US CODE: Title 10,2302. Definitions

TITLE 10 > Subtitle A > PART IV > CHAPTER 137 > § 2302

NOTES:

Source

(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.)

Historical and Revision Notes
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.

1958 Act
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].

Amendments

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”.

Effective Date of 2002 Amendment

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.

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 251 of Title 41, Public Contracts.

Effective Date of 1994 Amendment

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 251 of Title 41, Public Contracts.

Effective Date of 1984 Amendment

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 251 of Title 41, Public Contracts.

Effective Date of 1980 Amendment

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

Effective Date of 1958 Amendment

Section 301(e) of Pub. L. 85–568 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.”

Short Title of 1986 Amendment

Section 101 (c) [title X, § 900] of Pub. L. 99–500 and Pub. L. 99–591, and section 900 of title IX of division A of Pub. L. 99–661, 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’.”

Short Title of 1985 Amendment

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 section 2168 of Title 50, Appendix, 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 section 2168 of Title 50, Appendix, 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’.”

Short Title of 1984 Amendment

Section 1201 of title XII of Pub. L. 98–525 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’.”

Trusted Defense Systems

Pub. L. 110–417, [div. A], title II, § 254, Oct. 14, 2008, 122 Stat. 4402, provided that:

“(a) Vulnerability Assessment Required.—The Secretary of Defense shall conduct an assessment of selected covered acquisition programs to identify vulnerabilities in the supply chain of each program’s electronics and information processing systems that potentially compromise the level of trust in the systems. Such assessment shall—

“(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) Assessment of Methods for Verifying the Trust of Semiconductors Procured From Commercial Sources.—The Under Secretary of Defense for Acquisition, Technology, and Logistics, in consultation with appropriate elements of the Department of Defense, the intelligence community, private industry, and academia, shall conduct an assessment of various methods of verifying the trust of semiconductors procured by the Department of Defense from commercial sources for use in mission-critical components of potentially vulnerable defense systems. The assessment shall include the following:

“(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) Strategy Required.—

“(1) In general.—The lead person identified under subsection (a)(4), in cooperation with the supporting elements also identified under such subsection, shall develop an integrated strategy—

“(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) Requirements.—At a minimum, the strategy shall—

“(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) Policies and Actions for Assuring Trust in Integrated Circuits.—Not later than 180 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall—

“(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) Submission to Congress.—Not later than 12 months after the date of the enactment of this Act [Oct. 14, 2008], 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]—

“(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) Definitions.—In this section:

“(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.”

Increase of Domestic Breeding of Military Working Dogs Used by the Department of Defense

Pub. L. 110–417, [div. A], title III, § 358, Oct. 14, 2008, 122 Stat. 4427, provided that:

“(a) Increased Capacity.—The Secretary of Defense, acting through the Executive Agent for Military Working Dogs (hereinafter in this section referred to as the ‘Executive Agent’), shall—

“(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) Military Working Dog Procurement.—The Secretary, acting through the Executive Agent[,] shall work to ensure that military working dogs are procured as efficiently as possible and at the best value to the Government, while maintaining the necessary level of quality and encouraging increased domestic breeding.

“(c) Military Working Dog Defined.—For purposes of this section, the term ‘military working dog’ means a dog used in any official military capacity, as defined by the Secretary of Defense.”

Comprehensive Audit of Spare Parts Purchases and Depot Overhaul and Maintenance of Equipment for Operations in Iraq and Afghanistan

Pub. L. 110–417, [div. A], title VIII, § 852, Oct. 14, 2008, 122 Stat. 4543, provided that:

“(a) Audits Required.—The Army Audit Agency, the Navy Audit Service, and the Air Force Audit Agency shall each conduct thorough audits to identify potential waste, fraud, and abuse in the performance of the following:

“(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) Comprehensive Audit Plan.—

“(1) Plans.—The Army Audit Agency, the Navy Audit Service, and the Air Force Audit Agency shall, in coordination with the Inspector General of the Department of Defense, develop a comprehensive plan for a series of audits to discharge the requirements of subsection (a).

“(2) Incorporation into required audit plan.—The plan developed under paragraph (1) shall be submitted to the Inspector General of the Department of Defense for incorporation into the audit plan required by section 842(b)(1) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181; 122 Stat. 234; 10 U.S.C. 2302 note ).

“(c) Independent Conduct of Audit Functions.—All audit functions performed under this section, including audit planning and coordination, shall be performed in an independent manner.

“(d) Availability of Results.—All audit reports resulting from audits under this section shall be made available to the Commission on Wartime Contracting in Iraq and Afghanistan established pursuant to section 841 of the National Defense Authorization Act for Fiscal Year 2008 [Pub. L. 110–181] (122 Stat. 230).

“(e) Construction.—Nothing in this section shall be construed to require any agency of the Federal Government to duplicate audit work that an agency of the Federal Government has already performed.”

Motor Carrier Fuel Surcharges

Pub. L. 110–417, [div. A], title VIII, § 884, Oct. 14, 2008, 122 Stat. 4560, provided that:

“(a) Pass Through to Cost Bearer.—The Secretary of Defense shall take appropriate actions to ensure that, to the maximum extent practicable, in all carriage contracts in which a fuel-related adjustment is provided for, any fuel-related adjustment is passed through to the person who bears the cost of the fuel that the adjustment relates to.

“(b) Use of Contract Clause.—The actions taken by the Secretary under subsection (a) shall include the insertion of a contract clause, with appropriate flow-down requirements, into all contracts with motor carriers, brokers, or freight forwarders providing or arranging truck transportation or services in which a fuel-related adjustment is provided for.

“(c) Disclosure.—The Secretary shall publicly disclose any decision by the Department of Defense to pay fuel-related adjustments under contracts (or a category of contracts) covered by this section.

“(d) Report.—Not later than 270 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary shall submit to the committees on Armed Services of the Senate and the House of Representatives a report on the actions taken in accordance with the requirements of subsection (a).”

Sales of Commercial Items to Nongovernmental Entities

Pub. L. 110–181, div. A, title VIII, § 815(b), Jan. 28, 2008, 122 Stat. 223, provided that: “Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall modify the regulations of the Department of Defense on the procurement of commercial items in order to clarify that the terms ‘general public’ and ‘nongovernmental entities’ in such regulations do not include the Federal Government or a State, local, or foreign government.”

Investigation of Waste, Fraud, and Abuse in Wartime Contracts and Contracting Processes in Iraq and Afghanistan

Pub. L. 110–181, div. A, title VIII, § 842, Jan. 28, 2008, 122 Stat. 234, provided that:

“(a) Audits Required.—Thorough audits shall be performed in accordance with this section to identify potential waste, fraud, and abuse in the performance of—

“(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) Audit Plans.—

“(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) Performance of Audits by Certain Inspectors General.—The Special Inspector General for Iraq Reconstruction, during such period as such office exists, the Special Inspector General for Afghanistan Reconstruction, during such period as such office exists, the Inspector General of the Department of Defense, the Inspector General of the Department of State, and the Inspector General of the United States Agency for International Development shall perform such audits as required by subsection (a) and identified in the audit plans developed pursuant to subsection (b) as fall within the respective scope of their duties as specified in law.

“(d) Coordination of Audits.—The Inspectors General specified in subsection (c) shall work to coordinate the performance of the audits required by subsection (a) and identified in the audit plans developed under subsection (b) including through councils and working groups composed of such Inspectors General.

“(e) Joint Audits.—If one or more audits required by subsection (a) and identified in an audit plan developed under subsection (b) falls within the scope of the duties of more than one of the Inspectors General specified in subsection (c), and such Inspectors General agree that such audit or audits are best pursued jointly, such Inspectors General shall enter into a memorandum of understanding relating to the performance of such audit or audits.

“(f) Separate Audits.—If one or more audits required by subsection (a) and identified in an audit plan developed under subsection (b) falls within the scope of the duties of more than one of the Inspectors General specified in subsection (c), and such Inspectors General do not agree that such audit or audits are best pursued jointly, such audit or audits shall be separately performed by one or more of the Inspectors General concerned.

“(g) Scope of Audits of Contracts.—Audits conducted pursuant to subsection (a)(1) shall examine, at a minimum, one or more of the following issues:

“(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) Scope of Audits of Other Contracts.—Audits conducted pursuant to subsection (a)(2) shall examine, at a minimum, one or more of the following issues:

“(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) Independent Conduct of Audit Functions.—All audit functions under this section, including audit planning and coordination, shall be performed by the relevant Inspectors General in an independent manner, without consultation with the Commission established pursuant to section 841 of this Act [122 Stat. 230]. All audit reports resulting from such audits shall be available to the Commission.”

Contracts in Iraq and Afghanistan

Pub. L. 110–417, [div. A], title VIII, § 854(b), Oct. 14, 2008, 122 Stat. 4545, provided that:

“(1) Through memorandum of understanding.—The memorandum of understanding required by section 861(a) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181; 122 Stat. 253; 10 U.S.C. 2302 note ) shall be modified to address the requirements under the amendment made by subsection (a) [amending Pub. L. 110–181, § 861(b), set out below] not later than 120 days after the date of the enactment of this Act [Oct. 14, 2008].

“(2) As condition of current and future contracts.—The requirements under the amendment made by subsection (a) shall be included in each contract in Iraq or Afghanistan (as defined in section 864(a)(2) of Public Law 110–181; [10 U.S.C.] 2302 note) awarded on or after the date that is 180 days after the date of the enactment of this Act [Oct. 14, 2008]. Federal agencies shall make best efforts to provide for the inclusion of such requirements in covered contracts awarded before such date.”

