quality instructor skills (for example, pilot and air crew members; foreign language training).
(4) Base services (for example, ground maintenance; in-plane refueling; bus transportation; refuse collection and disposal).
(5) Environmental remediation services for—
(A) an active military installation;
(B) a military installation being closed or realigned under a base closure law; or
(C) a site formerly used by the Department of Defense.
(c)
(1) The portion of the cost of any plant or equipment amortized as a cost of contract performance should not exceed the ratio between the period of contract performance and the anticipated useful commercial life of such plant or equipment. Useful commercial life, for this purpose, means the commercial utility of the facilities rather than the physical life thereof, with due consideration given to such factors as location of facilities, specialized nature thereof, and obsolescence.
(2) Consideration shall be given to the desirability of obtaining an option to renew the contract for a reasonable period not to exceed three years, at prices not to include charges for plant, equipment and other nonrecurring costs, already amortized.
(3) Consideration shall be given to the desirability of reserving in the agency the right, upon payment of the unamortized portion of the cost of the plant or equipment, to take title thereto under appropriate circumstances.
(d)
(2) The head of an agency may not initiate a multiyear contract for services under this section if the value of the multiyear contract would exceed $500,000,000 unless authority for the contract is specifically provided by law.
(3) The head of an agency may not terminate a multiyear procurement contract for services until 10 days after the date on which notice of the proposed termination is provided to the congressional defense committees.
(4) Before any contract described in subsection (a) that contains a clause setting forth a cancellation ceiling in excess of $100,000,000 may be awarded, the head of the agency concerned shall give written notification of the proposed contract and of the proposed cancellation ceiling for that contract to the congressional defense committees, and such contract may not then be awarded until the end of a period of 30 days beginning on the date of such notification.
(5) In the case of a contract described in subsection (a) with a cancellation ceiling described in paragraph (4), if the budget for the contract does not include proposed funding for the costs of contract cancellation up to the cancellation ceiling established in the contract, the head of the agency concerned shall give written notification to the congressional defense committees of—
(A) the cancellation ceiling amounts planned for each program year in the proposed multiyear procurement contract, together with the reasons for the amounts planned;
(B) the extent to which costs of contract cancellation are not included in the budget for the contract; and
(C) a financial risk assessment of not including budgeting for costs of contract cancellation.
(e)
(1) appropriations originally available for the performance of the contract concerned;
(2) appropriations currently available for procurement of the type of services concerned, and not otherwise obligated; or
(3) funds appropriated for those payments.
(f)
[(g) Repealed. Pub. L. 108–136, div. A, title VIII, §843(a), Nov. 24, 2003, 117 Stat. 1553.]
(h)
(Added Pub. L. 106–398, §1 [[div. A], title VIII, §802(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–203; amended Pub. L. 107–314, div. A, title VIII, §§811(a), 827, Dec. 2, 2002, 116 Stat. 2608, 2617; Pub. L. 108–136, div. A, title VIII, §843(a), title X, §1043(c)(1), Nov. 24, 2003, 117 Stat. 1553, 1611; Pub. L. 108–375, div. A, title VIII, §814(b), Oct. 28, 2004, 118 Stat. 2014; Pub. L. 111–84, div. A, title X, §1073(a)(22), Oct. 28, 2009, 123 Stat. 2473.)
2009—Subsec. (h). Pub. L. 111–84 substituted "section 2801(c)(4)" for "section 2801(c)(2)".
2004—Subsec. (d)(1), (3), (4). Pub. L. 108–375, §814(b)(1), substituted "congressional defense committees" for "committees of Congress named in paragraph (5)".
Subsec. (d)(5). Pub. L. 108–375, §814(b)(2), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "The committees of Congress referred to in paragraphs (1), (3), and (4) are as follows:
"(A) The Committee on Armed Services and the Committee on Appropriations of the Senate.
"(B) The Committee on Armed Services and the Committee on Appropriations of the House of Representatives."
2003—Subsec. (g). Pub. L. 108–136, §843(a), struck out heading and text of subsec. (g). Text read as follows:
"(1) The authority and restrictions of this section, including the authority to enter into contracts for periods of not more than five years, shall apply with respect to task order and delivery order contracts entered into under the authority of section 2304a, 2304b, or 2304c of this title.
"(2) The regulations implementing this subsection shall establish a preference that, to the maximum extent practicable, multi-year requirements for task order and delivery order contracts be met with separate awards to two or more sources under the authority of section 2304a(d)(1)(B) of this title."
Subsec. (h). Pub. L. 108–136, §1043(c)(1), substituted "
"(1) The term 'base closure law' has the meaning given such term in section 2667(h)(2) of this title.
"(2) The term".
2002—Subsec. (b)(5). Pub. L. 107–314, §827(a), added par. (5).
Subsec. (g). Pub. L. 107–314, §811(a), added subsec. (g).
Subsec. (h). Pub. L. 107–314, §827(b), added subsec. (h).
Pub. L. 107–314, div. A, title VIII, §811(b), Dec. 2, 2002, 116 Stat. 2608, as amended by Pub. L. 108–11, title I, §1315, Apr. 16, 2003, 117 Stat. 570, provided that: "Subsection (g) of section 2306c of title 10, United States Code, as added by subsection (a), shall apply to all task order and delivery order contracts entered into on or after January 1, 2004."
Pub. L. 106–398, §1 [[div. A], title VIII, §802(d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–205, provided that: "Section 2306c of title 10, United States Code (as added by subsection (a)), shall apply with respect to contracts for which solicitations of offers are issued after the date of the enactment of this Act [Oct. 30, 2000]."
Pub. L. 115–91, div. A, title VIII, §854, Dec. 12, 2017, 131 Stat. 1492, provided that:
"(a)
"(b)
"(1)
"(2)
"(c)
(a)
(A) make advance, partial, progress, or other payments under contracts for property or services made by the agency; and
(B) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments.
(2)(A) For a prime contractor (as defined in section 8701 of title 41) that is a small business concern (as defined in section 3 of the Small Business Act (15 U.S.C. 632)), the Secretary of Defense shall, to the fullest extent permitted by law, establish an accelerated payment date with a goal of 15 days after receipt of a proper invoice for the amount due if a specific payment date is not established by contract.
(B) For a prime contractor that subcontracts with a small business concern, the Secretary of Defense shall, to the fullest extent permitted by law, establish an accelerated payment date with a goal of 15 days after receipt of a proper invoice for the amount due if—
(i) a specific payment date is not established by contract; and
(ii) the prime contractor agrees to make payments to the subcontractor in accordance with the accelerated payment date, to the maximum extent practicable, without any further consideration from or fees charged to the subcontractor.
(b)
(A) Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls.
(B) Accomplishment of events defined in the program management plan.
(C) Other quantifiable measures of results.
(2) Performance-based payments shall not be conditioned upon costs incurred in contract performance but on the achievement of performance outcomes listed in paragraph (1).
(3) The Secretary of Defense shall ensure that nontraditional defense contractors and other private sector companies are eligible for performance-based payments, consistent with best commercial practices.
(4)(A) In order to receive performance-based payments, a contractor's accounting system shall be in compliance with Generally Accepted Accounting Principles, and there shall be no requirement for a contractor to develop Government-unique accounting systems or practices as a prerequisite for agreeing to receive performance-based payments.
(B) Nothing in this section shall be construed to grant the Defense Contract Audit Agency the authority to audit compliance with Generally Accepted Accounting Principles.
(c)
(d)
(e)
(2) The Secretary shall ensure that progress payments referred to in paragraph (1) are not made for more than 80 percent of the work accomplished under a defense contract so long as the Secretary has not made the contractual terms, specifications, and price definite.
(3) This subsection applies to any contract in an amount greater than $25,000.
(f)
(2) Advance payments made under subsection (a) for commercial items may include payments, in a total amount of not more than 15 percent of the contract price, in advance of any performance of work under the contract.
(3) The conditions of subsections (d) and (e) need not be applied if they would be inconsistent, as determined by the head of the agency, with commercial terms and conditions pursuant to paragraphs (1) and (2).
(g)
(A) 95 percent, in the case of a firm considered to be a small business; and
(B) 90 percent, in the case of any other firm.
(2) The Secretary of the Navy may advance to private salvage companies such funds as the Secretary considers necessary to provide for the immediate financing of salvage operations. Advances under this paragraph shall be made on terms that the Secretary considers adequate for the protection of the United States.
(3) The Secretary of the Navy shall provide, in each contract for construction or conversion of a naval vessel, that, when partial, progress, or other payments are made under such contract, the United States is secured by a lien upon work in progress and on property acquired for performance of the contract on account of all payments so made. The lien is paramount to all other liens.
(h)
(i)
(2) The head of an agency receiving a recommendation under paragraph (1) in the case of a contractor's request for payment under a contract shall determine whether there is substantial evidence that the request is based on fraud. Upon making such a determination, the agency head may reduce or suspend further payments to the contractor under such contract.
(3) The extent of any reduction or suspension of payments by the head of an agency under paragraph (2) on the basis of fraud shall be reasonably commensurate with the anticipated loss to the United States resulting from the fraud.
(4) A written justification for each decision of the head of an agency whether to reduce or suspend payments under paragraph (2) and for each recommendation received by such agency head in connection with such decision shall be prepared and be retained in the files of such agency.
(5) The head of an agency shall prescribe procedures to ensure that, before such agency head decides to reduce or suspend payments in the case of a contractor under paragraph (2), the contractor is afforded notice of the proposed reduction or suspension and an opportunity to submit matters to the head of the agency in response to such proposed reduction or suspension.
(6) Not later than 180 days after the date on which the head of an agency reduces or suspends payments to a contractor under paragraph (2), the remedy coordination official of such agency shall—
(A) review the determination of fraud on which the reduction or suspension is based; and
(B) transmit a recommendation to the head of such agency whether the suspension or reduction should continue.
(7) The head of an agency shall prepare for each year a report containing the recommendations made by the remedy coordination official of that agency to reduce or suspend payments under paragraph (2), the actions taken on the recommendations and the reasons for such actions, and an assessment of the effects of such actions on the Federal Government. The Secretary of each military department shall transmit the annual report of such department to the Secretary of Defense. Each such report shall be available to any member of Congress upon request.
(8) This subsection applies to the agencies named in paragraphs (1), (2), (3), (4), and (6) of section 2303(a) of this title.
(9) The head of an agency may not delegate responsibilities under this subsection to any person in a position below level IV of the Executive Schedule.
(10) In this subsection, the term "remedy coordination official", with respect to an agency, means the person or entity in that agency who coordinates within that agency the administration of criminal, civil, administrative, and contractual remedies resulting from investigations of fraud or corruption related to procurement activities.
(Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 85–800, §9, Aug. 28, 1958, 72 Stat. 967; Pub. L. 93–155, title VIII, §807(c), Nov. 16, 1973, 87 Stat. 616; Pub. L. 100–370, §1(f)(1)(A), July 19, 1988, 102 Stat. 846; Pub. L. 101–510, div. A, title VIII, §836(a), (b), title XIII, §1322(a)(4), Nov. 5, 1990, 104 Stat. 1615, 1616, 1671; Pub. L. 102–25, title VII, §701(d)(4), (j)(2)(A), Apr. 6, 1991, 105 Stat. 114, 116; Pub. L. 102–190, div. A, title X, §1061(a)(10), Dec. 5, 1991, 105 Stat. 1472; Pub. L. 102–484, div. A, title X, §1052(24), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–355, title II, §2001(a)–(g), Oct. 13, 1994, 108 Stat. 3301, 3302; Pub. L. 105–85, div. A, title VIII, §802, Nov. 18, 1997, 111 Stat. 1831; Pub. L. 106–391, title III, §306, Oct. 30, 2000, 114 Stat. 1592; Pub. L. 114–328, div. A, title VIII, §831(a), Dec. 23, 2016, 130 Stat. 2282; Pub. L. 115–232, div. A, title VIII, §§836(c)(6), 852, Aug. 13, 2018, 132 Stat. 1866, 1884.)
Pub. L. 115–232, div. A, title VIII, §836(c)(6), (h), Aug. 13, 2018, 132 Stat. 1866, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, subsection (f) of this section is amended as follows:
(1) in heading, by striking "Commercial Items" and inserting "Commercial Products and Commercial Services"; and
(2) in paragraphs (1) and (2), by striking "commercial items" and inserting "commercial products and commercial services".
See 2018 Amendment notes below.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2307(a) 2307(b) |
41:154(a). 41:154 (less (a)). |
Feb. 19, 1948, ch. 65, §5, 62 Stat. 23. |
In subsection (a), the words "and appropriate" are omitted as surplusage. The words "whether or not the contract previously provided for such payments" are substituted for the words "heretofore or hereafter executed".
In subsection (b), the words "under subsection (a)" are inserted for clarity. The words "provide for" are substituted for the words "include as security provision for". The words "United States" are substituted for the word "Government".
Subsection (e) is based on Pub. L. 99–145, title IX, §916, Nov. 8, 1985, 99 Stat. 688.
Level IV of the Executive Schedule, referred to in subsec. (i)(9), is set out in section 5315 of Title 5, Government Organization and Employees.
Provisions similar to those in subsec. (g) of this section were contained in sections 7312, 7364, and 7521 of this title prior to repeal by Pub. L. 103–355, §2001(j)(1).
2018—Subsec. (a). Pub. L. 115–232, §852, designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), and added par. (2).
Subsec. (f). Pub. L. 115–232, §836(c)(6), substituted "Commercial Products and Commercial Services" for "Commercial Items" in heading and "commercial products and commercial services" for "commercial items" in text of pars. (1) and (2).
2016—Subsec. (b). Pub. L. 114–328, §831(a)(3), which directed substitution of "(1) Whenever practicable, payments under subsection (a) shall be made using performance-based payments" for "Wherever practicable, payment under subsection (a) shall be made", was executed by making the substitution for "Whenever practicable, payments under subsection (a) shall be made" to reflect the probable intent of Congress.
Pub. L. 114–328, §831(a)(1), which directed insertion of "
Subsec. (b)(1)(A) to (C). Pub. L. 114–328, §831(a)(2), redesignated pars. (1) to (3) of subsec. (b) as subpars. (A) to (C), respectively, of par. (1). See above.
Subsec. (b)(2) to (4). Pub. L. 114–328, §831(a)(4), added pars. (2) to (4).
2000—Subsec. (i)(8). Pub. L. 106–391 substituted "(4), and (6)" for "and (4)".
1997—Subsecs. (h), (i). Pub. L. 105–85 added subsec. (h) and redesignated former subsec. (h) as (i).
1994—Pub. L. 103–355, §2001(a)(1), substituted "Contract financing" for "Advance payments" in section catchline.
Subsec. (a). Pub. L. 103–355, §2001(a)(2), inserted heading.
Subsec. (a)(2). Pub. L. 103–355, §2001(c), struck out "bid" before "solicitations".
Subsec. (b). Pub. L. 103–355, §2001(a)(7), (b), added subsec. (b) and redesignated former subsec. (b) as (c).
Pub. L. 103–355, §2001(a)(3), inserted heading.
Subsec. (c). Pub. L. 103–355, §2001(a)(7), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).
Pub. L. 103–355, §2001(a)(4), inserted heading.
Subsec. (d). Pub. L. 103–355, §2001(d), inserted before period at end "and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the United States".
Pub. L. 103–355, §2001(a)(7), redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e).
Pub. L. 103–355, §2001(a)(5), inserted heading.
Subsec. (e). Pub. L. 103–355, §2001(a)(7), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (h).
Pub. L. 103–355, §2001(a)(6), inserted heading.
Subsec. (e)(1). Pub. L. 103–355, §2001(e)(1), substituted "work accomplished that meets standards established under the contract" for "work, which meets standards of quality established under the contract, that has been accomplished".
Subsec. (e)(3). Pub. L. 103–355, §2001(e)(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: "This subsection does not apply to any contract for an amount not in excess of the amount of the small purchase threshold."
Subsecs. (f), (g). Pub. L. 103–355, §2001(f), (g), added subsecs. (f) and (g).
Subsec. (h). Pub. L. 103–355, §2001(a)(7), redesignated subsec. (e) as (h).
1992—Subsec. (e)(1). Pub. L. 102–484 substituted "(1)" for "(l)" as par. designation after "(e)".
1991—Subsec. (d)(3). Pub. L. 102–25, §701(d)(4), substituted "any contract for an amount not in excess of the amount of the small purchase threshold" for "contracts for amounts less than the maximum amount for small purchases specified in section 2304(g)(2) of this title".
Subsec. (e). Pub. L. 102–25, §701(j)(2)(A), redesignated subsec. (f) as (e).
Subsec. (f). Pub. L. 102–190, which directed the substitution of "(1)" for "(l)" as par. designation after "(f)", could not be executed because "(l)" did not appear after "(f)".
Pub. L. 102–25, §701(j)(2)(A), redesignated subsec. (f) as (e).
1990—Subsec. (d). Pub. L. 101–510, §1322(a)(4), redesignated subsec. (e) as (d) and struck out former subsec. (d) which read as follows: "Payments under subsection (a) in the case of any contract, other than partial, progress, or other payments specifically provided for in such contract at the time such contract was initially entered into, may not exceed $25,000,000 unless the Committees on Armed Services of the Senate and the House of Representatives have been notified in writing of such proposed payments and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees and neither House of Congress has adopted, within such 60-day period, a resolution disapproving such payments. For purposes of this section, the continuity of a session of Congress is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of such 60-day period."
Subsec. (e). Pub. L. 101–510, §1322(a)(4)(B), redesignated subsec. (e) as (d).
Pub. L. 101–510, §836(b), inserted at end of par. (1) "The contractor shall provide such information and evidence as the Secretary of Defense determines necessary to permit the Secretary to carry out the preceding sentence."
Subsec. (f). Pub. L. 101–510, §836(a), added subsec. (f).
1988—Subsec. (e). Pub. L. 100–370 added subsec. (e).
1973—Subsec. (d). Pub. L. 93–155 added subsec. (d).
1958—Pub. L. 85–800 authorized advance or other payments under contracts for property or services by agency, authorized insertion in bid solicitations of provision limiting advance or progress payments to small business concerns, restricted payments under subsec. (a) to unpaid contract price, and reworded generally conditions for making advance payments.
Amendment by section 836(c)(6) of Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 101–510, div. A, title VIII, §836(c), Nov. 5, 1990, 104 Stat. 1616, as amended by Pub. L. 102–25, title VII, §701(j)(2)(B), Apr. 6, 1991, 105 Stat. 116, provided that: "The provisions of section 2307 of title 10, United States Code, that are added by the amendments made by subsections (a) and (b) shall apply with respect to contracts entered into on or after May 6, 1991."
Pub. L. 114–328, div. A, title VIII, §831(b), Dec. 23, 2016, 130 Stat. 2283, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the Department of Defense Federal Acquisition Regulation Supplement to conform with section 2307(b) of title 10, United States Code, as amended by subsection (a)."
Pub. L. 103–355, title II, §2001(h), Oct. 13, 1994, 108 Stat. 3303, provided that: "The amendments made by this section [amending this section and section 7522 of this title and repealing sections 7312, 7364, and 7521 of this title] are not intended to impair or modify procedures required by the provisions of chapter 39 of title 31, United States Code, and the regulations issued pursuant to such provisions of law (as such procedures are in effect on the date of the enactment of this Act [Oct. 13, 1994]), except that the Government may accept payment terms offered by a contractor offering a commercial item."
Pub. L. 99–145, title IX, §916, Nov. 8, 1985, 99 Stat. 688, which required Secretary of Defense to ensure that any progress payment under a defense contract be commensurate with work accomplished at standard of quality in contract, that such payments be limited to 80 percent of work accomplished so long as contract terms are indefinite, that this provision be waived for small purchases, and that this provision apply only to contracts for which solicitations were issued on or after 150 days after Nov. 8, 1985, was repealed and restated in subsec. (e) of this section by Pub. L. 100–370, §1(f)(1), July 19, 1988, 102 Stat. 846.
Pub. L. 93–155, title VIII, §807(e), Nov. 16, 1973, 87 Stat. 616, provided that: "The amendments made by this section [amending this section and sections 1431, 3816, and 4532 of Title 50, War and National Defense] shall not affect the carrying out of any contract, loan, guarantee, commitment, or other obligation entered into prior to the date of enactment of this section [Nov. 16, 1973]."
(a)
(1) The agency has an established requirement for the end item that is expected to remain substantially unchanged throughout the period of the acquisition.
(2) It is possible to acquire the higher quantity of the end item without additional funding because of production efficiencies or other cost reductions.
(3) The amount of the funds used for the acquisition of the higher quantity of the end item will not exceed the amount provided under that law for the acquisition of the end item.
(4) The amount so provided is sufficient to ensure that each unit of the end item acquired within the higher quantity is fully funded as a complete end item.
(b)
(1) The level of approval within the Department of Defense that is required for a decision to acquire a higher quantity of an end item under subsection (a).
(2) Authority (subject to subsection (a)) to acquire up to 10 percent more than the quantity of an end item approved in a justification and approval of the use of procedures other than competitive procedures for the acquisition of the end item under section 2304 of this title.
(c)
(2) A notification is not required under paragraph (1) if the end item being acquired in a higher quantity is an end item under a tactical missile program or a munitions program.
(d)
(1) specifically refers to this section; and
(2) specifically states that the acquisition of the higher quantity of the end item is prohibited notwithstanding the authority provided in this section.
(e)
(2) In this section:
(A) The term "end item" means a production product assembled, completed, and ready for issue or deployment.
(B) The term "head of an agency" means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force.
(Added Pub. L. 107–314, div. A, title VIII, §801(a)(1), Dec. 2, 2002, 116 Stat. 2600; amended Pub. L. 108–136, div. A, title X, §1043(b)(11), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 114–328, div. A, title VIII, §852, Dec. 23, 2016, 130 Stat. 2296.)
A prior section 2308, acts Aug. 10, 1956, ch. 1041, 70A Stat. 131; Oct. 23, 1992, Pub. L. 102–484, div. A, title VIII, §820(a), 106 Stat. 2458; May 31, 1993, Pub. L. 103–35, title II, §201(e)(2), 107 Stat. 99; Nov. 30, 1993, Pub. L. 103–160, div. A, title IX, §904(d)(1), 107 Stat. 1728, related to assignment and delegation of procurement functions and responsibilities, prior to repeal by Pub. L. 103–355, title I, §1503(b)(1), title X, §10001, Oct. 13, 1994, 108 Stat. 3297, 3404, effective Oct. 13, 1994, except as otherwise provided.
2016—Subsec. (c). Pub. L. 114–328 designated existing provisions as par. (1), inserted ", except as provided in paragraph (2)," after "but", and added par. (2).
2003—Subsec. (e)(2). Pub. L. 108–136 redesignated subpars. (B) and (C) as (A) and (B), respectively, and struck out former subpar. (A) which read as follows: "The term 'congressional defense committees' means—
"(i) the Committee on Armed Services and the Committee on Appropriations of the Senate; and
"(ii) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives."
Pub. L. 107–314, div. A, title VIII, §801(b), Dec. 2, 2002, 116 Stat. 2602, provided that: "The Secretary of Defense shall issue the final regulations under section 2308(b) of title 10, United States Code (as added by subsection (a)), not later than 120 days after the date of the enactment of this Act [Dec. 2, 2002]."
(a) Appropriations available for procurement by an agency named in section 2303 of this title may, through administrative allotment, be made available for obligation for procurement by any other agency in amounts authorized by the head of the allotting agency and without transfer of funds on the books of the Department of the Treasury.
(b) A disbursing official of the allotting agency may make any disbursement chargeable to an allotment under subsection (a) upon a voucher certified by an officer or civilian employee of the procuring agency.
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 97–258, §2(b)(1)(B), Sept. 13, 1982, 96 Stat. 1052.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2309(a) 2309(b) |
41:159 (2d sentence). 41:159 (less 1st and 2d sentences). |
Feb. 19, 1948, ch. 65, §10 (less 1st sentence), 62 Stat. 25. |
In subsection (a), the words "an agency named in section 2303 of this title" are substituted for the words "any such agency".
In subsection (b), the words "an allotment under subsection (a)" are substituted for the words "such allotments".
1982—Subsec. (b). Pub. L. 97–258 substituted "disbursing official" for "disbursing officer".
(a)
(b)
(2) Each finding referred to in paragraph (1) is final. The head of the agency making such finding shall maintain a copy of the finding for not less than 6 years after the date of the determination or decision.
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 85–800, §10, Aug. 28, 1958, 72 Stat. 967; Pub. L. 87–653, §1(f), Sept. 10, 1962, 76 Stat. 529; Pub. L. 89–607, §1(1), Sept. 27, 1966, 80 Stat. 850; Pub. L. 90–378, §2, July 5, 1968, 82 Stat. 290; Pub. L. 98–369, div. B, title VII, §2725, July 18, 1984, 98 Stat. 1193; Pub. L. 99–145, title XIII, §1303(a)(16), Nov. 8, 1985, 99 Stat. 739; Pub. L. 103–355, title I, §1504, Oct. 13, 1994, 108 Stat. 3297.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2310(a) 2310(b) |
41:156(a) (1st sentence). 41:156(c). |
Feb. 19, 1948, ch. 65, §7(a) (1st sentence), (c), 62 Stat. 24. |
In subsection (a), the words "required * * * under" are substituted for the words "provided in".
In subsection (b), the word "person" is substituted for the word "official". The words "to which it applies" are inserted for clarity.
1994—Pub. L. 103–355 amended section generally. Prior to amendment, section read as follows:
"(a) Determinations and decisions required to be made under this chapter by the head of an agency may be made for an individual purchase or contract or, except for determinations and decisions under section 2304 or 2305 of this title, for a class of purchases or contracts. Such a determination or decision, including a determination or decision under section 2304 or 2305 of this title, is final.
"(b) Each determination or decision under section 2306(c), 2306(g)(1), 2307(c), or 2313(c) of this title shall be based on a written finding by the person making the determination or decision, which finding shall set out facts and circumstances that—
"(1) clearly indicate why the type of contract selected under section 2306(c) of this title is likely to be less costly than any other type or that it is impracticable to obtain property or services of the kind or quality required except under such a contract;
"(2) support the findings required by section 2306(g)(1) of this title;
"(3) clearly indicate why advance payments under section 2307(c) of this title would be in the public interest; or
"(4) clearly indicate why the application of section 2313(b) of this title to a contract or subcontract with a foreign contractor or foreign subcontractor would not be in the public interest.
Such a finding is final and shall be kept available in the agency for at least six years after the date of the determination or decision. A copy of the finding shall be submitted to the General Accounting Office with each contract to which it applies."
1985—Subsec. (a). Pub. L. 99–145 inserted "this" after "2305 of".
1984—Subsec. (a). Pub. L. 98–369, §2725(1), inserted ", except for determinations and decisions under section 2304 or 2305 of title," and ", including a determination or decision under section 2304 or 2305 of this title,".
Subsec. (b). Pub. L. 98–369, §2725(2), amended subsec. (b) generally, striking out requirement that determinations to negotiate contracts be based on written findings by the contracting officers making the determinations.
1968—Subsec. (b). Pub. L. 90–378 inserted "section 2306 (g)(1)," after "clauses (11)–(16) of section 2304(a), section 2306(c),", and "(3) support the findings required by section 2306(g)(1)," after "kind or quality required except under such a contract,", and redesignated former cls. (3) to (5) as (4) to (6), respectively.
1966—Subsec. (b). Pub. L. 89–607 inserted reference to section 2313(c), added cl. (4), and redesignated former cl. (4) as (5).
1962—Subsec. (b). Pub. L. 87–653 substituted "section 2306(c)" for "section 2306", required decisions to negotiate contracts under section 2304(a)(2), (7), (8), (10) to (12) of this title to be based on a written finding by the person making the decision, which findings shall set out facts and circumstances illustrative of conditions described in section 2304(a)(11) to (16), indicate why the type of contract selected under section 2306(c) is likely to be less costly than any other or that its impracticable to obtain the required property or services except under such contract, indicate why advance payments under section 2307(c) would be in the public interest, or establish with respect to section 2304(a), (2), (7), (8), (10) to (12) that formal advertising would not have been feasible and practicable.
1958—Subsec. (b). Pub. L. 85–800 substituted "2307(c)" for "2307(a)".
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
For effective date of amendment by Pub. L. 87–653, see section 1(h) of Pub. L. 87–653, set out as a note under section 2304 of this title.
(a)
(b)
(1) the head of an agency may delegate functions and assign responsibilities relating to procurement to any officer or employee within such agency;
(2) the heads of two or more agencies may by agreement delegate procurement functions and assign procurement responsibilities from one agency to another of those agencies or to an officer or civilian employee of another of those agencies; and
(3) the heads of two or more agencies may create joint or combined offices to exercise procurement functions and responsibilities.
(c)
(2) The regulations shall include the following provisions:
(A) A requirement that, before any such termination or substantial reduction in participation is approved, the proposed termination or reduction be reviewed by the Joint Requirements Oversight Council of the Department of Defense.
(B) A provision that authorizes the Under Secretary of Defense for Acquisition, Technology, and Logistics to require a military department whose participation in a joint acquisition program has been approved for termination or substantial reduction to continue to provide some or all of the funding necessary for the acquisition program to be continued in an efficient manner.
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 85–800, §11, Aug. 28, 1958, 72 Stat. 967; Pub. L. 87–653, §1(g), Sept. 10, 1962, 76 Stat. 529; Pub. L. 90–378, §3, July 5, 1968, 82 Stat. 290; Pub. L. 97–86, title IX, §§907(c), 909(f), Dec. 1, 1981, 95 Stat. 1117, 1120; Pub. L. 98–369, div. B, title VII, §2726, July 18, 1984, 98 Stat. 1194; Pub. L. 98–525, title XII, §1214, Oct. 19, 1984, 98 Stat. 2592; Pub. L. 98–577, title V, §505, Oct. 30, 1984, 98 Stat. 3087; Pub. L. 103–355, title I, §1503(a)(1), Oct. 13, 1994, 108 Stat. 3296; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2311 | 41:156(a) (less 1st sentence). 41:156(b). |
Feb. 19, 1948, ch. 65, §7(a) (less 1st sentence), (b), 62 Stat. 24. |
The words "in his discretion and" and "including the making of such determinations and decisions" are omitted as surplusage. The words "except the power to make determinations and decisions" are substituted for the words "Except as provided in subsection (b) of this section" and "The power of the agency head to make the determinations or decisions specified in paragraphs (12)–(16) of section 151(c) of this title and in section 154(a) of this title shall not be delegable".
Provisions similar to those in this section were contained in section 2308 of this title prior to repeal by Pub. L. 103–355, §1503(b)(1).
2001—Subsec. (c)(1), (2)(B). Pub. L. 107–107 substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".
1994—Pub. L. 103–355 substituted "Assignment and delegation of procurement functions and responsibilities" for "Delegation" as section catchline and amended text generally. Prior to amendment, text read as follows: "Except as provided in section 2304(d)(2) of this title, the head of an agency may delegate, subject to his direction, to any other officer or official of that agency, any power under this chapter."
1984—Pub. L. 98–577 struck out "(a)" before "Except as provided in" and struck out subsec. (b) which related to delegation of authority by heads of procuring activities of agencies of certain functions.
Pub. L. 98–525 designated existing provisions as subsec. (a) and added subsec. (b).
Pub. L. 98–369 inserted provision relating to the exception provided in section 2304(d)(2) of this title and struck out provision that the power to make determinations and decisions under cls. (11)–(16) of section 2304(a) of this title could not be delegated, but that the power to make a determination or decision under section 2304(a)(11) of this title could be delegated to any other officer of official of that agency who was responsible for procurement, and only for contracts requiring the expenditure of not more than $5,000,000.
1981—Pub. L. 97–86 struck out in first sentence cl. (1) designation and cl. (2) relating to authorizing of contracts in excess of three years under section 2306(g) of this title, and in second sentence substituted "$5,000,000" for "$100,000".
1968—Pub. L. 90–378 designated provisions after "the power to make determinations and decisions" as cl. (1) and added cl. (2).
1962—Pub. L. 87–653 substituted "delegated to any other officer" for "delegated only to a chief officer" and "$100,000" for "$25,000".
1958—Pub. L. 85–800 struck out ", or section 2307(a)" after "of section 2304(a)" in first sentence.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
For effective date of amendment by Pub. L. 87–653, see section 1(h) of Pub. L. 87–653, set out as a note under section 2304 of this title.
Upon the recommendation of the head of an agency, the Secretary of the Treasury may remit all or part, as he considers just and equitable, of any liquidated damages assessed for delay in performing a contract, made by that agency, that provides for such damages.
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 104–316, title II, §202(c), Oct. 19, 1996, 110 Stat. 3842.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2312 | 41:155. | Feb. 19, 1948, ch. 65, §6, 62 Stat. 24. |
The words "a contract, made by that agency, that provides for" are substituted for the words "any contract made on behalf of the Government by the agency head or by officers authorized by him so to do includes a provision".
