-CITE- 10 USC CHAPTER 137 - PROCUREMENT GENERALLY 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- CHAPTER 137 - PROCUREMENT GENERALLY -MISC1- Sec. [2301. Repealed.] 2302. Definitions. 2302a. Simplified acquisition threshold. 2302b. Implementation of simplified acquisition procedures. 2302c. Implementation of electronic commerce capability. 2302d. Major system: definitional threshold amounts. 2303. Applicability of chapter. [2303a. Repealed.] 2304. Contracts: competition requirements. 2304a. Task and delivery order contracts: general authority. 2304b. Task order contracts: advisory and assistance services. 2304c. Task and delivery order contracts: orders. 2304d. Task and delivery order contracts: definitions. 2304e. Contracts: prohibition on competition between Department of Defense and small businesses and certain other entities. 2305. Contracts: planning, solicitation, evaluation, and award procedures. 2305a. Design-build selection procedures. 2306. Kinds of contracts. 2306a. Cost or pricing data: truth in negotiations. 2306b. Multiyear contracts: acquisition of property. 2306c. Multiyear contracts: acquisition of services. 2307. Contract financing. 2308. Buy-to-budget acquisition: end items. 2309. Allocation of appropriations. 2310. Determinations and decisions. 2311. Assignment and delegation of procurement functions and responsibilities. 2312. Remission of liquidated damages. 2313. Examination of records of contractor. 2314. Laws inapplicable to agencies named in section 2303 of this title. 2315. Law inapplicable to the procurement of automatic data processing equipment and services for certain defense purposes. 2316. Disclosure of identity of contractor. [2317. Repealed.] 2318. Advocates for competition. 2319. Encouragement of new competitors. 2320. Rights in technical data. 2321. Validation of proprietary data restrictions. [2322. Repealed.] 2323. Contract goal for small disadvantaged businesses and certain institutions of higher education. 2323a. Credit for Indian contracting in meeting certain subcontracting goals for small disadvantaged businesses and certain institutions of higher education. 2324. Allowable costs under defense contracts. 2325. Restructuring costs. 2326. Undefinitized contractual actions: restrictions. 2327. Contracts: consideration of national security objectives. 2328. Release of technical data under Freedom of Information Act: recovery of costs. [2329. Repealed.] 2330. Procurement of contract services: management structure. 2330a. Procurement of services: tracking of purchases. 2331. Procurement of services: contracts for professional and technical services. 2332. Share-in-savings contracts. 2333. Joint policies on requirements definition, contingency program management, and contingency contracting. AMENDMENTS 2008 - Pub. L. 110-181, div. A, title X, Sec. 1063(a)(10), Jan. 28, 2008, 122 Stat. 322, added item 2333 and struck out former item 2333 "Joint policies on requirements definition, contingency contracting, and program management". 2006 - Pub. L. 109-364, div. A, title VIII, Sec. 854(a)(2), Oct. 17, 2006, 120 Stat. 2346, added item 2333. Pub. L. 109-163, div. A, title VIII, Sec. 812(a)(2), Jan. 6, 2006, 119 Stat. 3378, substituted "Procurement of contract services: management structure" for "Procurement of services: management structure" in item 2330. 2002 - Pub. L. 107-347, title II, Sec. 210(a)(2), Dec. 17, 2002, 116 Stat. 2934, added item 2332. Pub. L. 107-314, div. A, title VIII, Sec. 801(a)(2), Dec. 2, 2002, 116 Stat. 2602, added item 2308. 2001 - Pub. L. 107-107, div. A, title VIII, Sec. 801(g)(2), Dec. 28, 2001, 115 Stat. 1178, added items 2330, 2330a, and 2331 and struck out former item 2331 "Contracts for professional and technical services". 2000 - Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 802(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A-205, added item 2306c. 1998 - Pub. L. 105-261, div. A, title X, Sec. 1069(a)(3), Oct. 17, 1998, 112 Stat. 2135, substituted "electronic commerce capability" for "FACNET capability" in item 2302c. 1997 - Pub. L. 105-85, div. A, title VIII, Sec. 804(a)(2), title X, Sec. 1073(a)(48)(B), Nov. 18, 1997, 111 Stat. 1833, 1903, substituted "contracts: acquisition of property" for "contracts" in item 2306b and added item 2325. 