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, provided that:

“SEC. 861. MEMORANDUM OF UNDERSTANDING ON MATTERS RELATING TO CONTRACTING.

“(a) Memorandum of Understanding Required.—The Secretary of Defense, the Secretary of State, and the Administrator of the United States Agency for International Development shall, not later than July 1, 2008, enter into a memorandum of understanding regarding matters relating to contracting for contracts in Iraq or Afghanistan.

“(b) Matters Covered.—The memorandum of understanding required by subsection (a) shall address, at a minimum, the following:

“(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) Implementation of Memorandum of Understanding.—Not later than 120 days after the memorandum of understanding required by subsection (a) is signed, the Secretary of Defense, the Secretary of State, and the Administrator of the United States Agency for International Development shall issue such policies or guidance and prescribe such regulations as are necessary to implement the memorandum of understanding for the relevant matters pertaining to their respective agencies.

“(d) Copies Provided to Congress.—

“(1) Memorandum of understanding.—Copies of the memorandum of understanding required by subsection (a) shall be provided to the relevant committees of Congress within 30 days after the memorandum is signed.

“(2) Report on implementation.—Not later than 180 days after the memorandum of understanding required by subsection (a) is signed, the Secretary of Defense, the Secretary of State, and the Administrator of the United States Agency for International Development shall each provide a report to the relevant committees of Congress on the implementation of the memorandum of understanding.

“(3) Databases.—The Secretary of Defense, the Secretary of State, or the Administrator of the United States Agency for International Development shall provide access to the common databases identified under subsection (b)(4) to the relevant committees of Congress.

“(4) Contracts.—Effective on the date of the enactment of this Act [Jan. 28, 2008], copies of any contracts in Iraq or Afghanistan awarded after December 1, 2007, shall be provided to any of the relevant committees of Congress within 15 days after the submission of a request for such contract or contracts from such committee to the department or agency managing the contract.

“SEC. 862. CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS IN AREAS OF COMBAT OPERATIONS.

“(a) Regulations on Contractors Performing Private Security Functions.—

“(1) In general.—Not later than 120 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense, in coordination with the Secretary of State, shall prescribe regulations on the selection, training, equipping, and conduct of personnel performing private security functions under a covered contract in an area of combat operations.

“(2) Elements.—The regulations prescribed under subsection (a) shall, at a minimum, establish—

“(A) a process for registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat 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;

“(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;

“(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;

“(ii) personnel performing private security functions in an area of combat 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 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 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;

“(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;

“(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, 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;

“(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) Availability of orders, directives, and instructions.—The regulations prescribed under subsection (a) shall include mechanisms to ensure the provision and availability of the orders, directives, and instructions referred to in paragraph (2)(G)(i) to contractors referred to in that paragraph, including through the maintenance of a single location (including an Internet website, to the extent consistent with security considerations) at or through which such contractors may access such orders, directives, and instructions.

“(b) Contract Clause on Contractors Performing Private Security Functions.—

“(1) Requirement under far.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Federal Acquisition Regulation issued in accordance with section 25 of the Office of Federal Procurement Policy Act (41 U.S.C. 421) shall be revised to require the insertion into each covered contract (or, in the case of a task order, the contract under which the task order is issued) of a contract clause addressing the selection, training, equipping, and conduct of personnel performing private security functions under such contract.

“(2) Clause requirement.—The contract clause required by paragraph (1) shall require, at a minimum, that the contractor concerned shall—

“(A) 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;

“(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;

“(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; 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; “(II) personnel performing private security functions in an area of combat 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) comply with and ensure that all personnel performing private security functions under such contract are briefed on and understand their obligation to act in accordance 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;

“(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; and

“(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.

“(3) Noncompliance of personnel with clause.—The contracting officer for a covered contract may direct the contractor, at its own expense, to remove or replace any personnel performing private security functions in an area of combat operations who violate or fail to comply with applicable requirements of the clause required by this subsection. If the violation or failure to comply is a gross violation or failure or is repeated, the contract may be terminated for default.

“(4) Applicability.—The contract clause required by this subsection shall be included in all covered contracts awarded on or after the date that is 180 days after the date of the enactment of this Act [Jan. 28, 2008]. Federal agencies shall make best efforts to provide for the inclusion of the contract clause required by this subsection in covered contracts awarded before such date.

“(5) Inspector general report on pilot program on imposition of fines for noncompliance of personnel with clause.—Not later than March 30, 2008, the Inspector General of the Department of Defense shall submit to Congress a report assessing the feasibility and advisability of carrying out a pilot program for the imposition of fines on contractors for personnel who violate or fail to comply with applicable requirements of the clause required by this section as a mechanism for enhancing the compliance of such personnel with the clause. The report shall include—

“(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) Areas of Combat Operations.—

“(1) Designation.—The Secretary of Defense shall designate the areas constituting an area of combat operations for purposes of this section by not later than 120 days after the date of the enactment of this Act [Jan. 28, 2008].

“(2) Particular areas.—Iraq and Afghanistan shall be included in the areas designated as an area of combat operations under paragraph (1).

“(3) Additional areas.—The Secretary may designate any additional area as an area constituting an area of combat operations for purposes of this section if the Secretary determines that the presence or potential of combat operations in such area warrants designation of such area as an area of combat operations for purposes of this section.

“(4) Modification or elimination of designation.—The Secretary may modify or cease the designation of an area under this subsection as an area of combat operations if the Secretary determines that combat operations are no longer ongoing in such area.

“(d) Exception.—The requirements of this section shall not apply to contracts entered into by elements of the intelligence community in support of intelligence activities.

“SEC. 863. COMPTROLLER GENERAL REVIEWS AND REPORTS ON CONTRACTING IN IRAQ AND AFGHANISTAN.

“(a) Reviews and Reports Required.—

“(1) In general.—Every 12 months, the Comptroller General shall review contracts in Iraq or Afghanistan and submit to the relevant committees of Congress a report on such review.

“(2) Matters covered.—A report under this subsection shall cover the following with respect to the contracts in Iraq or Afghanistan reviewed for the report:

“(A) Total number of contracts and task orders awarded during the period covered by the report.

“(B) Total number of active contracts and task orders.

“(C) Total value of all contracts and task orders awarded during the reporting period.

“(D) Total value of active contracts and task orders.

“(E) The extent to which such contracts have used competitive procedures.

“(F) Total number of contractor personnel working on contracts during the reporting period.

“(G) Total number of contractor personnel, on average, who are performing security functions during the reporting period.

“(H) The number of contractor personnel killed or wounded during the reporting period.

“(I) Information on any specific contract or class of contracts that the Comptroller General determines raises issues of significant concern.

“(3) Submission of reports.—The Comptroller General shall submit an initial report under this subsection not later than October 1, 2008, and shall submit an updated report every year thereafter until October 1, 2010.

“(b) Access to Databases on Contracts.—The Secretary of Defense and the Secretary of State shall provide full access to the databases described in section 861 (b)(4) to the Comptroller General for purposes of the reviews carried out under this section.

“SEC. 864. DEFINITIONS AND OTHER GENERAL PROVISIONS.

“(a) Definitions.—In this subtitle:

“(1) Matters relating to contracting.—The term ‘matters relating to contracting’, with respect to contracts in Iraq and Afghanistan, means all matters relating to awarding, funding, managing, tracking, monitoring, and providing oversight to contracts and contractor personnel.

“(2) Contract in iraq or afghanistan.—The term ‘contract in Iraq or Afghanistan’ means a contract with the Department of Defense, the Department of State, or the United States Agency for International Development, a subcontract at any tier issued under such a contract, or a task order or delivery order at any tier issued under such a contract (including a contract, subcontract, or task order or delivery order issued by another Government agency for the Department of Defense, the Department of State, or the United States Agency for International Development), if the contract, subcontract, or task order or delivery order involves worked performed in Iraq or Afghanistan for a period longer than 14 days.

“(3) Covered contract.—The term ‘covered contract’ means—

“(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; or

“(C) a task order or delivery order issued under such a contract or subcontract.

“(4) Contractor.—The term ‘contractor’, with respect to a covered contract, means the contractor or subcontractor carrying out the covered contract.

“(5) Contractor personnel.—The term ‘contractor personnel’ means any person performing work under contract for the Department of Defense, the Department of State, or the United States Agency for International Development, in Iraq or Afghanistan, including individuals and subcontractors at any tier.

“(6) Private security functions.—The term ‘private security functions’ means activities engaged in by a contractor under a covered contract as follows:

“(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) Relevant committees of congress.—The term ‘relevant committees of Congress’ means each of the following committees:

“(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) Classified Information.—Nothing in this subtitle shall be interpreted to require the handling of classified information or information relating to intelligence sources and methods in a manner inconsistent with any law, regulation, executive order, or rule of the House of Representatives or of the Senate relating to the handling or protection of such information.”

Enhanced Authority To Acquire Products and Services Produced in Iraq and Afghanistan

Pub. L. 110–181, div. A, title VIII, § 886, Jan. 28, 2008, 122 Stat. 266, provided that:

“(a) In General.—In the case of a product or service to be acquired in support of military operations or stability operations in Iraq or Afghanistan (including security, transition, reconstruction, and humanitarian relief activities) for which the Secretary of Defense makes a determination described in subsection (b), the Secretary may conduct a procurement in which—

“(1) competition is limited to products or services that are from Iraq or Afghanistan;

“(2) procedures other than competitive procedures are used to award a contract to a particular source or sources from Iraq or Afghanistan; or

“(3) a preference is provided for products or services that are from Iraq or Afghanistan.