1996—Pub. L. 104–316 substituted "Secretary of the Treasury" for "Comptroller General".
(a)
(A) a contractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable contract, or any combination of such contracts, made by that agency under this chapter; and
(B) a subcontractor performing any cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable subcontract or any combination of such subcontracts under a contract referred to in subparagraph (A).
(2) The head of an agency, acting through an authorized representative, is authorized, for the purpose of evaluating the accuracy, completeness, and currency of certified cost or pricing data required to be submitted pursuant to section 2306a of this title with respect to a contract or subcontract, to examine all records of the contractor or subcontractor related to—
(A) the proposal for the contract or subcontract;
(B) the discussions conducted on the proposal;
(C) pricing of the contract or subcontract; or
(D) performance of the contract or subcontract.
(b)
(2) Any such subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order of an appropriate United States district court.
(3) The authority provided by paragraph (1) may not be redelegated.
(c)
(2) Paragraph (1) does not apply to a contract or subcontract with a foreign contractor or foreign subcontractor if the head of the agency concerned determines, with the concurrence of the Comptroller General or his designee, that the application of that paragraph to the contract or subcontract would not be in the public interest. However, the concurrence of the Comptroller General or his designee is not required—
(A) where the contractor or subcontractor is a foreign government or agency thereof or is precluded by the laws of the country involved from making its records available for examination; and
(B) where the head of the agency determines, after taking into account the price and availability of the property and services from United States sources, that the public interest would be best served by not applying paragraph (1).
(3) Paragraph (1) may not be construed to require a contractor or subcontractor to create or maintain any record that the contractor or subcontractor does not maintain in the ordinary course of business or pursuant to another provision of law.
(d)
(e)
(f)
(1) Contracts for utility services at rates not exceeding those established to apply uniformly to the public, plus any applicable reasonable connection charge.
(2) A contract or subcontract that is for an amount not greater than the simplified acquisition threshold.
(g)
(h)
(1) The contractor or subcontractor has established procedures to ensure that the imaging process preserves the integrity, reliability, and security of the original records.
(2) The contractor or subcontractor maintains an effective indexing system to permit timely and convenient access to the imaged records.
(3) The contractor or subcontractor retains the original records for a minimum of one year after imaging to permit periodic validation of the imaging systems.
(i)
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 89–607, §1(2), Sept. 27, 1966, 80 Stat. 850; Pub. L. 98–369, div. B, title VII, §2727(c), July 18, 1984, 98 Stat. 1195; Pub. L. 99–145, title IX, §935, Nov. 8, 1985, 99 Stat. 700; Pub. L. 100–26, §7(g)(1), Apr. 21, 1987, 101 Stat. 282; Pub. L. 101–510, div. A, title XIII, §1301(9), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 103–355, title II, §2201(a)(1), title IV, §4102(c), Oct. 13, 1994, 108 Stat. 3316, 3340; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 104–201, div. A, title VIII, §808(a), Sept. 23, 1996, 110 Stat. 2607; Pub. L. 106–65, div. A, title X, §1032(a)(2), Oct. 5, 1999, 113 Stat. 751; Pub. L. 110–417, [div. A], title VIII, §871(b), Oct. 14, 2008, 122 Stat. 4555.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2313(a) | 41:153(b) (words after semicolon of last sentence). | Feb. 19, 1948, ch. 65, §4(b) (words after semicolon of last sentence), 62 Stat. 23. |
| 2313(b) | 41:153(c). | Feb. 19, 1948, ch. 65, §4(c); added Oct. 31, 1951, ch. 652 (as applicable to §4(c); of the Act of Feb. 19, 1948, ch. 65), 65 Stat. 700. |
In subsection (a), the words "An agency named in section 2303 of this title" are substituted for the words "a procuring agency". The words "made by that agency under this chapter" are inserted for clarity.
In subsection (b), the word "under" is substituted for the words "pursuant to authority contained in". The word "provide" is substituted for the words "include a clause to the effect". The words "are entitled" are substituted for the words "shall * * * have * * * the right". The words "of the United States", "duly authorized", "have access to and", and "engaged in the performance of" are omitted as surplusage.
2008—Subsec. (c)(1). Pub. L. 110–417 inserted "and to interview any current employee regarding such transactions" before period at end.
1999—Subsec. (b)(4). Pub. L. 106–65 struck out par. (4) which read as follows: "The Director (or any successor official) shall submit an annual report to the Secretary of Defense on the exercise of such authority during the preceding year and the reasons why such authority was exercised in any instance. The Secretary shall forward a copy of each such report to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives."
1996—Subsec. (b)(4). 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. (d). Pub. L. 104–201 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "
1994—Pub. L. 103–355, §2201(a)(1), amended section generally, striking out "of books" before "and records" in section catchline, and substituting subsecs. (a) to (i) for former subsecs. (a) to (d).
Subsec. (f)(2). Pub. L. 103–355, §4102(c), added par. (2).
1990—Subsec. (c). Pub. L. 101–510 struck out after cl. (2) "If subsection (b) is not applied to a contract or subcontract based on a determination under clause (2), a written report shall be furnished to the Congress."
1987—Subsec. (d)(1). Pub. L. 100–26 substituted "section 2306a" for "section 2306(f)".
1985—Subsec. (d). Pub. L. 99–145 added subsec. (d).
1984—Subsec. (b). Pub. L. 98–369 substituted "awarded after using procedures other than sealed bid procedures" for "negotiated under this chapter".
1966—Subsec. (b). Pub. L. 89–607, §1(2)(A), substituted "Except as provided in subsection (c), each" for "Each".
Subsec. (c). Pub. L. 89–607, §1(2)(B), added subsec. (c).
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Requirements under subsec. (b) of this section not applicable to certain contracts valued at less than $7,500,000 awarded to small business or nontraditional defense contractors, with certain exceptions, see section 873(b) of Pub. L. 114–92, set out as a Pilot Program for Streamlining Awards for Innovative Technology Projects note under section 2306a of this title.
Pub. L. 114–92, div. A, title VIII, §893, Nov. 25, 2015, 129 Stat. 952, as amended by Pub. L. 114–328, div. A, title VIII, §891, Dec. 23, 2016, 130 Stat. 2323, provided that:
"(a)
"(1)
"(2)
"(b)
"(c)
"(1)
"(A) enhancing the productivity of oversight and program and contract auditing to avoid duplicative audits; and
"(B) streamlining of oversight reviews.
"(2)
"(3)
"(A) Not later than one year after the date of the enactment of this Act [Nov. 25, 2015], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on actions taken to avoid duplicative audits and streamline oversight reviews.
"(B) The report required under this paragraph shall include the following elements:
"(i) A description of actions taken to avoid duplicative audits and streamline oversight reviews based on the review conducted under paragraph (1).
"(ii) A comparison of commercial industry accounting practices, including requirements under the Sarbanes-Oxley Act of 2002 (Public Law 107–204; 15 U.S.C. 7201 et seq.), with the cost accounting standards prescribed under chapter 15 of title 41, United States Code, to determine if some portions of cost accounting standards compliance can be met through such practices or requirements.
"(iii) A description of standards of materiality used by the Defense Contract Audit Agency and the Inspector General of the Department of Defense for defense contract audits.
"(iv) An estimate of average delay and range of delays in contract awards due to the time necessary for the Defense Contract Audit Agency to complete pre-award audits.
"(v) The total costs of sustained or recovered costs both as a total number and as a percentage of questioned costs.
"(d)
Pub. L. 112–239, div. A, title VIII, §832, Jan. 2, 2013, 126 Stat. 1844, provided that:
"(a)
"(b)
"(1) Written determination that access to such reports is necessary to complete required evaluations of contractor business systems.
"(2) A copy of any request from the Defense Contract Audit Agency to a contractor for access to such reports.
"(3) A record of response received from the contractor, including the contractor's rationale or justification if access to requested reports was not granted.
"(b) [sic]
"(c)
"(d)
Pub. L. 112–81, div. A, title VIII, §842, Dec. 31, 2011, 125 Stat. 1513, as amended by Pub. L. 113–291, div. A, title VIII, §842(c)(2), Dec. 19, 2014, 128 Stat. 3456, provided that:
"(a)
"(1)
"(A) the clause described in paragraph (2) shall be included in each covered contract, grant, and cooperative agreement of the Department of Defense that is awarded on or after the date of the enactment of this Act; and
"(B) to the maximum extent practicable, each covered contract, grant, and cooperative agreement of the Department that is awarded before the date of the enactment of this Act shall be modified to include the clause described in paragraph (2).
"(2)
"(A) are not subject to extortion or corruption; and
"(B) are not provided directly or indirectly to persons or entities that are actively supporting an insurgency or otherwise actively opposing United States or coalition forces in a contingency operation.
"(3)
"(4)
"(b)
"(c)
"(1) The term 'contingency operation' has the meaning given that term in section 101(a)(13) of title 10, United States Code.
"(2) The term 'covered contract, grant, or cooperative agreement' means a contract, grant, or cooperative agreement with an estimated value in excess of $100,000 that will be performed in the United States Central Command theater of operations in support of a contingency operation.
"(d)
"(1)
"(2)
Functions with respect to purchases authorized to be made outside limits of United States or District of Columbia under Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, May 12, 1965, 30 F.R. 6635, set out as a note under section 2393 of Title 22, Foreign Relations and Intercourse.
Secretaries of Defense, Army, Navy, or Air Force, or their designees, to determine, prior to exercising authority provided in amendment of this section by Pub. L. 89–607 to exempt certain contracts with foreign contractors from requirement of an examination-of-records clause, that all reasonable efforts have been made to include such examination-of-records clause, as required by par. (11) of Part I of Ex. Ord. No. 10789, and that alternate sources of supply are not reasonably available, see par. (11) of Part I of Ex. Ord. No. 10789, Nov. 14, 1958, 23 F.R. 8897, as amended, set out as a note under section 1431 of Title 50, War and National Defense.
(a)
(1) a description of significant problems, abuses, and deficiencies encountered during the conduct of contractor audits;
(2) statistical tables showing—
(A) the total number and dollar value of audit reports completed and pending, set forth separately by type of audit;
(B) the priority given to each type of audit;
(C) the length of time taken for each type of audit, both from the date of receipt of a qualified incurred cost submission and from the date the audit begins;
(D) the sustained questioned costs, set forth separately by type of audit, both as a total value and as a percentage of the total questioned costs for the audit;
(E) the total number and dollar value of incurred cost audits completed, and the method by which such incurred cost audits were completed;
(F) the aggregate cost of performing audits, set forth separately by type of audit;
(G) the ratio of sustained questioned costs to the aggregate costs of performing audits, set forth separately by type of audit; and
(H) the total number and dollar value of audits that are pending for a period longer than one year as of the end of the fiscal year covered by the report, and the fiscal year in which the qualified submission was received, set forth separately by type of audit;
(3) a summary of any recommendations of actions or resources needed to improve the audit process;
(4) a summary, set forth separately by dollar amount and percentage, of indirect costs for independent research and development incurred by contractors in the previous fiscal year;
(5) a summary, set forth separately by dollar amount and percentage, of indirect costs for bid and proposal costs incurred by contractors in the previous fiscal year;
(6) a description of outreach actions toward industry to promote more effective use of audit resources; and
(7) any other matters the Director considers appropriate.
(b)
(c)
(d)
(1) The terms "incurred cost audit" and "qualified incurred cost submission" have the meaning given those terms in section 2313b of this title.
(2) The term "sustained questioned costs" means questioned costs that were recovered by the Federal Government as a result of contract negotiations related to such questioned costs.
(Added Pub. L. 112–81, div. A, title VIII, §805(a), Dec. 31, 2011, 125 Stat. 1486; amended Pub. L. 114–92, div. A, title VIII, §893(b), Nov. 25, 2015, 129 Stat. 952; Pub. L. 114–328, div. A, title VIII, §824(d)(1), Dec. 23, 2016, 130 Stat. 2279; Pub. L. 115–91, div. A, title VIII, §811(d)(1), title X, §1081(d)(5), Dec. 12, 2017, 131 Stat. 1460, 1600.)
2017—Subsec. (a)(2)(A). Pub. L. 115–91, §811(d)(1)(A)(i), inserted "and dollar value" after "number" and ", set forth separately by type of audit" after "pending".
Subsec. (a)(2)(C). Pub. L. 115–91, §811(d)(1)(A)(ii), inserted ", both from the date of receipt of a qualified incurred cost submission and from the date the audit begins" after "audit".
Subsec. (a)(2)(D). Pub. L. 115–91, §811(d)(1)(A)(iii), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: "the total costs of sustained or recovered costs both as a total number and as a percentage of questioned costs; and".
Subsec. (a)(2)(E) to (H). Pub. L. 115–91, §811(d)(1)(A)(iv), (v), added subpars. (E) to (H) and struck out former subpar. (E) which read as follows: "an assessment of the number and types of audits pending for a period longer than allowed pursuant to guidance of the Defense Contract Audit Agency;".
Subsec. (a)(4), (5). Pub. L. 115–91, §1081(d)(5), amended Pub. L. 114–328, §824(d)(1)(B). See 2016 Amendment note below.
Subsec. (d). Pub. L. 115–91, §811(d)(1)(B), added subsec. (d).
2016—Subsec. (a)(4), (5). Pub. L. 114–328, §824(d)(1)(B), as amended by Pub. L. 115–91, §1081(d)(5), added pars. (4) and (5). Former pars. (4) and (5) redesignated (6) and (7), respectively.
Subsec. (a)(6), (7). Pub. L. 114–328, §824(d)(1)(A), redesignated pars. (4) and (5) as (6) and (7), respectively.
2015—Subsec. (a)(2)(D). Pub. L. 114–92, §893(b)(1), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: "the total dollar value of questioned costs (including a separate category for the dollar value of unsupported costs); and".
Subsec. (a)(4), (5). Pub. L. 114–92, §893(b)(2)–(4), added par. (4) and redesignated former par. (4) as (5).
Pub. L. 115–91, div. A, title X, §1081(d), Dec. 12, 2017, 131 Stat. 1599, provided that the amendment made by section 1081(d)(5) is effective as of Dec. 23, 2016, and as if included in Pub. L. 114–328 as enacted.
Pub. L. 114–328, div. A, title VIII, §824(d)(2), Dec. 23, 2016, 130 Stat. 2279, provided that: "The amendments made by this subsection [amending this section] shall take effect on October 1, 2018."
(a)
(b)
(A) eliminate, by October 1, 2020, any backlog of incurred cost audits of the Defense Contract Audit Agency;
(B) ensure that incurred cost audits are completed not later than one year after the date of receipt of a qualified incurred cost submission;
(C) maintain an appropriate mix of Government and private sector capacity to meet the current and future needs of the Department of Defense for the performance of incurred cost audits;
(D) ensure that qualified private auditors perform incurred cost audits on an ongoing basis to improve the efficiency and effectiveness of the performance of incurred cost audits; and
(E) limit multiyear auditing to ensure that multiyear auditing is conducted only—
(i) to address outstanding incurred cost audits for which a qualified incurred cost submission was submitted to the Defense Contract Audit Agency more than 12 months before the date of the enactment of this section; or
(ii) when the contractor being audited submits a written request, including a justification for the use of multiyear auditing, to the Under Secretary of Defense (Comptroller).
(2) The Secretary of Defense shall consult with Federal agencies that have awarded contracts or task orders to qualified private auditors to ensure that the Department of Defense is using, as appropriate, best practices relating to contracting with qualified private auditors.
(3) The Secretary of Defense shall ensure that a qualified private auditor performing an incurred cost audit under this section—
(A) has no conflict of interest in performing such an audit, as defined by generally accepted government auditing standards;
(B) possesses the necessary independence to perform such an audit, as defined by generally accepted government auditing standards;
(C) signs a nondisclosure agreement, as appropriate, to protect proprietary or nonpublic data;
(D) accesses and uses proprietary or nonpublic data furnished to the qualified private auditor only for the purposes stated in the contract;
(E) takes all reasonable steps to protect proprietary and nonpublic data furnished during the audit; and
(F) does not use proprietary or nonpublic data provided to the qualified private auditor under the authority of this section to compete for Government or nongovernment contracts.
(c)
(A) a description of the incurred cost audits that the Secretary determines are appropriate to be conducted by qualified private auditors, including the approximate number and dollar value of such incurred cost audits;
(B) an estimate of the number and dollar value of incurred cost audits to be conducted by qualified private auditors for each of the fiscal years 2019 through 2025 necessary to meet the requirements of subsection (b); and
(C) all other elements of an acquisition plan as required by the Federal Acquisition Regulation.
(2) Not later than April 1, 2019, the Secretary of Defense or a Federal department or agency authorized by the Secretary shall award a contract or issue a task order under an existing contract to two or more qualified private auditors to perform incurred cost audits of costs associated with contracts of the Department of Defense. The Defense Contract Management Agency or a contract administration office of a military department shall use a contract or a task order awarded or issued pursuant to this paragraph for the performance of an incurred cost audit, if doing so will assist the Secretary in meeting the requirements in subsection (b).
(3) To improve the quality of incurred cost audits and reduce duplication of performance of such audits, the Secretary of Defense may provide a qualified private auditor with information on past or ongoing audit results or other relevant information on the entities the qualified private auditor is auditing.
(4) The Secretary of Defense shall consider the results of an incurred cost audit performed under this section without regard to whether the Defense Contract Audit Agency or a qualified private auditor performed the audit.
(5) The contracting officer for a contract that is the subject of an incurred cost audit shall have the sole discretion to determine what action should be taken based on an audit finding on direct costs of the contract.
(d)
(2) A qualified private auditor awarded a contract or issued an 1 task order under subsection (c)(2) shall develop and maintain complete and accurate working papers on each incurred cost audit. All working papers and reports on the incurred cost audit prepared by such qualified private auditor shall be the property of the Department of Defense, except that the qualified private auditor may retain a complete copy of all working papers to support such reports made pursuant to this section.
(3) A breach of contract by a qualified private auditor with respect to use of proprietary or nonpublic data may subject the qualified private auditor to—
(A) criminal, civil, administrative, and contractual actions for penalties, damages, and other appropriate remedies by the United States; and
(B) civil actions for damages and other appropriate remedies by the contractor or subcontractor whose data are affected by the breach.
(e)
(2) Not later than October 1, 2019, the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives an update on the process of securing a commercial auditor to perform the peer review referred to in paragraph (1).
(f)
(2) Not later than October 1, 2019, the Secretary of Defense shall submit to the congressional defense committees a report containing proposed numeric materiality standards required under paragraph (1). In developing such standards, the Secretary shall consult with commercial auditors that conduct incurred cost audits, the advisory panel authorized under section 809 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 889), and other governmental and nongovernmental entities with relevant expertise.
(g)
(2) The Secretary of Defense shall notify a contractor of the Department of Defense within 60 days after receipt of an incurred cost submission from the contractor whether the submission is a qualified incurred cost submission.
(3) With respect to qualified incurred cost submissions received on or after the date of the enactment of this section, audit findings shall be issued for an incurred cost audit not later than one year after the date of receipt of such qualified incurred cost submission.
(4) Not later than October 1, 2020, and subject to paragraph (5), if audit findings are not issued within one year after the date of receipt of a qualified incurred cost submission, the audit shall be considered to be complete and no additional audit work shall be conducted.
(5) The Under Secretary of Defense (Comptroller) may waive the requirements of paragraph (4) on a case-by-case basis if the Director of the Defense Contract Audit Agency submits a written request. The Director of the Defense Contract Audit Agency shall include in the report required under section 2313a of this title the total number of waivers issued and the reasons for issuing each such waiver.
(h)
(1) the timeliness, individual cost, and quality of incurred cost audits, set forth separately by incurred cost audits performed by the Defense Contract Audit Agency and by qualified private auditors;
(2) the cost to contractors of the Department of Defense for incurred cost audits, set forth separately by incurred cost audits performed by the Defense Contract Audit Agency and by qualified private auditors;
(3) the effect, if any, on other types of audits conducted by the Defense Contract Audit Agency that results from incurred cost audits conducted by qualified private auditors; and
(4) the capability and capacity of qualified private auditors to conduct incurred cost audits for the Department of Defense.
(i)
(1) The term "commercial auditor" means a private entity engaged in the business of performing audits.
(2) The term "incurred cost audit" means an audit of charges to the Government by a contractor under a flexibly priced contract.
(3) The term "flexibly priced contract" has the meaning given the term "flexibly-priced contracts and subcontracts" in part 30 of the Federal Acquisition Regulation (section 30.001 of title 48, Code of Federal Regulations).
(4) The term "generally accepted government auditing standards" means the generally accepted government auditing standards of the Comptroller General of the United States.
(5) The term "numeric materiality standard" means a dollar amount of misstatements, including omissions, contained in an incurred cost audit that would be material if the misstatements, individually or in the aggregate, could reasonably be expected to influence the economic decisions of the Government made on the basis of the incurred cost audit.
(6) The term "qualified incurred cost submission" means a submission by a contractor of costs incurred under a flexibly priced contract that has been qualified by the Department of Defense as sufficient to conduct an incurred cost audit.
(7) The term "qualified private auditor" means a commercial auditor—
(A) that performs audits in accordance with generally accepted government auditing standards; and
(B) that has received a passing peer review rating, as defined by generally accepted government auditing standards.
(Added Pub. L. 115–91, div. A, title VIII, §803(a), Dec. 12, 2017, 131 Stat. 1451; amended Pub. L. 115–232, div. A, title X, §1081(a)(19), Aug. 13, 2018, 132 Stat. 1984.)
The date of the enactment of this section, referred to in subsecs. (b)(1)(E)(i) and (g)(3), is the date of enactment of Pub. L. 115–91, which was approved Dec. 12, 2017.
Section 809 of the National Defense Authorization Act for Fiscal Year 2016, referred to in subsec. (f)(2), is section 809 of Pub. L. 114–92, div. A, title VIII, Nov. 25, 2015, 129 Stat. 889, which relates to the establishment of an advisory panel on streamlining acquisition regulations and is not classified to the Code.
2018—Subsec. (b)(1)(E). Pub. L. 115–232 redesignated cls. (A) and (B) as (i) and (ii), respectively.
1 So in original. Probably should be "a".
Sections 6101 and 6304 of title 41 do not apply to the procurement or sale of property or services by the agencies named in section 2303 of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 133; Pub. L. 96–513, title V, §511(78), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 103–160, div. A, title VIII, §822(b)(2), Nov. 30, 1993, 107 Stat. 1706; Pub. L. 111–350, §5(b)(16), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 113–291, div. A, title X, §1071(a)(4), Dec. 19, 2014, 128 Stat. 3504.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2314 | 41:160. | Feb. 19, 1948, ch. 65, §11(b), 62 Stat. 25. |
2014—Pub. L. 113–291 substituted "Sections 6101" for "Sections 6101(b)–(d)".
2011—Pub. L. 111–350 substituted "Sections 6101(b)–(d) and 6304 of title 41" for "Sections 3709 and 3735 of the Revised Statutes (41 U.S.C. 5 and 13)".
1993—Pub. L. 103–160 inserted "or sale" after "procurement".
1980—Pub. L. 96–513 substituted "Sections 3709 and 3735 of the Revised Statutes (41 U.S.C. 5 and 13)" for "Sections 5, 6, 6a, and 13 of title 41".
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.
For purposes of subtitle III of title 40, the term "national security system", with respect to a telecommunications and information system operated by the Department of Defense, has the meaning given that term by section 3552(b)(6) of title 44.
(Added Pub. L. 97–86, title IX, §908(a)(1), Dec. 1, 1981, 95 Stat. 1117; amended Pub. L. 97–295, §1(25), Oct. 12, 1982, 96 Stat. 1291; Pub. L. 104–106, div. E, title LVI, §5601(c), Feb. 10, 1996, 110 Stat. 699; Pub. L. 104–201, div. A, title X, §1074(b)(4)(B), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 105–85, div. A, title X, §1073(a)(49), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 107–217, §3(b)(5), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 109–364, div. A, title IX, §906(c), Oct. 17, 2006, 120 Stat. 2354; Pub. L. 113–283, §2(e)(5)(C), Dec. 18, 2014, 128 Stat. 3087; Pub. L. 114–92, div. A, title X, §1081(a)(7), Nov. 25, 2015, 129 Stat. 1001.)
2015—Pub. L. 114–92 substituted "section 3552(b)(6)" for "section 3552(b)(5)".
2014—Pub. L. 113–283 substituted "section 3552(b)(5)" for "section 3542(b)(2)".
2006—Pub. L. 109–364 amended text generally. Prior to amendment, section consisted of subsecs. (a) and (b) defining "national security systems" as meaning telecommunications and information systems operated by the Department of Defense, the functions, operation or use of which involves intelligence or cryptologic activities, command and control of military forces, or equipment that is an integral part of a weapons system or is critical to military or intelligence missions but is not equipment or services to be used for routine administrative and business applications.
2002—Subsec. (a). Pub. L. 107–217 substituted "subtitle III of title 40" for "division E of the Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.)" in introductory provisions.
1997—Subsec. (a). Pub. L. 105–85 substituted "division E of the Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.)" for "the Information Technology Management Reform Act of 1996".
1996—Subsec. (a). Pub. L. 104–106, as amended by Pub. L. 104–201, substituted "For the purposes of the Information Technology Management Reform Act of 1996, the term 'national security systems' means those telecommunications and information systems operated by the Department of Defense, the functions, operation or use of which" for "Section 111 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759) is not applicable to the procurement by the Department of Defense of automatic data processing equipment or services if the function, operation, or use of the equipment or services".
1982—Subsec. (a). Pub. L. 97–295 substituted "(40 U.S.C. 759)" for "(40 U.S.C. 795)".
Amendment by Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, Feb. 10, 1996, 110 Stat. 702.
Pub. L. 97–86, title IX, §908(b), Dec. 1, 1981, 95 Stat. 1118, provided that: "Section 2315 of title 10, United States Code, as added by subsection (a), does not apply to a contract made before the date of the enactment of this Act [Dec. 1, 1981]."
Pub. L. 103–337, div. A, title X, §1075, Oct. 5, 1994, 108 Stat. 2861, which set out conditions for availability of funds to be expended to provide for meeting Department of Defense telecommunications requirements through the telecommunications procurement known as "FTS–2000" or through any other Government-wide telecommunications procurement, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(19), Aug. 13, 2018, 132 Stat. 1848.
The Secretary of Defense may disclose the identity or location of a person awarded a contract by the Department of Defense to any individual, including a Member of Congress, only after the Secretary makes a public announcement identifying the contractor. When the identity of a contractor is to be made public, the Secretary shall announce publicly that the contract has been awarded and the identity of the contractor.
(Added Pub. L. 97–295, §1(26)(A), Oct. 12, 1982, 96 Stat. 1291.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2316 | 10:2304 (note). | Oct. 7, 1970, Pub. L. 91–441, §507, 84 Stat. 913. |
The words "company, or corporation" are omitted as included in "person" because of section 1:1. The words "On and after the date of enactment of this Act" are omitted as executed. The word "contractor" is substituted for "person, company, or corporation to whom such contract has been awarded" and "person, company, or corporation to whom any defense contract has been awarded" to eliminate unnecessary words. The words "and the identity of the contractor" are substituted for "and to whom it was awarded" for clarity.
Section, added Pub. L. 98–525, title XII, §1215, Oct. 19, 1984, 98 Stat. 2592, related to encouragement of competition and cost savings.
Each advocate for competition designated pursuant to section 1705(a) of title 41 for an agency named in section 2303(a) of this title shall be a general or flag officer if a member of the armed forces or in a position classified above GS–15 pursuant to section 5108 of title 5, if a civilian employee and shall be designated to serve for a minimum of two years.
(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2593; amended Pub. L. 100–26, §7(d)(4), Apr. 21, 1987, 101 Stat. 281; Pub. L. 102–25, title VII, §701(f)(1), Apr. 6, 1991, 105 Stat. 115; Pub. L. 103–355, title I, §1031, Oct. 13, 1994, 108 Stat. 3260; Pub. L. 111–350, §5(b)(17), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 112–239, div. A, title X, §1076(f)(24), Jan. 2, 2013, 126 Stat. 1953; Pub. L. 115–232, div. A, title VIII, §811(d), Aug. 13, 2018, 132 Stat. 1845.)
2018—Pub. L. 115–232 substituted "Each advocate for competition designated pursuant to section 1705(a) of title 41 for" for "(b) Each advocate for competition of" and "in a position classified above GS–15 pursuant to section 5108 of title 5" for "a grade GS–16 or above under the General Schedule (or in a comparable or higher position under another schedule)" and struck out subsec. (a) which related to designation of an officer or employee of the Defense Logistics Agency to serve as the advocate for competition of the agency.
2013—Subsec. (a)(2). Pub. L. 112–239 substituted "subsections (b) and (c) of section 1705" for "section 1705(b) and (c)".
2011—Subsec. (a)(1). Pub. L. 111–350, §5(b)(17)(A), substituted "section 1705(a) of title 41" for "section 20(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 418(a))".
Subsec. (a)(2). Pub. L. 111–350, §5(b)(17)(B), substituted "section 1705(b) and (c) of title 41" for "sections 20(b) and 20(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 418(b), (c))".
1994—Subsec. (c). Pub. L. 103–355 struck out subsec. (c) which read as follows: "Each advocate for competition of an agency of the Department of Defense shall transmit to the Secretary of Defense a report describing his activities during the preceding year. The report of each advocate for competition shall be included in the annual report of the Secretary of Defense required by section 23 of the Office of Federal Procurement Policy Act (41 U.S.C. 419), in the form in which it was submitted to the Secretary."
1991—Subsec. (c). Pub. L. 102–25 substituted "section 23" for "section 21".
1987—Subsec. (a)(1). Pub. L. 100–26, §7(d)(4)(A), inserted "(41 U.S.C. 418(a))" after "Policy Act".
Subsec. (a)(2). Pub. L. 100–26, §7(d)(4)(B), inserted "(41 U.S.C. 418(b), (c))" after "Policy Act".
Subsec. (c). Pub. L. 100–26, §7(d)(4)(C), inserted "(41 U.S.C. 419)" after "Policy Act".
Pub. L. 98–525, title XII, §1216(c)(1), Oct. 19, 1984, 98 Stat. 2599, provided that: "Section 2318 of title 10, United States Code (as added by subsection (a)), shall take effect on April 1, 1985."
(a) In this section, the term "qualification requirement" means a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a contract.
(b) Except as provided in subsection (c), the head of the agency shall, before establishing a qualification requirement—
(1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award;
(2) specify in writing and make available to a potential offeror upon request all requirements which a prospective offeror, or its product, must satisfy in order to become qualified, such requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification requirement;
(3) specify an estimate of the costs of testing and evaluation likely to be incurred by a potential offeror in order to become qualified;
(4) ensure that a potential offeror is provided, upon request and on a reimbursable basis, a prompt opportunity to demonstrate its ability to meet the standards specified for qualification using qualified personnel and facilities of the agency concerned or of another agency obtained through interagency agreement, or under contract, or other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency);
(5) if testing and evaluation services are provided under contract to the agency for the purposes of clause (4), provide to the extent possible that such services be provided by a contractor who is not expected to benefit from an absence of additional qualified sources and who shall be required in such contract to adhere to any restriction on technical data asserted by the potential offeror seeking qualification; and
(6) ensure that a potential offeror seeking qualification is promptly informed as to whether qualification is attained and, in the event qualification is not attained, is promptly furnished specific information why qualification was not attained.
(c)(1) Subsection (b) of this section does not apply with respect to a qualification requirement established by statute or administrative action before October 19, 1984, unless such requirement is a qualified products list.
(2)(A) Except as provided in subparagraph (B), if it is unreasonable to specify the standards for qualification which a prospective offeror or its product must satisfy, a determination to that effect shall be submitted to the advocate for competition of the procuring activity responsible for the purchase of the item subject to the qualification requirement. After considering any comments of the advocate for competition reviewing such determination, the head of the purchasing office may waive the requirements of clauses (2) through (6) of subsection (b) for up to two years with respect to the item subject to the qualification requirement.
(B) The waiver authority provided in this paragraph does not apply with respect to a qualified products list.
(3) A potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror (A) is not on a qualified bidders list, qualified manufacturers list, or qualified products list, or (B) has not been identified as meeting a qualification requirement established after October 19, 1984, if the potential offeror can demonstrate to the satisfaction of the contracting officer (or, in the case of a contract for the procurement of an aviation critical safety item or ship critical safety item, the head of the design control activity for such item) that the potential offeror or its product meets the standards established for qualification or can meet such standards before the date specified for award of the contract.