1996 - Pub. L. 104-201, div. A, title VIII, Sec. 805(b), Sept. 23, 1996, 110 Stat. 2606, added item 2302d. Pub. L. 104-106, div. D, title XLI, Sec. 4105(a)(2), title XLIII, Sec. 4321(b)(6)(B), Feb. 10, 1996, 110 Stat. 647, 672, redesignated item 2304a, relating to contracts: prohibition on competition between Department of Defense and small businesses and certain other entities, as 2304e and added item 2305a. 1994 - Pub. L. 103-355, title I, Secs. 1004(a)(2), 1022(a)(2), 1501(b), 1503(a)(2), (b)(2), 1506(b), title II, Secs. 2001(i), 2201(a)(2), title IV, Secs. 4002(b), 4203(a)(2), title VIII, Sec. 8104(b)(2), title IX, Sec. 9002(b), Oct. 13, 1994, 108 Stat. 3253, 3260, 3296-3298, 3303, 3318, 3338, 3346, 3391, 3402, struck out items 2301 "Congressional defense procurement policy", 2308 "Assignment and delegation of procurement functions and responsibilities", 2325 "Preference for nondevelopmental items", and 2329 "Production special tooling and production special test equipment: contract terms and conditions", added items 2302a to 2302c, 2304a relating to task and delivery order contracts: general authority, 2304b to 2304d, and 2306b, and substituted "Contract financing" for "Advance payments" in item 2307, "Assignment and delegation of procurement functions and responsibilities" for "Delegation" in item 2311, and "Examination of records of contractor" for "Examination of books and records of contractor" in item 2313. 1993 - Pub. L. 103-160, div. A, title VIII, Secs. 828(a)(1), 848(a)(2), Nov. 30, 1993, 107 Stat. 1713, 1725, added item 2304a and struck out item 2317 "Encouragement of competition and cost savings". 1992 - Pub. L. 102-484, div. A, title VIII, Sec. 801(a)(2), (g)(2), title X, Sec. 1052(25)(B), div. D, title XLII, Sec. 4271(b)(2), Oct. 23, 1992, 106 Stat. 2442, 2445, 2500, 2695, struck out items 2322 "Limitation on small business set-asides" and 2330 "Integrated financing policy" and added items 2323 and 2323a. 1990 - Pub. L. 101-510, div. A, title VIII, Secs. 804(b), 834(a)(2), Nov. 5, 1990, 104 Stat. 1591, 1614, struck out item 2323 "Commercial pricing for spare or repair parts" and added item 2331. 1988 - Pub. L. 100-456, div. A, title VIII, Sec. 801(a)(2), Sept. 29, 1988, 102 Stat. 2007, added item 2330. 1987 - Pub. L. 100-180, div. A, title VIII, Sec. 810(a)(2), Dec. 4, 1987, 101 Stat. 1132, added item 2329. Pub. L. 100-26, Sec. 7(a)(7)(B)(ii), (b)(9)(B), Apr. 21, 1987, 101 Stat. 278, 280, transferred item 2305a "Major programs: competitive alternative sources", to chapter 144 as item 2438 and substituted "Release of technical data under Freedom of Information Act: recovery of costs" for "Release of technical data" in item 2328. Pub. L. 100-26, Sec. 5(4), (6), made technical amendments to directory language of sections 926(a)(2) and 954(a)(2), respectively, of Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99- 661. See 1986 Amendment note below. 1986 - Pub. L. 99-661, div. A, title XIII, Sec. 1343(a)(12), Nov. 14, 1986, 100 Stat. 3993, substituted "competitors" for "competition" in item 2319. Pub. L. 99-500, Sec. 101(c) [title X, Secs. 907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-138, 1783-141, 1783-155, 1783-165, 1783-169, 1783-173, and Pub. L. 99-591, Sec. 101(c) [title X, Secs. 907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-138, 3341-141, 3341-155, 3341-165, 3341-169, 3341-173; Pub. L. 99-661, div. A, title IX, formerly title IV, Secs. 907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2), Nov. 14, 1986, 100 Stat. 3917, 3921, 3935, 3945, 3949, 3953, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; as amended by Pub. L. 100-26, Sec. 5(4), (6), Apr. 21, 1987, 101 Stat. 274, amended chapter analysis identically striking out ": cost or pricing data: truth in negotiations" after "contracts" in item 2306, substituting "spare or repair parts" for "supplies" in item 2323, and adding items 2306a and 2325 to 2328. 1985 - Pub. L. 99-145, title IX, Secs. 911(a)(2), 912(a)(2), Nov. 8, 1985, 99 Stat. 685, 686, added items 2305a and 2324. 1984 - Pub. L. 98-577, title III, Sec. 302(c)(2), Oct. 30, 1984, 98 Stat. 3077, struck out item 2303a "Publication of proposed regulations". Pub. L. 98-525, title XII, Sec. 1217, Oct. 19, 1984, 98 Stat. 2599, added items 2303a and 2317 to 2323. Pub. L. 98-369, div. B, title VII, Sec. 2727(a), July 18, 1984, 98 Stat. 1194, substituted "Congressional defense procurement policy" for "Declaration of policy" in item 2301, "Contracts: competition requirements" for "Purchases and contracts: formal advertising; exceptions" in item 2304, "Contracts: planning, solicitation, evaluation, and award procedures" for "Formal advertisements for bids; time; opening; award; rejection" in item 2305, and "Kinds of contracts; cost or pricing data: truth in negotiation" for "Kinds of contracts" in item 2306. 