“(b) Determination.—A determination described in this subsection is a determination by the Secretary that—

“(1) the product or service concerned is to be used only by the military forces, police, or other security personnel of Iraq or 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 Iraq or Afghanistan; and

“(B) such limitation, procedure, or preference will not adversely affect—

“(i) military operations or stability operations in Iraq or Afghanistan; or

“(ii) the United States industrial base.

“(c) Products, Services, and Sources From Iraq or Afghanistan.—For the purposes of this section:

“(1) A product is from Iraq or Afghanistan if it is mined, produced, or manufactured in Iraq or Afghanistan.

“(2) A service is from Iraq or Afghanistan if it is performed in Iraq or Afghanistan by citizens or permanent resident aliens of Iraq or Afghanistan.

“(3) A source is from Iraq or Afghanistan if it—

“(A) is located in Iraq or Afghanistan; and

“(B) offers products or services that are from Iraq or Afghanistan.”

Prevention of Export Control Violations

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, provided that:

“(a) Prevention of Export Control Violations.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall prescribe regulations requiring any contractor under a contract with the Department of Defense to provide goods or technology that is subject to export controls under the Arms Export Control Act [22 U.S.C. 2751 et seq.] or the Export Administration [Act] of 1979 [50 App. U.S.C. 2401 et seq.] (as continued in effect under the International Emergency Economic Powers Act [50 U.S.C. 1701 et seq.]) to comply with those Acts and applicable regulations with respect to such goods and technology, including the International Traffic in Arms Regulations and the Export Administration Regulations. Regulations prescribed under this subsection shall include a contract clause enforcing such requirement.

“(b) Training on Export Controls.—The Secretary of Defense shall ensure that any contractor under a contract with the Department of Defense to provide goods or technology that is subject to export controls under the Arms Export Control Act or the Export Administration [Act] of 1979 (as continued in effect under the International Emergency Economic Powers Act) is made aware of any relevant resources made available by the Department of State and the Department of Commerce to assist in compliance with the requirement established by subsection (a) and the need for a corporate compliance plan and periodic internal audits of corporate performance under such plan.

“(c) Report.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report assessing the utility of—

“(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) Definitions.—In this section:

“(1) Export administration regulations.—The term ‘Export Administration Regulations’ means those regulations contained in sections [probably should be “parts”] 730 through 774 of title 15, Code of Federal Regulations (or successor regulations).

“(2) International traffic in arms regulations.—The term ‘International Traffic in Arms Regulations’ means those regulations contained in parts 120 through 130 of title 22, Code of Federal Regulations (or successor regulations).”

Quality Control in Procurement of Ship Critical Safety Items and Related Services

Pub. L. 109–364, div. A, title I, § 130(a)–(c), Oct. 17, 2006, 120 Stat. 2110, provided that:

“(a) Quality Control Policy.—The Secretary of Defense shall prescribe in regulations a quality control policy for the procurement of the following:

“(1) Ship critical safety items.

“(2) Modifications, repair, and overhaul of ship critical safety items.

“(b) Elements.—The policy required under subsection (a) shall include requirements as follows:

“(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) Definitions.—In this section, the terms ‘ship critical safety item’ and ‘design control activity’ have the meanings given such terms in subsection (g) of section 2319 of title 10, United States Code (as so amended).”

Pilot Program on Time-Certain Development in Acquisition of Major Weapon Systems

Pub. L. 109–364, div. A, title VIII, § 812, Oct. 17, 2006, 120 Stat. 2317, as amended by Pub. L. 110–417, [div. A], title VIII, § 813(d)(3), Oct. 14, 2008, 122 Stat. 4527, provided that:

“(a) Pilot Program Authorized.—The Secretary of Defense may carry out a pilot program on the use of time-certain development in the acquisition of major weapon systems.

“(b) Purpose of Pilot Program.—The purpose of the pilot program authorized by subsection (a) is to assess the feasibility and advisability of utilizing time-certain development in the acquisition of major weapon systems in order to deliver new capabilities to the warfighter more rapidly through—

“(1) disciplined decision-making;

“(2) emphasis on technological maturity; and

“(3) appropriate trade-offs between—

“(A) cost and system performance; and

“(B) program schedule.

“(c) Inclusion of Systems in Pilot Program.—

“(1) In general.—The Secretary of Defense may include a major weapon system in the pilot program only if—

“(A) the major weapon system meets the criteria under paragraph (2) in accordance with that paragraph; and

“(B) the Milestone Decision Authority nominates such program to the Secretary of Defense for inclusion in the program.

“(2) Criteria.—For purposes of paragraph (1) a major weapon system meets the criteria under this paragraph only if the Milestone Decision Authority determines, in consultation with the service acquisition executive for the military department carrying out the acquisition program for the system and one or more combatant commanders responsible for fielding the system, that—

“(A) the certification requirements of section 2366b of title 10, United States Code (as amended by section 805 of this Act), have been met, and no waivers have been granted from such requirements;

“(B) a preliminary design has been reviewed using systems engineering, and the system, as so designed, will meet battlefield needs identified by the relevant combatant commanders after appropriate requirements analysis;

“(C) a representative model or prototype of the system, or key subsystems, has been demonstrated in a relevant environment, such as a well-simulated operational environment;

“(D) an independent cost estimate has been conducted and used as the basis for funding requirements for the acquisition program for the system;

“(E) the budget of the military department responsible for carrying out the acquisition program for the system provides the funding necessary to execute the product development and production plan consistent with the requirements identified pursuant to subparagraph (D);

“(F) an appropriately qualified program manager has entered into a performance agreement with the Milestone Decision Authority that establishes expected parameters for the cost, schedule, and performance of the acquisition program for the system, consistent with a business case for such acquisition program;

“(G) the service acquisition executive and the program manager have developed a strategy to ensure stability in program management until, at a minimum, the delivery of the initial operational capability under the acquisition program for the system has occurred;

“(H) the service acquisition executive, the relevant combatant commanders, and the program manager have agreed that no additional requirements that would be inconsistent with the agreed-upon program schedule will be added during the development phase of the acquisition program for the system; and

“(I) a planned initial operational capability will be delivered to the relevant combatant commanders within a defined period of time as prescribed in regulations by the Secretary of Defense.

“(3) Timing of decision.—The decision whether to include a major weapon system in the pilot program shall be made at the time of milestone approval for the acquisition program for the system.

“(d) Limitation on Number of Weapons Systems in Pilot Program.—The number of major weapon systems included in the pilot program at any time may not exceed six major weapon systems.

“(e) Limitation on Cost of Weapons Systems in Pilot Program.—The Secretary of Defense may include a major weapon system in the pilot program only if, at the time a major weapon system is proposed for inclusion, the total cost for system design and development of the weapon system, as set forth in the cost estimate referred to in subsection (c)(2)(D), does not exceed $1,000,000,000 during the period covered by the current future-years defense program.

“(f) Special Funding Authority.—

“(1) Authority for reserve account.—Notwithstanding any other provision of law, the Secretary of Defense may establish a special reserve account utilizing funds made available for the major weapon systems included in the pilot program.

“(2) Elements.—The special reserve account may include—

“(A) funds made available for any major weapon system included in the pilot program to cover termination liability;

“(B) funds made available for any major weapon system included in the pilot program for award fees that may be earned by contractors; and

“(C) funds appropriated to the special reserve account.

“(3) Availability of funds.—Funds in the special reserve account may be used, in accordance with guidance issued by the Secretary for purposes of this section, for the following purposes:

“(A) To cover termination liability for any major weapon system included in the pilot program.

“(B) To pay award fees that are earned by any contractor for a major weapon system included in the pilot program.

“(C) To address unforeseen contingencies that could prevent a major weapon system included in the pilot program from meeting critical schedule or performance requirements.

“(4) Reports on use of funds.—Not later than 30 days after the use of funds in the special reserve account for the purpose specified in paragraph (3)(C), the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the use of funds in the account for such purpose. The report shall set forth the purposes for which the funds were used and the reasons for the use of the funds for such purposes.

“(5) Relationship to appropriations.—Nothing in this subsection may be construed as extending any period of time for which appropriated funds are made available.

“(g) Administration of Pilot Program.—The Secretary of Defense shall prescribe policies and procedures on the administration of the pilot program. Such policies and procedures shall—

“(1) provide for the use of program status reports based on earned value data to track progress on a major weapon system under the pilot program against baseline estimates applicable to such system at each systems engineering technical review point; and

“(2) grant authority, to the maximum extent practicable, to the program manager for the acquisition program for a major weapon system to make key program decisions and trade-offs, subject to management reviews only if cost or schedule deviations exceed the baselines for such acquisition program by 10 percent or more.

“(h) Removal of Weapons Systems From Pilot Program.—The Secretary of Defense shall remove a major weapon system from the pilot program if—

“(1) the weapon system receives Milestone C approval; or

“(2) the Secretary determines that the weapon system is no longer in substantial compliance with the criteria in subsection (c)(2) or is otherwise no longer appropriate for inclusion in the pilot program.

“(i) Expiration of Authority To Include Additional Systems in Pilot Program.—

“(1) Expiration.—A major weapon system may not be included in the pilot program after September 30, 2012.

“(2) Retention of systems.—A major weapon system included in the pilot program before the date specified in paragraph (1) in accordance with the requirements of this section may remain in the pilot program after that date.

“(j) Annual Report.—

“(1) In general.—Not later than one year after including the first major weapon system in the pilot program, and annually thereafter, the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the pilot program, and the major weapon systems included in the pilot program, during the one-year period ending on the date of such report.