(4) Nothing contained in this subsection requires the referral of an offer to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act (15 U.S.C. 637(b)(7)) if the basis for the referral is a challenge by the offeror to either the validity of the qualification requirement or the offeror's compliance with such requirement.
(5) The head of an agency need not delay a proposed procurement in order to comply with subsection (b) or in order to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification.
(6) The requirements of subsection (b) also apply before enforcement of any qualified products list, qualified manufacturers list, or qualified bidders list.
(d)(1) If the number of qualified sources or qualified products available to compete actively for an anticipated future requirement is fewer than two actual manufacturers or the products of two actual manufacturers, respectively, the head of the agency concerned shall—
(A) periodically publish notice in the Commerce Business Daily soliciting additional sources or products to seek qualification, unless the contracting officer determines that such publication would compromise national security; and
(B) bear the cost of conducting the specified testing and evaluation (excluding the costs associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern which has met the standards specified for qualification and which could reasonably be expected to compete for a contract for that requirement, but such costs may be borne only if the head of the agency determines that such additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to amortize the costs incurred by the agency within a reasonable period of time considering the duration and dollar value of anticipated future requirements.
(2) The head of an agency shall require a prospective contractor requesting the United States to bear testing and evaluation costs under paragraph (1)(B) to certify as to its status as a small business concern under section 3 of the Small Business Act (15 U.S.C. 632).
(e) Within seven years after the establishment of a qualification requirement under subsection (b) or within seven years following an agency's enforcement of a qualified products list, qualified manufacturers list, or qualified bidders list, any such qualification requirement shall be examined and revalidated in accordance with the requirements of subsection (b). The preceding sentence does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2).
(f) Except in an emergency as determined by the head of the agency, whenever the head of the agency determines not to enforce a qualification requirement for a solicitation, the agency may not thereafter enforce that qualification requirement unless the agency complies with the requirements of subsection (b).
(g)
(1) The term "aviation critical safety item" means a part, an assembly, installation equipment, launch equipment, recovery equipment, or support equipment for an aircraft or aviation weapon system if the part, assembly, or equipment contains a characteristic any failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in the loss of or serious damage to the aircraft or weapon system, an unacceptable risk of personal injury or loss of life, or an uncommanded engine shutdown that jeopardizes safety.
(2) The term "ship critical safety item" means any ship part, assembly, or support equipment containing a characteristic the failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in loss of or serious damage to the ship or unacceptable risk of personal injury or loss of life.
(3) The term "design control activity", with respect to an aviation critical safety item or ship critical safety item, means the systems command of a military department that is specifically responsible for ensuring the airworthiness of an aviation system or equipment, or the seaworthiness of a ship or ship equipment, in which such item is to be used.
(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2593; amended Pub. L. 100–26, §7(d)(5), (i)(4), (k)(3), Apr. 21, 1987, 101 Stat. 281, 282, 284; Pub. L. 108–136, div. A, title VIII, §802(d), Nov. 24, 2003, 117 Stat. 1541; Pub. L. 109–364, div. A, title I, §130(d), Oct. 17, 2006, 120 Stat. 2110.)
2006—Subsec. (c)(3). Pub. L. 109–364, §130(d)(1), inserted "or ship critical safety item" after "aviation critical safety item".
Subsec. (g)(2), (3). Pub. L. 109–364, §130(d)(2), added par. (2), redesignated former par. (2) as (3), inserted "or ship critical safety item" after "aviation critical safety item" and ", or the seaworthiness of a ship or ship equipment," after "or equipment", and substituted "such item" for "the item".
2003—Subsec. (c)(3). Pub. L. 108–136, §802(d)(1), inserted "(or, in the case of a contract for the procurement of an aviation critical safety item, the head of the design control activity for such item)" after "the contracting officer".
Subsec. (g). Pub. L. 108–136, §802(d)(2), added subsec. (g).
1987—Subsec. (a). Pub. L. 100–26, §7(k)(3), inserted "the term" after "In this section,".
Subsec. (c)(1), (3). Pub. L. 100–26, §7(i)(4), substituted "October 19, 1984," for "the date of the enactment of the Defense Procurement Reform Act of 1984".
Subsec. (c)(4). Pub. L. 100–26, §7(d)(5)(A), inserted "(15 U.S.C. 637(b)(7))" after "Small Business Act".
Subsec. (d)(2). Pub. L. 100–26, §7(d)(5)(B), inserted "(15 U.S.C. 632)" after "Small Business Act".
Pub. L. 98–525, title XII, §1216(c)(2), Oct. 19, 1984, 98 Stat. 2599, provided that: "Sections 2319, 2320, and 2321 of title 10, United States Code (as added by subsection (a)), shall apply with respect to solicitations issued after the end of the one-year period beginning on the date of the enactment of this Act [Oct. 19, 1984]."
(a)(1) The Secretary of Defense shall prescribe regulations to define the legitimate interest of the United States and of a contractor or subcontractor in technical data pertaining to an item or process. Such regulations shall be included in regulations of the Department of Defense prescribed as part of the Federal Acquisition Regulation. Such regulations may not impair any right of the United States or of any contractor or subcontractor with respect to patents or copyrights or any other right in technical data otherwise established by law. Such regulations also may not impair the right of a contractor or subcontractor to receive from a third party a fee or royalty for the use of technical data pertaining to an item or process developed exclusively at private expense by the contractor or subcontractor, except as otherwise specifically provided by law.
(2) Such regulations shall include the following provisions:
(A)
(i) use technical data pertaining to the item or process; or
(ii) release or disclose the technical data to persons outside the government or permit the use of the technical data by such persons.
(B)
(C)
(i) constitutes a correction or change to data furnished by the United States;
(ii) relates to form, fit, or function;
(iii) is necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data, including such data pertaining to a major system component); or
(iv) is otherwise publicly available or has been released or disclosed by the contractor or subcontractor without restriction on further release or disclosure.
(D)
(i) such release, disclosure, or use—
(I) is necessary for emergency repair and overhaul;
(II) is a release, disclosure, or use of technical data pertaining to an interface between an item or process and other items or processes necessary for the segregation of an item or process from, or the reintegration of that item or process (or a physically or functionally equivalent item or process) with, other items or processes; or
(III) is a release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the United States and is required for evaluational or informational purposes;
(ii) such release, disclosure, or use is made subject to a prohibition that the person to whom the data is released or disclosed may not further release, disclose, or use such data; and
(iii) the contractor or subcontractor asserting the restriction is notified of such release, disclosure, or use.
(E)
(i) The statement of congressional policy and objectives in section 200 of title 35, the statement of purposes in section 2(b) of the Small Business Innovation Development Act of 1982 (15 U.S.C. 638 note), and the declaration of policy in section 2 of the Small Business Act (15 U.S.C. 631).
(ii) The interest of the United States in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture.
(iii) The interest of the United States in encouraging contractors to develop at private expense items for use by the Government.
(iv) Such other factors as the Secretary of Defense may prescribe.
(F)
(G)
(H) A contractor or subcontractor (or a prospective contractor or subcontractor) may not be required, as a condition of being responsive to a solicitation or as a condition for the award of a contract—
(i) to sell or otherwise relinquish to the United States any rights in technical data except—
(I) rights in technical data described in subparagraph (A) for which a use or release restriction has been erroneously asserted by a contractor or subcontractor;
(II) rights in technical data described in subparagraph (C); or
(III) under the conditions described in subparagraph (D); or
(ii) to refrain from offering to use, or from using, an item or process to which the contractor is entitled to restrict rights in data under subparagraph (B).
(I) The Secretary of Defense may—
(i) negotiate and enter into a contract with a contractor or subcontractor for the acquisition of rights in technical data not otherwise provided under subparagraph (C) or (D), if necessary to develop alternative sources of supply and manufacture;
(ii) agree to restrict rights in technical data otherwise accorded to the United States under this section if the United States receives a royalty-free license to use, release, or disclose the data for purposes of the United States (including purposes of competitive procurement); or
(iii) permit a contractor or subcontractor to license directly to a third party the use of technical data which the contractor is otherwise allowed to restrict, if necessary to develop alternative sources of supply and manufacture.
(3) The Secretary of Defense shall define the terms "developed", "exclusively with Federal funds", and "exclusively at private expense" in regulations prescribed under paragraph (1). In defining such terms, the Secretary shall specify the manner in which indirect costs shall be treated and shall specify that amounts spent for independent research and development and bid and proposal costs shall not be considered to be Federal funds for the purposes of the definitions under this paragraph.
(b) Regulations prescribed under subsection (a) shall require that, whenever practicable, a contract for supplies or services entered into by an agency named in section 2303 of this title contain appropriate provisions relating to technical data, including provisions—
(1) defining the respective rights of the United States and the contractor or subcontractor (at any tier) regarding any technical data to be delivered under the contract and providing that, in the case of a contract for a commercial item, the item shall be presumed to be developed at private expense unless shown otherwise in accordance with section 2321(f);
(2) specifying the technical data, if any, to be delivered under the contract and delivery schedules for such delivery;
(3) establishing or referencing procedures for determining the acceptability of technical data to be delivered under the contract;
(4) establishing separate contract line items for the technical data, if any, to be delivered under the contract;
(5) to the maximum practicable extent, identifying, in advance of delivery, technical data which is to be delivered with restrictions on the right of the United States to use such data;
(6) requiring the contractor to revise any technical data delivered under the contract to reflect engineering design changes made during the performance of the contract and affecting the form, fit, and function of the items specified in the contract and to deliver such revised technical data to an agency within a time specified in the contract;
(7) establishing remedies to be available to the United States when technical data required to be delivered or made available under the contract is found to be incomplete or inadequate or to not satisfy the requirements of the contract concerning technical data;
(8) authorizing the head of the agency to withhold payments under the contract (or exercise such other remedies as the head of the agency considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data;
(9) providing that, in addition to technical data that is already subject to a contract delivery requirement, the United States may require, until the date occurring six years after acceptance of the last item (other than technical data) under a contract or the date of contract termination, whichever is later, the delivery of technical data that has been generated in the performance of the contract, and compensate the contractor only for reasonable costs incurred for having converted and delivered the data in the required form, upon a determination that—
(A) the technical data is needed for the purpose of reprocurement, sustainment, modification, or upgrade (including through competitive means) of a major system or subsystem thereof, a weapon system or subsystem thereof, or any noncommercial item or process; and
(B) the technical data—
(i) pertains to an item or process developed in whole or in part with Federal funds; or
(ii) is described in subparagraphs (D)(i)(II), (F), and (G) of subsection (a)(2); and
(10) providing that the United States is not foreclosed from requiring the delivery of the technical data by a failure to challenge, in accordance with the requirements of section 2321(d) of this title, the contractor's assertion of a use or release restriction on the technical data.
(c) Nothing in this section or in section 2305(d) of this title prohibits the Secretary of Defense from—
(1) prescribing standards for determining whether a contract entered into by the Department of Defense shall provide for a time to be specified in the contract after which the United States shall have the right to use (or have used) for any purpose of the United States all technical data required to be delivered to the United States under the contract or providing for such a period of time (not to exceed 7 years) as a negotiation objective;
(2) notwithstanding any limitation upon the license rights conveyed under subsection (a), allowing a covered Government support contractor access to and use of any technical data delivered under a contract for the sole purpose of furnishing independent and impartial advice or technical assistance directly to the Government in support of the Government's management and oversight of the program or effort to which such technical data relates; or
(3) prescribing reasonable and flexible guidelines, including negotiation objectives, for the conduct of negotiations regarding the respective rights in technical data of the United States and the contractor.
(d) The Secretary of Defense shall by regulation establish programs which provide domestic business concerns an opportunity to purchase or borrow replenishment parts from the United States for the purpose of design replication or modification, to be used by such concerns in the submission of subsequent offers to sell the same or like parts to the United States. Nothing in this subsection limits the authority of the head of an agency to impose restrictions on such a program related to national security considerations, inventory needs of the United States, the improbability of future purchases of the same or like parts, or any additional restriction otherwise required by law.
(e) The Secretary of Defense shall require program managers for major weapon systems and subsystems of major weapon systems to assess the long-term technical data needs of such systems and subsystems and establish corresponding acquisition strategies that provide for technical data rights needed to sustain such systems and subsystems over their life cycle. Such strategies may include the development of maintenance capabilities within the Department of Defense or competition for contracts for sustainment of such systems or subsystems. Assessments and corresponding acquisition strategies developed under this section with respect to a weapon system or subsystem shall—
(1) be developed before issuance of a contract solicitation for the weapon system or subsystem;
(2) address the merits of including a priced contract option for the future delivery of technical data that were not acquired upon initial contract award;
(3) address the potential for changes in the sustainment plan over the life cycle of the weapon system or subsystem; and
(4) apply to weapon systems and subsystems that are to be supported by performance-based logistics arrangements as well as to weapons systems and subsystems that are to be supported by other sustainment approaches.
(f)
(g)
(1) is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and
(2) executes a contract with the Government agreeing to and acknowledging—
(A) that proprietary or nonpublic technical data furnished will be accessed and used only for the purposes stated in that contract;
(B) that the covered Government support contractor will enter into a non-disclosure agreement with the contractor to whom the rights to the technical data belong;
(C) that the covered Government support contractor will take all reasonable steps to protect the proprietary and nonpublic nature of the technical data furnished to the covered Government support contractor during the program or effort for the period of time in which the Government is restricted from disclosing the technical data outside of the Government;
(D) that a breach of that contract by the covered Government support contractor with regard to a third party's ownership or rights in such technical data may subject the covered Government support contractor—
(i) to criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and
(ii) to civil actions for damages and other appropriate remedies by the contractor or subcontractor whose technical data is affected by the breach; and
(E) that such technical data provided to the covered Government support contractor under the authority of this section shall not be used by the covered Government support contractor to compete against the third party for Government or non-Government contracts.
(h)
(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2595; amended Pub. L. 98–577, title III, §301(b), Oct. 30, 1984, 98 Stat. 3076; Pub. L. 99–145, title IX, §961(d)(1), Nov. 8, 1985, 99 Stat. 703; Pub. L. 99–500, §101(c) [title X, §953(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, and Pub. L. 99–591, §101(c) [title X, §953(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169; Pub. L. 99–661, div. A, title IX, formerly title IV, §953(a), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §7(a)(4), Apr. 21, 1987, 101 Stat. 275; Pub. L. 100–180, div. A, title VIII, §808(a), (b), Dec. 4, 1987, 101 Stat. 1128, 1130; Pub. L. 101–189, div. A, title VIII, §853(b)(2), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 103–355, title VIII, §8106(a), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 108–136, div. A, title VIII, §844, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 109–364, div. A, title VIII, §802(a), Oct. 17, 2006, 120 Stat. 2312; Pub. L. 111–84, div. A, title VIII, §821, Oct. 28, 2009, 123 Stat. 2411; Pub. L. 111–383, div. A, title VIII, §§801(a), 824(b), Jan. 7, 2011, 124 Stat. 4253, 4269; Pub. L. 112–81, div. A, title VIII, §§802(b), 815(a), Dec. 31, 2011, 125 Stat. 1485, 1491; Pub. L. 114–328, div. A, title VIII, §809(a)–(e), Dec. 23, 2016, 130 Stat. 2266, 2267; Pub. L. 115–91, div. A, title VIII, §835(c), Dec. 12, 2017, 131 Stat. 1471; Pub. L. 115–232, div. A, title VIII, §836(c)(7), Aug. 13, 2018, 132 Stat. 1866.)
Pub. L. 115–232, div. A, title VIII, §836(c)(7), (h), Aug. 13, 2018, 132 Stat. 1866, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, subsection (b) of this section is amended as follows:
(1) in paragraph (1), by striking "a commercial item, the item" and inserting "a commercial product, the product"; and
(2) in paragraph (9)(A), by striking "any noncommercial item or process" and inserting "any noncommercial product or process".
See 2018 Amendment notes below.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
2018—Subsec. (b)(1). Pub. L. 115–232, §836(c)(7)(A), substituted "a commercial product, the product" for "a commercial item, the item".
Subsec. (b)(9)(A). Pub. L. 115–232, §836(c)(7)(B), substituted "any noncommercial product or process" for "any noncommercial item or process".
2017—Subsecs. (f) to (h). Pub. L. 115–91 added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.
2016—Subsec. (a)(2)(A). Pub. L. 114–328, §809(e)(1), inserted heading.
Subsec. (a)(2)(B). Pub. L. 114–328, §809(b)(2), (e)(2), inserted heading and substituted "Except as provided in subparagraphs (C), (D), and (G)," for "Except as provided in subparagraphs (C) and (D)," in text.
Subsec. (a)(2)(C). Pub. L. 114–328, §809(e)(3), inserted heading.
Subsec. (a)(2)(C)(iii). Pub. L. 114–328, §809(a), inserted ", including such data pertaining to a major system component" after "or process data".
Subsec. (a)(2)(D). Pub. L. 114–328, §809(e)(4), inserted heading.
Subsec. (a)(2)(D)(i)(II). Pub. L. 114–328, §809(b)(3), substituted "is a release, disclosure, or use of technical data pertaining to an interface between an item or process and other items or processes necessary" for "is necessary".
Subsec. (a)(2)(E). Pub. L. 114–328, §809(b)(4), (e)(5), inserted heading and, in introductory provisions, substituted "Except as provided in subparagraphs (F) and (G), in the case" for "In the case" and "negotiations) and shall be based on negotiations between the United States and the contractor, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiations would not be practicable. The establishment of such rights shall" for "negotiations). The United States shall have government purpose rights in such technical data, except in any case in which the Secretary of Defense determines, on the basis of criteria established in such regulations, that negotiation of different rights in such technical data would be in the best interest of the United States. The establishment of any such negotiated rights shall".
Subsec. (a)(2)(F) to (I). Pub. L. 114–328, §809(b)(1), (5), added subpars. (F) and (G) and redesignated former subpars. (F) and (G) as (H) and (I), respectively.
Subsec. (b)(9). Pub. L. 114–328, §809(c)(1), (2), in introductory provisions, substituted ", until the date occurring six years after acceptance of the last item (other than technical data) under a contract or the date of contract termination, whichever is later," for "at any time" and "in the performance of the contract" for "or utilized in the performance of a contract".
Subsec. (b)(9)(B)(ii). Pub. L. 114–328, §809(c)(3), added cl. (ii) and struck out former cl. (ii) which read as follows: "is necessary for the segregation of an item or process from, or the reintegration of that item or process (or a physically or functionally equivalent item or process) with, other items or processes; and".
Subsec. (f). Pub. L. 114–328, §809(d)(1), inserted heading.
Subsec. (g). Pub. L. 114–328, §809(d)(2), added subsec. (g).
2011—Subsec. (a)(2)(D)(i)(II), (III). Pub. L. 112–81, §815(a)(1)(A), added subcl. (II) and redesignated former subcl. (II) as (III).
Subsec. (a)(2)(E). Pub. L. 112–81, §815(a)(1)(B), substituted ". The United States shall have government purpose rights in such technical data, except in any case in which the Secretary of Defense determines, on the basis of criteria established in such regulations, that negotiation of different rights in such technical data would be in the best interest of the United States. The establishment of any such negotiated rights shall" for "and shall be based upon negotiations between the United States and the contractor, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiations would not be practicable. The establishment of such rights shall".
Subsec. (a)(2)(F)(i). Pub. L. 111–383, §824(b)(1), added subcl. (I) and redesignated former subcls. (I) and (II) as (II) and (III), respectively.
Subsec. (a)(3). Pub. L. 112–81, §815(a)(1)(C), substituted "for the purposes of the definitions under this paragraph" for "for the purposes of paragraph (2)(B), but shall be considered to be Federal funds for the purposes of paragraph (2)(A)".
Pub. L. 111–383, §824(b)(2), substituted "for the purposes of paragraph (2)(B), but shall be considered to be Federal funds for the purposes of paragraph (2)(A)" for "for the purposes of definitions under this paragraph".
Subsec. (b)(9), (10). Pub. L. 112–81, §815(a)(2), added pars. (9) and (10).
Subsec. (c)(2). Pub. L. 112–81, §802(b)(1), substituted "subsection (a)," for "subsection (a)—", struck out "(A)" before "allowing", and struck out subpar. (B) which read as follows: "allowing a covered litigation support contractor access to and use of any technical, proprietary, or confidential data delivered under a contract for the sole purpose of providing litigation support to the Government in the form of administrative, technical, or professional services during or in anticipation of litigation; or".
Pub. L. 111–383, §801(a)(1), substituted "subsection (a)—" for "subsection (a),", inserted "(A)" before "allowing", and added subpar. (B).
Subsec. (g). Pub. L. 112–81, §802(b)(2), struck out subsec. (g) which defined "covered litigation support contractor" for purpose of this section.
Pub. L. 111–383, §801(a)(2), added subsec. (g).
2009—Subsec. (c)(2), (3). Pub. L. 111–84, §821(a), added par. (2) and redesignated former par. (2) as (3).
Subsec. (f). Pub. L. 111–84, §821(b), added subsec. (f).
2006—Subsec. (e). Pub. L. 109–364 added subsec. (e).
2003—Subsec. (b)(7) to (9). Pub. L. 108–136 redesignated pars. (8) and (9) as (7) and (8), respectively, and struck out former par. (7) which read as follows: "requiring the contractor to furnish written assurance at the time the technical data is delivered or is made available that the technical data is complete and accurate and satisfies the requirements of the contract concerning technical data;".
1994—Subsec. (b)(1). Pub. L. 103–355 inserted before semicolon at end "and providing that, in the case of a contract for a commercial item, the item shall be presumed to be developed at private expense unless shown otherwise in accordance with section 2321(f)".
1989—Subsec. (a)(4). Pub. L. 101–189 struck out par. (4) which provided that for purposes of this subsection, the term "Federal Acquisition Regulation" means the single system of Government-wide procurement regulations as defined in section 4(4) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(4)).
1987—Subsec. (a)(1). Pub. L. 100–180, §808(a)(1), inserted at end "Such regulations also may not impair the right of a contractor or subcontractor to receive from a third party a fee or royalty for the use of technical data pertaining to an item or process developed exclusively at private expense by the contractor or subcontractor, except as otherwise specifically provided by law."
Subsec. (a)(2)(A). Pub. L. 100–26, §7(a)(4)(A), inserted "(other than an item or process developed under a contract or subcontract to which regulations under section 9(j)(2) of the Small Business Act (15 U.S.C. 638(j)(2)) apply)" after "Federal funds".
Subsec. (a)(2)(E). Pub. L. 100–180, §808(a)(2), in introductory provisions, substituted "established" for "agreed upon", struck out comma after "negotiations)" and inserted in lieu "and shall be based upon negotiations between the United States and the contractor, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiations would not be practicable. The establishment of such rights shall be", and added cl. (iv).
Subsec. (a)(2)(F). Pub. L. 100–180, §808(a)(3), amended subpar. (F) generally. Prior to amendment, subpar. (F) read as follows: "A contractor or subcontractor (or a prospective contractor or subcontractor) may not be required, as a condition of being responsive to a solicitation or as a condition for the award of a contract, to sell or otherwise relinquish to the United States any rights in technical data except—
"(i) rights in technical data described in subparagraph (C); or
"(ii) under the conditions described in subparagraph (D)."
Subsec. (a)(2)(G)(i). Pub. L. 100–180, §808(a)(4)(A), substituted "not otherwise provided under subparagraph (C) or (D)," for "pertaining to an item or process developed by such contractor or subcontractor exclusively at private expense" and struck out "or" at end.
Subsec. (a)(2)(G)(ii). Pub. L. 100–180, §808(a)(4)(B), substituted "this section" for "such regulations" and "; or" for period at end.
Pub. L. 100–26, §7(a)(4)(B), substituted "in technical data otherwise accorded to the United States under such regulations" for "of the United States in technical data pertaining to an item or process developed entirely or in part with Federal funds".
Subsec. (a)(2)(G)(iii). Pub. L. 100–180, §808(a)(4)(C), added cl. (iii).
Subsec. (a)(3). Pub. L. 100–180, §808(a)(5), substituted ", 'exclusively with Federal funds', and 'exclusively at private expense' " for "and 'private expense' " and inserted at end "In defining such terms, the Secretary shall specify the manner in which indirect costs shall be treated and shall specify that amounts spent for independent research and development and bid and proposal costs shall not be considered to be Federal funds for the purposes of definitions under this paragraph."
Subsec. (c). Pub. L. 100–180, §808(b), substituted "from—" for "from", designated existing provisions beginning with "prescribing standards" as par. (1), and added par. (2).
1986—Subsec. (a). Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 amended generally subsec. (a) substantially identically, substituting provision that regulations to define the legitimate interest of the United States and of a contractor or subcontractor in technical data be included in regulations of the Department of Defense prescribed as part of the Federal Acquisition Regulation for provision that such regulations define the legitimate proprietary interest of the United States and a contractor and be part of the single system of Government-wide procurement regulations, detailed what such regulations must contain if the item or process is developed exclusively with Federal funds, exclusively with private funds, or partly with Federal funds and partly with private funds, inserted provision relating to relinquishment of rights in data to the United States, directed the Secretary of Defense to define "developed" and "private expense", and defined "Federal Acquisition Regulation". Text reflects amendment by Pub. L. 99–661, which was executed last.
1985—Subsec. (a)(1). Pub. L. 99–145 substituted "the item or process to which the technical data pertains" for "the technical data".
1984—Subsec. (a). Pub. L. 98–577 substituted "in regulations of the Department of Defense prescribed as part" for "in regulations prescribed as part" in text preceding par. (1).
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.
Pub. L. 112–81, div. A, title VIII, §815(c), Dec. 31, 2011, 125 Stat. 1493, provided that:
"(1)
"(2)
Pub. L. 111–383, div. A, title VIII, §801(b), Jan. 7, 2011, 124 Stat. 4254, provided that: "The amendments made by subsection (a) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 7, 2011]."
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 100–180, div. A, title VIII, §808(c), Dec. 4, 1987, 101 Stat. 1130, provided that: "The amendments made by this section [amending this section] shall take effect on the earlier of—
"(1) the last day of the 120-day period beginning on the date of the enactment of this Act [Dec. 4, 1987]; or
"(2) the date on which regulations are prescribed and made effective to implement such amendments."
Pub. L. 99–500, §101(c) [title X, §953(e)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–172, Pub. L. 99–591, §101(c) [title X, §953(e)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–172, and Pub. L. 99–661, div. A, title IX, formerly title IV, §953(e), Nov. 14, 1986, 100 Stat. 3952, 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 section 2321 of this title] shall apply to contracts for which solicitations are issued after the end of the 210-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]."
Section applicable with respect to solicitations issued after the end of the one-year period beginning Oct. 19, 1984, see section 1216(c)(2) of Pub. L. 98–525, set out as a note under section 2319 of this title.
Pub. L. 109–364, div. A, title VIII, §802(c), Oct. 17, 2006, 120 Stat. 2313, provided that: "Not later than 180 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall revise regulations under section 2320 of title 10, United States Code, to implement subsection (e) of such section (as added by this section), including incorporating policy changes developed under such subsection into Department of Defense Directive 5000.1 and Department of Defense Instruction 5000.2."
Pub. L. 99–500, §101(c) [title X, §953(d)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–172, Pub. L. 99–591, §101(c) [title X, §953(d)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–172, and Pub. L. 99–661, div. A, title IX, formerly title IV, §953(d), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, required that proposed regulations under subsec. (a)(1) of this section be published in Federal Register for comment not later than 90 days after Oct. 18, 1986, and that proposed final regulations be published in Federal Register not later than 180 days after Oct. 18, 1986.
Pub. L. 111–383, div. A, title VIII, §824(a), Jan. 7, 2011, 124 Stat. 4269, provided that: "Not later than 180 days after the date of the enactment of this Act [Jan. 7, 2011], the Secretary of Defense shall review guidance issued by the military departments on the implementation of section 2320(e) of title 10, United States Code, to ensure that such guidance is consistent with the guidance issued by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the requirements of this section [amending this section and section 2321 of this title]. Such guidance shall be designed to ensure that the United States—
"(1) preserves the option of competition for contracts for the production and sustainment of systems or subsystems that are developed exclusively with Federal funds as defined in accordance with the amendments made by this section; and
"(2) is not required to pay more than once for the same technical data."
Pub. L. 110–417, [div. A], title VIII, §822, Oct. 14, 2008, 122 Stat. 4532, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(13), Jan. 7, 2011, 124 Stat. 4375, provided that:
"(a)
"(1) establish criteria for defining the legitimate interests of the United States and the party concerned in technical data pertaining to an item or process to be developed under the agreement;
"(2) require that specific rights in technical data be established during agreement negotiations and be based upon negotiations between the United States and the potential party to the agreement, except in any case in which the Secretary of Defense determines, on the basis of criteria established in such policy guidance, that the establishment of rights during or through agreement negotiations would not be practicable; and
"(3) require the program manager for a major weapon system or an item of personnel protective equipment that is to be developed using a non-FAR agreement to assess the long-term technical data needs of such system or item.
"(b)
"(c)
"(1) The term 'non-FAR agreement' means an agreement that is not subject to laws pursuant to which the Federal Acquisition Regulation is prescribed, including—
"(A) a transaction authorized under section 2371 of title 10, United States Code; and
"(B) a cooperative research and development agreement.
"(2) The term 'party', with respect to a non-FAR agreement, means a non-Federal entity and includes any of the following:
"(A) A contractor and its subcontractors (at any tier).
"(B) A joint venture.
"(C) A consortium.
"(d)
"(1) a description of all relevant guidance or policies issued;
"(2) a description of the extent to which program managers have received training to better assess the long-term technical data needs of major weapon systems and subsystems; and
"(3) a description of one or more examples, if any, where a priced contract option has been used on major weapon systems for the future delivery of technical data and one or more examples, if any, where all relevant technical data were acquired upon contract award."
Pub. L. 102–190, div. A, title VIII, §807, Dec. 5, 1991, 105 Stat. 1421, as amended by Pub. L. 102–484, div. A, title VIII, §814, Oct. 23, 1992, 106 Stat. 2454; Pub. L. 105–85, div. A, title X, §1073(d)(3), Nov. 18, 1997, 111 Stat. 1905, provided that not later than Sept. 15, 1992, the Secretary of Defense was to prescribe final regulations required by subsec. (a) of this section that supersede the interim regulations prescribed before Dec. 5, 1991, for the purposes of this section and contained various provisions relating to a government-industry advisory committee, reports to Congress, publication of the regulations, and application of the regulations.
Pub. L. 102–190, div. A, title VIII, §808, Dec. 5, 1991, 105 Stat. 1423, required Secretary of Defense to prescribe regulations ensuring that any Department of Defense employee or member of the armed forces with an appropriate security clearance who is engaged in oversight of an acquisition program maintains control of the employee's or member's work product, provided that procedures for protecting unauthorized disclosure of classified information by contractors do not require such an employee or member to relinquish control of his or her work product to any such contractor, required implementing regulations not later than 120 days after Dec. 5, 1991, and provided that this section would cease to be effective on Sept. 30, 1992.
(a)
(b)
(c)
(2) The review of an asserted use or release restriction under paragraph (1) shall be conducted before the end of the three-year period beginning on the later of—
(A) the date on which final payment is made on the contract under which the technical data is required to be delivered; or
(B) the date on which the technical data is delivered under the contract.
(d)
(A) reasonable grounds exist to question the current validity of the asserted restriction; and
(B) the continued adherence by the United States to the asserted restriction would make it impracticable to procure the item to which the technical data pertain competitively at a later time.
(2)(A) A challenge to a use or release restriction asserted by the contractor in accordance with applicable regulations may not be made under paragraph (1) after the end of the six-year period described in subparagraph (B) unless the technical data involved—
(i) are publicly available;
(ii) have been furnished to the United States without restriction;
(iii) have been otherwise made available without restriction; or
(iv) are the subject of a fraudulently asserted use or release restriction.
(B) The six-year period referred to in subparagraph (A) is the six-year period beginning on the later of—
(i) the date on which final payment is made on the contract under which the technical data are required to be delivered; or
(ii) the date on which the technical data are delivered under the contract.
(3) If the Secretary challenges an asserted use or release restriction under paragraph (1), the Secretary shall provide written notice of the challenge to the contractor or subcontractor asserting the restriction. Any such notice shall—
(A) state the specific grounds for challenging the asserted restriction;
(B) require a response within 60 days justifying the current validity of the asserted restriction; and
(C) state that evidence of a justification described in paragraph (4) may be submitted.
(4) It is a justification of an asserted use or release restriction challenged under paragraph (1) that, within the three-year period preceding the challenge to the restriction, the Department of Defense validated a restriction identical to the asserted restriction if—
(A) such validation occurred after a challenge to the validated restriction under this subsection; and
(B) the validated restriction was asserted by the same contractor or subcontractor (or a licensee of such contractor or subcontractor).