1982 - Pub. L. 97-295, Sec. 1(26)(B), Oct. 12, 1982, 96 Stat. 1291, added item 2316. 1981 - Pub. L. 97-86, title IX, Sec. 908(a)(2), Dec. 1, 1981, 95 Stat. 1118, added item 2315. 1980 - Pub. L. 96-513, title V, Sec. 511(75), Dec. 12, 1980, 94 Stat. 2926, inserted "formal" before "advertising" in item 2304. -End- -CITE- 10 USC Sec. 2301 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2301. Repealed. -MISC1- [Sec. 2301. Repealed. Pub. L. 103-355, title I, Sec. 1501(a), Oct. 13, 1994, 108 Stat. 3296]. Section, acts Aug. 10, 1956, ch. 1041, 70A Stat. 127; Dec. 1, 1981, Pub. L. 97-86, title IX, Sec. 909(a), 95 Stat. 1118; July 18, 1984, Pub. L. 98-369, div. B, title VII, Sec. 2721, 98 Stat. 1185; Oct. 18, 1986, Pub. L. 99-500, Sec. 101(c) [title X, Sec. 925(a)], 100 Stat. 1783-82, 1783-153, and Oct. 30, 1986, Pub. L. 99-591, Sec. 101(c) [title X, Sec. 925(a)], 100 Stat. 3341-82, 3341-153; Nov. 14, 1986, Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 925(a), 100 Stat. 3933, renumbered title IX, Apr. 21, 1987, Pub. L. 100-26, Sec. 3(5), 101 Stat. 273; Oct. 23, 1992, Pub. L. 102-484, div. A, title VIII, Sec. 808(a), 106 Stat. 2449, related to Congressional defense procurement policy. EFFECTIVE DATE OF REPEAL For effective date and applicability of repeal, see section 10001 of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note under section 251 of Title 41, Public Contracts. -End- -CITE- 10 USC Sec. 2302 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2302. Definitions -STATUTE- In this chapter: (1) The term "head of an agency" means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration. (2) The term "competitive procedures" means procedures under which the head of an agency enters into a contract pursuant to full and open competition. Such term also includes - (A) procurement of architectural or engineering services conducted in accordance with chapter 11 of title 40; (B) the competitive selection for award of basic research proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of such proposals; (C) the procedures established by the Administrator of General Services for the multiple award schedule program of the General Services Administration if - (i) participation in the program has been open to all responsible sources; and (ii) orders and contracts under such program result in the lowest overall cost alternative to meet the needs of the United States; (D) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for such procurements are permitted to compete; and (E) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of the Small Business Act (15 U.S.C. 638). (3) The following terms have the meanings provided such terms in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403): (A) The term "procurement". (B) The term "procurement system". (C) The term "standards". (D) The term "full and open competition". (E) The term "responsible source". (F) The term "item". (G) The term "item of supply". (H) The term "supplies". (I) The term "commercial item". (J) The term "nondevelopmental item". (K) The term "commercial component". (L) The term "component". (4) The term "technical data" means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency. Such term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. (5) The term "major system" means a combination of elements that will function together to produce the capabilities required to fulfill a mission need. The elements may include hardware, equipment, software or any combination thereof, but excludes construction or other improvements to real property. A system shall be considered a major system if (A) the conditions of section 2302d of this title are satisfied, or (B) the system is designated a "major system" by the head of the agency responsible for the system. (6) The term "Federal Acquisition Regulation" means the Federal Acquisition Regulation issued pursuant to section 25(c)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c)(1)). (7) The term "simplified acquisition threshold" has the meaning provided that term in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403), except that, in the case of any contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation or a humanitarian or peacekeeping operation, the term means an amount equal to two times the amount specified for that term in section 4 of such Act. (8) The term "humanitarian or peacekeeping