“(2) Elements.—Each report under this subsection shall include—

“(A) a description of progress under the pilot program, and on each major weapon system included in the pilot program, during the period covered by such report;

“(B) a description of the use of all funds in the special reserve account established under subsection (f); and

“(C) such other matters as the Secretary considers appropriate.

“(k) Major Weapon System Defined.—In this section, the term ‘major weapon system’ means a weapon system that is treatable as a major system under section 2302 (5) of title 10, United States Code.”

[Pub. L. 110–417, [div. A], title VIII, § 813(d)(3), Oct. 14, 2008, 122 Stat. 4527, which directed the substitution of “2366b” for “2366a” in subsecs. (c)(2)(A) and (d)(2) of section 812 of Pub L. 109–364, set out above, could not be executed to subsec. (d)(2).]

Linking of Award and Incentive Fees to Acquisition Outcomes

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) Guidance on Linking of Award and Incentive Fees to Acquisition Outcomes.—Not later than 180 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall issue guidance, with detailed implementation instructions (including definitions), for the Department of Defense on the appropriate use of award and incentive fees in Department of Defense acquisition programs.

“(b) Elements.—The guidance under subsection (a) shall—

“(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) Assessment of Independent Evaluation Mechanisms.—

“(1) In general.—The Secretary of Defense shall select a federally funded research and development center to assess various mechanisms that could be used to ensure an independent evaluation of contractor performance for the purpose of making determinations applicable to the judging and payment of award fees.

“(2) Considerations.—The assessment conducted pursuant to paragraph (1) shall include consideration of the advantages and disadvantages of a system in which award fees are—

“(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) Report.—The Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the assessment conducted pursuant to paragraph (1) not later than one year after the date of the enactment of this Act [Oct. 17, 2006].”

Limitation on Contracts for the Acquisition of Certain Services

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, provided that:

“(a) Limitation.—Except as provided in subsection (b), the Secretary of Defense may not enter into a service contract to acquire a military flight simulator.

“(b) Waiver.—The Secretary of Defense may waive subsection (a) with respect to a contract if the Secretary—

“(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) Economic Analysis.—The economic analysis provided under subsection (b) shall include, at a minimum, the following:

“(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) Definitions.—In this section:

“(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 8(b) of the Service Contract Act of 1965 (41 U.S.C. 357 (b)).

“(e) Effect on Existing Contracts.—The limitation in subsection (a) does not apply to any service contract of a military department to acquire a military flight simulator, or to any renewal or extension of, or follow-on contract to, such a contract, if—

“(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.”

Congressional Notification of Cancellation of Major Automated Information Systems

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

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

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

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

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

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

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

“(c) Definitions.—In this section:

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

“(2) The term ‘approved to be fielded’ means having received Milestone C approval.”

Joint Policy on Contingency Contracting

Pub. L. 109–163, div. A, title VIII, § 817, Jan. 6, 2006, 119 Stat. 3382, provided that:

“(a) Joint Policy.—

“(1) Requirement.—Not later than one year after the date of the enactment of this Act [Jan. 6, 2006], the Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff, shall develop a joint policy for contingency contracting during combat operations and post-conflict operations.

“(2) Matters covered.—The joint policy for contingency contracting required by paragraph (1) shall, at a minimum, provide for—

“(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) Reports.—

“(1) Interim report.—

“(A) Requirement.—Not later than 270 days after the date of the enactment of this Act [Jan. 6, 2006], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives an interim report on contingency contracting.

“(B) Matters covered.—The report shall include discussions of the following:

“(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) Final report.—Not later than 18 months after the date of the enactment of this Act [Jan. 6, 2006], the Secretary of Defense shall submit to the committees listed in paragraph (1)(A) a final report on contingency contracting, containing a discussion of the implementation of the joint policy developed under subsection (a), including updated discussions of the matters covered in the interim report.

“(c) Definitions.—In this section:

“(1) Contingency contracting personnel.—The term ‘contingency contracting personnel’ means members of the Armed Forces and civilian employees of the Department of Defense who are members of the defense acquisition workforce and, as part of their duties, are assigned to provide support to contingency operations (whether deployed or not).

“(2) Contingency contracting.—The term ‘contingency contracting’ means all stages of the process of acquiring property or services by the Department of Defense during a contingency operation.

“(3) Contingency operation.—The term ‘contingency operation’ has the meaning provided in section 101 (13) of title 10, United States Code.

“(4) Acquisition support agencies.—The term ‘acquisition support agencies’ means Defense Agencies and Department of Defense Field Activities that carry out and provide support for acquisition-related activities.”

Prohibition on Procurements From Communist Chinese Military Companies

Pub. L. 109–163, div. A, title XII, § 1211, Jan. 6, 2006, 119 Stat. 3461, provided that:

“(a) Prohibition.—The Secretary of Defense may not procure goods or services described in subsection (b), through a contract or any subcontract (at any tier) under a contract, from any Communist Chinese military company.

“(b) Goods and Services Covered.—For purposes of subsection (a), the goods and services described in this subsection are goods and services on the munitions list of the International Trafficking in Arms Regulations, other than goods or services procured—

“(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) Waiver Authorized.—The Secretary of Defense may waive the prohibition in subsection (a) if the Secretary determines such a waiver is necessary for national security purposes. The Secretary shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of each waiver made under this subsection.

“(d) Definitions.—In this section:

“(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 Trafficking 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.”

Development of Deployable Systems To Include Consideration of Force Protection in Asymmetric Threat Environments

Pub. L. 108–375, div. A, title I, § 141, Oct. 28, 2004, 118 Stat. 1829, provided that:

“(a) Requirement for Systems Development.—The Secretary of Defense shall require that the Department of Defense regulations, directives, and guidance governing the acquisition of covered systems be revised to require that—

“(1) an assessment of warfighter survivability and of system suitability against asymmetric threats shall be performed as part of the development of system requirements for any such system; and

“(2) requirements for key performance parameters for force protection and survivability shall be included as part of the documentation of system requirements for any such system.

“(b) Covered Systems.—In this section, the term ‘covered system’ means any of the following systems that is expected to be deployed in an asymmetric threat environment:

“(1) Any manned system.

“(2) Any equipment intended to enhance personnel survivability.

“(c) Inapplicability of Development Requirement to Systems Already Through Development.—The revisions pursuant subsection (a) to Department of Defense regulations, directives, and guidance shall not apply to a system that entered low-rate initial production before the date of the enactment of this Act [Oct. 28, 2004].

“(d) Deadline for Policy Revisions.—The revisions required by subsection (a) to Department of Defense regulations, directives, and guidance shall be made not later than 120 days after the date of the enactment of this Act [Oct. 28, 2004].”

Internal Controls for Department of Defense Procurements Through GSA Client Support Centers

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) Initial Inspector General Review and Determination.—(1) Not later than March 15, 2005, the Inspector General of the Department of Defense and the Inspector General of the General Services Administration shall jointly—

“(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) Compliance With Defense Procurement Requirements.—For the purposes of this section, a GSA Client Support Center is compliant with defense procurement requirements if the GSA Client Support Center’s policies, procedures, and internal controls, and the manner in which they are administered, are adequate to ensure compliance of that Center with the requirements of laws and regulations that apply to procurements of property and services made directly by the Department of Defense.

“(c) Limitations on Procurements Through GSA Client Support Centers.—(1) After March 15, 2005, and before March 16, 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 for which a determination described in paragraph (1)(B)(iii) of subsection (a) has been made under that subsection.

“(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) Exception From Applicability of Limitations.—(1) No limitation applies under subsection (c) with respect to the procurement of property and services from a particular GSA Client Support Center during any period that there is in effect a determination of the Under Secretary of Defense for Acquisition, Technology, and Logistics, made in writing, that it is necessary in the interest of the Department of Defense to continue to procure property and services through that GSA Client Support Center.

“(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) Termination of Applicability of Limitations.—Subsection (c) shall cease to apply to a GSA Client Support Center on the date on which the Inspector General of the Department of Defense and the Inspector General of the General Services Administration jointly determine that such Center is compliant with defense procurement requirements and notify the Secretary of Defense of that determination.

“(f) GSA Client Support Center Defined.—In this section, the term ‘GSA Client Support Center’ means a Client Support Center of the Federal Acquisition Service of the General Services Administration.”

Quality Control in Procurement of Aviation Critical Safety Items and Related Services

Pub. L. 108–136, div. A, title VIII, § 802(a)–(c), Nov. 24, 2003, 117 Stat. 1540, provided that:

“(a) Quality Control Policy.—The Secretary of Defense shall prescribe in regulations a quality control policy for the procurement of aviation critical safety items and the procurement of modifications, repair, and overhaul of such items.

“(b) Content of Regulations.—The policy set forth in the regulations shall include the following requirements:

“(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) Definitions.—In this section, the terms ‘aviation critical safety item’ and ‘design control activity’ have the meanings given such terms in section 2319 (g) of title 10, United States Code, as amended by subsection (d).”

Competitive Award of Contracts for Reconstruction Activities in Iraq

Pub. L. 108–136, div. A, title VIII, § 805(a), Nov. 24, 2003, 117 Stat. 1542, provided that: “The Department of Defense shall fully comply with 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.”

Demonstration Project for Contractors Employing Persons With Disabilities

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, provided that:

“(a) Authority.—The Secretary of Defense may carry out a demonstration project by entering into one or more contracts with an eligible contractor for the purpose of providing defense contracting opportunities for severely disabled individuals.