(e)
(f)
(g)
(2) After review of any justification submitted in response to the notice provided pursuant to subsection (d)(3), the contracting officer shall, within 60 days of receipt of any justification submitted, issue a decision or notify the party asserting the restriction of the time within which a decision will be issued.
(h)
(i)
(A) the restriction shall be cancelled; and
(B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor asserting the restriction shall be liable to the United States for payment of the cost to the United States of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the United States in challenging the asserted restriction, unless special circumstances would make such payment unjust.
(2) If, upon final disposition, the contracting officer's challenge to the use or release restriction is not sustained—
(A) the United States shall continue to be bound by the restriction; and
(B) the United States shall be liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the United States is found not to be made in good faith.
(j)
(1) to use such technical data; or
(2) to release or disclose such technical data to persons outside the Government or permit the use of such technical data by persons outside the Government.
(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2597; amended Pub. L. 99–500 §101(c) [title X, §953(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–171, and Pub. L. 99–591, §101(c) [title X, §953(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–171; Pub. L. 99–661, div. A, title IX, formerly title IV, §953(b), Nov. 14, 1986, 100 Stat. 3951, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, Pub. L. 100–26, §7(a)(5), Apr. 21, 1987, 101 Stat. 276; Pub. L. 100–180, div. A, title XII, §1231(6), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 103–35, title II, §201(g)(4), May 31, 1993, 107 Stat. 100; Pub. L. 103–355, title VIII, §8106(b), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 109–364, div. A, title VIII, §802(b), Oct. 17, 2006, 120 Stat. 2313; Pub. L. 110–181, div. A, title VIII, §815(a)(2), Jan. 28, 2008, 122 Stat. 223; Pub. L. 111–350, §5(b)(18), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 111–383, div. A, title VIII, §824(c), Jan. 7, 2011, 124 Stat. 4269; Pub. L. 112–81, div. A, title VIII, §815(b), Dec. 31, 2011, 125 Stat. 1492; Pub. L. 113–291, div. A, title X, §1071(a)(5), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §813(a), Nov. 25, 2015, 129 Stat. 891; Pub. L. 115–232, div. A, title VIII, §§836(c)(8), 865, 866(a), Aug. 13, 2018, 132 Stat. 1866, 1901.)
Pub. L. 115–232, div. A, title VIII, §836(c)(8), (h), Aug. 13, 2018, 132 Stat. 1866, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, subsection (f) of this section is amended as follows:
(1) in paragraph (1), by striking "commercial items" and inserting "commercial products" and by striking "the item" both places it appears and inserting "commercial products"; and
(2) in paragraph (2)(A), in clauses (i) and (ii), by striking "commercial item" and inserting "commercial product".
Pub. L. 115–232, div. A, title VIII, §866(a), (c), Aug. 13, 2018, 132 Stat. 1901, provided that, effective on the date of publication of the interim or final rule (whichever is earlier) revising the Defense Federal Acquisition Regulation Supplement, subsection (i) of this section is amended as follows:
(1) in heading, by inserting "Prior to and" after "Rights and Liability";
(2) by redesignating paragraphs (1) and (2) as paragraphs (2) and (3), respectively; and
(3) by inserting before paragraph (2), as so redesignated, the following new paragraph:
(1) Upon filing of a suit or appeal under the contract dispute statute by a contractor or subcontractor in an agency Board of Contract Appeals or United States Claims Court related to a decision made by a contracting officer under subsection (g), the Secretary of Defense, or a Secretary of a military department for programs for which milestone decision authority has been delegated, on a nondelegable basis, may, following notice to the contractor or subcontractor, authorize use of the technical data in dispute if the Secretary determines in writing that compelling mission readiness requirements will not permit awaiting the final decision by the agency Board of Contract Appeals or the United States Claims Court.
See 2018 Amendment notes below.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Another section 2321 of this title was contained in chapter 138 and was renumbered section 2341 of this title.
2018—Subsec. (f). Pub. L. 115–232, §865, struck out par. (1) designation, substituted "In" for "Except as provided in paragraph (2), in", and struck out par. (2) which related to a challenge to a use or release restriction regarding technical data for a major weapon system, subsystem, or component developed exclusively at private expense.
Pub. L. 115–232, §836(c)(8)(B), which directed the amendment of par. (2)(A) by substituting "commercial product" for "commercial item" in cls. (i) and (ii), could not be executed because of the intervening amendment by Pub. L. 115–232, §865, which struck out par. (2). See above.
Pub. L. 115–232, §836(c)(8)(A), which directed the amendment of par. (1) by substituting "commercial products" for "commercial items" and, in two places, "commercial products" for "the item", was executed to subsec. (f) to reflect the probable intent of Congress and the intervening amendment by Pub. L. 115–232, §865, which struck out the par. (1) designation. See above.
Subsec. (i). Pub. L. 115–232, §866(a), inserted "Prior to and" after "Rights and Liability" in heading, added par. (1), and redesignated former pars. (1) and (2) as (2) and (3), respectively.
2015—Subsec. (f)(2). Pub. L. 114–92 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "In the case of a challenge to a use or release restriction that is asserted with respect to technical data of a contractor or subcontractor (other than technical data for a commercially available off-the-shelf item as defined in section 104 of title 41) for a major system or a subsystem or component thereof on the basis that the major system, subsystem or component was developed exclusively at private expense, the challenge to the use or release restriction shall be sustained unless information provided by the contractor or subcontractor demonstrates that the item was developed exclusively at private expense."
2014—Subsec. (f)(2). Pub. L. 113–291 substituted "section 104 of title 41" for "section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))".
2011—Subsec. (d)(2)(A). Pub. L. 112–81, §815(b)(1)(A), substituted "A challenge to a use or release restriction asserted by the contractor in accordance with applicable regulations may not be made under paragraph (1) after the end of the six-year period" for "Except as provided in subparagraph (C), a challenge to an asserted use or release restriction may not be made under paragraph (1) after the end of the three-year period" in introductory provisions.
Pub. L. 111–383, §824(c)(1), substituted "Except as provided in subparagraph (C), a challenge" for "A challenge" in introductory provisions.
Subsec. (d)(2)(A)(iv). Pub. L. 112–81, §815(b)(1)(B)–(D), added cl. (iv).
Subsec. (d)(2)(B). Pub. L. 112–81, §815(b)(2), substituted "six-year period" for "three-year period" in two places in introductory provisions.
Subsec. (d)(2)(C). Pub. L. 112–81, §815(b)(3), struck out subpar. (C) which read as follows: "The limitation in this paragraph shall not apply to a case in which the Secretary finds that reasonable grounds exist to believe that a contractor or subcontractor has erroneously asserted a use or release restriction with regard to technical data described in section 2320(a)(2)(A) of this title."
Pub. L. 111–383, §824(c)(2), added subpar. (C).
Subsec. (h). Pub. L. 111–350 substituted "chapter 71 of title 41" for "the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.)".
2008—Subsec. (f)(2). Pub. L. 110–181 substituted "(other than technical data for a commercially available off-the-shelf item as defined in section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c)))" for "(whether or not under a contract for commercial items)".
2006—Subsec. (f). Pub. L. 109–364 substituted "Expense" for "Expense for Commercial Items Contracts" in heading, designated existing provisions as par. (1), substituted "Except as provided in paragraph (2), in" for "In", and added par. (2).
1994—Subsecs. (f) to (j). Pub. L. 103–355 added subsec. (f) and redesignated former subsecs. (f) to (i) as (g) to (j), respectively.
1993—Subsec. (d)(1)(B). Pub. L. 103–35 substituted "adherence" for "adherance".
1987—Subsec. (a). Pub. L. 100–26, §7(a)(5)(A)(ii), added subsec. (a) and struck out former subsec. (a) which read as follows: "A contract for supplies or services entered into by the Department of Defense which provides for the delivery of technical data shall provide that a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction asserted by the contractor or subcontractor on the right of the United States to use such technical data."
Subsec. (b). Pub. L. 100–26, §7(a)(5)(A)(ii), added subsec. (b) and struck out former subsec. (b) which read as follows:
"(1) The Secretary of Defense shall ensure that there is a thorough review of the appropriateness of any restriction on the right of the United States to release or disclose technical data delivered under a contract to persons outside the Government, or to permit the use of such technical data by such persons. Such review shall be conducted before the end of the three-year period beginning on the date on which final payment is made on a contract under which technical data is required to be delivered, or the date on which the technical data is delivered under such contract, whichever is later.
"(2)(A) If the Secretary determines, at any time before the end of the three-year period beginning on the date on which final payment is made on a contract under which technical data is required to be delivered, or the date on which the technical data is delivered under such contract, whichever is later, that a challenge to a restriction is warranted, the Secretary shall provide written notice to the contractor or subcontractor asserting the restriction. Such a determination shall be based on a finding by the Secretary that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the United States would make it impracticable to procure the item competitively at a later time. Such notice shall—
"(i) state the specific grounds for challenging the asserted restriction;
"(ii) require a response within 60 days justifying the current validity of the asserted restriction; and
"(iii) state that evidence of a validation by the Department of Defense of a restriction identical to the asserted restriction within the three-year period preceding the challenge shall serve as justification for the asserted restriction if—
"(I) the validation occurred after a review of the validated restriction under this subsection; and
"(II) the validated restriction was asserted by the same contractor or subcontractor (or any licensee of such contractor or subcontractor) to which such notice is being provided.
"(B) Notwithstanding subparagraph (A), the United States may challenge a restriction on the release, disclosure, or use of technical data delivered under a contract at any time if such technical data—
"(i) is publicly available;
"(ii) has been furnished to the United States without restriction; or
"(iii) has been otherwise made available without restriction."
Subsec. (c). Pub. L. 100–26, §7(a)(5)(A)(ii), added subsec. (c). Former subsec. (c) redesignated (e).
Subsec. (d). Pub. L. 100–26, §7(a)(5)(A)(ii), added subsec. (d). Former subsec. (d) redesignated (f).
Subsec. (d)(4)(A). Pub. L. 99–180, §1231(6)(A), substituted "subsection" for "paragraph".
Subsec. (e). Pub. L. 100–26, §7(a)(5)(A)(i), (B), redesignated former subsec. (c) as (e), inserted heading, and substituted "If a contractor or subcontractor asserting a use or release restriction" for "If a contractor or subcontractor asserting a restriction subject to this section". Former subsec. (e) redesignated (g).
Subsec. (f). Pub. L. 100–26, §7(a)(5)(A)(i), (C), redesignated former subsec. (d) as (f), inserted heading, and substituted "subsection (d)(3)" for "subsection (b)" in two places. Former subsec. (f) redesignated (h).
Subsec. (g). Pub. L. 100–26, §7(a)(5)(A)(i), (D), redesignated former subsec. (e) as (g) and inserted heading.
Subsec. (h). Pub. L. 100–26, §7(a)(5)(A)(i), (E)(i), redesignated former subsec. (f) as (h) and inserted heading.
Subsec. (h)(1). Pub. L. 100–26, §7(a)(5)(E)(ii)–(iv), substituted "the use or release restriction" for "the restriction on the right of the United States to use such technical data" in introductory provisions, struck out "on the right of the United States to use the technical data" after "the restriction" in subpar. (A), and substituted "asserting the restriction" for ", as appropriate," in subpar. (B).
Subsec. (h)(2). Pub. L. 100–26, §7(a)(5)(E)(v), substituted "the use or release restriction" for "the restriction on the right of the United States to use such technical data" in introductory provisions.
Subsec. (i). Pub. L. 100–180, §1231(6)(B), inserted "or subcontractor" in introductory provisions.
Pub. L. 100–26, §7(a)(5)(F), added subsec. (i).
1986—Subsecs. (a), (b). Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 amended generally subsecs. (a) and (b) identically. Prior to amendment, subsecs. (a) and (b) read as follows:
"(a) A contract for supplies or services entered into by the Department of Defense which provides for the delivery of technical data shall provide that—
"(1) a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction asserted by the contractor or subcontractor on the right of the United States to use such technical data; and
"(2) the contracting officer may review the validity of any restriction asserted by the contractor or by a subcontractor under the contract on the right of the United States to use technical data furnished to the United States under the contract if the contracting officer determines that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the United States would make it impracticable to procure the item competitively at a later time.
"(b) If after such review the contracting officer determines that a challenge to the asserted restriction is warranted, the contracting officer shall provide written notice to the contractor or subcontractor asserting the restriction. Such notice shall—
"(1) state the grounds for challenging the asserted restriction; and
"(2) require a response within 60 days justifying the current validity of the asserted restriction."
Amendment by section 836(c)(8) of Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
Pub. L. 115–232, div. A, title VIII, §866(c), Aug. 13, 2018, 132 Stat. 1901, provided that: "The amendments made by subsection (a) [amending this section] and the revision required by subsection (b) [see note below] shall become effective on the date of publication of the interim or final rule (whichever is earlier) required by subsection (b) and shall apply to solicitations issued by Department of Defense contracting activities after that date unless the senior procurement executive of the agency concerned grants a waiver on a case-by-case basis."
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 100–26, §12(d)(1), Apr. 21, 1987, 101 Stat. 289, provided that: "The amendments to section 2321 of title 10, United States Code, made by section 7(a)(5) shall apply to contracts for which solicitations are issued after the end of the 210-day period beginning on October 18, 1986."
Amendment by Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 applicable to contracts for which solicitations are issued after end of 210-day period beginning Oct. 18, 1986, see section 101(c) of Pub. L. 99–500 and Pub. L. 99–591, and section 953(e) of Pub. L. 99–661, set out as a note under section 2320 of this title.
Section applicable with respect to solicitations issued after the end of the one-year period beginning Oct. 19, 1984, see section 1216(c)(2) of Pub. L. 98–525, set out as a note under section 2319 of this title.
Pub. L. 115–232, div. A, title VIII, §866(b), Aug. 13, 2018, 132 Stat. 1901, provided that: "Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement, by interim or final rule, to implement the amendments made by subsection (a) [amending this section]."
Pub. L. 115–232, div. A, title VIII, §866(d), Aug. 13, 2018, 132 Stat. 1901, provided that: "The Secretary of Defense shall develop policies on the negotiation of technical data rights for noncommercial software that reflects the Department of Defense's needs for technical data rights in the event of a protest or replacement of incumbent contractor to meet defense requirements in the most cost effective manner."
(a)
(1) to enable coordination and consistency across the military departments and the Department of Defense in strategies for acquiring or licensing intellectual property and communicating with industry;
(2) to ensure that program managers are aware of the rights afforded the Federal Government and contractors in intellectual property and that program managers fully consider and use all available techniques and best practices for acquiring or licensing intellectual property early in the acquisition process; and
(3) to encourage customized intellectual property strategies for each system based on, at a minimum, the unique characteristics of the system and its components, the product support strategy for the system, the organic industrial base strategy of the military department concerned, and the commercial market.
(b)
(2) The Under Secretary shall establish an appropriate leadership structure and office within which the cadre shall be managed, and shall determine the appropriate official to whom members of the cadre shall report.
(3) The cadre of experts shall be assigned to a program office or an acquisition command within a military department to advise, assist, and provide resources to a program manager or program executive officer on intellectual property matters at various stages of the life cycle of a system. In performing such duties, the experts shall—
(A) interpret and provide counsel on laws, regulations, and policies relating to intellectual property;
(B) advise and assist in the development of an acquisition strategy, product support strategy, and intellectual property strategy for a system;
(C) conduct or assist with financial analysis and valuation of intellectual property;
(D) assist in the drafting of a solicitation, contract, or other transaction;
(E) interact with or assist in interactions with contractors, including communications and negotiations with contractors on solicitations and awards; and
(F) conduct or assist with mediation if technical data delivered pursuant to a contract is incomplete or does not comply with the terms of agreements.
(4)(A) In order to achieve the purpose set forth in paragraph (1), the Under Secretary shall ensure the cadre has the appropriate number of staff and such staff possesses the necessary skills, knowledge, and experience to carry out the duties under paragraph (2), including in relevant areas of law, contracting, acquisition, logistics, engineering, financial analysis, and valuation. The Under Secretary, in coordination with the Defense Acquisition University and in consultation with academia and industry, shall develop a career path, including development opportunities, exchanges, talent management programs, and training, for the cadre. The Under Secretary may use existing authorities to staff the cadre, including those in subparagraphs (B), (C), (D), and (F).
(B) Civilian personnel from within the Office of the Secretary of Defense, Joint Staff, military departments, Defense Agencies, and combatant commands may be assigned to serve as members of the cadre, upon request of the Director.
(C) The Under Secretary may use the authorities for highly qualified experts under section 9903 of title 5, to hire experts as members of the cadre who are skilled professionals in intellectual property and related matters.
(D) The Under Secretary may enter into a contract with a private-sector entity for specialized expertise to support the cadre. Such entity may be considered a covered Government support contractor, as defined in section 2320 of this title.
(E) In establishing the cadre, the Under Secretary shall give preference to civilian employees of the Department of Defense, rather than members of the armed forces, to maintain continuity in the cadre.
(F) The Under Secretary is authorized to use amounts in the Defense Acquisition Workforce Development Fund for the purpose of recruitment, training, and retention of the cadre, including paying salaries of newly hired members of the cadre for up to three years.
(Added Pub. L. 115–91, div. A, title VIII, §802(a)(1), Dec. 12, 2017, 131 Stat. 1450.)
A prior section 2322, added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2598; amended Pub. L. 100–26, §7(a)(6), Apr. 21, 1987, 101 Stat. 278; Pub. L. 100–180, div. A, title XII, §1231(7), Dec. 4, 1987, 101 Stat. 1160, limited small business set-asides under the Foreign Military Sales Program and provided that the section expired Jan. 17, 1987, prior to repeal by Pub. L. 102–484, div. A, title X, §1052(25)(A), Oct. 23, 1992, 106 Stat. 2500.
Another prior section 2322 was contained in chapter 138 and was renumbered section 2342 of this title.
(a)
(1) to reproduce, build, or recompile the software from original source code and required libraries;
(2) to conduct required computer software testing; and
(3) to deploy working computer software system binary files on relevant system hardware.
(b)
(1) include computer software delivered in a useable, digital format;
(2) not rely on external or additional software code or data, unless such software code or data is included in the items to be delivered; and
(3) in the case of negotiated terms that do not allow for the inclusion of dependent software code or data, sufficient documentation to support maintenance and understanding of interfaces and software revision history.
(Added Pub. L. 115–91, div. A, title VIII, §871(a)(1), Dec. 12, 2017, 131 Stat. 1496.)
Pub. L. 115–91, div. A, title VIII, §871(b), Dec. 12, 2017, 131 Stat. 1497, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall issue updated guidance to implement section 2322a of title 10, United States Code, as added by subsection (a)."
Section, added and amended Pub. L. 102–484, div. A, title VIII, §§801(a)(1), (b)–(f), 802, Oct. 23, 1992, 106 Stat. 2442–2444, 2446; Pub. L. 103–35, title II, §202(a)(6), May 31, 1993, 107 Stat. 101; Pub. L. 103–160, div. A, title VIII, §811(a)–(c), (e), Nov. 30, 1993, 107 Stat. 1702; Pub. L. 103–355, title VII, §7105, Oct. 13, 1994, 108 Stat. 3369; Pub. L. 104–106, div. D, title XLIII, §4321(b)(8), Feb. 10, 1996, 110 Stat. 672; Pub. L. 105–135, title VI, §604(a), Dec. 2, 1997, 111 Stat. 2632; Pub. L. 105–261, div. A, title VIII, §801, Oct. 17, 1998, 112 Stat. 2080; Pub. L. 106–65, div. A, title VIII, §808, Oct. 5, 1999, 113 Stat. 705; Pub. L. 107–107, div. A, title X, §1048(a)(17), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107–314, div. A, title VIII, §816, Dec. 2, 2002, 116 Stat. 2610; Pub. L. 108–136, div. A, title X, §1031(a)(15), Nov. 24, 2003, 117 Stat. 1597; Pub. L. 109–163, div. A, title VIII, §842, Jan. 6, 2006, 119 Stat. 3389; Pub. L. 109–364, div. A, title VIII, §858, Oct. 17, 2006, 120 Stat. 2349; Pub. L. 110–181, div. A, title VIII, §891, Jan. 28, 2008, 122 Stat. 270; Pub. L. 111–383, div. A, title X, §1075(b)(31), Jan. 7, 2011, 124 Stat. 4370; Pub. L. 115–91, div. A, title XVII, §1701(a)(4)(B), Dec. 12, 2017, 131 Stat. 1796, related to contract goals for small disadvantaged businesses and certain institutions of higher education.
A prior section 2323, added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2598; amended Pub. L. 99–500, §101(c) [title X, §926(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, and Pub. L. 99–591, §101(c) [title X, §926(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153; Pub. L. 99–661, div. A, title IX, formerly title IV, §926(a)(1), Nov. 14, 1986, 100 Stat. 3933, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, related to commercial pricing for spare or repair parts, prior to repeal by Pub. L. 101–510, div. A, title VIII, §804(a), Nov. 5, 1990, 104 Stat. 1591.
(a)
(1) work performed in connection with that Department of Defense contract, and work performed in connection with any subcontract awarded under that Department of Defense contract, if such work is performed on any Indian lands and meets the requirements of paragraph (1) of subsection (b); or
(2) work performed in connection with that Department of Defense contract, and work performed in connection with any subcontract awarded under that Department of Defense contract, if the performance of such contract or subcontract is undertaken as a joint venture that meets the requirements of paragraph (2) of that subsection.
(b)
(A) not less than 40 percent of the workers directly engaged in the performance of the work are Indians; or
(B) the contractor or subcontractor has an agreement with the tribal government having jurisdiction over such Indian lands that provides goals for training and development of the Indian workforce and Indian management.
(2) A joint venture undertaking to perform a contract or subcontract meets the requirements of this paragraph if—
(A) an Indian tribe or tribally owned corporation owns at least 50 percent of the joint venture;
(B) the activities of the joint venture under the contract or subcontract provide employment opportunities for Indians either directly or through the purchase of products or services for the performance of such contract or subcontract; and
(C) the Indian tribe or tribally owned corporation manages the performance of such contract or subcontract.
(c)
(1) in the case of work performed as described in subsection (a)(1), the value of the work performed; and
(2) in the case of a contract or subcontract undertaken to be performed by a joint venture as described in subsection (a)(2), an amount equal to the amount of the contract or subcontract multiplied by the percentage of the tribe's or tribally owned corporation's ownership interest in the joint venture.
(d)
(e)
(1) The term "Indian lands" has the meaning given that term by section 4(4) of the Indian Gaming Regulatory Act (102 Stat. 2468; 25 U.S.C. 2703(4)).
(2) The term "Indian" has the meaning given that term by section 4(d) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(d)).1
(3) The term "Indian tribe" has the meaning given that term by section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e)).1
(4) The term "tribally owned corporation" means a corporation owned entirely by an Indian tribe.
(Added Pub. L. 102–484, div. A, title VIII, §801(g)(1), Oct. 23, 1992, 106 Stat. 2445; amended Pub. L. 104–201, div. A, title X, §1074(a)(13), Sept. 23, 1996, 110 Stat. 2659; Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(vii), Aug. 13, 2018, 132 Stat. 1847.)
Section 4 of the Indian Self-Determination and Education Assistance Act, referred to in subsec. (e)(2), (3), was classified to section 450b of Title 25, Indians, prior to editorial reclassification as section 5304 of Title 25.
Section, as added by Pub. L. 102–484, consists of text of Pub. L. 101–189, div. A, title VIII, §832, Nov. 29, 1989, 103 Stat. 1508, revised by Pub. L. 102–484 by substituting "section 2323 of this title" for "section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)" in subsec. (a). Section 832 of Pub. L. 101–189, which was formerly set out as a note under section 2301 of this title, was repealed by Pub. L. 102–484, div. A, title VIII, §801(h)(5), Oct. 23, 1992, 106 Stat. 2445.
2018—Subsec. (a). Pub. L. 115–232 struck out "section 2323 of this title and" after "implementation of".
1996—Subsec. (a). Pub. L. 104–201, which directed amendment of subsec. (a) by substituting "section 2323 of this title" for "section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)", could not be executed because the language "section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)" did not appear. See Codification note above.
1 See References in Text note below.
(a)
(b)
(A) the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus
(B) interest (to be computed based on provisions in the Federal Acquisition Regulation) to compensate the United States for the use of any funds which a contractor has been paid in excess of the amount to which the contractor was entitled.
(2) If the head of the agency determines that a proposal for settlement of indirect costs submitted by a contractor includes a cost determined to be unallowable in the case of such contractor before the submission of such proposal, the head of the agency shall assess a penalty against the contractor in an amount equal to two times the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted.
(c)
(1) the contractor withdraws the proposal before the formal initiation of an audit of the proposal by the Federal Government and resubmits a revised proposal;
(2) the amount of unallowable costs subject to the penalty is insignificant; or
(3) the contractor demonstrates, to the contracting officer's satisfaction, that—
(A) it has established appropriate policies and personnel training and an internal control and review system that provide assurances that unallowable costs subject to penalties are precluded from being included in the contractor's proposal for settlement of indirect costs; and
(B) the unallowable costs subject to the penalty were inadvertently incorporated into the proposal.
(d)
(1) shall be considered a final decision for the purposes of section 7103 of title 41; and
(2) is appealable in the manner provided in section 7104(a) of title 41.
(e)
(A) Costs of entertainment, including amusement, diversion, and social activities and any costs directly associated with such costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities).
(B) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress, a State legislature, or a legislative body of a political subdivision of a State.
(C) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the United States where the contractor is found liable or has pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of a false certification).
(D) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance such payments in accordance with applicable provisions of the Federal Acquisition Regulation.
(E) Costs of membership in any social, dining, or country club or organization.
(F) Costs of alcoholic beverages.
(G) Contributions or donations, regardless of the recipient.
(H) Costs of advertising designed to promote the contractor or its products.
(I) Costs of promotional items and memorabilia, including models, gifts, and souvenirs.
(J) Costs for travel by commercial aircraft which exceed the amount of the standard commercial fare.
(K) Costs incurred in making any payment (commonly known as a "golden parachute payment") which is—
(i) in an amount in excess of the normal severance pay paid by the contractor to an employee upon termination of employment; and
(ii) is paid to the employee contingent upon, and following, a change in management control over, or ownership of, the contractor or a substantial portion of the contractor's assets.
(L) Costs of commercial insurance that protects against the costs of the contractor for correction of the contractor's own defects in materials or workmanship.
(M) Costs of severance pay paid by the contractor to foreign nationals employed by the contractor under a service contract performed outside the United States, to the extent that the amount of severance pay paid in any case exceeds the amount paid in the industry involved under the customary or prevailing practice for firms in that industry providing similar services in the United States, as determined under the Federal Acquisition Regulation.
(N) Costs of severance pay paid by the contractor to a foreign national employed by the contractor under a service contract performed in a foreign country if the termination of the employment of the foreign national is the result of the closing of, or the curtailment of activities at, a United States military facility in that country at the request of the government of that country.
(O) Costs incurred by a contractor in connection with any criminal, civil, or administrative proceeding commenced by the United States or a State, to the extent provided in subsection (k).
(P) 1 Costs of compensation of any contractor employee for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds $625,000 adjusted annually for the U.S. Bureau of Labor Statistics Employment Cost Index for total compensation for private industry workers, by occupational and industry group not seasonally adjusted, except that the Secretary of Defense may establish exceptions for positions in the science, technology, engineering, mathematics, medical, and cybersecurity fields and other fields requiring unique areas of expertise upon a determination that such exceptions are needed to ensure that the Department of Defense has continued access to needed skills and capabilities.
(P) 1 Costs of compensation of contractor and subcontractor employees for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds $487,000 per year, adjusted annually to reflect the change in the Employment Cost Index for all workers, as calculated by the Bureau of Labor Statistics, except that the head of an executive agency may establish one or more narrowly targeted exceptions for scientists, engineers, or other specialists upon a determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities.
(Q) Costs incurred by a contractor in connection with a congressional investigation or inquiry into an issue that is the subject matter of a proceeding resulting in a disposition as described in subsection (k)(2).
(2)(A) The Secretary of Defense may provide in a military banking contract that the provisions of paragraphs (1)(M) and (1)(N) shall not apply to costs incurred under the contract by the contractor for payment of mandated foreign national severance pay. The Secretary may include such a provision in a military banking contract only if the Secretary determines, with respect to that contract, that the contractor has taken (or has established plans to take) appropriate actions within the contractor's control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals.
(B) In subparagraph (A):
(i) The term "military banking contract" means a contract between the Secretary and a financial institution under which the financial institution operates a military banking facility outside the United States for use by members of the armed forces stationed or deployed outside the United States and other authorized personnel.
(ii) The term "mandated foreign national severance pay" means severance pay paid by a contractor to a foreign national employee the payment of which by the contractor is required in order to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract.
(C) Subparagraph (A) does not apply to a contract with a financial institution that is owned or controlled by citizens or nationals of a foreign country, as determined by the Secretary of Defense. Such a determination shall be made in accordance with the criteria set out in paragraph (1) of section 4(g) of the Buy American Act (as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988) and the policy guidance referred to in paragraph (2)(A) of that section.
(3)(A) Pursuant to the Federal Acquisition Regulation and subject to the availability of appropriations, the head of an agency awarding a covered contract (other than a contract to which paragraph (2) applies) may waive the application of the provisions of paragraphs (1)(M) and (1)(N) to that contract if the head of the agency determines that—
(i) the application of such provisions to the contract would adversely affect the continuation of a program, project, or activity that provides significant support services for members of the armed forces stationed or deployed outside the United States;
(ii) the contractor has taken (or has established plans to take) appropriate actions within the contractor's control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals; and
(iii) the payment of severance pay is necessary in order to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract or is necessary to comply with a collective bargaining agreement.
(B) The head of an agency shall include in the solicitation for a covered contract a statement indicating—
(i) that a waiver has been granted under subparagraph (A) for the contract; or
(ii) whether the head of the agency will consider granting such a waiver, and, if the agency head will consider granting a waiver, the criteria to be used in granting the waiver.
(C) The head of an agency shall make the final determination regarding whether to grant a waiver under subparagraph (A) with respect to a covered contract before award of the contract.
(4) The provisions of the Federal Acquisition Regulation implementing this section may establish appropriate definitions, exclusions, limitations, and qualifications.
(f)
(A) Air shows.
(B) Membership in civic, community, and professional organizations.
(C) Recruitment.
(D) Employee morale and welfare.
(E) Actions to influence (directly or indirectly) executive branch action on regulatory and contract matters (other than costs incurred in regard to contract proposals pursuant to solicited or unsolicited bids).
(F) Community relations.
(G) Dining facilities.
(H) Professional and consulting services, including legal services.
(I) Compensation.
(J) Selling and marketing.
(K) Travel.
(L) Public relations.
(M) Hotel and meal expenses.
(N) Expense of corporate aircraft.
(O) Company-furnished automobiles.
(P) Advertising.
(Q) Conventions.
(2) The Federal Acquisition Regulation shall require that a contracting officer not resolve any questioned costs until he has obtained—
(A) adequate documentation with respect to such costs; and
(B) the opinion of the contract auditor on the allowability of such costs.
(3) The Federal Acquisition Regulation shall provide that, to the maximum extent practicable, the contract auditor be present at any negotiation or meeting with the contractor regarding a determination of the allowability of indirect costs of the contractor.
(4) The Federal Acquisition Regulation shall require that all categories of costs designated in the report of the contract auditor as questioned with respect to a proposal for settlement be resolved in such a manner that the amount of the individual questioned costs that are paid will be reflected in the settlement.
(g)
(h)
(2) The head of the agency or the Secretary of the military department concerned may, in an exceptional case, waive the requirement for certification under paragraph (1) in the case of any contract if the head of the agency or the Secretary—
(A) determines in such case that it would be in the interest of the United States to waive such certification; and
(B) states in writing the reasons for that determination and makes such determination available to the public.
(i)
(j)
(k)
(2) A disposition referred to in paragraph (1)(B) is any of the following:
(A) In the case of a criminal proceeding, a conviction (including a conviction pursuant to a plea of nolo contendere) by reason of the violation or failure referred to in paragraph (1).
(B) In the case of a civil or administrative proceeding involving an allegation of fraud or similar misconduct, a determination of contractor or subcontractor, or personal services contractor liability on the basis of the violation or failure referred to in paragraph (1).
(C) In the case of any civil or administrative proceeding, the imposition of a monetary penalty or an order to take corrective action under section 2409 of this title by reason of the violation or failure referred to in paragraph (1).
(D) A final decision—
(i) to debar or suspend the contractor or subcontractor, or personal services contractor;
(ii) to rescind or void the contract, subcontract, or personal services contract; or
(iii) to terminate the contract, subcontract, or personal services contract for default;
by reason of the violation or failure referred to in paragraph (1).