operation" means a military operation in support of the provision of humanitarian or foreign disaster assistance or in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations. The term does not include routine training, force rotation, or stationing. -SOURCE- (Aug. 10, 1956, ch. 1041, 70A Stat. 127; Pub. L. 85-568, title III, Sec. 301(b), July 29, 1958, 72 Stat. 432; Pub. L. 85-861, Sec. 1(43A), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 96-513, title V, Sec. 511(74), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 98-369, div. B, title VII, Sec. 2722(a), July 18, 1984, 98 Stat. 1186; Pub. L. 98- 525, title XII, Sec. 1211, Oct. 19, 1984, 98 Stat. 2589; Pub. L. 98-577, title V, Sec. 504(b)(3), Oct. 30, 1984, 98 Stat. 3087; Pub. L. 99-661, div. A, title XIII, Sec. 1343(a)(13), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 100-26, Sec. 7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 101-189, div. A, title VIII, Sec. 853(b)(1), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 102-25, title VII, Sec. 701(d)(1), Apr. 6, 1991, 105 Stat. 113; Pub. L. 102-190, div. A, title VIII, Sec. 805, Dec. 5, 1991, 105 Stat. 1417; Pub. L. 103-355, title I, Sec. 1502, Oct. 13, 1994, 108 Stat. 3296; Pub. L. 104-106, div. D, title XLIII, Sec. 4321(b)(3), Feb. 10, 1996, 110 Stat. 672; Pub. L. 104-201, div. A, title VIII, Secs. 805(a)(1), 807(a), Sept. 23, 1996, 110 Stat. 2605, 2606; Pub. L. 105-85, div. A, title VIII, Sec. 803(b), Nov. 18, 1997, 111 Stat. 1832; Pub. L. 107-217, Sec. 3(b)(2), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 107-296, title XVII, Sec. 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.) -MISC1- HISTORICAL AND REVISION NOTES 1956 ACT -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at section Large) -------------------------------------------------------------------- 2302 41:158 (less clause (b)). Feb. 19, 1948, ch. 65, Sec. 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 Source (U.S. Code) Source (Statutes at section 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Secs. 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, Sec. 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, Sec. 890, Jan. 28, 2008, 122 Stat. 269, as amended by Pub. L. 110-417, [div. A], title X, Sec. 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 U.S.C. App. 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, Sec. 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, Sec. 812, Oct. 17, 2006, 120 Stat. 2317, as amended by Pub. L. 110-417, [div. A], title VIII, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 832, Oct. 17, 2006, 120 Stat. 2331, as amended by Pub. L. 110-181, div. A, title VIII, Sec. 883, Jan. 28, 2008, 122 Stat. 264; Pub. L. 110-417, [div. A], title X, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 802, Oct. 28, 2004, 118 Stat. 2004, as amended by Pub. L. 109-313, Sec. 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, Sec. 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, Sec. 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, Sec. 853, Nov. 24, 2003, 117 Stat. 1557, as amended by Pub. L. 108-199, div. H, Sec. 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, Sec. 1602, Nov. 24, 2003, 117 Stat. 1682, as amended by Pub. L. 110-181, div. A, title X, Sec. 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, Sec. 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, Sec. 314, Dec. 2, 2002, 116 Stat. 2508, as amended by Pub. L. 109-163, div. A, title X, Sec. 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, Sec. 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, Sec. 365, Dec. 2, 2002, 116 Stat. 2520, as amended by Pub. L. 109-163, div. A, title III, Sec. 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, Sec. 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, Sec. 806, Dec. 2, 2002, 116 Stat. 2607, as amended by Pub. L. 108-136, div. A, title VIII, Sec. 845, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108-375, div. A, title VIII, Sec. 811, Oct. 28, 2004, 118 Stat. 2012; Pub. L. 109-364, div. A, title X, Sec. 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, Sec. 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, Sec. 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, Sec. 1 [[div. A], title VIII, Sec. 821], Oct. 30, 2000, 114 Stat. 1654, 1654A-217, as amended by Pub. L. 108-136, div. A, title XIV, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Secs. 1502(c)(2)(A), 1504(c)(1), Feb. 10, 1996, 110 Stat. 506, 514; Pub. L. 106-65, div. A, title X, Sec. 