“(b) Evaluation Factor.—In evaluating an offer for a contract under the demonstration program, the percentage of the total workforce of the offeror consisting of severely disabled individuals employed by the offeror shall be one of the evaluation factors.

“(c) Credit Toward Certain Small Business Contracting Goals.—Department of Defense contracts entered into with eligible contractors under the demonstration project under this section, and subcontracts entered into with eligible contractors under such contracts, shall be credited toward the attainment of goals established under section 2323 of title 10, United States Code, and section 15(g)(1) of the Small Business Act (15 U.S.C. 644 (g)(1)) regarding the extent of the participation of disadvantaged small business concerns in contracts of the Department of Defense and subcontracts under such contracts.

“(d) Definitions.—In this section:

“(1) Eligible contractor.—The term ‘eligible contractor’ means a business entity operated on a for-profit or nonprofit basis that—

“(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) Severely disabled individual.—The term ‘severely disabled individual’ means an individual with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) who has a severe physical or mental impairment that seriously limits one or more functional capacities.”

Procurement of Defense Biomedical Countermeasures

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) Determination of Material Threats.—(1) The Secretary of Defense (in this section referred to as the ‘Secretary’) shall on an ongoing basis—

“(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) Assessment of Availability and Appropriateness of Countermeasures.—The Secretary shall on an ongoing basis assess the availability and appropriateness of specific countermeasures to address specific threats identified under subsection (a).

“(c) Secretary’s Determination of Countermeasures Appropriate for Procurement.—(1) The Secretary, in accordance with paragraph (2), shall on an ongoing basis identify specific countermeasures that the Secretary determines to be appropriate for procurement for the Department of Defense stockpile of biomedical countermeasures.

“(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) Interagency Cooperation.—(1) Activities of the Secretary under this section shall be carried out in regular, structured, and close consultation and coordination with the Secretaries of Homeland Security and Health and Human Services, including the activities described in subsections (a), (b), and (c) and those activities with respect to interagency agreements described in paragraph (2).

“(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) Definitions.—In this section:

“(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) Funding.—Of the amount authorized to be appropriated for the Department of Defense and available within the transfer authority established under section 1001 of this Act [117 Stat. 1582] for fiscal year 2004 and for each fiscal year thereafter, such sums are authorized as may be necessary for the costs incurred by the Secretary in the procurement of countermeasures under this section.”

Encouragement of Small Businesses and Nontraditional Defense Contractors To Submit Proposals Potentially Beneficial for Combating Terrorism

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.

Procurement of Environmentally Preferable Procurement Items

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) Tracking System.—The Secretary of Defense shall develop and implement an effective and efficient tracking system to identify the extent to which the Defense Logistics Agency procures environmentally preferable procurement items or procurement items made with recovered material. The system shall provide for the separate tracking, to the maximum extent practicable, of the procurement of each category of procurement items that, as of the date of the enactment of this Act [Dec. 2, 2002], has been determined to be environmentally preferable or made with recovered material.

“(b) Assessment of Training and Education.—The Secretary of Defense shall assess the need to establish a program, or enhance existing programs, for training and educating Department of Defense procurement officials to ensure that they are aware of any Department requirements, preferences, or goals for the procurement of environmentally preferable procurement items or procurement items made with recovered material.

“(c) Reporting Requirement.—Not later than March 1, 2004, and each March 1 thereafter through 2007, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report detailing the results obtained from the tracking system developed under subsection (a).

“(d) Relation to Other Laws.—Nothing in this section shall be construed to alter the requirements of the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

“(e) Definitions.—In this section:

“(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).”

Policy Regarding Acquisition of Information Assurance and Information Assurance-Enabled Information Technology Products

Pub. L. 107–314, div. A, title III, § 352, Dec. 2, 2002, 116 Stat. 2518, provided that:

“(a) Establishment of Policy.—The Secretary of Defense shall establish a policy to limit the acquisition of information assurance and information assurance-enabled information technology products to those products that have been evaluated and validated in accordance with appropriate criteria, schemes, or programs.

“(b) Waiver.—As part of the policy, the Secretary of Defense shall authorize specified officials of the Department of Defense to waive the limitations of the policy upon a determination in writing that application of the limitations to the acquisition of a particular information assurance or information assurance-enabled information technology product would not be in the national security interest of the United States.

“(c) Implementation.—The Secretary of Defense shall ensure that the policy is uniformly implemented throughout the Department of Defense.”

Logistics Support and Services for Weapon Systems Contractors

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, provided that:

“(a) Authority.—The Secretary of Defense may make available logistics support and logistics services to a contractor in support of the performance by the contractor of a contract for the construction, modification, or maintenance of a weapon system that is entered into by an official of the Department of Defense.

“(b) Support Contracts.—Any logistics support and logistics services to be provided under this section to a contractor in support of the performance of a contract described in subsection (a) shall be provided under a separate contract that is entered into by the Director of the Defense Logistics Agency with that contractor. The requirements of section 2208 (h) of title 10, United States Code, and the regulations prescribed pursuant to such section shall apply to the contract between the Director of the Defense Logistics Agency and the contractor.

“(c) Scope of Support and Services.—The logistics support and logistics services that may be provided under this section in support of the performance of a contract described in subsection (a) are the distribution, disposal, and cataloging of materiel and repair parts necessary for the performance of that contract.

“(d) Limitations.—(1) The number of contracts described in subsection (a) for which the Secretary of Defense makes logistics support and logistics services available under the authority of this section may not exceed five contracts. The total amount of the estimated costs of all such contracts for which logistics support and logistics services are made available under this section may not exceed $100,000,000.

“(2) No contract entered into by the Director of the Defense Logistics Agency under subsection (b) may be for a period in excess of five years, including periods for which the contract is extended under options to extend the contract.

“(e) Regulations.—Before exercising the authority under this section, the Secretary of Defense shall prescribe in regulations such requirements, conditions, and restrictions as the Secretary determines appropriate to ensure that logistics support and logistics services are provided under this section only when it is in the best interests of the United States to do so. The regulations shall include, at a minimum, the following:

“(1) A requirement for the authority under this section to be used only for providing logistics support and logistics services in support of the performance of a contract that is entered into using competitive procedures (as defined in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)).

“(2) A requirement for the solicitation of offers for a contract described in subsection (a), for which logistics support and logistics services are to be made available under this section, to include—

“(A) a statement that the logistics support and logistics services are to be made available under the authority of 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 logistics support and logistics services that are to be made available to the contractor.

“(3) A requirement for the rates charged a contractor for logistics support and logistics services provided to a contractor under this section 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.

“(4) 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.

“(5) 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 logistics support and logistics services provided to the contractor under this section.

“(f) Relationship to Treaty Obligations.—The Secretary shall ensure that the exercise of authority under this section does not conflict with any obligation of the United States under any treaty or other international agreement.

“(g) Termination of Authority.—(1) The authority provided in this section shall expire on September 30, 2010.

“(2) The expiration of the authority under this section does not terminate—

“(A) any contract that was entered into by the Director of the Defense Logistics Agency under subsection (b) before the date specified in paragraph (1) or any obligation to provide logistics support and logistics services under that contract; or

“(B) any authority to enter into a contract described in subsection (a) for which a solicitation of offers was issued in accordance with the regulations prescribed pursuant to subsection (e)(2) before the date specified in paragraph (1) or to provide logistics support and logistics services to the contractor with respect to that contract in accordance with this section.”

Improvement of Software Acquisition Processes

Pub. L. 107–314, div. A, title VIII, § 804, Dec. 2, 2002, 116 Stat. 2604, provided that:

“(a) Establishment of Programs.—(1) The Secretary of each military department shall establish a program to improve the software acquisition processes of that military department.

“(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) Program Requirements.—A program to improve software acquisition processes under this section shall, at a minimum, include the following:

“(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) Department of Defense Guidance.—The Assistant Secretary of Defense for Command, Control, Communications, and Intelligence, in consultation with the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall—

“(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) Definitions.—In this section:

“(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.”

Rapid Acquisition and Deployment Procedures

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, provided that:

“(a) Requirement To Establish Procedures.—Not later than 180 days after the date of the enactment of this Act [Dec. 2, 2002], the Secretary of Defense shall prescribe procedures for the rapid acquisition and deployment of items that are—

“(1) currently under development by the Department of Defense or available from the commercial sector; and

“(2) urgently needed to react to an enemy threat or to respond to significant and urgent safety situations.

“(b) Issues To Be Addressed.—The procedures prescribed under subsection (a) shall include the following:

“(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 items that meet the needs communicated by the combatant commands and the Joint Chiefs of Staff.

“(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) Response to Combat Emergencies.—(1) In the case of any equipment that, as determined in writing by the Secretary of Defense without delegation, is urgently needed to eliminate a combat capability deficiency that has resulted in combat fatalities, the Secretary shall use the procedures developed under this section in order to accomplish the rapid acquisition and deployment of the needed equipment.

“(2)(A) Whenever the Secretary makes a determination under paragraph (1) that certain equipment is urgently needed to eliminate a combat capability deficiency that has resulted in combat fatalities, the Secretary shall designate a senior official of the Department of Defense to ensure that the needed equipment is acquired and deployed as quickly as possible, with a goal of awarding a contract for the acquisition of the equipment within 15 days.

“(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 equipment. In a case in which the needed equipment 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 the combat capability deficiency and combat fatalities.

“(3) The authority of this section may not be used to acquire equipment in an amount aggregating more than $100,000,000 during any fiscal year. For acquisitions of equipment under this section during the fiscal year in which the Secretary makes the determination described in paragraph (1) with respect to such equipment, the Secretary may use any funds available to the Department of Defense for that fiscal year.