(E) A disposition of the proceeding by consent or compromise if such action could have resulted in a disposition described in subparagraph (A), (B), (C), or (D).
(3) In the case of a proceeding referred to in paragraph (1) that is commenced by the United States and is resolved by consent or compromise pursuant to an agreement entered into by a contractor or subcontractor, or personal services contractor and the United States, the costs incurred by the contractor or subcontractor, or personal services contractor in connection with such proceeding that are otherwise not allowable as reimbursable costs under such paragraph may be allowed to the extent specifically provided in such agreement.
(4) In the case of a proceeding referred to in paragraph (1) that is commenced by a State, the head of the agency or Secretary of the military department concerned that awarded the covered contract, subcontract, or personal services contract involved in the proceeding may allow the costs incurred by the contractor or subcontractor, or personal services contractor in connection with such proceeding as reimbursable costs if the agency head or Secretary determines, in accordance with the Federal Acquisition Regulation, that the costs were incurred as a result of (A) a specific term or condition of the contract, subcontract, or personal services contract, or (B) specific written instructions of the agency or military department.
(5)(A) Except as provided in subparagraph (C), costs incurred by a contractor or subcontractor, or personal services contractor in connection with a criminal, civil, or administrative proceeding commenced by the United States or a State in connection with a covered contract, subcontract, or personal services contract may be allowed as reimbursable costs under the contract, subcontract, or personal services contract if such costs are not disallowable under paragraph (1), but only to the extent provided in subparagraph (B).
(B)(i) The amount of the costs allowable under subparagraph (A) in any case may not exceed the amount equal to 80 percent of the amount of the costs incurred, to the extent that such costs are determined to be otherwise allowable and allocable under the Federal Acquisition Regulation.
(ii) Regulations issued for the purpose of clause (i) shall provide for appropriate consideration of the complexity of procurement litigation, generally accepted principles governing the award of legal fees in civil actions involving the United States as a party, and such other factors as may be appropriate.
(C) In the case of a proceeding referred to in subparagraph (A), contractor or subcontractor, or personal services contractor costs otherwise allowable as reimbursable costs under this paragraph are not allowable if (i) such proceeding involves the same contractor or subcontractor, or personal services contractor misconduct alleged as the basis of another criminal, civil, or administrative proceeding, and (ii) the costs of such other proceeding are not allowable under paragraph (1).
(6) In this subsection:
(A) The term "proceeding" includes an investigation.
(B) The term "costs", with respect to a proceeding—
(i) means all costs incurred by a contractor or subcontractor, or personal services contractor, whether before or after the commencement of any such proceeding; and
(ii) includes—
(I) administrative and clerical expenses;
(II) the cost of legal services, including legal services performed by an employee of the contractor or subcontractor, or personal services contractor;
(III) the cost of the services of accountants and consultants retained by the contractor or subcontractor, or personal services contractor; and
(IV) the pay of directors, officers, and employees of the contractor or subcontractor, or personal services contractor for time devoted by such directors, officers, and employees to such proceeding.
(C) The term "penalty" does not include restitution, reimbursement, or compensatory damages.
(l)
(1)(A) The term "covered contract" means a contract for an amount in excess of $500,000 that is entered into by the head of an agency, except that such term does not include a fixed-price contract without cost incentives or any firm fixed-price contract for the purchase of commercial items.
(B) Effective on October 1 of each year that is divisible by five, the amount set forth in subparagraph (A) shall be adjusted in accordance with section 1908 of title 41.
(2) The term "head of the agency" or "agency head" does not include the Secretary of a military department.
(3) The term "agency" means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.
(4) The term "compensation", for a year, means the total amount of wages, salary, bonuses and deferred compensation for the year, whether paid, earned, or otherwise accruing, as recorded in an employer's cost accounting records for the year.
[(5) Repealed. Pub. L. 112–81, div. A, title VIII, §803(b), Dec. 31, 2011, 125 Stat. 1485.]
(6) The term "fiscal year" means a fiscal year established by a contractor for accounting purposes.
(Added Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 682; amended Pub. L. 99–190, §101(b) [title VIII, §8112(a)], Dec. 19, 1985, 99 Stat. 1185, 1223; Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; Pub. L. 100–180, div. A, title VIII, §805(a), Dec. 4, 1987, 101 Stat. 1126; Pub. L. 100–370, §1(f)(2)(A), (3)(A), July 19, 1988, 102 Stat. 846; Pub. L. 100–456, div. A, title III, §322(a), title VIII, §§826(a), 832(a), Sept. 29, 1988, 102 Stat. 1952, 2022, 2023; Pub. L. 100–463, title VIII, §8105(a), Oct. 1, 1988, 102 Stat. 2270–36; Pub. L. 100–526, title I, §106(a)(2), Oct. 24, 1988, 102 Stat. 2625; Pub. L. 100–700, §8(b), Nov. 19, 1988, 102 Stat. 4636; Pub. L. 101–189, div. A, title III, §311(a)(1), title VIII, §853(a)(1), (b)(3), Nov. 29, 1989, 103 Stat. 1411, 1518; Pub. L. 101–510, div. A, title XIII, §1301(10), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 102–190, div. A, title III, §346(a), Dec. 5, 1991, 105 Stat. 1346; Pub. L. 102–484, div. A, title VIII, §818(a), title X, §1052(26), title XIII, §1352(b), Oct. 23, 1992, 106 Stat. 2457, 2500, 2559; Pub. L. 103–355, title II, §2101(a)–(d), Oct. 13, 1994, 108 Stat. 3306–3308; Pub. L. 104–106, div. D, title XLIII, §4321(a)(5), (b)(9), Feb. 10, 1996, 110 Stat. 671, 672; Pub. L. 105–85, div. A, title VIII, §808(a), Nov. 18, 1997, 111 Stat. 1836; Pub. L. 105–261, div. A, title VIII, §804(a), Oct. 17, 1998, 112 Stat. 2083; Pub. L. 111–350, §5(b)(19), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 112–81, div. A, title VIII, §803(a), (b), Dec. 31, 2011, 125 Stat. 1485; Pub. L. 112–239, div. A, title VIII, §827(g), Jan. 2, 2013, 126 Stat. 1836; Pub. L. 113–66, div. A, title VIII, §811(a), Dec. 26, 2013, 127 Stat. 806; Pub. L. 113–67, div. A, title VII, §702(a)(2), Dec. 26, 2013, 127 Stat. 1189; Pub. L. 113–291, div. A, title VIII, §857, Dec. 19, 2014, 128 Stat. 3460; Pub. L. 114–261, §1(b)(1), Dec. 14, 2016, 130 Stat. 1362; Pub. L. 115–91, div. A, title VIII, §811(e), Dec. 12, 2017, 131 Stat. 1460; Pub. L. 115–232, div. A, title VIII, §836(c)(9), Aug. 13, 2018, 132 Stat. 1866.)
Pub. L. 115–232, div. A, title VIII, §836(c)(9), (h), Aug. 13, 2018, 132 Stat. 1866, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, subsection (l)(1)(A) of this section is amended by striking "commercial items" and inserting "commercial products or commercial services". See 2018 Amendment note below.
Subsection (e)(1)(L) is based on section 2399 of this title as enacted by Pub. L. 97–295, §1(29)(A), Oct. 12, 1982, 96 Stat. 1293.
Section 1(f)(2) of the bill would transfer the provisions of existing 10 U.S.C. 2399 to a new subparagraph (L) of 10 U.S.C. 2324(e)(1). The existing section 2399 prohibits the use of appropriated funds to reimburse a defense contractor for insurance against the contractor's costs of correcting defects in the contractor's materials or workmanship. The transfer would add the provision to the list of contractor costs which are not allowable as expenses which may be paid by the Department of Defense under a contract. This allowable cost limitation applies only to contracts for more than $100,000 other than fixed price contracts without cost incentives (see 10 U.S.C. 2324(k)). The committee determined that it is appropriate to treat the subject matter of section 2399 in the same manner as other provisions relating to allowable costs of defense contractors and notes that section 2324, providing a more comprehensive treatment of allowable costs, was enacted after section 2399. The committee recognizes that contracts for amounts less than $100,000 and fixed price contracts without cost incentives are covered by the existing section 2399 and would not be covered by the provision as transferred. The committee determined that in practice the existing section 2399 would not have significant applicability to such contracts and that the transfer is appropriate as part of this bill.
Subsection (j) is based on Pub. L. 99–145, title IX, §933, Nov. 8, 1985, 99 Stat. 700.
Section 4 of the Buy American Act (as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988), referred to in subsec. (e)(2)(C), was section 4 of act Mar. 3, 1933, ch. 212, title III, as added Pub. L. 100–418, title VII, §7002(2), Aug. 23, 1988, 102 Stat. 1545. Section 4, which was classified to section 10b–1 of former Title 41, Public Contracts, was omitted from the Code in view of section 7004 of Pub. L. 100–418 which provided that the amendment by Pub. L. 100–418 which enacted section 4 ceased to be effective on Apr. 30, 1996. Section 4 was subsequently repealed by Pub. L. 111–350, §7(b), Jan. 4, 2011, 124 Stat. 3855, which Act enacted Title 41, Public Contracts.
Another section 2324 of this title was contained in chapter 138 and was renumbered section 2344 of this title.
2018—Subsec. (l)(1)(A). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
2017—Subsec. (l)(1)(B). Pub. L. 115–91 substituted "in accordance with section 1908 of title 41." for "to the equivalent amount in constant fiscal year 1994 dollars. An amount, as so adjusted, that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. In the case of an amount that is evenly divisible by $25,000 but is not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000."
2016—Subsec. (k). Pub. L. 114–261, §1(b)(1)(A), (B), inserted "or subcontractor, or personal services contractor" after "contractor" and ", subcontract, or personal services contract" after "contract" wherever appearing.
Subsec. (k)(1). Pub. L. 114–261, §1(b)(1)(C), in subpar. (A), inserted "or to any other activity described in subparagraphs (A) through (C) of section 2409(a)(1) of this title" after "statute or regulation".
2014—Subsec. (e)(1)(Q). Pub. L. 113–291 added subpar. (Q).
2013—Subsec. (e)(1)(P). Pub. L. 113–66 and Pub. L. 113–67 amended subpar. (P) generally. Prior to amendment, subpar. (P) read as follows: "Costs of compensation of any contractor employee for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds the benchmark compensation amount determined applicable for the fiscal year by the Administrator for Federal Procurement Policy under section 1127 of title 41, except that the Secretary of Defense may establish one or more narrowly targeted exceptions for scientists and engineers upon a determination that such exceptions are needed to ensure that the Department of Defense has continued access to needed skills and capabilities." See Effective Date of 2013 Amendment notes below.
Subsec. (k)(1). Pub. L. 112–239, §827(g)(1), substituted "commenced by the United States, by a State, or by a contractor employee submitting a complaint under section 2409 of this title" for "commenced by the United States or a State".
Subsec. (k)(2)(C). Pub. L. 112–239, §827(g)(2), substituted "the imposition of a monetary penalty or an order to take corrective action under section 2409 of this title" for "the imposition of a monetary penalty".
2011—Subsec. (d)(1). Pub. L. 111–350, §5(b)(19)(A), substituted "section 7103 of title 41" for "section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)".
Subsec. (d)(2). Pub. L. 111–350, §5(b)(19)(B), substituted "section 7104(a) of title 41" for "section 7 of such Act (41 U.S.C. 606)".
Subsec. (e)(1)(P). Pub. L. 112–81, §803(a), substituted "any contractor employee" for "senior executives of contractors" and inserted", except that the Secretary of Defense may establish one or more narrowly targeted exceptions for scientists and engineers upon a determination that such exceptions are needed to ensure that the Department of Defense has continued access to needed skills and capabilities" before period at end.
Pub. L. 111–350, §5(b)(19)(C), substituted "section 1127 of title 41" for "section 39 of the Office of Federal Procurement Policy Act (41 U.S.C. 435)".
Subsec. (e)(2)(C). Pub. L. 111–350, §5(b)(19)(D), substituted "(as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988)" for "(41 U.S.C. 10b–1)".
Subsec. (l)(5). Pub. L. 112–81, §803(b), struck out par. (5) which read as follows: "The term 'senior executives', with respect to a contractor, means the five most highly compensated employees in management positions at each home office and each segment of the contractor."
1998—Subsec. (l)(5). Pub. L. 105–261 amended par. (5) generally. Prior to amendment, par. (5) read as follows: "The term 'senior executive', with respect to a contractor, means—
"(A) the chief executive officer of the contractor or any individual acting in a similar capacity for the contractor;
"(B) the four most highly compensated employees in management positions of the contractor other than the chief executive officer; and
"(C) in the case of a contractor that has components which report directly to the contractor's headquarters, the five most highly compensated employees in management positions at each such component."
1997—Subsec. (e)(1)(P). Pub. L. 105–85, §808(a)(1), added subpar. (P).
Subsec. (l)(4) to (6). Pub. L. 105–85, §808(a)(2), added pars. (4) to (6).
1996—Subsec. (e)(2)(C). Pub. L. 104–106, §4321(b)(9)(A), struck out "awarding the contract" after "Secretary of Defense" and substituted "the Buy American Act (41 U.S.C. 10b–1)" for "title III of the Act of March 3, 1933 (41 U.S.C. 10b–1) (commonly referred to as the Buy American Act)".
Subsec. (f)(2) to (4). Pub. L. 104–106, §4321(a)(5), made technical correction to directory language of Pub. L. 103–355, §2101(a)(6)(B)(ii). See 1994 Amendment notes below.
Subsec. (h)(2). Pub. L. 104–106, §4321(b)(9)(B), inserted "the head of the agency or" after "in the case of any contract if".
1994—Subsec. (a). Pub. L. 103–355, §2101(a), inserted heading and substituted "head of an agency" for "Secretary of Defense", "agency" for "Department of Defense", and "applicable agency supplement" for "the Department of Defense Supplement".
Subsec. (b). Pub. L. 103–355, §2101(a)(2)(A), inserted heading.
Subsec. (b)(1). Pub. L. 103–355, §2101(a)(2)(C), substituted "head of the agency" for "Secretary" in two places in introductory provisions.
Subsec. (b)(1)(B). Pub. L. 103–355, §2101(a)(2)(B), substituted "provisions in the Federal Acquisition Regulation" for "regulations issued by the Secretary".
Subsec. (b)(2). Pub. L. 103–355, §2101(a)(2)(C), substituted "head of the agency" for "Secretary" in two places.
Subsec. (c). Pub. L. 103–355, §2101(a)(3), inserted heading and substituted "The Federal Acquisition Regulation shall provide" for "The Secretary shall prescribe regulations providing".
Subsec. (d). Pub. L. 103–355, §2101(a)(4), inserted heading and substituted "the head of an agency" for "the Secretary" in introductory provisions.
Subsec. (e). Pub. L. 103–355, §2101(a)(5)(A), inserted heading.
Subsec. (e)(1)(B). Pub. L. 103–355, §2101(b), substituted ", a State legislature, or a legislative body of a political subdivision of a State" for "or a State legislature".
Subsec. (e)(1)(D). Pub. L. 103–355, §2101(a)(5)(B), substituted "provisions of the Federal Acquisition Regulation" for "regulations of the Secretary of Defense".
Subsec. (e)(1)(M). Pub. L. 103–355, §2101(a)(5)(C), substituted "the Federal Acquisition Regulation" for "regulations prescribed by the Secretary of Defense".
Subsec. (e)(2)(A). Pub. L. 103–355, §2101(a)(5)(D), substituted "the Secretary of Defense may provide" for "the Secretary may provide".
Subsec. (e)(2)(C). Pub. L. 103–355, §2101(a)(5)(E), substituted "Secretary of Defense" for "head of the agency".
Subsec. (e)(3)(A). Pub. L. 103–355, §2101(a)(5)(F), substituted "the Federal Acquisition Regulation" for "regulations prescribed by the Secretary".
Subsec. (e)(4). Pub. L. 103–355, §2101(a)(5)(G), amended par. (4) generally. Prior to amendment, par. (4) read as follows: "The Secretary shall prescribe regulations to implement this section. Such regulations may establish appropriate definitions, exclusions, limitations, and qualifications."
Subsec. (f)(1). Pub. L. 103–355, §2101(a)(6)(A), inserted heading and substituted "(1) The Federal Acquisition Regulation shall contain provisions on the allowability of contractor costs. Such provisions" for "(1) The Secretary shall prescribe proposed regulations to amend those provisions of the Department of Defense Supplement to the Federal Acquisition Regulation dealing with the allowability of contractor costs. The amendments" and "The regulations" for "These regulations".
Subsec. (f)(1)(Q). Pub. L. 103–355, §2101(c), added subpar. (Q).
Subsec. (f)(2). Pub. L. 103–355, §2101(a)(6)(B)(ii), as amended by Pub. L. 104–106, §4321(a)(5), substituted "Federal Acquisition Regulation" for "regulations".
Subsec. (f)(2)(B). Pub. L. 103–355, §2101(a)(6)(B)(i), struck out "defense" before "contract auditor".
Subsec. (f)(3). Pub. L. 103–355, §2101(a)(6)(B)(ii), as amended by Pub. L. 104–106, §4321(a)(5), substituted "Federal Acquisition Regulation" for "regulations".
Pub. L. 103–355, §2101(a)(6)(B)(i), struck out "defense" before "contract auditor".
Subsec. (f)(4). Pub. L. 103–355, §2101(a)(6)(B)(ii), as amended by Pub. L. 104–106, §4321(a)(5), substituted "Federal Acquisition Regulation" for "regulations".
Pub. L. 103–355, §2101(a)(6)(B)(i), struck out "defense" before "contract auditor".
Subsec. (g). Pub. L. 103–355, §2101(a)(7), amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: "The regulations of the Secretary required to be prescribed under subsections (e) and (f)(1) shall require, to the maximum extent practicable, that such regulations apply to all subcontractors of a covered contract."
Subsec. (h). Pub. L. 103–355, §2101(a)(8), inserted heading and substituted "in the Federal Acquisition Regulation" for "by the Secretary" in par. (1) and "head of the agency" for "Secretary of Defense" in introductory provisions of par. (2).
Subsec. (i). Pub. L. 103–355, §2101(a)(9), inserted heading and substituted "The submission to an agency" for "The submission to the Department of Defense".
Subsec. (j). Pub. L. 103–355, §2101(a)(10), inserted heading and substituted "United States Court of Federal Claims" for "United States Claims Court".
Subsec. (k). Pub. L. 103–355, §2101(a)(11)(A), inserted heading.
Subsec. (k)(2)(D). Pub. L. 103–355, §2101(a)(11)(B), struck out "by the Department of Defense" after "decision" in introductory provisions.
Subsec. (k)(4). Pub. L. 103–355, §2101(a)(11)(C), inserted "or Secretary of the military department concerned" after "head of the agency", "or Secretary" after "agency head", and "or military department" before period at end and substituted "in accordance with the Federal Acquisition Regulation" for "under regulations prescribed by such agency head".
Subsec. (l). Pub. L. 103–355, §2101(d), added subsec. (l) and struck out former subsec. (l) which related to periodic evaluation by Comptroller General of implementation of this section by Secretary of Defense.
Subsec. (m). Pub. L. 103–355, §2101(d), struck out subsec. (m) which read as follows: "In this section, the term 'covered contract' means a contract for an amount more than $100,000 entered into by the Department of Defense other than a fixed-price contract without cost incentives."
1992—Subsec. (a). Pub. L. 102–484, §818(a)(1)(A), redesignated subsec. (a)(1) as entire subsection. Former subsec. (a)(2) redesignated subsec. (b)(1).
Subsec. (b)(1). Pub. L. 102–484, §818(a)(1)(B), redesignated subsec. (a)(2) as subsec. (b)(1), in introductory provisions struck out "by clear and convincing evidence" after "Secretary determines" and substituted "expressly unallowable under a cost principle referred to in subsection (a) that defines the allowability of specific selected costs" for "unallowable under paragraph (1)", and in subpar. (A), substituted "cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted" for "costs". Former subsec. (b) redesignated subsec. (b)(2).
Subsec. (b)(2). Pub. L. 102–484, §818(a)(2), redesignated subsec. (b) as subsec. (b)(2), struck out ", in addition to the penalty assessed under subsection (a)," after "against the contractor", and substituted "the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted" for "the amount of such cost".
Subsec. (c). Pub. L. 102–484, §818(a)(5), added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 102–484, §818(a)(3), (4), redesignated subsec. (c) as (d) and struck out former subsec. (d) which read as follows: "If any penalty is assessed under subsection (a) or (b) with respect to a proposal for settlement of indirect costs, the Secretary may assess an additional penalty of not more than $10,000 per proposal."
Subsec. (e)(3), (4). Pub. L. 102–484, §1352(b), added par. (3) and redesignated former par. (3) as (4).
Subsec. (f)(5). Pub. L. 102–484, §1052(26)(A), struck out par. (5) which read as follows: "The regulations shall provide that costs to promote the export of products of the United States defense industry, including costs of exhibiting or demonstrating products, shall be allowable to the extent that such costs—
"(A) are allocable, reasonable, and not otherwise unallowable;
"(B) with respect to the activities of the business segment to which such costs are being allocated, are determined by the Secretary of Defense to be likely to result in future cost advantages to the United States; and
"(C) with respect to a business segment which allocates to Department of Defense contracts $2,500,000 or more of such costs in any fiscal year of such business segment, are not in excess of the amount equal to 110 percent of such costs incurred by such business segment in the previous fiscal year."
Subsec. (l)(2). Pub. L. 102–484, §1052(26)(B)(i), substituted "paragraph (3)" for "subsection (e)(2)(C)".
Subsec. (l)(3). Pub. L. 102–484, §1052(26)(B)(ii), added par. (3).
1991—Subsec. (e)(2), (3). Pub. L. 102–190 added par. (2) and redesignated former par. (2) as (3).
1990—Subsec. (e)(2). Pub. L. 101–510 struck out "(A)" before "The Secretary" and struck out subpars. (B) and (C) which read as follows:
"(B) The Secretary shall submit to the committees named in subparagraph (C) any proposed regulations that would make substantive changes to regulations prescribed under the second sentence of subparagraph (A) before the publication of such proposed regulations in accordance with section 22 of the Office of Federal Procurement Policy Act (41 U.S.C. 418b).
"(C) The committees named in this subparagraph are—
"(i) the Committees on Armed Services and on Government Operations of the House of Representatives; and
"(ii) the Committees on Armed Services and on Governmental Affairs of the Senate."
1989—Subsec. (e)(1)(N), (O). Pub. L. 101–189, §311(a)(1), added subpar. (N) and redesignated former subpar. (N) as (O).
Subsec. (k)(5)(B)(i). Pub. L. 101–189, §853(b)(3), substituted "the Federal Acquisition Regulation" for "the single Government-wide procurement regulation issued pursuant to section 4(4)(A) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(4)(A))".
Subsec. (k)(6). Pub. L. 101–189, §853(a)(1)(A), designated par. (2) of subsec. (l), set out first, as subsec. (k)(6) and substituted "In this subsection:" for "In subsection (k):" in introductory provisions.
Subsec. (l). Pub. L. 101–189, §853(a)(1)(A), (C), restored the text of subsec. (k) as in effect prior to being struck out by Pub. L. 100–700, §8(b)(2) (see 1988 Amendment note below), designated such text as subsec. (l), and struck out former subsec. (l)(1), set out first, which defined "covered contract". Former subsec. (l)(2), set out first, was redesignated subsec. (k)(6). Former subsec. (l), set out second, was redesignated (m).
Subsec. (m). Pub. L. 101–189, §853(a)(1)(B), redesignated subsec. (l), set out second, as (m).
1988—Subsec. (e)(1)(L). Pub. L. 100–370, §1(f)(2)(A), added subpar. (L).
Subsec. (e)(1)(M). Pub. L. 100–456, §322(a), added subpar. (M).
Subsec. (e)(1)(N). Pub. L. 100–700, §8(b)(1)(A), which directed amendment of subsec. (e) by striking out subpar. (N) and inserting in lieu thereof a new subpar. (N), was executed to subsec. (e)(1)(N) of this section as the probable intent of Congress. Former subpar. (N) read as follows: "Except as provided in paragraph (2), costs incurred in connection with any civil, criminal, or administrative action brought by the United States that results in a determination that a contractor has violated or failed to comply with any Federal law or regulation if the action results in any of the following:
"(i) In the case of a criminal action, a conviction (including a conviction pursuant to a plea of nolo contendere).
"(ii) In the case of a civil or administrative action, (I) a determination by the Secretary of Defense that the violation or failure to comply was knowing or willful, and (II) the imposition of a monetary penalty.
"(iii) A final decision by an appropriate official of the Department of Defense to debar or suspend the contractor or to rescind, void, or terminate a contract awarded to such contractor if such decision is based on a determination by the Secretary of Defense that the violation or failure to comply was knowing or willful."
Pub. L. 100–456, §832(a)(1), added subpar. (N).
Subsec. (e)(2), (3). Pub. L. 100–700, §8(b)(1)(B), (C), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: "If a civil, criminal, or administrative action referred to in paragraph (1)(N) is resolved by consent or compromise pursuant to an agreement entered into by a contractor and the United States, the contractor's costs that are otherwise not allowable under paragraph (1)(N) may be allowed to the extent provided in such agreement."
Pub. L. 100–456, §832(a)(2), (3), added par. (2) and redesignated former par. (2) as (3).
Subsec. (f)(5). Pub. L. 100–463, §8105(a), and Pub. L. 100–456, §826(a), amended section identically, temporarily adding par. (5). Pub. L. 100–526 provided that Pub. L. 100–463, §8105, and amendment made by that section shall cease to be effective. See Effective and Termination Dates of 1988 Amendment note below.
Subsec. (j). Pub. L. 100–370, §1(f)(3)(A)(ii), added subsec. (j). Former subsec. (j) redesignated (k).
Subsec. (k). Pub. L. 100–700, §8(b)(2), added subsec. (k), and struck out former subsec. (k), the text of which was restored and redesignated subsec. (l) by Pub. L. 101–189, §853(a)(1)(C). See 1989 Amendment note above.
Pub. L. 100–370, §1(f)(3)(A)(i), redesignated subsec. (j) as (k). Former subsec. (k) redesignated (l).
Subsec. (l). Pub. L. 100–700, §8(b)(2), added subsec. (l) defining terms "covered contract", "proceeding", "costs", and "penalty".
Pub. L. 100–370, §1(f)(3)(A)(i), redesignated subsec. (k) as (l).
1987—Subsec. (e)(1)(K). Pub. L. 100–180 added subpar. (K).
Subsec. (k). Pub. L. 100–26 inserted "the term" after "In this section,".
1985—Subsec. (e)(2). Pub. L. 99–190, §101(b) [§8112(a)(1)], designated existing provisions as subpar. (A) and added subpars. (B) and (C).
Subsec. (h)(2). Pub. L. 99–190, §101(b) [§8112(a)(2)], inserted ", in an exceptional case," in provisions preceding subpar. (A).
Subsecs. (j), (k). Pub. L. 99–190, §101(b) [§8112(a)(3)], added subsec. (j) and redesignated former subsec. (j) as (k).
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.
Pub. L. 113–67, div. A, title VII, §702(c), Dec. 26, 2013, 127 Stat. 1189, provided that: "This section [amending this section and section 4304 of Title 41, Public Contracts, repealing section 1127 of Title 41, and enacting provisions set out as a note under section 4304 of Title 41] and the amendments made by this section shall apply only with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after the date of the enactment of this Act [Dec. 26, 2013]."
Pub. L. 113–66, div. A, title VIII, §811(d), Dec. 26, 2013, 127 Stat. 806, provided that: "The amendments made by this section [amending this section and section 4304 of Title 41, Public Contracts, and repealing section 1127 of Title 41] shall apply with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after the date of the enactment of this Act [Dec. 26, 2013]."
Pub. L. 112–239, div. A, title VIII, §827(i), Jan. 2, 2013, 126 Stat. 1836, provided that:
"(1)
"(A) all contracts awarded on or after such date;
"(B) all task orders entered on or after such date pursuant to contracts awarded before, on, or after such date; and
"(C) all contracts awarded before such date that are modified to include a contract clause providing for the applicability of such amendments.
"(2)
"(3)
Pub. L. 112–81, div. A, title VIII, §803(c), Dec. 31, 2011, 125 Stat. 1485, as amended by Pub. L. 114–328, div. A, title VIII, §823(a), Dec. 23, 2016, 130 Stat. 2276, provided that: "The amendments made by this section shall apply with respect to costs of compensation incurred after January 1, 2012, under contracts entered into on or after December 31, 2011."
[Pub. L. 114–328, div. A, title VIII, §823(b), Dec. 23, 2016, 130 Stat. 2277, provided that: "The amendment made by subsection (a) [amending section 803(c) of Pub. L. 112–81, set out above] shall take effect as of December 31, 2011, and shall apply as if included in the National Defense Authorization Act for Fiscal Year 2012 [Pub. L. 112–81] as enacted."]
Pub. L. 105–261, div. A, title VIII, §804(d), Oct. 17, 1998, 112 Stat. 2083, provided that: "The amendments made by this section [amending this section, sections 256 and 435 of Title 41, Public Contracts, and provisions set out as a note under section 435 of Title 41] shall apply with respect to costs of compensation of senior executives incurred after January 1, 1999, under covered contracts (as defined in section 2324(l) of title 10, United States Code, and section 306(l) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C.256(l))[)] [now 41 U.S.C. 4301(2), 4302] entered into before, on, or after the date of the enactment of this Act [Oct. 17, 1998]."
Pub. L. 105–85, div. A, title VIII, §808(e), Nov. 18, 1997, 111 Stat. 1838, provided that: "The amendments made by this section [see Tables for classification] shall—
"(1) take effect on the date that is 90 days after the date of the enactment of this Act [Nov. 18, 1997]; and
"(2) apply with respect to costs of compensation incurred after January 1, 1998, under covered contracts entered into before, on, or after the date of the enactment of this Act."
Pub. L. 104–106, div. D, title XLIII, §4321(a), Feb. 10, 1996, 110 Stat. 671, provided that the amendment made by that section is effective as of Oct. 13, 1994, and as if included in Pub. L. 103–355 as enacted.
For effective date and applicability of amendment by section 4321(b)(9) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of Title 28, Judiciary and Judicial Procedure.
Pub. L. 102–484, div. A, title VIII, §818(b), Oct. 23, 1992, 106 Stat. 2458, provided that: "The amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Oct. 23, 1992] and shall apply, as provided in regulations prescribed by the Secretary of Defense, with respect to proposals for settlement of indirect costs for which the Federal Government has not formally initiated an audit before that date."
Pub. L. 102–484, div. A, title XIII, §1352(c), Oct. 23, 1992, 106 Stat. 2559, provided that: "The amendments made by subsection (b) [amending this section] apply to covered contracts (as defined in section 2324 of title 10, United States Code) that are in effect or are entered into on or after October 1, 1991, for costs incurred on or after October 1, 1991."
Pub. L. 102–190, div. A, title III, §346(b), Dec. 5, 1991, 105 Stat. 1347, provided that: "The amendments made by subsection (a) [amending this section] shall not apply with respect to a foreign national whose employment under a military banking contract (defined in section 2324(e)(2)(B) of title 10, United States Code, as added by subsection (a)) was terminated before the date of the enactment of this Act [Dec. 5, 1991]."
Pub. L. 101–189, div. A, title III, §311(a)(2), Nov. 29, 1989, 103 Stat. 1411, provided that: "Subparagraph (N) of such subsection [10 U.S.C. 2324(e)(1)(N)], as added by paragraph (1), shall not apply with respect to the termination of the employment of a foreign national employed under any covered contract (as defined in subsection (l) of such section [10 U.S.C. 2324(l)]) if such termination is the result of the closing of, or the curtailment of activities at, a United States military facility in a foreign country pursuant to an agreement entered into with the government of that country before the date of the enactment of this Act [Nov. 29, 1989]."
Pub. L. 101–189, div. A, title III, §853(a)(3), Nov. 29, 1989, 103 Stat. 1518, provided that: "The amendments made by this subsection [amending this section and provisions set out as a note below] shall take effect as of November 19, 1988."
Pub. L. 100–700, §8(e), Nov. 19, 1988, 102 Stat. 4638, provided that: "The amendments made by subsections (a) and (b) [enacting section 256 of Title 41, Public Contracts, and amending this section] shall take effect with respect to contracts awarded after the date of the enactment of this Act [Nov. 19, 1988]."
Pub. L. 100–463, title VIII, §8105(d), Oct. 1, 1988, 102 Stat. 2270–37, provided that subsec. (f)(5) of this section, as enacted by section 8105(a) of Pub. L. 100–463, would cease to be effective three years after Oct. 1, 1988. Section 106(a)(2) of Pub. L. 100–526 provided that section 8105 of Pub. L. 100–463 "and the amendment made by that section shall cease to be effective".