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, Sec. 806, Dec. 5, 1991, 105 Stat. 1417, as amended by Pub. L. 102-484, div. A, title X, Sec. 1053(5), Oct. 23, 1992, 106 Stat. 2502; Pub. L. 103-355, title II, Sec. 2091, title VIII, Sec. 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, Sec. 800, Nov. 5, 1990, 104 Stat. 1587, as amended by Pub. L. 103-160, div. A, title IX, Sec. 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, Sec. 811(d)(2), (3), Oct. 5, 1999, 113 Stat. 708, 709, as amended by Pub. L. 107-107, div. A, title X, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 831, Nov. 5, 1990, 104 Stat. 1607, as amended by Pub. L. 102-25, title VII, Sec. 704(c), Apr. 6, 1991, 105 Stat. 119; Pub. L. 102-172, title VIII, Sec. 8064A, Nov. 26, 1991, 105 Stat. 1186; Pub. L. 102-190, div. A, title VIII, Sec. 814(b), Dec. 5, 1991, 105 Stat. 1425; Pub. L. 102- 484, div. A, title VIII, Secs. 801(h)(4), 807(b)(1), title X, Sec. 1054(d), Oct. 23, 1992, 106 Stat. 2445, 2448, 2503; Pub. L. 103- 160, div. A, title VIII, Sec. 813(b)(1), (c), Nov. 30, 1993, 107 Stat. 1703; Pub. L. 104-106, div. A, title VIII, Sec. 824, Feb. 10, 1996, 110 Stat. 399; Pub. L. 104-201, div. A, title VIII, Sec. 802, Sept. 23, 1996, 110 Stat. 2604; Pub. L. 105-85, div. A, title VIII, Sec. 821(a), title X, Sec. 1073(c)(6), Nov. 18, 1997, 111 Stat. 1840, 1904; Pub. L. 106-65, div. A, title VIII, Sec. 811(a)-(d)(1), (e), Oct. 5, 1999, 113 Stat. 706, 707, 709; Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 807], Oct. 30, 2000, 114 Stat. 1654, 1654A-208; Pub. L. 107-107, div. A, title VIII, Sec. 812, Dec. 28, 2001, 115 Stat. 1181; Pub. L. 108-375, div. A, title VIII, Secs. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Secs. 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 Section 101(c) of Division A of Public Law 99-500 Public Law 99-591 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, Sec. 806(d), 101 Stat. 1127; Pub. L. 100-456, div. A, title VIII, Sec. 844, Sept. 29, 1988, 102 Stat. 2027; Pub. L. 101-189, div. A, title VIII, Sec. 831, Nov. 29, 1989, 103 Stat. 1507; Pub. L. 101-510, div. A, title VIII, Secs. 811, 832, title XIII, Secs. 1302(d), 1312(b), Nov. 5, 1990, 104 Stat. 1596, 1612, 1669, 1670; Pub. L. 102-25, title VII, Secs. 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, Sec. 801(a)(1)(B), (h)(1). MINIMUM PERCENTAGE OF COMPETITIVE PROCUREMENTS Pub. L. 99-145, title IX, Sec. 913, Nov. 8, 1985, 99 Stat. 687, as amended by Pub. L. 101-510, div. A, title XIII, Sec. 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, Sec. 101(c) [title X, Sec. 953(c)], Oct. 18, 1986, 100 Stat. 1783- 82, 1783-172, and Pub. L. 99-591, Sec. 101(c) [title X, Sec. 953(c)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-172; Pub. L. 99- 661, div. A, title IX, formerly title IV, Sec. 953(c), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100-26, Sec. 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, Sec. 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, Sec. 3(a), (c). Section 2501 of this title was renumbered section 2506 by Pub. L. 100-456, Sec. 821(b)(1)(A). Section 2506 of this title was renumbered section 2533 by Pub. L. 102-484, Sec. 4202(a). -End- -CITE- 10 USC Sec. 2302a 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2302a. Simplified acquisition threshold -STATUTE- (a) Simplified Acquisition Threshold. - For purposes of acquisitions by agencies named in section 2303 of this title, the simplified acquisition threshold is as specified in section 4(11) of the Office of Federal Procurement Policy Act. (b) Inapplicable Laws. - No law properly listed in the Federal Acquisition Regulation pursuant to section 33 of the Office of Federal Procurement Policy Act shall apply to or with respect to a contract or subcontract that is not greater than the simplified acquisition threshold. -SOURCE- (Added and amended Pub. L. 103-355, title IV, Secs. 4002(a), 4102(a), Oct. 13, 1994, 108 Stat. 3338, 3340.) -REFTEXT- REFERENCES IN TEXT Sections 4(11) and 33 of the Office of Federal Procurement Policy Act, referred to in subsecs. (a) and (b), respectively, are classified to sections 403(11) and 429, respectively, of Title 41, Public Contracts. -MISC1- AMENDMENTS 1994 - Subsec. (b). Pub. L. 103-355, Sec. 4102(a), added subsec. (b). EFFECTIVE DATE For effective date and applicability of section, see section 10001 of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note under section 251 of Title 