“(4) The Secretary of Defense shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] within 15 days after each determination made under paragraph (1). Each such notice shall identify—

“(A) the equipment to be acquired;

“(B) the amount anticipated to be expended for the acquisition; and

“(C) the source of funds for the acquisition.

“(5) Any acquisition initiated under this subsection shall transition to the normal acquisition system not later than two years after the date on which the Secretary makes the determination described in paragraph (1) with respect to that equipment.

“(d) Waiver of Certain Statutes and Regulations.—(1) Upon a determination described in subsection (c)(1), the senior official designated in accordance with subsection (c)(2) with respect to that designation is authorized to waive any provision of law, policy, directive or regulation addressing—

“(A) the establishment of the requirement for the equipment;

“(B) the research, development, test, and evaluation of the equipment; or

“(C) the solicitation and selection of sources, and the award of the contract, for procurement of the equipment.

“(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) Testing Requirement.—(1) The process for demonstrating performance and evaluating for current operational purposes the existing capability of an item prescribed under subsection (b)(2)(A) shall include—

“(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 item in meeting the original requirements for the item (as stated in an operational requirements document or similar document) to the deployment decisionmaking authority.

“(2) The process may not include a requirement for any deficiency of an item to be the determining factor in deciding whether to deploy the item.

“(3) If items 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 items, the Director of Operational Test and Evaluation shall have access to operational records and data relevant to such items in accordance with section 139 (e)(3) of title 10, United States Code, for the purpose of completing operational test and evaluation of the items. 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) Limitation.—The quantity of items of a system procured using the procedures prescribed pursuant to this section may not exceed the number established for low-rate initial production for the system. Any such items shall be counted for purposes of the number of items of the system that may be procured through low-rate initial production.”

Procurement of Alternative Fueled and Hybrid Light Duty Trucks

Pub. L. 107–107, div. A, title III, § 318, Dec. 28, 2001, 115 Stat. 1055, provided that:

“(a) Defense Fleets Not Covered by Requirement in Energy Policy Act of 1992.—(1) The Secretary of Defense shall coordinate with the Administrator of General Services to ensure that only hybrid vehicles are procured by the Administrator for the Department of Defense fleet of light duty trucks that is not in a fleet of vehicles to which section 303 of the Energy Policy Act of 1992 (42 U.S.C. 13212) applies.

“(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) Requirement To Exceed Requirement in Energy Policy Act of 1992.—(1) The Secretary of Defense shall coordinate with the Administrator of General Services to ensure that, of the light duty trucks procured in fiscal years after fiscal year 2004 for the fleets of light duty vehicles of the Department of Defense to which section 303 of the Energy Policy Act of 1992 [42 U.S.C. 13212] applies—

“(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) Report on Plans for Implementation.—At the same time that the President submits the budget for fiscal year 2003 to Congress under section 1105 (a) of title 31, United States Code, the Secretary shall submit to Congress a report summarizing the plans for carrying out subsections (a) and (b).

“(d) Definitions.—In this section:

“(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).”

Temporary Emergency Procurement Authority to Facilitate the Defense Against Terrorism or Biological or Chemical Attack

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.

Improvements in Procurements of Services

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, provided that:

“(a) Preference for Performance-Based Service Contracting.—Not later than 180 days after the date of the enactment of this Act [Oct. 30, 2000], the Federal Acquisition Regulation issued in accordance with sections 6 and 25 of the Office of Federal Procurement Policy Act (41 U.S.C. 405 and 421) shall be revised to establish a preference for use of contracts and task orders for the purchase of services in the following order of precedence:

“(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) Centers of Excellence in Service Contracting.—Not later than 180 days after the date of the enactment of this Act [Oct. 30, 2000], the Secretary of each military department shall establish at least one center of excellence in contracting for services. Each center of excellence shall assist the acquisition community by identifying, and serving as a clearinghouse for, best practices in contracting for services in the public and private sectors.

“(d) Enhanced Training in Service Contracting.—(1) The Secretary of Defense shall ensure that classes focusing specifically on contracting for services are offered by the Defense Acquisition University and the Defense Systems Management College and are otherwise available to contracting personnel throughout the Department of Defense.

“(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) Definitions.—In this section:

“(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 (41 U.S.C. 403 (12)).

“(3) The term ‘Defense Agency’ has the meaning given the term in section 101 (a)(11) of title 10, United States Code.”

Program To Increase Business Innovation in Defense Acquisition Programs

Pub. L. 106–65, div. A, title VIII, § 812(a)–(c), (e), Oct. 5, 1999, 113 Stat. 709, 710, provided that:

“(a) Requirement To Develop Plan.—Not later than March 1, 2000, the Secretary of Defense shall publish in the Federal Register for public comment a plan to provide for increased innovative technology for acquisition programs of the Department of Defense from commercial private sector entities, including small-business concerns.

“(b) Implementation of Plan.—Not later than March 1, 2001, the Secretary of Defense shall implement the plan required by subsection (a), subject to any modifications the Secretary may choose to make in response to comments received.

“(c) Elements of Plan.—The plan required by subsection (a) shall include, at a minimum, the following elements:

“(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) Small-Business Concern Defined.—In this section, the term ‘small-business concern’ has the same meaning as the meaning of such term as used in the Small Business Act (15 U.S.C. 631 et seq.).”

Year 2000 Software Conversion

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.

Defense Facility-Wide Pilot Program

Section 822 of Pub. L. 104–106, as amended by Pub. L. 106–65, div. A, title X, § 1067(6), Oct. 5, 1999, 113 Stat. 774, provided that:

“(a) Authority To Conduct Defense Facility-Wide Pilot Program.—The Secretary of Defense may conduct a pilot program, to be known as the ‘defense facility-wide pilot program’, for the purpose of determining the potential for increasing the efficiency and effectiveness of the acquisition process in facilities by using commercial practices on a facility-wide basis.

“(b) Designation of Participating Facilities.—(1) Subject to paragraph (2), the Secretary may designate up to two facilities as participants in the defense facility-wide pilot program.

“(2) The Secretary may designate for participation in the pilot program only those facilities that are authorized to be so designated in a law authorizing appropriations for national defense programs that is enacted after the date of the enactment of this Act [Feb. 10, 1996].

“(c) Scope of Program.—At a facility designated as a participant in the pilot program, the pilot program shall consist of the following:

“(1) All contracts and subcontracts for defense supplies and services that are performed at the facility.

“(2) All Department of Defense contracts and all subcontracts under Department of Defense contracts performed elsewhere that the Secretary determines are directly and substantially related to the production of defense supplies and services at the facility and are necessary for the pilot program.

“(d) Criteria for Designation of Participating Facilities.—The Secretary shall establish criteria for selecting a facility for designation as a participant in the pilot program. In developing such criteria, the Secretary shall consider the following:

“(1) The number of existing and anticipated contracts and subcontracts performed at the facility—

“(A) for which contractors are required to provide certified cost or pricing data pursuant to 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 (41 U.S.C. 422 (f)).

“(2) The relationship of the facility to other organizations and facilities performing under contracts with the Department of Defense and subcontracts under such contracts.

“(3) The impact that the participation of the facility under the pilot program would have on competing domestic manufacturers.

“(4) Such other factors as the Secretary considers appropriate.

“(e) Notification.—(1) The Secretary shall transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of each facility proposed to be designated by the Secretary for participation in the pilot program.

“(2) The Secretary shall include in the notification regarding a facility designated for participation in the program a management plan addressing the following:

“(A) The proposed treatment of research and development contracts or subcontracts to be performed at the facility during the pilot program.

“(B) The proposed treatment of the cost impact of the use of commercial practices on the award and administration of contracts and subcontracts performed at the facility.

“(C) The proposed method for reimbursing the contractor for existing and new contracts.

“(D) The proposed method for measuring the performance of the facility for meeting the management goals of the Secretary.

“(E) Estimates of the annual amount and the total amount of the contracts and subcontracts covered under the pilot program.

“(3)(A) The Secretary shall ensure that the management plan for a facility provides for attainment of the following objectives:

“(i) A significant reduction of the cost to the Government for programs carried out at the facility.

“(ii) A reduction of the schedule associated with programs carried out at the facility.

“(iii) An increased use of commercial practices and procedures for programs carried out at the facility.

“(iv) Protection of a domestic manufacturer competing for contracts at such facility from being placed at a significant competitive disadvantage by the participation of the facility in the pilot program.

“(B) The management plan for a facility shall also require that all or substantially all of the contracts to be awarded and performed at the facility after the designation of that facility under subsection (b), and all or substantially all of the subcontracts to be awarded under those contracts and performed at the facility after the designation, be—

“(i) for the production of supplies or services on a firm-fixed price basis;

“(ii) awarded without requiring the contractors or subcontractors to provide certified cost or pricing data pursuant to 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 (41 U.S.C. 422 (f)).

“(f) Exemption From Certain Requirements.—In the case of a contract or subcontract that is to be performed at a facility designated for participation in the defense facility-wide pilot program and that is subject to section 2306a of title 10, United States Code, or section 26(f) of the Office of Federal Procurement Policy Act (41 U.S.C. 422 (f)), the Secretary of Defense may exempt such contract or subcontract from the requirement to obtain certified cost or pricing data under such section 2306a or the requirement to apply mandatory cost accounting standards under such section 26 (f) if the Secretary determines that the contract or subcontract—

“(1) is within the scope of the pilot program (as described in subsection (c)); and

“(2) is fairly and reasonably priced based on information other than certified cost and pricing data.