Pub. L. 100–456, div. A, title III, §322(b), Sept. 29, 1988, 102 Stat. 1953, provided that: "Subparagraph (M) of section 2324(e)(1) of title 10, United States Code, as added by subsection (a), shall apply with respect to any contract entered into after the end of the 180-day period beginning on the date of the enactment of this Act [Sept. 29, 1988]."
Pub. L. 100–456, div. A, title VIII, §826(d), Sept. 29, 1988, 102 Stat. 2023, as amended by Pub. L. 100–526, title I, §106(a)(1)(B), Oct. 24, 1988, 102 Stat. 2625, provided that: "Section 2324(f)(5) of title 10, United States Code (as added by subsection (a)), shall cease to be effective on September 30, 1991."
Pub. L. 100–180, div. A, title VIII, §805(b), Dec. 4, 1987, 101 Stat. 1126, provided that: "Subparagraph (K) of section 2324(e)(1) of title 10, United States Code, as added by subsection (a), shall apply to any contract entered into after the end of the 120-day period beginning on the date of the enactment of this Act [Dec. 4, 1987]."
Pub. L. 99–145, title IX, §911(c), Nov. 8, 1985, 99 Stat. 685, provided that: "Section 2324 of title 10, United States Code, as added by subsection (a), shall apply only to contracts for which solicitations are issued on or after the date on which such regulations are prescribed."
Pub. L. 103–355, title II, §2101(e), Oct. 13, 1994, 108 Stat. 3309, provided that: "The regulations of the Secretary of Defense implementing section 2324 of title 10, United States Code, shall remain in effect until the Federal Acquisition Regulation is revised to implement the amendments made by this section [amending this section]."
Pub. L. 100–700, §8(d), Nov. 19, 1988, 102 Stat. 4638, provided that: "The regulations necessary for the implementation of section 306(e) of the Federal Property and Administrative Services Act of 1949 [now 41 U.S.C. 4304] (as added by subsection (a)) and section 2324(k)(5) of title 10, United States Code (as added by subsection (b))—
"(1) shall be prescribed not later than 120 days after the date of the enactment of this Act [Nov. 19, 1988]; and
"(2) shall apply to contracts entered into more than 30 days after the date on which such regulations are issued."
Pub. L. 100–463, title VIII, §8105(b), (c), Oct. 1, 1988, 102 Stat. 2270–37, provided for the promulgation of regulations and the preparation of a report in connection with the operation of subsec. (f)(5), as enacted by section 8105(a) of Pub. L. 100–463. Section 106(a)(2) of Pub. L. 100–526 provided that section 8105 of Pub. L. 100–463 "and the amendment made by that section shall cease to be effective".
Pub. L. 100–456, div. A, title VIII, §826(b), Sept. 29, 1988, 102 Stat. 2022, provided that: "The Secretary of Defense shall prescribe final regulations under paragraph (5) of section 2324(f) of title 10, United States Code (as added by subsection (a)), not later than 90 days after the date of the enactment of this Act [Sept. 29, 1988]. Such regulations shall apply with respect to costs referred to in such paragraph that are incurred by a Department of Defense contractor (or a subcontractor of such a contractor) on or after the first day of the contractor's (or subcontractor's) first fiscal year that begins on or after the date on which such final regulations are prescribed."
Pub. L. 100–456, div. A, title VIII, §832(b), Sept. 29, 1988, 102 Stat. 2024, related to regulations for the implementation of subsec. (e)(1)(N) of this section, prior to repeal by Pub. L. 100–700, §8(c), Nov. 19, 1988, 102 Stat. 4638.
Pub. L. 99–190, 101(b) [title VIII, §8112(b), (c)], Dec. 19, 1985, 99 Stat. 1185, 1223, required the regulations required under section 911(b) of Pub. L. 99–145, set out below, to be submitted to Congress before the publication of such regulations in accordance with former 41 U.S.C. 418b (now 41 U.S.C. 1707) and directed the Comptroller General, within 180 days of publication of the regulations, to submit to Congress a report on the Comptroller General's initial evaluation under subsection (j)(1) of this section.
Pub. L. 99–145, title IX, §911(b), Nov. 8, 1985, 99 Stat. 685, provided that:
"(1) Not later than 150 days after the date of the enactment of this Act [Nov. 8, 1985], the Secretary of Defense shall prescribe the regulations required by subsections (e) and (f) of section 2324 of title 10, United States Code, as added by subsection (a). Such regulations shall be published in accordance with section 22 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 418b) [now 41 U.S.C. 1707].
"(2) The Secretary shall review such regulations at least once every five years. The results of each such review shall be made public."
Pub. L. 112–239, div. A, title VIII, §827(h), Jan. 2, 2013, 126 Stat. 1836, provided that: "Nothing in this section, or the amendments made by this section [amending this section and section 2409 of this title and enacting provisions set out as a note under this section], shall be construed to provide any rights to disclose classified information not otherwise provided by law."
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 114–261, §1(c), Dec. 14, 2016, 130 Stat. 1363, provided that: "At the time of any major modification to a contract that was awarded before the date of the enactment of this Act [Dec. 14, 2016], the head of the contracting agency shall make best efforts to include in the contract a contract clause providing for the applicability of the amendments made by this section [amending this section, section 2409 of this title, and sections 4304, 4310, and 4712 of Title 41, Public Contracts] and section 827 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1833) [amending this section and section 2409 of this title]."
Pub. L. 109–364, div. A, title VIII, §852, Oct. 17, 2006, 120 Stat. 2340, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(3)(B), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 115–232, div. A, title VIII, §836(f)(5), Aug. 13, 2018, 132 Stat. 1871, provided that:
"(a)
"(1)
"(2)
"(A) shall assess the extent to which the Department of Defense has paid excessive pass-through charges to contractors who provided little or no value to the performance of the contract;
"(B) shall assess the extent to which the Department has been particularly vulnerable to excessive pass-through charges on any specific category of contracts or by any specific category of contractors (including any category of small business); and
"(C) shall determine the extent to which any prohibition on excessive pass-through charges would be inconsistent with existing commercial practices for any specific category of contracts or have an unjustified adverse effect on any specific category of contractors (including any category of small business).
"(b)
"(1)
"(2)
"(A) shall not apply to any firm, fixed-price contract or subcontract (or task or delivery order) that is—
"(i) awarded on the basis of adequate price competition; or
"(ii) for the acquisition of a commercial item, as defined in section 103 of title 41, United States Code; and
"(B) may include such additional exceptions as the Secretary determines to be necessary in the interest of the national defense.
"(3)
"(4)
"(A) any standards for determining when no, or negligible, value has been added to a contract by a contractor or subcontractor;
"(B) any procedures established for preventing excessive pass-through charges; and
"(C) any exceptions determined by the Secretary to be necessary in the interest of the national defense.
"(5)
[Pub. L. 115–232, div. A, title VIII, §836(f)(5), (h), Aug. 13, 2018, 132 Stat. 1871, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, section 852(b)(2)(A)(ii) of Pub. L. 109–364, set out above, is amended by striking "a commercial item, as defined in section 103 of title 41" and inserting "a commercial product or a commercial service, as defined in sections 103 and 103a, respectively, of title 41".]
Pub. L. 103–337, div. A, title VIII, §818, Oct. 5, 1994, 108 Stat. 2821, as amended by Pub. L. 105–85, div. A, title VIII, §804(d), Nov. 18, 1997, 111 Stat. 1834, which related to regulations concerning allowability of restructuring costs associated with business combinations under defense contracts, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(20), Aug. 13, 2018, 132 Stat. 1848.
Pub. L. 103–160, div. A, title VIII, §841, Nov. 30, 1993, 107 Stat. 1719, as amended by Pub. L. 105–244, title I, §102(a)(2)(C), Oct. 7, 1998, 112 Stat. 1617, provided that:
"(a)
"(b)
"(c)
"(1) The term 'allowable indirect costs' means costs that are generally considered allowable as indirect costs under regulations that establish the cost reimbursement principles applicable to an institution of higher education for purposes of Department of Defense contracts.
"(2) The term 'institution of higher education' has the meaning given such term in section 101 of the Higher Education Act of 1965 [20 U.S.C. 1001]."
Pub. L. 100–456, div. A, title VIII, §826(c), Sept. 29, 1988, 102 Stat. 2022, as amended by Pub. L. 100–526, title I, §106(a)(1)(A), Oct. 24, 1988, 102 Stat. 2625, directed Comptroller General of United States and Inspector General of Department of Defense, not later than 2 years after Sept. 29, 1988, to submit to Congress a report including an assessment of whether the regulations required by subsec. (f)(5) of this section provide the appropriate incentives to stimulate exports by the United States defense industry and provide cost savings to the United States and whether such regulations provide appropriate criteria to ensure that costs allowed are reasonably likely to provide future cost savings to the United States.
Pub. L. 100–456, div. A, title VIII, §833, Sept. 29, 1988, 102 Stat. 2024, as amended by Pub. L. 101–189, div. A, title VIII, §853(a)(2), Nov. 29, 1989, 103 Stat. 1518, directed the Administrator of General Services to enter into negotiations with commercial air carriers for agreements that would permit personnel of contractors who were traveling solely in the performance of covered contracts to be transported by such carriers at the same discount rates as such carriers charged for travel by Federal Government employees traveling at Government expense, directed the Secretary of Defense, not later than 120 days after the first such agreement would go into effect, to prescribe regulations that would provide that costs in excess of the rates established under the agreement were not allowable if the rate had been available and travel could have reasonably been performed under the conditions required by the air carrier to qualify for such rate, and provided that section 833 of Pub. L. 100–456 would cease to be effective three years after Sept. 29, 1988.
Pub. L. 99–145, title IX, §933, Nov. 8, 1985, 99 Stat. 700, which provided that in proceeding before the Armed Services Board of Contract Appeals, United States Claims Court, or any other Federal court in which reasonableness of indirect costs for which a contractor seeks reimbursement from Department of Defense is in issue, the burden of proof is upon the contractor to establish that such costs are reasonable, was repealed and restated in subsec. (j) of this section by Pub. L. 100–370, §1(f)(3)(A)(ii), (B), July 19, 1988, 102 Stat. 846.
1 So in original. Two subpars. (P) have been enacted.
(a)
(A) that the amount of projected savings for the Department of Defense associated with the restructuring will be at least twice the amount of the costs allowed; or
(B) that the amount of projected savings for the Department of Defense associated with the restructuring will exceed the amount of the costs allowed and that the business combination will result in the preservation of a critical capability that otherwise might be lost to the Department.
(2) The Secretary may not delegate the authority to make a determination under paragraph (1), with respect to a business combination, to an official of the Department of Defense—
(A) below the level of an Assistant Secretary of Defense for cases in which the amount of restructuring costs is expected to exceed $25,000,000 over a 5-year period; or
(B) below the level of the Director of the Defense Contract Management Agency for all other cases.
(b)
(Added Pub. L. 105–85, div. A, title VIII, §804(a)(1), Nov. 18, 1997, 111 Stat. 1832; amended Pub. L. 106–65, div. A, title X, §1066(a)(19), Oct. 5, 1999, 113 Stat. 771; Pub. L. 108–375, div. A, title VIII, §819, Oct. 28, 2004, 118 Stat. 2016; Pub. L. 112–239, div. A, title X, §1076(g)(2), Jan. 2, 2013, 126 Stat. 1955.)
A prior section 2325, added Pub. L. 99–500, §101(c) [title X, §907(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–137, and Pub. L. 99–591, §101(c) [title X, §907(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–137; Pub. L. 99–661, div. A, title IX, formerly title IV, §907(a)(1), Nov. 14, 1986, 100 Stat. 3917, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 101–189, div. A, title XVI, §1622(c)(5), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 101–510, div. A, title VIII, §810, Nov. 5, 1990, 104 Stat. 1595; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728, directed Secretary of Defense to ensure that requirements of Department of Defense with respect to procurement of supplies be stated in terms of functions to be performed, performance required, or essential physical characteristics, and related to preference for nondevelopmental items in procurement of supplies, prior to repeal by Pub. L. 103–355, title VIII, §8104(b)(1), Oct. 13, 1994, 108 Stat. 3391. See sections 2376 and 2377 of this title.
Another prior section 2325 was renumbered section 2345 of this title.
2013—Subsec. (b). Pub. L. 112–239 redesignated subsec. (c) as (b) and struck out former subsec. (b) which required reports relating to business combinations occurring on or after August 15, 1994.
2004—Subsec. (a)(2). Pub. L. 108–375 substituted "paragraph (1), with respect to a business combination, to an official of the Department of Defense—" for "paragraph (1) to an official of the Department of Defense below the level of an Assistant Secretary of Defense." and added subpars. (A) and (B).
1999—Subsec. (a)(1). Pub. L. 106–65 inserted "that occurs after November 18, 1997," after "of the contractor" in introductory provisions.
Pub. L. 105–85, div. A, title VIII, §804(c), Nov. 18, 1997, 111 Stat. 1834, provided that: "Section 2325(a) of title 10, United States Code, as added by subsection (a), shall apply with respect to business combinations that occur after the date of the enactment of this Act [Nov. 18, 1997]."
Pub. L. 105–85, div. A, title VIII, §804(b), Nov. 18, 1997, 111 Stat. 1832, directed the Comptroller General, not later than Apr. 1, 1998, to identify major market areas affected by business combinations of defense contractors since Jan. 1, 1990, and develop a methodology for determining the savings from business combinations of defense contractors on the prices paid on particular defense contracts, and to submit to committees of Congress a report describing the changes in numbers of businesses competing for major defense contracts since Jan. 1, 1990; and directed the Comptroller General, not later than Dec. 1, 1998, to submit to committees of Congress a report containing updated information on restructuring costs of business combinations paid by the Department of Defense pursuant to certifications under Pub. L. 103–337, §818 (set out as a note under section 2324 of this title), savings realized by the Department of Defense as a result of the business combinations for which the payment of restructuring costs was so certified, and an assessment of the savings on the prices paid on a meaningful sample of defense contracts.
(a)
(b)
(A) the end of the 180-day period beginning on the date on which the contractor submits a qualifying proposal to definitize the contractual terms, specifications, and price; or
(B) the date on which the amount of funds obligated under the contractual action is equal to more than 50 percent of the negotiated overall ceiling price for the contractual action.
(2) Except as provided in paragraph (3), the contracting officer for an undefinitized contractual action may not obligate with respect to such contractual action an amount that is equal to more than 50 percent of the negotiated overall ceiling price until the contractual terms, specifications, and price are definitized for such contractual action.
(3) If a contractor submits a qualifying proposal (as defined in subsection (h)) to definitize an undefinitized contractual action before an amount equal to more than 50 percent of the negotiated overall ceiling price is obligated on such action, the contracting officer for such action may not obligate with respect to such contractual action an amount that is equal to more than 75 percent of the negotiated overall ceiling price until the contractual terms, specifications, and price are definitized for such contractual action.
(4) The head of an agency may waive the provisions of this subsection with respect to a contract of that agency if that head of an agency determines that the waiver is necessary in order to support any of the following operations:
(A) A contingency operation.
(B) A humanitarian or peacekeeping operation.
(5) This subsection does not apply to an undefinitized contractual action for the purchase of initial spares.
(c)
(1) the service acquisition executive for the military department that awarded the contract, or the Under Secretary of Defense for Acquisition and Sustainment if the contract was awarded by a Defense Agency or other component of the Department of Defense, approves the definitization in writing;
(2) the contracting officer provides a copy of the written approval to the contractor; and
(3) a period of 30 calendar days has elapsed after the written approval is provided to the contractor.
(d)
(1) good business practice; and
(2) in the best interests of the United States.
(e)
(1) good business practice; and
(2) in the best interests of the United States.
(f)
(A) the possible reduced cost risk of the contractor with respect to costs incurred during performance of the contract before the final price is negotiated; and
(B) the reduced cost risk of the contractor with respect to costs incurred during performance of the remaining portion of the contract.
(2) If a contractor submits a qualifying proposal to definitize an undefinitized contractual action and the contracting officer for such action definitizes the contract after the end of the 180-day period beginning on the date on which the contractor submitted the qualifying proposal, the head of the agency concerned shall ensure that the profit allowed on the contract accurately reflects the cost risk of the contractor as such risk existed on the date the contractor submitted the qualifying proposal.
(g)
(h)
(2) The requirement under paragraph (1) may be waived in accordance with subsection (b)(4).
(i)
(j)
(1) The term "undefinitized contractual action" means a new procurement action entered into by the head of an agency for which the contractual terms, specifications, or price are not agreed upon before performance is begun under the action. Such term does not include contractual actions with respect to the following:
(A) Purchases in an amount not in excess of the amount of the simplified acquisition threshold.
(B) Special access programs.
(C) Congressionally mandated long-lead procurement contracts.
(2) The term "qualifying proposal" means a proposal that contains sufficient information to enable the Department of Defense to conduct a meaningful audit of the information contained in the proposal.
(Added Pub. L. 99–500, §101(c) [title X, §908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–140, and Pub. L. 99–591, §101(c) [title X, §908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–140; Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 101–189, div. A, title XVI, §1622(c)(6), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 102–25, title VII, §701(d)(5), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title I, §1505, Oct. 13, 1994, 108 Stat. 3298; Pub. L. 105–85, div. A, title VIII, §803(a), Nov. 18, 1997, 111 Stat. 1831; Pub. L. 114–328, div. A, title VIII, §811, Dec. 23, 2016, 130 Stat. 2268; Pub. L. 115–91, div. A, title VIII, §815(a), (b), Dec. 12, 2017, 131 Stat. 1462.)
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.
A prior section 2326 was renumbered section 2346 of this title.
2017—Subsec. (b)(3). Pub. L. 115–91, §815(b), substituted "subsection (h)" for "subsection (g)".
Subsecs. (c) to (j). Pub. L. 115–91, §815(a), added subsec. (c) and redesignated former subsecs. (c) to (i) as (d) to (j), respectively.
2016—Subsec. (e). Pub. L. 114–328, §811(1), designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), and added par. (2).
Subsecs. (f) to (i). Pub. L. 114–328, §811(2), (3), added subsecs. (f) and (g) and redesignated former subsecs. (f) and (g) as (h) and (i), respectively.
Subsec. (i)(1). Pub. L. 114–328, §811(4)(A), redesignated subpars. (B) to (D) as (A) to (C), respectively, and struck out former subpar. (A) which read as follows: "Foreign military sales."
Subsec. (i)(2). Pub. L. 114–328, §811(4)(B), substituted "a meaningful audit of the information contained in the proposal." for "complete and meaningful audits of the information contained in the proposal and of any other information that the Department is entitled to review in connection with the contract, as determined by the contracting officer."
1997—Subsec. (b)(4). Pub. L. 105–85 amended par. (4) generally. Prior to amendment, par. (4) read as follows: "The head of an agency may waive the provisions of this subsection with respect to a contract of that agency if such head of an agency determines that the waiver is necessary in order to support a contingency operation."
1994—Subsec. (b). Pub. L. 103–355, §1505(a)(1), struck out "and expenditure" after "obligation" in heading.
Subsec. (b)(1)(B). Pub. L. 103–355, §1505(a)(2), struck out "or expended" after "obligated".
Subsec. (b)(2). Pub. L. 103–355, §1505(a)(3), substituted "obligate" for "expend".
Subsec. (b)(3). Pub. L. 103–355, §1505(a)(4), substituted "obligated" for "expended" and "obligate" for "expend".
Subsec. (b)(4), (5). Pub. L. 103–355, §1505(b), added par. (4) and redesignated former par. (4) as (5).
Subsec. (g)(1)(B). Pub. L. 103–355, §1505(c), substituted "simplified acquisition threshold" for "small purchase threshold".
1991—Subsec. (g)(1)(B). Pub. L. 102–25 substituted "in an amount not in excess of the amount of the small purchase threshold" for "of less than $25,000".
1989—Subsec. (g)(1)(D). Pub. L. 101–189 substituted "Congressionally mandated" for "Congressionally-mandated".
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 99–500, §101(c) [title X, §908(d)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–142, Pub. L. 99–591, §101(c) [title X, §908(d)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–142, and Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(2), Nov. 14, 1986, 100 Stat. 3921, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2326 of title 10, United States Code (as added by subsection (d)(1)), applies to undefinitized contractual actions that are entered into after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]."
Pub. L. 115–91, div. A, title VIII, §815(c), Dec. 12, 2017, 131 Stat. 1462, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to implement section 2326 of title 10, United States Code, as amended by this section."
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 111–84, div. A, title VIII, §812, Oct. 28, 2009, 123 Stat. 2406, provided that:
"(a)
"(b)
"(1) such limitations as described in part 52.216-26 of the Federal Acquisition Regulation; and
"(2) any such limitations implementing the requirements of section 809 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181; 10 U.S.C. 2326 note)."
Pub. L. 110–181, div. A, title VIII, §809, Jan. 28, 2008, 122 Stat. 216, provided that:
"(a)
"(b)
"(1) the circumstances in which it is, and is not, appropriate for Department of Defense officials to use undefinitized contractual actions;
"(2) approval requirements (including thresholds) for the use of undefinitized contractual actions;
"(3) procedures for ensuring that timelines for the definitization of undefinitized contractual actions are met;
"(4) procedures for ensuring compliance with regulatory limitations on the obligation of funds pursuant to undefinitized contractual actions;
"(5) procedures for ensuring compliance with regulatory limitations on profit or fee with respect to costs incurred before the definitization of an undefinitized contractual action; and
"(6) reporting requirements for undefinitized contractual actions that fail to meet required timelines for definitization or fail to comply with regulatory limitations on the obligation of funds or on profit or fee.
"(c)
"(1)
"(2) GAO
"(A) the level of insight that senior Department of Defense officials have into the use of undefinitized contractual actions;
"(B) the appropriate use of undefinitized contractual actions;
"(C) the timely definitization of undefinitized contractual actions; and
"(D) the negotiation of appropriate profits and fees for undefinitized contractual actions."
Pub. L. 99–500, §101(c) [title X, §908(a)–(c), (e)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–139, 1783–140, 1783–142, Pub. L. 99–591, §101(c) [title X, §908(a)–(c), (e)], Oct. 18, 1986, 100 Stat. 3341–82, 3341–139, 3341–140, 3341–142, and Pub. L. 99–661, div. A, title IX, formerly title IV, §908(a)–(c), (e), Nov. 14, 1986, 100 Stat. 3918, 3919, 3921, renumbered title IX and amended by Pub. L. 100–26, §§3(5), 5(2), Apr. 21, 1987, 101 Stat. 273, 274; Pub. L. 104–106, div. D, title XLIII, §4322(b)(2), Feb. 10, 1996, 110 Stat. 677, which related to limitations on funding for undefinitized contractual actions, Inspector General audits and oversight, and waiver authority, were repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(21), Aug. 13, 2018, 132 Stat. 1848.
(a)
(b)
(1) a foreign government owns or controls (whether directly or indirectly) a significant interest in such firm or subsidiary (or, in the case of a subsidiary, in the firm that owns the subsidiary); and
(2) such foreign government is the government of a country that the Secretary of State determines under section 6(j)(1)(A) 1 of the Export Administration Act of 1979 (50 U.S.C. 4605(j)(1)(A)) has repeatedly provided support for acts of international terrorism.
(c)
(B) The Secretary shall maintain records of each contract entered into by reason of subparagraph (A). Such records shall include the following:
(i) The identity of the foreign government concerned.
(ii) The nature of the contract.
(iii) The extent of ownership or control of the firm or subsidiary concerned (or, if appropriate in the case of a subsidiary, of the firm that owns the subsidiary) by the foreign government concerned or the agency or instrumentality of such foreign government.
(iv) The reasons for entering into the contract.
(2) Upon the request of the head of an agency, the Secretary of Defense shall determine whether entering into a contract with a firm or subsidiary described in subsection (b) is inconsistent with the national security objectives of the United States. In making such a determination, the Secretary of Defense shall consider the following:
(A) The relationship of the United States with the foreign government concerned.
(B) The obligations of the United States under international agreements.
(C) The extent of the ownership or control of the firm or subsidiary (or, if appropriate in the case of a subsidiary, of the firm that owns the subsidiary) by the foreign government or an agent or instrumentality of the foreign government.
(D) Whether payments made, or information made available, to the firm or subsidiary under the contract could be used for purposes hostile to the interests of the United States.
(d)
(2)(A) A person may request the Secretary to include on the list maintained under paragraph (1) any firm or subsidiary of a firm that the person believes to be owned or controlled by a foreign government described in subsection (b)(2). Upon receipt of such a request, the Secretary shall determine whether the conditions in paragraphs (1) and (2) of subsection (b) exist in the case of that firm or subsidiary. If the Secretary determines that such conditions do exist, the Secretary shall include the firm or subsidiary on the list.
(B) A firm or subsidiary of a firm included on the list may request the Secretary to remove such firm or subsidiary from the list on the basis that it has been erroneously included on the list or its ownership circumstances have significantly changed. Upon receipt of such a request, the Secretary shall determine whether the conditions in paragraphs (1) and (2) of subsection (b) exist in the case of that firm or subsidiary. If the Secretary determines that such conditions do not exist, the Secretary shall remove the firm or subsidiary from the list.
(C) The Secretary shall establish procedures to carry out this paragraph.
(3) The head of an agency shall prohibit each firm or subsidiary of a firm awarded a contract by the agency from entering into a subcontract under that contract in an amount in excess of $25,000 with a firm or subsidiary included on the list maintained under paragraph (1) unless there is a compelling reason to do so. In the case of any subcontract requiring consent by the head of an agency, the head of the agency shall not consent to the award of the subcontract to a firm or subsidiary included on such list unless there is a compelling reason for such approval.
(e)
(f)
(2) This section does not apply to the Coast Guard or the National Aeronautics and Space Administration.
(g)
(Added Pub. L. 99–500, §101(c) [title X, §951(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–164, and Pub. L. 99–591, §101(c) [title X, §951(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–164; Pub. L. 99–661, div. A, title IX, formerly title IV, §951(a)(1), Nov. 14, 1986, 100 Stat. 3944, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–180, div. A, title XII, §1231(8), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 100–224, §5(b)(2), Dec. 30, 1987, 101 Stat. 1538; Pub. L. 105–85, div. A, title VIII, §843, Nov. 18, 1997, 111 Stat. 1844; Pub. L. 108–136, div. A, title X, §1031(a)(16), Nov. 24, 2003, 117 Stat. 1597; Pub. L. 114–328, div. A, title X, §1081(b)(3)(C), Dec. 23, 2016, 130 Stat. 2418.)
Section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. 4605(j)(1)(A)), referred to in subsecs. (a) and (b)(2), was repealed by Pub. L. 115–232, div. A, title XVII, §1766(a), Aug. 13, 2018, 132 Stat. 2232. For similar provisions, see section 4813(c)(1)(A)(i) of Title 50, War and National Defense, as enacted by Pub. L. 115–232.
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.
A prior section 2327 was renumbered section 2347 of this title.
2016—Subsecs. (a), (b)(2). Pub. L. 114–328 substituted "(50 U.S.C. 4605(j)(1)(A))" for "(50 U.S.C. App. 2405(j)(1)(A))".
2003—Subsec. (c)(1)(A). Pub. L. 108–136, §1031(a)(16)(A), substituted "if in the best interests of the Government" for "after the date on which such head of an agency submits to Congress a report on the contract".
Subsec. (c)(1)(B). Pub. L. 108–136, §1031(a)(16)(B), substituted "The Secretary shall maintain records of each contract entered into by reason of subparagraph (A). Such records" for "A report under subparagraph (A)".
Subsec. (c)(1)(C). Pub. L. 108–136, §1031(a)(16)(C), struck out subpar. (C) which read as follows: "After the head of an agency submits a report to Congress under subparagraph (A) with respect to a firm or a subsidiary, such head of an agency is not required to submit a report before entering into any subsequent contract with such firm or subsidiary unless the information required to be included in such report under subparagraph (B) has materially changed since the submission of the previous report."
1997—Subsecs. (d) to (g). Pub. L. 105–85 added subsecs. (d) and (e) and redesignated former subsecs. (d) and (e) as (f) and (g), respectively.
1987—Subsecs. (a), (b)(2). Pub. L. 100–224 substituted "50 U.S.C. App." for "50 U.S.C." in parenthetical after "Export Administration Act of 1979".
Subsec. (d)(1). Pub. L. 100–180 inserted par. (1) designation.
Pub. L. 99–500, §101(c) [title X, §951(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–165, Pub. L. 99–591, §101(c) [title X, §951(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–165, and Pub. L. 99–661, div. A, title IX, formerly title IV, §951(c), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2327 of title 10, United States Code (as added by subsection (a)(1)), shall apply to contracts entered into by the Secretary of Defense after the end of the 90-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]."
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 103–160, div. A, title VIII, §843, Nov. 30, 1993, 107 Stat. 1720, as amended by Pub. L. 103–355, title VIII, §8105(j), Oct. 13, 1994, 108 Stat. 3393, directed the Secretary of Defense to require any person with whom the Secretary proposed to enter into a contract for the provision of goods or services in an amount in excess of $5,000,000, to report to the Secretary each commercial transaction which that person had conducted with the government of any terrorist country during the preceding three years and during the course of the contract, required the Secretary to prescribe regulations and to submit an annual report to Congress setting forth those commercial transactions with terrorist countries that had been included in the reports made during the preceding fiscal year, and provided that section 843 of Pub. L. 103–160 would expire on Sept. 30, 1996.
1 See References in Text note below.
(a)
(2) The Secretary of Defense shall prescribe regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees under this section.
(b)
(1) shall be retained by the Department of Defense or the element of the Department of Defense receiving the amount; and
(2) shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs incurred in complying with requests for technical data were paid.
(c)
(1) the request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to enable such citizen or corporation to submit an offer or determine whether it is capable of submitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States (except that the Secretary may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, to be refunded upon submission of an offer by the citizen or corporation);
(2) the release of technical data is requested in order to comply with the terms of an international agreement; or
(3) the Secretary determines, in accordance with section 552(a)(4)(A)(iii) of title 5, that such a waiver is in the interests of the United States.
(Added Pub. L. 99–500, §101(c) [title X, §954(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–172, and Pub. L. 99–591, §101(c) [title X, §954(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–172; Pub. L. 99–661, div. A, title IX, formerly title IV, §954(a)(1), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, §7(a)(7)(A), (B)(i), Apr. 21, 1987, 101 Stat. 278.)
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.
A prior section 2328 was renumbered section 2348 of this title.
1987—Pub. L. 100–26, §7(a)(7)(B)(i), substituted "Release of technical data under Freedom of Information Act: recovery of costs" for "Release of technical data" in section catchline.
Subsec. (a)(1). Pub. L. 100–26, §7(a)(7)(A)(i)(I), substituted "such technical data to the person requesting the" for "technical data to a person requesting such a".
Pub. L. 100–26, §7(a)(7)(A)(i)(II), substituted "search, duplication, and review" for "search and duplication".
Subsec. (b). Pub. L. 100–26, §7(a)(7)(A)(ii), substituted "Crediting of receipts" for "Disposition of costs" in heading.
Subsec. (c)(3). Pub. L. 100–26, §7(a)(7)(A)(iii), substituted "section 552(a)(4)(A)(iii)" for "section 552(a)(4)(A)".
Pub. L. 100–26, §12(d)(2), Apr. 21, 1987, 101 Stat. 289, provided that: "The amendment to section 2328 of such title made by section 7(a)(7)(A)(i)(II) shall take effect on the same date and in the same manner as provided in section 1804(b) of Public Law 99–570 [set out as an Effective Date of 1986 Amendment note under section 552 of Title 5, Government Organization and Employees] for the amendment made by section 1803 of that Public Law to section 552a of title 5, United States Code [probably means amendment by section 1803 of Pub. L. 99–570 to section 552(a) of Title 5]."
Pub. L. 99–500, §101(c) [title X, §954(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–173, Pub. L. 99–591, §101(c) [title X, §954(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–173, and Pub. L. 99–661, div. A, title IX, formerly title IV, §954(b), Nov. 14, 1986, 100 Stat. 3953, renumbered title IX by Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made by this section [enacting this section] shall take effect at the end of the 90-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]."
(a)
(1) appropriate and sufficiently detailed data are collected and analyzed to support the validation of requirements for services contracts and inform the planning, programming, budgeting, and execution process of the Department of Defense;
(2) requirements for services contracts are evaluated appropriately and in a timely manner to inform decisions regarding the procurement of services; and
(3) decisions regarding the procurement of services consider available resources and total force management policies and procedures.
(b)
(1) be submitted at or before the time of the budget submission by the President under section 1105(a) of title 31 or on the date on which the future-years defense program is submitted to Congress under section 221 of this title;
(2) cover the fiscal year covered by such budget submission by the President;
(3) be consistent with total amounts of estimated expenditures and proposed appropriations necessary to support the programs, projects, and activities of the Department of Defense included in such budget submission by the President for that fiscal year;
(4) be organized using a common enterprise data structure developed under section 2222 of this title; and
(5) be included in the future-years defense program submitted to Congress under section 221 of this title.
(c)
(2)(A) The Secretary of Defense shall regularly analyze past spending patterns and anticipated future requirements with respect to the procurement of services—
(i) within each Defense Agency and Department of Defense Field Activity; and
(ii) across military departments, Defense Agencies, and Department of Defense Field Activities.
(B) The Secretaries of the military departments shall make data on services contracts available to the Secretary of Defense for purposes of conducting the analysis required under subparagraph (A).
(3) The analyses conducted under this subsection shall—
(A) identify contracts for similar services that are procured for three or more consecutive years at each Defense Agency, Department of Defense Field Activity, command, or military installation;
(B) evaluate patterns in the procurement of services, to the extent practicable, at each Defense Agency, Department of Defense Field Activity, command, or military installation and by category of services procured;
(C) be used to validate requirements for services contracts entered into after the date of the enactment of this subsection; and
(D) be used to inform decisions on the award of and funding for such services contracts.
(d)
(e)
(2)(A) Upon the first use, due to inadequate planning (as determined by the Secretary of Defense), of a bridge contract to provide for continuation of a service to be performed through a services contract, the requirements owner, along with the contracting officer or a designee of the contracting officer for the contract, shall—
(i) for a services contract in an amount less than $10,000,000, provide an update on the status of the bridge contract (including the rationale for using the bridge contract) to the commander or the senior civilian official of the Defense Agency concerned, Department of Defense Field Activity concerned, command concerned, or military installation concerned, as applicable; or
(ii) for a services contract in an amount equal to or greater than $10,000,000, provide an update on the status of the bridge contract (including the rationale for using the bridge contract) to the service acquisition executive for the military department concerned, the head of the Defense Agency concerned, the combatant commander concerned, or the Under Secretary of Defense for Acquisition and Sustainment, as applicable.
(B) Upon the second use, due to inadequate planning (as determined by the Secretary of Defense), of a bridge contract to provide for continuation of a service to be performed through a services contract in an amount less than $10,000,000, the commander or senior civilian official referred to in subparagraph (A)(i) shall provide notification of such second use to the Vice Chief of Staff of the armed force concerned and the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the combatant commander concerned, or the Under Secretary of Defense for Acquisition and Sustainment, as applicable.
(f)
(1) services contracts in support of contingency operations, humanitarian assistance, or disaster relief;
(2) services contracts in support of a national security emergency declared with respect to a named operation; or
(3) services contracts entered into pursuant to an international agreement.
(g)
(1) The term "bridge contact" 1 means—
(A) an extension to an existing contract beyond the period of performance to avoid a lapse in service caused by a delay in awarding a subsequent contract; or
(B) a new short-term contract awarded on a sole-source basis to avoid a lapse in service caused by a delay in awarding a subsequent contract.
(2) The term "requirements owner" means a member of the armed forces (other than the Coast Guard) or a civilian employee of the Department of Defense responsible for a requirement for a service to be performed through a services contract.
(3) The term "Services Requirements Review Board" has the meaning given in Department of Defense Instruction 5000.74, titled "Defense Acquisition of Services" and dated January 5, 2016, or a successor instruction.
(Added Pub. L. 115–91, div. A, title VIII, §851(a)(1), Dec. 12, 2017, 131 Stat. 1489; amended Pub. L. 115–232, div. A, title VIII, §818(a), Aug. 13, 2018, 132 Stat. 1852.)
The date of the enactment of this subsection, referred to in subsec. (c)(3)(C), is the date of enactment of Pub. L. 115–91, which was approved Dec. 12, 2017.
A prior section 2329, added Pub. L. 100–180, div. A, title VIII, §810(a)(1), Dec. 4, 1987, 101 Stat. 1130; amended Pub. L. 100–456, div. A, title XII, §1233(j), Sept. 29, 1988, 102 Stat. 2058; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728, related to contract terms and conditions for production special tooling and production special test equipment, prior to repeal by Pub. L. 103–355, title I, §1506(a), Oct. 13, 1994, 108 Stat. 3298.
2018—Subsec. (b). Pub. L. 115–232, §818(a)(1), substituted "October 1, 2021" for "October 1, 2022" in introductory provisions.
Subsec. (b)(1). Pub. L. 115–232, §818(a)(2), substituted "at or before" for "at or about" and inserted "or on the date on which the future-years defense program is submitted to Congress under section 221 of this title" after "title 31".
Subsec. (b)(5). Pub. L. 115–232, §818(a)(3)–(5), added par. (5).
Pub. L. 115–91, div. A, title VIII, §852, Dec. 12, 2017, 131 Stat. 1492, provided that:
"(a)
"(b)
"(1) the terms 'Defense Agency', 'Department of Defense Field Activity', and 'military department' have the meanings given those terms in section 101 of title 10, United States Code; and
"(2) the term 'total force management policies and procedures' means the policies and procedures established under section 129a of such title."
1 So in original. Probably should be " 'bridge contract' ".
(a)
(1) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall—
(A) develop and maintain (in consultation with the service acquisition executives) policies, procedures, and best practices guidelines addressing the procurement of contract services, including policies, procedures, and best practices guidelines for—
(i) acquisition planning;
(ii) solicitation and contract award;
(iii) requirements development and management;
(iv) contract tracking and oversight;
(v) performance evaluation; and
(vi) risk management;
(B) work with the service acquisition executives and other appropriate officials of the Department of Defense—
(i) to identify the critical skills and competencies needed to carry out the procurement of contract services on behalf of the Department of Defense;
(ii) to develop a comprehensive strategy for recruiting, training, and deploying employees to meet the requirements for such skills and competencies; and
(iii) to ensure that the military departments and Defense Agencies have staff and administrative support that are adequate to effectively perform their duties under this section;
(C) establish contract services acquisition categories, based on dollar thresholds, for the purpose of establishing the level of review, decision authority, and applicable procedures in such categories; and
(D) oversee the implementation of the requirements of this section and the policies, procedures, and best practices guidelines established pursuant to subparagraph (A).
(2) The service acquisition executive of each military department shall be the senior official responsible for the management of acquisition of contract services for or on behalf of the military department.
(3) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall be the senior official responsible for the management of acquisition of contract services for or on behalf of the Defense Agencies and other components of the Department of Defense outside the military departments.
(b)
(2) With respect to the acquisition of contract services by a component or command of the Department of Defense the primary mission of which is the acquisition of products and services, such acquisition shall be conducted in accordance with policies, procedures, and best practices guidelines developed and maintained by the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to subsection (a)(1), subject to oversight by the senior officials referred to in paragraph (1).
(3) In carrying out paragraph (1), each senior official responsible for the management of acquisition of contract services shall—
(A) implement the requirements of this section and the policies, procedures, and best practices guidelines developed by the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to subsection (a)(1)(A);
(B) authorize the procurement of contract services through contracts entered into by agencies outside the Department of Defense in appropriate circumstances, in accordance with the requirements of section 854 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (10 U.S.C. 2304 note), section 814 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (31 U.S.C. 1535 note), and the regulations implementing such sections;
(C) dedicate full-time commodity managers to coordinate the procurement of key categories of services;
(D) ensure that contract services are procured by means of procurement actions that are in the best interests of the Department of Defense and are entered into and managed in compliance with applicable laws, regulations, directives, and requirements;
(E) ensure that competitive procedures and performance-based contracting are used to the maximum extent practicable for the procurement of contract services; and
(F) monitor data collection under section 2330a of this title, and periodically conduct spending analyses, to ensure that funds expended for the procurement of contract services are being expended in the most rational and economical manner practicable.
(c)
(1) The term "procurement action" includes the following actions:
(A) Entry into a contract or any other form of agreement.
(B) Issuance of a task order, delivery order, or military interdepartmental purchase request.
(2) The term "contract services" includes all services acquired from private sector entities by or for the Department of Defense, including services in support of contingency operations. The term does not include services relating to research and development or military construction.
(Added Pub. L. 107–107, div. A, title VIII, §801(b)(1), Dec. 28, 2001, 115 Stat. 1174; amended Pub. L. 107–314, div. A, title X, §1062(a)(8), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 109–163, div. A, title VIII, §812(a)(1), Jan. 6, 2006, 119 Stat. 3376; Pub. L. 112–239, div. A, title VIII, §845(d), Jan. 2, 2013, 126 Stat. 1848.)
Section 854 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, referred to in subsec. (b)(3)(B), is section 854 of div. A of Pub. L. 108–375, which is set out as a note under section 2304 of this title.
Section 814 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, referred to in subsec. (b)(3)(B), is section 814 of div. A of Pub. L. 105–261, which was formerly set out as a note under section 1535 of Title 31, Money and Finance.
A prior section 2330, added Pub. L. 100–456, div. A, title VIII, §801(a)(1), Sept. 29, 1988, 102 Stat. 2007; amended Pub. L. 101–510, div. A, title XIV, §1484(h)(2), Nov. 5, 1990, 104 Stat. 1717; Pub. L. 102–190, div. A, title VIII, §802(d), Dec. 5, 1991, 105 Stat. 1414, related to integrated financing policy, prior to repeal by Pub. L. 102–484, div. D, title XLII, §4271(a)(1), Oct. 23, 1992, 106 Stat. 2695.
Another prior section 2330 was renumbered section 2349 of this title.
2013—Subsec. (c)(2). Pub. L. 112–239 substituted "including services in support of contingency operations. The term does not include services relating to research and development or military construction." for "other than services relating to research and development or military construction."
2006—Pub. L. 109–163 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to requirement for management structure, contracting responsibilities of designated officials, and definitions.
2002—Subsec. (c). Pub. L. 107–314 inserted comma after "a task order".
Pub. L. 114–328, div. A, title VIII, §803(a), Dec. 23, 2016, 130 Stat. 2249, provided that:
"(a)
"(1) how the acquisition community should consider the changing nature of the technology and professional services markets, particularly the convergence of hardware and services; and
"(2) the services acquisition portfolio groups referenced in the Acquisition of Services Instruction and other guidance in order to ensure the portfolio groups are fully reflective of changes to the technology and professional services market."
Pub. L. 114–92, div. A, title VIII, §882, Nov. 25, 2015, 129 Stat. 942, provided that: "Not later than March 1, 2016, the Under Secretary of Defense for Acquisition, Technology, and Logistics shall—
"(1) complete an examination of the decision authority related to acquisition of services; and
"(2) develop and issue guidance to improve capabilities and processes related to requirements development and source selection for, and oversight and management of, services contracts."
Pub. L. 112–81, div. A, title VIII, §807, Dec. 31, 2011, 125 Stat. 1488, which required the implementation of recommendations of the Defense Science Board Task Force on improvements to service contracting, including standards and reporting, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(22), Aug. 13, 2018, 132 Stat. 1849.
Pub. L. 111–383, div. A, title VIII, §863(a)–(h), Jan. 7, 2011, 124 Stat. 4293, 4294, as amended by Pub. L. 112–81, div. A, title IX, §933(c), Dec. 31, 2011, 125 Stat. 1544; Pub. L. 112–239, div. A, title X, §1076(a)(18), Jan. 2, 2013, 126 Stat. 1949, provided that:
"(a)
"(b)
"(1) that the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, and the Commandant of the Marine Corps implement and bear chief responsibility for carrying out, within the Armed Force concerned, the process established pursuant to subsection (a) for such Armed Force; and
"(2) that commanders of unified combatant commands and other officers identified or designated as joint qualified officers have an opportunity to participate in the process of each military department to provide input on joint requirements for the acquisition of services.
"(c)
"(d)
"(1) The organization of such process.
"(2) The level of command responsibility required for identifying, assessing, reviewing, and validating requirements for the acquisition of services in accordance with the requirements of this section and the categories established under section 2330(a)(1)(C) of title 10, United States Code.
"(3) The composition of positions necessary to operate such process.
"(4) The training required for personnel engaged in such process.
"(5) The relationship between doctrine and such process.
"(6) Methods of obtaining input on joint requirements for the acquisition of services.
"(7) Procedures for coordinating with the acquisition process.
"(8) Considerations relating to opportunities for strategic sourcing.
"(9) Considerations relating to total force management policies and procedures established under section 129a of title 10, United States Code.
"(e)
"(f)
"(g)
"(h)
Pub. L. 110–181, div. A, title VIII, §805, Jan. 28, 2008, 122 Stat. 212, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(4), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 113–291, div. A, title X, §1071(b)(2)(A), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 115–232, div. A, title VIII, §836(f)(6), Aug. 13, 2018, 132 Stat. 1871, provided that:
"(a)
"(b)
"(1)
"(2)
"(A) prices paid for the same or similar commercial items under comparable terms and conditions by both government and commercial customers; and
"(B) if the contracting officer determines that the information described in subparagraph (A) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.
"(c)
"(1)
"(A) Services procured for support of a commercial item, as described in section 103(5) of title 41, United States Code.
"(B) Emergency repair services.
"(C) Any other commercial services only to the extent that the head of the agency concerned approves a determination in writing by the contracting officer that—
"(i) the services to be acquired are commercial services as defined in section 103(6) of title 41, United States Code;
"(ii) if the services to be acquired are subject to subsection (b), the offeror of the services has submitted sufficient information in accordance with that subsection;
"(iii) such services are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and
"(iv) the use of a time-and-materials or labor-hour contract type is in the best interest of the Government.
"(2)
[Pub. L. 115–232, div. A, title VIII, §836(f)(6), (h), Aug. 13, 2018, 132 Stat. 1871, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, section 805 of Pub. L. 110–181, set out above, is amended:
[(1) in subsection (b)(1) and (2)(A), by striking "commercial items" and inserting "commercial services"; and
[(2) in subsection (c)—
[(A) in headings for paragraphs (1) and (2), by striking "item" and inserting "services";
[(B) in the matter in paragraph (1) preceding subparagraph (A), by striking "commercial item" and inserting "commercial service";
[(C) in paragraph (1)(A), by striking "a commercial item, as described in section 103(5) of title 41" and inserting "a service, as described in section 103a(1) of title 41";
[(D) in paragraph (1)(C)(i), by striking "section 103(6) of title 41" and inserting "section 103a(2) of title 41"; and
[(E) in paragraph (2), by striking "item" and inserting "service".]
Pub. L. 110–181, div. A, title VIII, §808, Jan. 28, 2008, 122 Stat. 215, as amended by Pub. L. 111–383, div. A, title X, §1075(f)(3), Jan. 7, 2011, 124 Stat. 4376; Pub. L. 115–232, div. A, title VIII, §812(b)(23), Aug. 13, 2018, 132 Stat. 1849, provided that:
"(a)
"(1) contract performance in terms of cost, schedule, and requirements;
"(2) the use of contracting mechanisms, including the use of competition, the contract structure and type, the definition of contract requirements, cost or pricing methods, the award and negotiation of task orders, and management and oversight mechanisms;
"(3) the contractor's use, management, and oversight of subcontractors;
"(4) the staffing of contract management and oversight functions; and
"(5) the extent of any pass-throughs, and excessive pass-through charges (as defined in section 852 of the John Warner National Defense Authorization Act for Fiscal Year 2007 [Pub. L. 109–364, 10 U.S.C. 2324 note]), by the contractor.
"(b)
"(1) the extent of the agency's reliance on the contractor to perform acquisition functions closely associated with inherently governmental functions as defined in section 2383(b)(3) of title 10, United States Code; and
"(2) the financial interest of any prime contractor performing acquisition functions described in paragraph (1) in any contract or subcontract with regard to which the contractor provided advice or recommendations to the agency.
"(c)
"(1) the contracts subject to independent management reviews, including any applicable thresholds and exceptions;
"(2) the frequency with which independent management reviews shall be conducted;
"(3) the composition of teams designated to perform independent management reviews;
"(4) any phase-in requirements needed to ensure that qualified staff are available to perform independent management reviews;
"(5) procedures for tracking the implementation of recommendations made by independent management review teams; and
"(6) procedures for developing and disseminating lessons learned from independent management reviews."
[(d) Repealed. Pub. L. 115–232, div. A, title VIII, §812(b)(23), Aug. 13, 2018, 132 Stat. 1849.]
Pub. L. 107–107, div. A, title VIII, §801(b)(2), Dec. 28, 2001, 115 Stat. 1176, directed the Secretary of Defense to establish and implement the management structure required under this section and the Under Secretary of Defense for Acquisition, Technology, and Logistics to issue guidance for officials in such management structure not later than 180 days after Dec. 28, 2001.
Pub. L. 109–163, div. A, title VIII, §812(b), (c), Jan. 6, 2006, 119 Stat. 3378, 3379, which related to the phased implementation of the requirements of section 2330 of this title, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(24), Aug. 13, 2018, 132 Stat. 1849.
Pub. L. 107–107, div. A, title VIII, §801(d)–(f), Dec. 28, 2001, 115 Stat. 1177, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(8), Dec. 19, 2014, 128 Stat. 3507, which provided for a program review structure applicable to the procurement of services similar to the one applicable to the procurement of weapon systems by the Department of Defense, and a Comptroller General assessment thereof, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(25), Aug. 13, 2018, 132 Stat. 1849.
Pub. L. 107–107, div. A, title VIII, §802, Dec. 28, 2001, 115 Stat. 1178, as amended by Pub. L. 107–314, div. A, title VIII, §805, Dec. 2, 2002, 116 Stat. 2605, which established performance goals for procurements of services pursuant to multiple award contracts, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(26), Aug. 13, 2018, 132 Stat. 1849.
(a)
(1) Logistics management services.
(2) Equipment related services.
(3) Knowledge-based services.
(4) Electronics and communications services.
(b)
(1) The services purchased.
(2) The total dollar amount of the purchase.
(3) The form of contracting action used to make the purchase.
(4) Whether the purchase was made through—
(A) a performance-based contract, performance-based task order, or other performance-based arrangement that contains firm fixed prices for the specific tasks to be performed;
(B) any other performance-based contract, performance-based task order, or performance-based arrangement; or
(C) any contract, task order, or other arrangement that is not performance based.
(5) In the case of a purchase made through an agency other than the Department of Defense, the agency through which the purchase is made.
(6) The extent of competition provided in making the purchase and whether there was more than one offer.
(7) Whether the purchase was made from—
(A) a small business concern;
(B) a small business concern owned and controlled by socially and economically disadvantaged individuals; or
(C) a small business concern owned and controlled by women.
(c)
(A) The Under Secretary of Defense for Personnel and Readiness, as supported by the Under Secretary of Defense (Comptroller), shall be responsible for developing guidance for—
(i) the collection of data regarding functions and missions performed by contractors in a manner that is comparable to the manpower data elements used in inventories of functions performed by Department of Defense employees;
(ii) the calculation of contractor full-time equivalents for direct labor, using direct labor hours in a manner that is comparable to the calculation of Department of Defense civilian full-time employees; and
(iii) the conduct and completion of the annual review required under subsection (e)(1).
(B) The Under Secretary of Defense for Acquisition and Sustainment shall be responsible for developing guidance on other data elements and implementing procedures for requirements relating to acquisition.
(2) The entry for an activity on an inventory under this subsection shall include, for the fiscal year covered by such entry, the following:
(A) The functions and missions performed by the contractor.
(B) The contracting organization, the component of the Department of Defense administering the contract, and the organization whose requirements are being met through contractor performance of the function.
(C) The funding source for the contract under which the function is performed by appropriation and operating agency.
(D) The fiscal year for which the activity first appeared on an inventory under this section.
(E) The number of contractor employees, expressed as full-time equivalents for direct labor, using direct labor hours and associated cost data collected from contractors (except that estimates may be used where such data is not available and cannot reasonably be made available in a timely manner for the purpose of the inventory).
(F) A determination whether the contract pursuant to which the activity is performed is a personal services contract.
(G) A summary of the data required to be collected for the activity under subsection (a).
(3) The inventory required under this subsection shall be submitted in unclassified form, but may include a classified annex.
(d)
(1) review the contracts and activities in the inventory for which such Secretary or agency head is responsible, with particular focus and attention on the following categories of high-risk product service codes (also referred to as Federal supply codes):
(A) Special studies or analysis that is not research and development.
(B) Information technology and telecommunications.
(C) Support, including professional, administrative, and management;
(2) ensure that—
(A) each contract on the list that is a personal services contract has been entered into, and is being performed, in accordance with applicable statutory and regulatory requirements;
(B) the activities on the list do not include any inherently governmental functions; and
(C) to the maximum extent practicable, the activities on the list do not include any functions closely associated with inherently governmental functions; and
(3) identify activities that should be considered for conversion—
(A) to performance by civilian employees of the Department of Defense pursuant to section 2463 of this title; or
(B) to an acquisition approach that would be more advantageous to the Department of Defense.
(e)
(1) provide for the use of the inventory by the military department or Defense Agency to implement the requirements of section 129a of this title;
(2) ensure the inventory is used to inform strategic workforce planning;
(3) facilitate use of the inventory for compliance with section 235 of this title; and
(4) provide for appropriate consideration of the conversion of activities identified under subsection (e)(3) within a reasonable period of time.
(f)
(g)
(h)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(A) The term "small business concern" has the meaning given such term under section 3 of the Small Business Act (15 U.S.C. 632).
(B) The terms "small business concern owned and controlled by socially and economically disadvantaged individuals" and "small business concern owned and controlled by women" have the meanings given such terms, respectively, in section 8(d)(3) of the Small Business Act (15 U.S.C. 637(d)(3)).
(Added Pub. L. 107–107, div. A, title VIII, §801(c), Dec. 28, 2001, 115 Stat. 1176; amended Pub. L. 110–181, div. A, title VIII, §807(a), Jan. 28, 2008, 122 Stat. 213; Pub. L. 111–84, div. A, title VIII, §803(b), Oct. 28, 2009, 123 Stat. 2402; Pub. L. 111–383, div. A, title III, §321, Jan. 7, 2011, 124 Stat. 4183; Pub. L. 112–81, div. A, title IX, §936, Dec. 31, 2011, 125 Stat. 1545; Pub. L. 113–66, div. A, title IX, §951(a), Dec. 26, 2013, 127 Stat. 839; Pub. L. 114–328, div. A, title VIII, §§812, 833(b)(2)(C)(ii), Dec. 23, 2016, 130 Stat. 2269, 2284; Pub. L. 115–91, div. A, title X, §1081(a)(30), (d)(6)(A), Dec. 12, 2017, 131 Stat. 1595, 1600; Pub. L. 115–232, div. A, title VIII, §819, Aug. 13, 2018, 132 Stat. 1853.)
Section 2330a(g)(5) of this title, referred to in subsec. (h)(6), meaning subsec. (g)(5) of this section, was redesignated through a series of amendments as subsec. (h)(4) of this section.
2018—Subsec. (c)(1). Pub. L. 115–232, in introductory provisions, inserted "and contracts closely associated with inherently governmental functions" after "staff augmentation contracts" and substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".
Subsec. (c)(1)(B). Pub. L. 115–232, §819(2), substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".
2017—Subsec. (d)(1)(C). Pub. L. 115–91, §1081(a)(30)(A), struck out period before semicolon at end.
Subsec. (h)(1). Pub. L. 115–91, §1081(a)(30)(B)(i), inserted heading.
Subsec. (h)(2) to (4). Pub. L. 115–91, §1081(d)(6)(A), amended directory language of Pub. L. 114–328, §833(b)(2)(C)(ii). See 2016 Amendment notes below.
Subsec. (h)(5). Pub. L. 115–91, §1081(a)(30)(B)(iii), inserted heading.
Pub. L. 115–91, §1081(a)(30)(B)(ii), redesignated par. (6) defining "service acquisition portfolio groups" as (5). Former par. (5) redesignated (7).
Pub. L. 115–91, §1081(d)(6)(A), amended directory language of Pub. L. 114–328, §833(b)(2)(C)(ii). See 2016 Amendment note below.
Subsec. (h)(6). Pub. L. 115–91, §1081(a)(30)(B)(iv), inserted heading.
Pub. L. 115–91, §1081(a)(30)(B)(ii), redesignated par. (7) as (6). Former par. (6) defining "service acquisition portfolio groups" redesignated (5) and former par. (6) relating to Small Business Act definitions redesignated (8).
Pub. L. 115–91, §1081(d)(6)(A), amended directory language of Pub. L. 114–328, §833(b)(2)(C)(ii). See 2016 Amendment note below.
Subsec. (h)(7). Pub. L. 115–91, §1081(a)(30)(B)(ii), redesignated par. (5) as (7). Former par. (7) redesignated (6).
Subsec. (h)(8). Pub. L. 115–91, §1081(a)(30)(B)(ii), redesignated par. (6) relating to Small Business Act definitions as (8).
2016—Subsec. (a). Pub. L. 114–328, §812(a), (b), substituted "in excess of $3,000,000" for "in excess of the simplified acquisition threshold" and ", for services in the following service acquisition portfolio groups:" for period at end and added pars. (1) to (4).
Subsec. (c). Pub. L. 114–328, §812(c)(1), substituted "Inventory Summary" for "Inventory" in heading.
Subsec. (c)(1). Pub. L. 114–328, §812(c)(2), substituted "prepare an annual inventory, and submit to Congress a summary of the inventory, of activities performed during the preceding fiscal year pursuant to staff augmentation contracts on behalf" for "submit to Congress an annual inventory of the activities performed during the preceding fiscal year pursuant to contracts for services (and pursuant to contracts for goods to the extent services are a significant component of performance as identified in a separate line item of a contract) for or on behalf".
Subsec. (d). Pub. L. 114–328, §812(d), redesignated subsec. (e) as (d) and struck out former subsec. (d). Prior to amendment, text of subsec. (d) read as follows: "Not later than 30 days after the date on which an inventory under subsection (c) is required to be submitted to Congress, the Secretary shall—
"(1) make the inventory available to the public; and
"(2) publish in the Federal Register a notice that the inventory is available to the public."
Subsec. (d)(1). Pub. L. 114–328, §812(e), inserted ", with particular focus and attention on the following categories of high-risk product service codes (also referred to as Federal supply codes):" after "responsible" and added subpars. (A) to (C).
Subsec. (e). Pub. L. 114–328, §812(d)(2), redesignated subsec. (f) as (e). Former subsec. (e) redesignated (d).
Subsec. (f). Pub. L. 114–328, §812(f), added subsec. (f). Former subsec. (f) redesignated (e).
Subsecs. (g), (h). Pub. L. 114–328, §812(d), redesignated subsecs. (i) and (j) as (g) and (h), respectively, and struck out former subsecs. (g) and (h) which related to Inspector General reports and Comptroller General reports, respectively.
Subsec. (h)(2). Pub. L. 114–328, §833(b)(2)(C)(ii)(I), (II), as amended by Pub. L. 115–91, §1081(d)(6)(A), redesignated par. (3) as (2) and struck out former par. (2). Prior to amendment, par. (2) read as follows: "The definitions set forth in section 2225(f) of this title for the terms 'simplified acquisition threshold', 'small business concern', 'small business concern owned and controlled by socially and economically disadvantaged individuals', and 'small business concern owned and controlled by women' shall apply."
Subsec. (h)(3), (4). Pub. L. 114–328, §833(b)(2)(C)(ii)(II), as amended by Pub. L. 115–91, §1081(d)(6)(A), redesignated pars. (4) and (5) as (3) and (4), respectively. Former par. (3) redesignated (2).
Subsec. (h)(5). Pub. L. 114–328, §833(b)(2)(C)(ii)(III), as amended by Pub. L. 115–91, §1081(d)(6)(A), added par. (5). Former par. (5) redesignated (4).
Subsec. (h)(6). Pub. L. 114–328, §833(b)(2)(C)(ii)(III), as amended by Pub. L. 115–91, §1081(d)(6)(A), added par. (6) relating to Small Business Act definitions.
Pub. L. 114–328, §812(g), added par. (6) defining "service acquisition portfolio groups".
Subsec. (h)(7). Pub. L. 114–328, §812(g), added par. (7).
Subsecs. (i), (j). Pub. L. 114–328, §812(d)(2), redesignated subsecs. (i) and (j) as (g) and (h), respectively.
2013—Subsecs. (g) to (j). Pub. L. 113–66 added subsecs. (g) and (h) and redesignated former subsecs. (g) and (h) as (i) and (j), respectively.
2011—Subsec. (c). Pub. L. 111–383, §321(2) to (4), substituted "The guidance for compiling the inventory shall be issued by the Under Secretary of Defense for Personnel and Readiness, the Under Secretary of Defense (Comptroller), and the Under Secretary of Defense for Acquisition, Technology, and Logistics, as follows:" for "The entry for an activity on an inventory under this subsection shall include, for the fiscal year covered by such entry, the following:" in par. (1), added new subpars. (A) and (B) to par. (1), inserted par. (2) designation and introductory provisions before former subpars. (A) to (G) of par. (1) thereby making them part of par. (2), added subpar. (E), and struck out former subpar. (E) which read as follows: "The number of full-time contractor employees (or its equivalent) paid for the performance of the activity."
Subsec. (c)(1). Pub. L. 112–81, §936(a)(1), inserted "(and pursuant to contracts for goods to the extent services are a significant component of performance as identified in a separate line item of a contract)" after "pursuant to contracts for services" in introductory provisions.
Subsec. (c)(1)(A)(ii), (iii). Pub. L. 112–81, §936(a)(2), added cls. (ii) and (iii) and struck out former cl. (ii) which read as follows: "the calculation of contractor manpower equivalents in a manner that is comparable to the calculation of full-time equivalents for use in inventories of functions performed by Department of Defense employees."
Subsec. (c)(1)(B). Pub. L. 112–81, §936(a)(3), inserted "for requirements relating to acquisition" before period at end.
Subsec. (c)(2), (3). Pub. L. 111–383, §321(1), redesignated par. (2) as (3).
Subsec. (e)(2) to (4). Pub. L. 112–81, §936(b), inserted "and" at end of par. (2), substituted period for "; and" at end of par. (3), and struck out par. (4) which read as follows: "develop a plan, including an enforcement mechanism and approval process, to provide for appropriate consideration of the conversion of activities identified under paragraph (3) within a reasonable period of time."
Subsec. (f) to (h). Pub. L. 112–81, §936(c), added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.
2009—Subsec. (e)(4). Pub. L. 111–84 inserted ", including an enforcement mechanism and approval process," after "plan".
2008—Subsecs. (c) to (g). Pub. L. 110–181, §807(a)(1), (2), added subsecs. (c) to (f), redesignated former subsec. (d) as (g), and struck out heading and text of former subsec. (c). Former text read as follows: "To the maximum extent practicable, a single data collection system shall be used to collect data under this section and information under section 2225 of this title."
Subsec. (g)(3) to (5). Pub. L. 110–181, §807(a)(3), added pars. (3) to (5).
Pub. L. 115–91, div. A, title X, §1081(d), Dec. 12, 2017, 131 Stat. 1599, provided that the amendment made by section 1081(d)(6)(A) is effective as of Dec. 23, 2016, and as if included in Pub. L. 114–328 as enacted.
Pub. L. 110–181, div. A, title VIII, §807(b), Jan. 28, 2008, 122 Stat. 215, provided that:
"(1) The amendments made by subsection (a) [amending this section] shall be effective upon the date of the enactment of this Act [Jan. 28, 2008].
"(2) The first inventory required by section 2330a(c) of title 10, United States Code, as added by subsection (a), shall be submitted not later than the end of the third quarter of fiscal year 2008."
Pub. L. 110–417, [div. A], title VIII, §831, Oct. 14, 2008, 122 Stat. 4534, which required the Secretary of Defense to develop certain guidance related to personal services contracts, was repealed by Pub. L. 115–232, div. A, title VIII, §812(b)(27), Aug. 13, 2018, 132 Stat. 1849.
1 See References in Text note below.
(a)
(b)
(1) include standards and approval procedures to minimize the use of such contracts;
(2) establish criteria to ensure that proposals for contracts for technical and professional services are evaluated on a basis which does not encourage contractors to propose uncompensated overtime;
(3) ensure appropriate emphasis on technical and quality factors in the source selection process;
(4) require identification of any hours in excess of 40-hour weeks included in a proposal;
(5) ensure that offerors are notified that proposals which include unrealistically low labor rates or which do not otherwise demonstrate cost realism will be considered in a risk assessment and evaluated appropriately; and
(6) provide guidance to contracting officers to ensure that any use of uncompensated overtime will not degrade the level of technical expertise required to perform the contract.
(Added Pub. L. 101–510, div. A, title VIII, §834(a)(1), Nov. 5, 1990, 104 Stat. 1613; amended Pub. L. 102–25, title VII, §701(a), Apr. 6, 1991, 105 Stat. 113; Pub. L. 103–355, title I, §1004(c), Oct. 13, 1994, 108 Stat. 3253; Pub. L. 107–107, div. A, title VIII, §801(g)(1), Dec. 28, 2001, 115 Stat. 1177.)