“(g) Special Authority.—The authority provided under subsection (a) includes authority for the Secretary of Defense—

“(1) to apply any amendment or repeal of a provision of law made in this Act [see Tables for classification] to the pilot program before the effective date of such amendment or repeal; and

“(2) to apply to a procurement of items other than commercial items under such program—

“(A) the authority provided in section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430) to waive a provision of law in the case of commercial items, and

“(B) any exception applicable under this Act or the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355) [see Tables for classification] (or an amendment made by a provision of either Act) in the case of commercial items,

before the effective date of such provision (or amendment) to the extent that the Secretary determines necessary to test the application of such waiver or exception to procurements of items other than commercial items.

“(h) Applicability.—(1) Subsections (f) and (g) apply to the following contracts, if such contracts are within the scope of the pilot program at a facility designated for the pilot program under subsection (b):

“(A) A contract that is awarded or modified during the period described in paragraph (2).

“(B) A contract that is awarded before the beginning of such period, that is to be performed (or may be performed), in whole or in part, during such period, and that may be modified as appropriate at no cost to the Government.

“(2) The period referred to in paragraph (1), with respect to a facility designated under subsection (b), is the period that—

“(A) begins 45 days after the date of the enactment of the Act authorizing the designation of that facility in accordance with paragraph (2) of such subsection; and

“(B) ends on September 30, 2000.

“(i) Commercial Practices Encouraged.—With respect to contracts and subcontracts within the scope of the defense facility-wide pilot program, the Secretary of Defense may, to the extent the Secretary determines appropriate and in accordance with applicable law, adopt commercial practices in the administration of contracts and subcontracts. Such commercial practices may include the following:

“(1) Substitution of commercial oversight and inspection procedures for Government audit and access to records.

“(2) Incorporation of commercial oversight, inspection, and acceptance procedures.

“(3) Use of alternative dispute resolution techniques (including arbitration).

“(4) Elimination of contract provisions authorizing the Government to make unilateral changes to contracts.”

Elimination of Use of Class I Ozone-Depleting Substances in Certain Military Procurement Contracts

Section 326 of Pub. L. 102–484, 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, provided that:

“(a) Elimination of Use of Class I Ozone-Depleting Substances.—(1) No Department of Defense contract awarded after June 1, 1993, may include a specification or standard that requires the use of a class I ozone-depleting substance or that can be met only through the use of such a substance unless the inclusion of the specification or standard in the contract is approved by the senior acquisition official for the procurement covered by the contract. The senior acquisition official may grant the approval only if the senior acquisition official determines (based upon the certification of an appropriate technical representative of the official) that a suitable substitute for the class I ozone-depleting substance is not currently available.

“(2)(A)(i) Not later than 60 days after the completion of the first modification, amendment, or extension after June 1, 1993, of a contract referred to in clause (ii), the senior acquisition official (or the designee of that official) shall carry out an evaluation of the contract in order to determine—

“(I) whether the contract includes a specification or standard that requires the use of a class I ozone-depleting substance or can be met only through the use of such a substance; and

“(II) in the event of a determination that the contract includes such a specification or standard, whether the contract can be carried out through the use of an economically feasible substitute for the ozone-depleting substance or through the use of an economically feasible alternative technology for a technology involving the use of the ozone-depleting substance.

“(ii) A contract referred to in clause (i) is any contract in an amount in excess of $10,000,000 that—

“(I) was awarded before June 1, 1993; and

“(II) as a result of the modification, amendment, or extension described in clause (i), will expire more than 1 year after the effective date of the modification, amendment, or extension.

“(iii) A contract under evaluation under clause (i) may not be further modified, amended, or extended until the evaluation described in that clause is complete.

“(B) If the acquisition official (or designee) determines that an economically feasible substitute substance or alternative technology is available for use in a contract under evaluation, the appropriate contracting officer shall enter into negotiations to modify the contract to require the use of the substitute substance or alternative technology.

“(C) A determination that a substitute substance or technology is not available for use in a contract under evaluation shall be made in writing by the senior acquisition official (or designee).

“(D) The Secretary of Defense may, consistent with the Federal Acquisition Regulation, adjust the price of a contract modified under subparagraph (B) to take into account the use by the contractor of a substitute substance or alternative technology in the modified contract.

“(3) The senior acquisition official authorized to grant an approval under paragraph (1) and the senior acquisition official and designees authorized to carry out an evaluation and make a determination under paragraph (2) shall be determined under regulations prescribed by the Secretary of Defense. A senior acquisition official may not delegate the authority provided in paragraph (1).

“(4) Each official who grants an approval authorized under paragraph (1) or makes a determination under paragraph (2)(B) shall submit to the Secretary of Defense a report on that approval or determination, as the case may be, as follows:

“(A) Beginning on October 1, 1993, and continuing for 8 calendar quarters thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding quarter not later than 30 days after the end of such quarter.

“(B) Beginning on January 1, 1997, and continuing for 4 years thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding year not later than 30 days after the end of such year.

“(5) The Secretary shall promptly transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives each report submitted to the Secretary under paragraph (4). The Secretary shall transmit the report in classified and unclassified forms.

“(b) Cost Recovery.—In any case in which a Department of Defense contract is modified or a specification or standard for such a contract is waived at the request of a contractor in order to permit the contractor to use in the performance of the contract a substitute for a class I ozone-depleting substance or an alternative technology for a technology involving the use of a class I ozone-depleting substance, the Secretary of Defense may adjust the price of the contract in a manner consistent with the Federal Acquisition Regulation.

“(c) Definitions.—In this section:

“(1) The term ‘class I ozone-depleting substance’ means any substance listed under section 602(a) of the Clean Air Act (42 U.S.C. 7671a (a)).

“(2) The term ‘Federal Acquisition Regulation’ means the single Government-wide procurement regulation issued under section 25(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 421 (c)).”

Payment Protections for Subcontractors and Suppliers

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, provided that:

“(a) Regulations.—The Secretary of Defense shall prescribe in regulations the following requirements:

“(1) Information provided by department of defense relating to payment.—(A) Subject to section 552 (b)(1) of title 5, United States Code, upon the request of a subcontractor or supplier of a contractor performing a Department of Defense contract, the Department of Defense shall promptly make available to such subcontractor or supplier the following information:

“(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) Information provided by department of defense relating to payment bonds.—(A) Upon the request of a subcontractor or supplier described in subparagraph (B), the Department of Defense shall promptly make available to such subcontractor or supplier any of the following:

“(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) Information provided by contractors relating to payment bonds.—(A) Upon the request of a prospective subcontractor or supplier offering 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, the contractor shall promptly make available to such prospective subcontractor or supplier a copy of the payment bond.

“(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) Procedures relating to compliance with payment terms.—(A) Under procedures established in the regulations, upon the assertion by a subcontractor or supplier of a contractor performing a Department of Defense contract that the subcontractor or supplier has not been paid by the prime contractor in accordance with the payment terms of the subcontract, purchase order, or other agreement with the prime contractor, the contracting officer may determine the following:

“(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) Inapplicability to Certain Contracts.—Regulations prescribed under this section shall not apply to a contract for the acquisition of commercial items (as defined in section 4(12) of the Office of Federal Procurement Policy Act [41 U.S.C. 403 (12)]).

“(c) Government-Wide Applicability.—The Federal Acquisition Regulatory Council (established by section 25(a) of the Office of Federal Procurement Policy Act) shall modify the Federal Acquisition Regulation (issued pursuant to section 25(c)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 421 (c)(1)) to apply Government-wide the requirements that the Secretary is required under subsection (a) to prescribe in regulations applicable with respect to the Department of Defense contracts.

“(d) Assistance to Small Business Concerns.—[Amended section 15(k)(5) of the Small Business Act (15 U.S.C. 644 (k)(5)).]

“(e) GAO Report.—(1) The Comptroller General of the United States shall conduct an assessment of the matters described in paragraph (2) and submit a report pursuant to paragraph (3).

“(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) Inspector General Report.—(1) The Inspector General of the Department of Defense shall submit to the Secretary of Defense a report on payment protections for subcontractors and suppliers under contracts entered into with the Department of Defense. The report shall include an assessment of the extent to which available judicial and administrative remedies, as well as suspension and debarment procedures, have been used (or recommended for use) by officials of the Department to deter false statements relating to (A) payment bonds provided by individuals pursuant to the Miller Act, and (B) certifications pertaining to payment requests by construction contractors pursuant to section 3903 (b) of title 31, United States Code. The assessment shall cover actions taken during the period beginning on October 1, 1989, and ending on September 30, 1992.

“(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) Miller Act Defined.—For purposes of this section, the term ‘Miller Act’ means the Act of August 24, 1935 (40 U.S.C. 270a–270d) [now 40 U.S.C. 3131, 3133].”

Advisory Panel on Streamlining and Codifying Acquisition Laws

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.

Mentor-Protege Pilot Program

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, provided that:

“(a) Establishment of Pilot Program.—The Secretary of Defense shall establish a pilot program to be known as the ‘Mentor-Protege Program’.

“(b) Purpose.—The purpose of the program is to provide incentives for major Department of Defense contractors to furnish disadvantaged small business concerns with assistance designed to enhance the capabilities of disadvantaged small business concerns to perform as subcontractors and suppliers under Department of Defense contracts and other contracts and subcontracts in order to increase the participation of such business concerns as subcontractors and suppliers under Department of Defense contracts, other Federal Government contracts, and commercial contracts.