A prior section 2331 was renumbered section 2350 of this title.
2001—Pub. L. 107–107 substituted "Procurement of services: contracts" for "Contracts" in section catchline.
1994—Subsec. (c). Pub. L. 103–355 struck out text and heading of subsec. (c). Text read as follows:
"(1) The Secretary of Defense may waive the limitation in section 2304(j)(4) of this title on the total value of task orders for specific contracting activities to the extent the Secretary considers the use of master agreements necessary in order to further the policy set forth in subsection (a).
"(2) During any fiscal year, such a waiver may not increase the total value of task orders under master agreements of a contracting activity by more than 20 percent of the value of all contracts for advisory and assistance services awarded by that contracting activity during fiscal year 1989.
"(3) Such a waiver shall not become effective until 60 days after the Secretary of Defense has published notice thereof in the Federal Register."
1991—Subsec. (c)(1). Pub. L. 102–25 struck out "on a case-by-case basis" after "value of task orders", substituted "considers the use of master agreements necessary" for "considers necessary the use of master agreements", and struck out "of this section" before period at end.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 101–510, div. A, title VIII, §834(b), Nov. 5, 1990, 104 Stat. 1614, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 5, 1990], the Secretary of Defense shall publish for public comment new regulations to carry out the requirements in this section [enacting this section]. The Secretary shall promulgate final regulations to carry out such requirements not later than 270 days after the date of the enactment of this Act."
Pub. L. 114–328, div. A, title VIII, §892, Dec. 23, 2016, 130 Stat. 2324, which required that the Department of Defense select service providers for auditing services and audit readiness services based on the best value to the Department, was repealed by Pub. L. 115–91, div. A, title X, §1002(g)(3), Dec. 12, 2017, 131 Stat. 1542. See section 240f of this title.
Repeal of subsec. (c) of this section by Pub. L. 103–355 not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
Section, added Pub. L. 107–347, title II, §210(a)(1), Dec. 17, 2002, 116 Stat. 2932, related to the authority of a agency head to enter into share-in-savings contracts for information technology.
(a)
(b)
(1) The assignment of a senior commissioned officer or civilian member of the senior executive service, with appropriate experience and qualifications related to the definition of requirements to be satisfied through acquisition contracts (such as for delivery of products or services, performance of work, or accomplishment of a project), to act as head of requirements definition and coordination during combat operations, post-conflict operations, and contingency operations, if required, including leading a requirements review board involving all organizations concerned.
(2) An organizational approach to requirements definition and coordination during combat operations, post-conflict operations, and contingency operations that is designed to ensure that requirements are defined in a way that effectively implements United States Government and Department of Defense objectives, policies, and decisions regarding the allocation of resources, coordination of interagency efforts in the theater of operations, and alignment of requirements with the proper use of funds.
(c)
(1) The assignment of a senior commissioned officer or civilian member of the senior executive service, with appropriate program management experience and qualifications, to act as head of program management during combat operations, post-conflict operations, and contingency operations, including stabilization and reconstruction operations involving multiple United States Government agencies and international organizations, if required.
(2) A preplanned organizational approach to program management during combat operations, post-conflict operations, and contingency operations that is designed to ensure that the Department of Defense is prepared to conduct such program management.
(3) Identification of a deployable cadre of experts, with the appropriate tools and authority, and trained in processes under paragraph (6).
(4) Utilization of the hiring and appointment authorities necessary for the rapid deployment of personnel to ensure the availability of key personnel for sufficient lengths of time to provide for continuing program and project management.
(5) A requirement to provide training (including training under a program to be created by the Defense Acquisition University) to program management personnel in—
(A) the use of laws, regulations, policies, and directives related to program management in combat or contingency environments;
(B) the integration of cost, schedule, and performance objectives into practical acquisition strategies aligned with available resources and subject to effective oversight; and
(C) procedures of the Department of Defense related to funding mechanisms and contingency contract management.
(6) Appropriate steps to ensure that training is maintained for such personnel even when they are not deployed in a contingency operation.
(7) Such steps as may be needed to ensure jointness and cross-service coordination in the area of program management during contingency operations.
(d)
(A) The designation of a senior commissioned officer or civilian member of the senior executive service in each military department with the responsibility for administering the policy.
(B) The assignment of a senior commissioned officer with appropriate acquisition experience and qualifications to act as head of contingency contracting during combat operations, post-conflict operations, and contingency operations, who shall report directly to the commander of the combatant command in whose area of responsibility the operations occur.
(C) A sourcing approach to contingency contracting that is designed to ensure that each military department is prepared to conduct contingency contracting during combat operations, post-conflict operations, and contingency operations, including stabilization and reconstruction operations involving interagency organizations, if required.
(D) A requirement to provide training (including training under a program to be created by the Defense Acquisition University) to contingency contracting personnel in—
(i) the use of law, regulations, policies, and directives related to contingency contracting operations;
(ii) the appropriate use of rapid acquisition methods, including the use of exceptions to competition requirements under section 2304 of this title, sealed bidding, letter contracts, indefinite delivery-indefinite quantity task orders, set asides under section 8(a) of the Small Business Act (15 U.S.C. 637(a)), undefinitized contract actions, and other tools available to expedite the delivery of goods and services during combat operations or post-conflict operations;
(iii) the appropriate use of rapid acquisition authority, commanders' emergency response program funds, and other tools unique to contingency contracting; and
(iv) instruction on the necessity for the prompt transition from the use of rapid acquisition authority to the use of full and open competition and other methods of contracting that maximize transparency in the acquisition process.
(E) Appropriate steps to ensure that training is maintained for such personnel even when they are not deployed in a contingency operation.
(F) Such steps as may be needed to ensure jointness and cross-service coordination in the area of contingency contracting.
(2) To the extent practicable, the joint policy for contingency contracting required by subsection (a) should be taken into account in the development of interagency plans for stabilization and reconstruction operations, consistent with the report submitted by the President under section 1035 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2388) on interagency operating procedures for the planning and conduct of stabilization and reconstruction operations.
(e)
(2) Training under paragraph (1) shall be sufficient to ensure that the military personnel referred to in that paragraph understand the scope and scale of contractor support they will experience in contingency operations and are prepared for their roles and responsibilities with regard to requirements definition, program management (including contractor oversight), and contingency contracting.
(3) The joint policy shall also provide for the incorporation of contractors and contract operations in mission readiness exercises for operations that will include contracting and contractor support.
(f)
(1)
(2)
(3)
(4)
(5)
(6)
(Added Pub. L. 109–364, div. A, title VIII, §854(a)(1), Oct. 17, 2006, 120 Stat. 2343; amended Pub. L. 110–181, div. A, title VIII, §849(a), Jan. 28, 2008, 122 Stat. 245; Pub. L. 111–84, div. A, title X, §1073(a)(23), Oct. 28, 2009, 123 Stat. 2473.)
Section 1035 of the John Warner National Defense Authorization Act for Fiscal Year 2007, referred to in subsec. (d)(2), is section 1035 of Pub. L. 109–364, div. A, title X, Oct. 17, 2006, 120 Stat. 2388, which is not classified to the Code.
2009—Subsec. (d)(1)(D)(ii). Pub. L. 111–84, §1073(a)(23)(A), substituted "indefinite delivery-indefinite quantity" for "indefinite delivery indefinite quantity".
Subsec. (d)(2). Pub. L. 111–84, §1073(a)(23)(B), substituted "the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2388)" for "this Act".
Subsec. (f)(3). Pub. L. 111–84, §1073(a)(23)(C), substituted "section 101(a)(13)" for "section 101(13)".
2008—Subsecs. (e), (f). Pub. L. 110–181 added subsec. (e) and redesignated former subsec. (e) as (f).
Pub. L. 114–328, div. A, title XII, §1281, Dec. 23, 2016, 130 Stat. 2541, provided that:
"(a)
"(b)
"(1) The price charged by a supplying agency shall be the direct costs that such agency incurred by providing the covered support, supplies, or services to the requesting agency under this section.
"(2) Credits and liabilities of the agencies accrued as a result of acquisitions and transfers of covered support, supplies, and services under this section shall be liquidated not less often than once every 3 months by direct payment to the agency supplying such support, supplies, or services by the agency receiving such support, supplies, or services.
"(3) Exchange entitlements accrued as a result of acquisitions and transfers of covered support, supplies, and services under this section shall be satisfied within 12 months after the date of the delivery of the covered support, supplies, or services. Exchange entitlements not so satisfied shall be immediately liquidated by direct payment to the agency supplying such covered support, supplies, or services.
"(c)
"(d)
"(1)
"(2)
"(e)
"(1) the appropriation, fund, or account used in incurring the obligation; or
"(2) an appropriate appropriation, fund, or account currently available for the purposes for which the expenditures were made.
"(f)
Pub. L. 114–328, div. A, title XII, §1291, Dec. 23, 2016, 130 Stat. 2558, provided that:
"(a)
"(b)
"(c)
"(1) the Committee on Armed Services and the Committee on Foreign Relations of the Senate; and
"(2) the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives."
Pub. L. 109–364, div. A, title VIII, §854(b), Oct. 17, 2006, 120 Stat. 2346, provided that: "The Secretary of Defense shall develop the joint policies required under section 2333 of title 10, United States Code, as added by subsection (a), not later than 18 months after the date of enactment of this Act [Oct. 17, 2006]."
(a)
(1) prescribe, by authority of the Secretary of Defense, policies and procedures for the conduct of cost estimation and cost analysis for the acquisition programs of the Department of Defense;
(2) provide guidance to and consult with the Secretary of Defense, the Under Secretary of Defense for Acquisition, Technology, and Logistics, the Under Secretary of Defense (Comptroller), the Secretaries of the military departments, and the heads of the Defense Agencies with respect to cost estimation in the Department of Defense in general and with respect to specific cost estimates and cost analyses to be conducted in connection with a major defense acquisition program or major subprogram under chapter 144 of this title;
(3) issue guidance relating to the proper discussion of risk in cost estimates generally, and specifically, for the proper discussion of risk in cost estimates for major defense acquisition programs and major subprograms;
(4) issue guidance relating to full consideration of life-cycle management and sustainability costs in major defense acquisition programs and major subprograms;
(5) review all cost estimates and cost analyses conducted in connection with major defense acquisition programs and major subprograms;
(6) conduct or approve independent cost estimates and cost analyses for all major defense acquisition programs and major subprograms—
(A) in advance of—
(i) any decision to grant milestone approval pursuant to section 2366a or 2366b of this title;
(ii) any decision to enter into low-rate initial production or full-rate production;
(iii) any certification under section 2433a of this title; and
(iv) any report under section 2445c(f) of this title; and
(B) at any other time considered appropriate by the Director, upon the request of the Under Secretary of Defense for Acquisition, Technology, and Logistics, or upon the request of the milestone decision authority;
(7) periodically assess and update the cost indexes used by the Department to ensure that such indexes have a sound basis and meet the Department's needs for realistic cost estimation; and
(8) annually review the cost and associated information required to be included, by section 2432(c)(1) of this title, in the Selected Acquisition Reports required by that section.
(b)
(A) for the technology maturation and risk reduction phase, includes the identification and sensitivity analysis of key cost drivers that may affect life-cycle costs of the program or subprogram; and
(B) for the engineering and manufacturing development phase, or production and deployment phase, includes a cost estimate of the full life-cycle cost of the program or subprogram.
(2) The regulations governing the content and submission of independent cost estimates required by subsection (a) shall require that the independent cost estimate of the full life-cycle cost of a program or subprogram include—
(A) all costs of development, procurement, military construction, operations and support, and trained manpower to operate, maintain, and support the program or subprogram upon full operational deployment, without regard to funding source or management control; and
(B) an analysis to support decisionmaking that identifies and evaluates alternative courses of action that may reduce cost and risk, and result in more affordable programs and less costly systems.
(c)
(1) promptly receives the results of all cost estimates and cost analyses conducted by the military departments and Defense Agencies, and all studies conducted by the military departments and Defense Agencies in connection with such cost estimates and cost analyses, for major defense acquisition programs and major subprograms of the military departments and Defense Agencies; and
(2) has timely access to any records and data in the Department of Defense (including the records and data of each military department and Defense Agency and including classified and proprietary information) that the Director considers necessary to review in order to carry out any duties under this section.
(d)
(1) participate in the discussion of any discrepancies between an independent cost estimate and the cost estimate of a military department or Defense Agency for a major defense acquisition program or major subprogram of the Department of Defense;
(2) comment on deficiencies in the methodology or execution of any cost estimate or cost analysis developed by a military department or Defense Agency for a major defense acquisition program or major subprogram;
(3) concur in the choice of a cost estimate within the baseline description or any other cost estimate (including the discussion of risk for any such cost estimate) for use at any event specified in subsection (a)(6); and
(4) participate in the consideration of any decision to request authorization of a multiyear procurement contract for a major defense acquisition program or major subprogram.
(e)
(1) issue guidance requiring a discussion of risk, the potential impacts of risk on program costs, and approaches to mitigate risk in cost estimates for major defense acquisition programs and major subprograms;
(2) ensure that cost estimates are developed, to the extent practicable, based on historical actual cost information that is based on demonstrated contractor and Government performance and that such estimates provide a high degree of confidence that the program or subprogram can be completed without the need for significant adjustment to program budgets; and
(3) include the information required in the guidance under paragraph (1)—
(A) in any decision documentation approving a cost estimate within the baseline description or any other cost estimate for use at any event specified in subsection (a)(6); and
(B) in the next Selected Acquisition Report pursuant to section 2432 of this title in the case of a major defense acquisition program or major subprogram, or the next quarterly report pursuant to section 2445c of this title in the case of a major automated information system program.
(f)
(2) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall, in consultation with the Director of Cost Assessment and Program Evaluation, develop policies, procedures, and guidance to ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are based on the Government's reasonable expectation of successful contractor performance in accordance with the contractor's proposal and previous experience.
(3) The Program Manager and contracting officer for each major defense acquisition program and major subprogram shall ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are carried out in accordance with the requirements of paragraph (1) and the policies, procedures, and guidance issued by the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (2).
(4) Funds that are made available for a major defense acquisition program or major subprogram in accordance with a cost estimate conducted pursuant to subsection (a)(6), but are excess to a cost analysis or target developed pursuant to paragraph (2), shall remain available for obligation in accordance with the terms of applicable authorization and appropriations Acts.
(5) Funds described in paragraph (4)—
(A) may be used—
(i) to cover any increased program costs identified by a revised cost analysis or target developed pursuant to paragraph (2);
(ii) to acquire additional end items in accordance with the requirements of section 2308 of this title; or
(iii) to cover the cost of risk reduction and process improvements; and
(B) may be reprogrammed, in accordance with established procedures, only if determined to be excess to program needs on the basis of a cost estimate developed with the concurrence of the Director of Cost Assessment and Program Evaluation.
(g)
(2) The program manager and contracting officer for each acquisition program in an amount greater than $100,000,000, in consultation with the cost estimating component of the relevant military department or Defense Agency, shall ensure that cost data are collected in accordance with the requirements of paragraph (1).
(3) The requirement under paragraph (1) may be waived only by the Director of Cost Assessment and Program Evaluation.
(h)
(Added Pub. L. 111–23, title I, §101(b)(1), May 22, 2009, 123 Stat. 1706; amended Pub. L. 111–383, div. A, title VIII, §811, Jan. 7, 2011, 124 Stat. 4263; Pub. L. 112–81, div. A, title VIII, §833, Dec. 31, 2011, 125 Stat. 1506; Pub. L. 113–66, div. A, title VIII, §812(c), Dec. 26, 2013, 127 Stat. 808; Pub. L. 114–92, div. A, title VIII, §824(b), title X, §1077(a), Nov. 25, 2015, 129 Stat. 907, 998; Pub. L. 114–328, div. A, title VIII, §§842(a), (b), 846(3), Dec. 23, 2016, 130 Stat. 2288, 2289, 2292; Pub. L. 115–91, div. A, title X, §1081(a)(31), Dec. 12, 2017, 131 Stat. 1596.)
2017—Subsec. (a)(6)(B). Pub. L. 115–91 inserted semicolon at end.
2016—Subsec. (a)(2). Pub. L. 114–328, §846(3), which directed striking out "or a major automated information system under chapter 144A of this title", was executed by striking out "or a major automated information system program under chapter 144A of this title" before semicolon at end, to reflect the probable intent of Congress.
Pub. L. 114–328, §842(b)(1), inserted "or major subprogram" before "under chapter 144".
Subsec. (a)(3). Pub. L. 114–328, §842(a)(1), (b)(2), substituted "discussion of risk" for "selection of confidence levels" in two places and "major defense acquisition programs and major subprograms" for "major defense acquisition programs and major automated information system programs".
Subsec. (a)(4), (5). Pub. L. 114–328, §842(b)(2), substituted "major defense acquisition programs and major subprograms" for "major defense acquisition programs and major automated information system programs".
Subsec. (a)(6). Pub. L. 114–328, §842(a)(2)(A), (B), in introductory provisions, inserted "or approve" after "conduct" and substituted "all major defense acquisition programs and major subprograms—" for "major defense acquisition programs and major automated information system programs for which the Under Secretary of Defense for Acquisition, Technology, and Logistics is the Milestone Decision Authority—".
Subsec. (a)(6)(B). Pub. L. 114–328, §842(a)(2)(C), substituted ", upon the request of the Under Secretary of Defense for Acquisition, Technology, and Logistics, or upon the request of the milestone decision authority" for "or upon the request of the Under Secretary of Defense for Acquisition, Technology, and Logistics;".
Subsec. (b). Pub. L. 114–328, §842(a)(4), added subsec. (b). Former subsec. (b) redesignated (c).
Subsec. (c). Pub. L. 114–328, §842(a)(3), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).
Subsec. (c)(1). Pub. L. 114–328, §842(b)(2), substituted "major defense acquisition programs and major subprograms" for "major defense acquisition programs and major automated information system programs".
Subsec. (d). Pub. L. 114–328, §842(a)(3), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e).
Subsec. (d)(1), (2). Pub. L. 114–328, §842(b)(3), substituted "major defense acquisition program or major subprogram" for "major defense acquisition program or major automated information system program".
Subsec. (d)(3). Pub. L. 114–328, §842(a)(5), substituted "discussion of risk" for "confidence level".
Subsec. (d)(4). Pub. L. 114–328, §842(b)(4), inserted "or major subprogram" before period at end.
Subsec. (e). Pub. L. 114–328, §842(a)(3), (6)(A), redesignated subsec. (d) as (e) and substituted "Discussion of Risk in Cost Estimates" for "Disclosure of Confidence Levels for Baseline Estimates of Major Defense Acquisition Programs" in heading. Former subsec. (e) redesignated (f).
Subsec. (e)(1). Pub. L. 114–328, §842(a)(6)(B), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "disclose in accordance with paragraph (3) the confidence level used in establishing a cost estimate for a major defense acquisition program or major automated information system program and the rationale for selecting such confidence level;".
Subsec. (e)(2). Pub. L. 114–328, §842(a)(6)(C), substituted "cost estimates are developed, to the extent practicable, based on historical actual cost information that is based on demonstrated contractor and Government performance and that such estimates provide" for "such confidence level provides" and inserted "or subprogram" after "the program".
Subsec. (e)(3). Pub. L. 114–328, §842(a)(6)(D), substituted "information required in the guidance under paragraph (1)" for "disclosure required by paragraph (1)" in introductory provisions.
Subsec. (e)(3)(B). Pub. L. 114–328, §842(b)(5), inserted "or major subprogram" after "major defense acquisition program".
Subsec. (f). Pub. L. 114–328, §842(a)(3), redesignated subec. (e) as (f). Former subsec. (f) redesignated (h).
Subsec. (f)(3). Pub. L. 114–328, §842(b)(6), substituted "major defense acquisition program and major subprogram" for "major defense acquisition program and major automated information system program".
Subsec. (f)(4). Pub. L. 114–328, §842(b)(3), substituted "major defense acquisition program or major subprogram" for "major defense acquisition program or major automated information system program".
Subsec. (g). Pub. L. 114–328, §842(a)(7), added subsec. (g).
Subsec. (h). Pub. L. 114–328, §842(a)(3), redesignated subsec. (f) as (h).
2015—Subsec. (a)(6)(A)(i). Pub. L. 114–92, §824(b), substituted "any decision to grant milestone approval pursuant to" for "any certification under".
Subsecs. (f), (g). Pub. L. 114–92, §1077(a), redesignated subsec. (g) as (f) and struck out former subsec. (f) which related to annual report on cost assessment activities.
2013—Subsec. (a)(8). Pub. L. 113–66, §812(c)(1), added par. (8).
Subsec. (f)(1). Pub. L. 113–66, §812(c)(2)(A), substituted "report—" for "report, an assessment of—" in introductory provisions.
Subsec. (f)(1)(A) to (C). Pub. L. 113–66, §812(c)(2)(B), inserted "an assessment of" at beginning of subpars. (A) to (C).
Subsec. (f)(1)(D). Pub. L. 113–66, §812(c)(2)(C)–(E), added subpar. (D).
2011—Subsec. (d)(1). Pub. L. 111–383, §811(1)(A), substituted "paragraph (3)" for "paragraph (2)" and "and the rationale for selecting such confidence level;" for ", the rationale for selecting such confidence level, and, if such confidence level is less than 80 percent, the justification for selecting a confidence level of less than 80 percent; and".
Subsec. (d)(2), (3). Pub. L. 111–383, §811(1)(B), (C), added par. (2) and redesignated former par. (2) as (3).
Subsec. (e). Pub. L. 111–383, §811(3), added subsec. (e). Former subsec. (e) redesignated (f).
Subsec. (e)(1). Pub. L. 112–81, §833(2)(A), (B), substituted "shall provide that" for "shall provide that—", struck out subpar. (A) designation before "cost estimates", and substituted period at end for "; and".
Subsec. (e)(2). Pub. L. 112–81, §833(3), substituted "The Under Secretary of Defense for Acquisition, Technology, and Logistics shall, in consultation with the Director of Cost Assessment and Program Evaluation, develop policies, procedures, and guidance to ensure that cost analyses and targets" for "cost analyses and targets".
Pub. L. 112–81, §833(2)(C), redesignated par. (1)(B) as (2) and realigned margin. Former par. (2) redesignated (3).
Subsec. (e)(3). Pub. L. 112–81, §833(4), substituted "issued by the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (2)" for "issued by the Director of Cost Assessment and Program Evaluation".
Pub. L. 112–81, §833(1), redesignated par. (2) as (3). Former par. (3) redesignated (4).
Subsec. (e)(4). Pub. L. 112–81, §833(1), redesignated par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (e)(5). Pub. L. 112–81, §833(5), substituted "paragraph (4)" for "paragraph (3)" in introductory provisions.
Pub. L. 112–81, §833(1), redesignated par. (4) as (5).
Subsecs. (f), (g). Pub. L. 111–383, §811(2), redesignated subsecs. (e) and (f) as (f) and (g), respectively.
Pub. L. 114–328, div. A, title VIII, §846, Dec. 23, 2016, 130 Stat. 2292, provided that the amendment made by section 846(3) is effective Sept. 30, 2017.
(a)
(1) as part of a solicitation, request for bid, request for proposal, or any other form of communication designed to solicit offers in connection with the award of a contract for procurement of property or services; or
(2) during the course of contract performance as part of the process associated with modifying a contract or exercising a contract option.
(b)
(c)
(1) waiving, superseding, restricting, or limiting the application of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101 et seq.) or preventing Federal regulatory or law enforcement agencies from collecting or receiving information authorized by law; or
(2) precluding the Defense Contract Audit Agency from accessing and reviewing certain information, including political information, for the purpose of identifying unallowable costs and administering cost principles established pursuant to section 2324 of this title.
(d)
(1)
(2)
(3)
(Added Pub. L. 112–81, div. A, title VIII, §823(a), Dec. 31, 2011, 125 Stat. 1502; amended Pub. L. 113–291, div. A, title X, §1071(f)(17), Dec. 19, 2014, 128 Stat. 3511; Pub. L. 115–91, div. A, title X, §1081(a)(32), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 115–232, div. A, title VIII, §836(c)(10), Aug. 13, 2018, 132 Stat. 1866.)
Pub. L. 115–232, div. A, title VIII, §836(c)(10), (h), Aug. 13, 2018, 132 Stat. 1866, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, subsection (b) of this section is amended by striking "commercial items" and inserting "commercial products and commercial services". See 2018 Amendment note below.
The Federal Election Campaign Act of 1971, referred to in subsecs. (c)(1) and (d)(3), is Pub. L. 92–225, Feb. 7, 1972, 86 Stat. 3, which is classified principally to chapter 301 (§30101 et seq.) of Title 52, Voting and Elections. For complete classification of this Act to the Code, see Tables.
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products and commercial services" for "commercial items".
2017—Subsecs. (c)(1), (d)(3). Pub. L. 115–91 substituted "(52 U.S.C. 30101 et seq.)" for "(2 U.S.C. 431 et seq.)".
2014—Subsec. (d)(2). Pub. L. 113–291, §1071(f)(17)(A), redesignated last sentence as par. (3).
Subsec. (d)(3). Pub. L. 113–291, §1071(f)(17)(B)(ii), (iii), substituted "that term" for "the term" and "Federal Election Campaign" for "Federal Campaign".
Pub. L. 113–291, §1071(f)(17)(B)(i), which directed amendment of par. (3) by inserting "
Pub. L. 113–291, §1071(f)(17)(A), redesignated last sentence of par. (2) as (3).
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.
(a)
(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)
(1)
(2)
(A) develop and implement a comprehensive product support strategy for the weapon system;
(B) use 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, 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 weapon 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.
(c)
(1)
(2)
(A) Performance-based logistics.
(B) Sustainment support.
(C) Contractor logistics support.
(D) Life-cycle product support.
(E) Weapon systems product support.
(3)
(4)
(5)
(Added Pub. L. 112–239, div. A, title VIII, §823(a)(1), Jan. 2, 2013, 126 Stat. 1830; amended Pub. L. 113–66, div. A, title VIII, §823, Dec. 26, 2013, 127 Stat. 809.)
2013—Subsec. (b)(2)(I). Pub. L. 113–66 added subpar. (I).
Provisions similar to 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.
(a)
(b)
(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 2337 of this title;
(2) require the military departments to retain each estimate of operating and support costs that is developed at any time during the life cycle of a major weapon system, together with supporting documentation used to develop the estimate;
(3) require the military departments to update estimates of operating and support costs periodically throughout the life cycle of a major weapon system, to determine whether preliminary information and assumptions remain relevant and accurate, and identify and record reasons for variances;
(4) establish policies and procedures for the collection, organization, maintenance, and availability of standardized data on operating and support costs for major weapon systems in accordance with section 2222 of this title;
(5) establish standard requirements for the collection and reporting of data on operating and support costs for major weapon systems by contractors performing weapon system sustainment functions in an appropriate format, and develop contract clauses to ensure that contractors comply with such requirements;
(6) require the military departments—
(A) to collect and retain data from operational and developmental testing and evaluation on the reliability and maintainability of major weapon systems; and
(B) to use such data to inform system design decisions, provide insight into sustainment costs, and inform estimates of operating and support costs for such systems;
(7) require the military departments to ensure that sustainment factors are fully considered at key life-cycle management decision points and that appropriate measures are taken to reduce operating and support costs by influencing system design early in development, developing sound sustainment strategies, and addressing key drivers of costs;
(8) require the military departments to conduct an independent logistics assessment of each major weapon system prior to key acquisition decision points (including milestone decisions) to identify features that are likely to drive future operating and support costs, changes to system design that could reduce such costs, and effective strategies for managing such costs;
(9) include—
(A) reliability metrics for major weapon systems; and
(B) requirements on the use of metrics under subparagraph (A) as triggers—
(i) to conduct further investigation and analysis into drivers of those metrics; and
(ii) to develop strategies for improving reliability, availability, and maintainability of such systems at an affordable cost; and
(10) require the military departments to conduct periodic reviews of operating and support costs of major weapon systems after such systems achieve initial operational capability to identify and address factors resulting in growth in operating and support costs and adapt support strategies to reduce such costs.
(c)
(1)
(2)
(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)
(Added Pub. L. 115–91, div. A, title VIII, §836(a)(1), Dec. 12, 2017, 131 Stat. 1472; amended Pub. L. 115–232, div. A, title X, §1081(a)(20), Aug. 13, 2018, 132 Stat. 1984.)
Provisions similar to this section were contained in section 832 of Pub. L. 112–81, which was set out as a note under section 2430 of this title, prior to repeal by Pub. L. 115–91, div. A, title VIII, §836(b)(1), Dec. 12, 2017, 131 Stat. 1473.
2018—Subsec. (d). Pub. L. 115–232 substituted "this title" for "title 10, United States Code".
Pub. L. 115–91, div. A, title VIII, §837, Dec. 12, 2017, 131 Stat. 1474, provided that:
"(a)
"(b)
"(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."
The micro-purchase threshold for the Department of Defense is $10,000.
(Added Pub. L. 114–328, div. A, title VIII, §821(a), Dec. 23, 2016, 130 Stat. 2276; amended Pub. L. 115–232, div. A, title VIII, §821(a), Aug. 13, 2018, 132 Stat. 1853.)
2018—Pub. L. 115–232 substituted "The micro-purchase threshold for the Department of Defense is $10,000" for "Notwithstanding subsection (a) of section 1902 of title 41, the micro-purchase threshold for the Department of Defense for purposes of such section is $5,000".
Section, added Pub. L. 114–328, div. A, title II, §217(a)(1), Dec. 23, 2016, 130 Stat. 2051, set the micro-purchase threshold for basic research programs and activities of the Department of Defense science and technology reinvention laboratories.
(a)
(1) carry out a covered procurement action; and
(2) limit, notwithstanding any other provision of law, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action.
(b)
(1) obtaining a joint recommendation by the Under Secretary of Defense for Acquisition and Sustainment and the Chief Information Officer of the Department of Defense, on the basis of a risk assessment by the Under Secretary of Defense for Intelligence, that there is a significant supply chain risk to a covered system;
(2) making a determination in writing, in unclassified or classified form, with the concurrence of the Under Secretary of Defense for Acquisition and Sustainment, that—
(A) use of the authority in subsection (a)(1) is necessary to protect national security by reducing supply chain risk;
(B) less intrusive measures are not reasonably available to reduce such supply chain risk; and
(C) in a case where the head of the covered agency plans to limit disclosure of information under subsection (a)(2), the risk to national security due to the disclosure of such information outweighs the risk due to not disclosing such information; and
(3) providing a classified or unclassified notice of the determination made under paragraph (2) to the appropriate congressional committees, which notice shall include—
(A) the information required by section 2304(f)(3) of this title;
(B) the joint recommendation by the Under Secretary of Defense for Acquisition and Sustainment and the Chief Information Officer of the Department of Defense as specified in paragraph (1);
(C) a summary of the risk assessment by the Under Secretary of Defense for Intelligence that serves as the basis for the joint recommendation specified in paragraph (1); and
(D) a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why they were not reasonably available to reduce supply chain risk.
(c)
(d)
(1) no action undertaken by the agency head under such authority shall be subject to review in a bid protest before the Government Accountability Office or in any Federal court; and
(2) the agency head shall—
(A) notify appropriate parties of a covered procurement action and the basis for such action only to the extent necessary to effectuate the covered procurement action;
(B) notify other Department of Defense components or other Federal agencies responsible for procurements that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and
(C) ensure the confidentiality of any such notifications.
(e)
(1)
(A) The Secretary of Defense.
(B) The Secretary of the Army.
(C) The Secretary of the Navy.
(D) The Secretary of the Air Force.
(2)
(A) The exclusion of a source that fails to meet qualification standards established in accordance with the requirements of section 2319 of this title for the purpose of reducing supply chain risk in the acquisition of covered systems.
(B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.
(C) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract.
(3)
(A) a source selection for a covered system or a covered item of supply involving either a performance specification, as provided in section 2305(a)(1)(C)(ii) of this title, or an evaluation factor, as provided in section 2305(a)(2)(A) of this title, relating to supply chain risk;
(B) the consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 2304c(d)(3) of this title, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk; or
(C) any contract action involving a contract for a covered system or a covered item of supply where such contract includes a clause establishing requirements relating to supply chain risk.
(4)
(5)
(6)
(7)
(A) in the case of a covered system included in the National Intelligence Program or the Military Intelligence Program, the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the congressional defense committees; and
(B) in the case of a covered system not otherwise included in subparagraph (A), the congressional defense committees.
(Added Pub. L. 115–232, div. A, title VIII, §881(a)(1), Aug. 13, 2018, 132 Stat. 1910.)