“(c) Program Participants.—(1) A business concern meeting the eligibility requirements set out in subsection (d) may enter into agreements under subsection (e) and furnish assistance to disadvantaged small business concerns upon making application to the Secretary of Defense and being approved for participation in the pilot program by the Secretary. A business concern participating in the pilot program pursuant to such an approval shall be known, for the purposes of the program, as a ‘mentor firm’.

“(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 to receive such assistance at any time. 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) Mentor Firm Eligibility.—Subject to subsection (c)(1), a mentor firm eligible for award of Federal contracts 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—

“(1) 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

“(2) 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).

“(e) Mentor-Protege Agreement.—Before providing assistance to a protege firm under the program, a mentor firm shall enter into a mentor-protege agreement with the protege firm regarding the assistance to be provided by the mentor firm. The agreement shall include the following:

“(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, and (B) the anticipated number and type of subcontracts to be awarded the protege firm.

“(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) Forms of Assistance.—A mentor firm may provide a protege firm the following:

“(1) Assistance, by using mentor firm personnel, in—

“(A) general business management, including organizational management, financial management, and personnel management, marketing, business development, 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) Cash in exchange for an ownership interest in the protege firm, not to exceed 10 percent of the total ownership interest.

“(7) 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; or

“(C) a historically Black college or university or a minority institution of higher education.

“(g) Incentives for Mentor Firms.—(1) The Secretary of Defense may provide to a mentor firm reimbursement for the total amount of any progress payment or advance payment made under the program by the mentor firm to a protege firm in connection with a Department of Defense contract awarded the mentor firm.

“(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 (7) of subsection (f) 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 under subsection (l)(2) 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.

“(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)(7);

“(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) Relationship to Small Business Act.—(1) For purposes of the Small Business Act [15 U.S.C. 631 et seq.], no determination of affiliation or control (either direct or indirect) may be found between a protege firm and its mentor firm on the basis that the mentor firm has agreed to furnish (or has furnished) to its protege firm pursuant to a mentor-protege agreement any form of developmental assistance described in subsection (f).

“(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) Participation in Mentor-Protege Program not To Be a Condition for Award of a Contract or Subcontract.—A mentor firm may not require a business concern to enter into an agreement with the mentor firm pursuant to subsection (e) as a condition for being awarded a contract by the mentor firm, including a subcontract under a contract awarded to the mentor firm.

“(j) Expiration of Authority.—(1) No mentor-protege agreement may be entered into under subsection (e) after September 30, 2010.

“(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, 2013.

“(k) Regulations.—The Secretary of Defense shall prescribe regulations to carry out the pilot Mentor-Protege Program. Such regulations shall include the requirements set forth in section 8(d) of the Small Business Act (15 U.S.C. 637 (d)) and shall prescribe procedures by which mentor firms may terminate participation in the program. The Secretary shall publish the proposed regulations not later than the date 180 days after the date of the enactment of this Act [Nov. 5, 1990]. The Secretary shall promulgate the final regulations not later than the date 270 days after the date of the enactment of this Act. The Department of Defense policy regarding the pilot Mentor-Protege Program shall be published and maintained as an appendix to the Department of Defense Supplement to the Federal Acquisition Regulation.

“(l) Reports and Reviews.—(1) The mentor firm and protege firm under a mentor-protege agreement shall submit to the Secretary of Defense an annual report on the progress made by the protege firm in employment, revenues, and participation in Department of Defense contracts during the fiscal year covered by the report. The requirement for submission of an annual report applies with respect to each fiscal year covered by the program participation term under the agreement and each of the two fiscal years following the expiration of the program participation term. The Secretary shall prescribe the timing and form of the annual report.

“(2)(A) The Secretary shall conduct an annual performance review of each mentor-protege agreement that provides for reimbursement of costs. The Secretary shall determine on the basis of the review whether—

“(i) all costs reimbursed to the mentor firm under the agreement were reasonably incurred to furnish assistance to the protege firm in accordance with the requirements of this section and applicable regulations; and

“(ii) the mentor firm and protege firm accurately reported progress made by the protege firm in employment, revenues, and participation in Department of Defense contracts during the program participation term covered by the mentor-protege agreement and the two fiscal years following the expiration of the program participation term.

“(B) The Secretary shall act through the Commander of the Defense Contract Management Command in carrying out the reviews and making the determinations under subparagraph (A).

“(3) Not later than 6 months after the end of each of fiscal years 2000 through 2010, the Secretary of Defense shall submit to Congress an annual report on the Mentor-Protege Program for that fiscal year.

“(4) The annual report for a fiscal year shall include, at a minimum, the following:

“(A) The number of mentor-protege agreements that were entered into during the fiscal year.

“(B) The number of mentor-protege agreements that were in effect during the fiscal year.

“(C) The total amount reimbursed to mentor firms pursuant to subsection (g) during the fiscal year.

“(D) Each mentor-protege agreement, if any, that was approved during the fiscal year in accordance with subsection (e)(2) to provide a program participation term in excess of 3 years, together with the justification for the approval.

“(E) Each reimbursement of a mentor firm in excess of the limitation in subsection (g)(2)(C) that was made during the fiscal year pursuant to an approval granted in accordance with that subsection, together with the justification for the approval.

“(F) Trends in the progress made in employment, revenues, and participation in Department of Defense contracts by the protege firms participating in the program during the fiscal year and the protege firms that completed or otherwise terminated participation in the program during the preceding two fiscal years.

“(m) Definitions.—In this section:

“(1) The term ‘small business concern’ means a business concern that meets the requirements of section 3(a) of the Small Business Act (15 U.S.C. 632 (a)) and the regulations promulgated pursuant thereto.

“(2) The term ‘disadvantaged small business concern’ means:

“(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 the severely disabled;

“(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

“(G) a qualified HUBZone small business concern (as defined in section 3(p) of the Small Business Act [15 U.S.C. 632 (p)]).

“(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.

“(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 2323 of title 10, United States Code, and 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 has a physical or mental disability which constitutes a substantial handicap to employment and which, in accordance with criteria prescribed by the Committee for the Purchase From the Blind and Other Severely Handicapped established by the first section of the Act of June 25, 1938 (41 U.S.C. 46; popularly known as the ‘Wagner-O’Day Act’) [now known as the “Javits-Wagner-O’Day Act”], is of such a nature that the individual is otherwise prevented from engaging in normal competitive employment.”

[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.”]

Credit for Indian Contracting in Meeting Certain Minority Subcontracting Goals

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).

Equitable Participation of American Small and Minority-Owned Business in Furnishing of Commodities and Services

Pub. L. 101–165, title IX, § 9004, Nov. 21, 1989, 103 Stat. 1129, provided that: “During the current fiscal year and hereafter, the Secretary of Defense and each purchasing and contracting agency of the Department of Defense shall assist American small and minority-owned business to participate equitably in the furnishing of commodities and services financed with funds appropriated under this Act [see Tables for classification] by increasing, to an optimum level, the resources and number of personnel jointly assigned to promoting both small and minority business involvement in purchases financed with funds appropriated herein, and by making available or causing to be made available to such businesses, information, as far in advance as possible, with respect to purchases proposed to be financed with funds appropriated under this Act, and by assisting small and minority business concerns to participate equitably as subcontractors on contracts financed with funds appropriated herein, and by otherwise advocating and providing small and minority business opportunities to participate in the furnishing of commodities and services financed with funds appropriated by this Act.”

Requirement for Substantial Progress on Minority and Small Business Contract Awards

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.

Definitions; Rule of Construction for Duplicate Authorization and Appropriation Provisions of Public Laws 99–500, 99–591, and 99–661

Pub. L. 100–26, §§ 2, 6, Apr. 21, 1987, 101 Stat. 273, 274, provided that:

“SEC. 2. REFERENCES TO 99TH CONGRESS LAWS

“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.”

“SEC. 6. CONSTRUCTION OF DUPLICATE AUTHORIZATION AND APPROPRIATION PROVISIONS

“(a) Rule for Construction of Duplicate Provisions.—(1) In applying the provisions of Public Laws 99–500, 99–591, and 99–661 described in paragraph (2)—

“(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) Rule for Date of Enactment.—(1) The date of the enactment of the provisions of law listed in the middle column, and in the right-hand column, of the table in subsection (a)(2) shall be deemed to be October 18, 1986 (the date of the enactment of Public Law 99–500).

“(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.]

Contract Goal for Minorities

Section 1207 of Pub. L. 99–661, 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 section 2323 of this title by Pub. L. 102–484, § 801(a)(1)(B), (h)(1).

Minimum Percentage of Competitive Procurements

Pub. L. 99–145, title IX, § 913, Nov. 8, 1985, 99 Stat. 687, as amended by Pub. L. 101–510, div. A, title XIII, § 1322(d)(1), Nov. 5, 1990, 104 Stat. 1672, provided that:

“(a) Annual Goal.—The Secretary of Defense shall establish for each fiscal year a goal for the percentage of defense procurements to be made during that year (expressed in total dollar value of contracts entered into) that are to be competitive procurements.

“(b) Definition.—For the purposes of this section, the term ‘competitive procurements’ means procurements made by the Department of Defense through the use of competitive procedures, as defined in section 2304 of title 10, United States Code.”

Defense Procurement Reform: Congressional Findings and Policy

Section 1202 of Pub. L. 98–525, 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.”

Modification of Regulations and Directives To Accommodate a Policy of Multiyear Procurement

Section 909(d) of Pub. L. 97–86 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].

Procurement Requirements for Goods Which Are Not American Goods

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).

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