41, Public Contracts. -End- -CITE- 10 USC Sec. 2302b 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2302b. Implementation of simplified acquisition procedures -STATUTE- The simplified acquisition procedures contained in the Federal Acquisition Regulation pursuant to section 31 of the Office of Federal Procurement Policy Act shall apply as provided in such section to the agencies named in section 2303(a) of this title. -SOURCE- (Added Pub. L. 103-355, title IV, Sec. 4203(a)(1), Oct. 13, 1994, 108 Stat. 3345.) -REFTEXT- REFERENCES IN TEXT Section 31 of the Office of Federal Procurement Policy Act, referred to in text, is classified to section 427 of Title 41, Public Contracts. -MISC1- EFFECTIVE DATE For effective date and applicability of section, see section 10001 of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note under section 251 of Title 41, Public Contracts. -End- -CITE- 10 USC Sec. 2302c 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2302c. Implementation of electronic commerce capability -STATUTE- (a) Implementation of Electronic Commerce Capability. - (1) The head of each agency named in paragraphs (1), (5), and (6) of section 2303(a) of this title shall implement the electronic commerce capability required by section 30 of the Office of Federal Procurement Policy Act (41 U.S.C. 426). (2) The Secretary of Defense shall act through the Under Secretary of Defense for Acquisition, Technology, and Logistics to implement the capability within the Department of Defense. (3) In implementing the electronic commerce capability pursuant to paragraph (1), the head of an agency referred to in paragraph (1) shall consult with the Administrator for Federal Procurement Policy. (b) Designation of Agency Official. - The head of each agency named in paragraph (5) or (6) of section 2303(a) of this title shall designate a program manager to implement the electronic commerce capability for that agency. The program manager shall report directly to an official at a level not lower than the senior procurement executive designated for the agency under section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c)). -SOURCE- (Added Pub. L. 103-355, title IX, Sec. 9002(a), Oct. 13, 1994, 108 Stat. 3402; amended Pub. L. 105-85, div. A, title VIII, Sec. 850(f)(3)(A), Nov. 18, 1997, 111 Stat. 1850; Pub. L. 105-129, Sec. 1(a)(1), Dec. 1, 1997, 111 Stat. 2551; Pub. L. 106-65, div. A, title X, Sec. 1066(a)(18), Oct. 5, 1999, 113 Stat. 771; Pub. L. 107- 107, div. A, title X, Sec. 1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 109-364, div. A, title X, Sec. 1071(a)(2), Oct. 17, 2006, 120 Stat. 2398.) -MISC1- AMENDMENTS 2006 - Subsec. (b). Pub. L. 109-364 substituted "section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))" for "section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))". 2001 - Subsec. (a)(2). Pub. L. 107-107 substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology". 1999 - Subsec. (b). Pub. L. 106-65 substituted "section 2303(a)" for "section 2303". 1997 - Pub. L. 105-85 substituted "electronic commerce" for "FACNET" in section catchline and amended text generally. Prior to amendment, text read as follows: "(a) Implementation of FACNET Capability. - (1) The head of each agency named in section 2303 of this title shall implement the Federal acquisition computer network ('FACNET') capability required by section 30 of the Office of Federal Procurement Policy Act. In the case of the Department of Defense, the implementation shall be by the Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Technology, for the Department of Defense as a whole. For purposes of this section, the term 'head of an agency' does not include the Secretaries of the military departments. "(2) In implementing the FACNET capability pursuant to paragraph (1), the head of an agency shall consult with the Administrator for Federal Procurement Policy. "(b) Designation of Agency Official. - The head of each agency named in paragraph (5) or (6) of section 2303 of this title shall designate a program manager to have responsibility for implementation of FACNET capability for that agency and otherwise to implement this section. Such program manager shall report directly to the senior procurement executive designated for the agency under section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))." Subsec. (a)(1). Pub. L. 105-129 inserted "of section 2303(a) of this title" after "paragraphs (1), (5), and (6)". EFFECTIVE DATE OF 1997 AMENDMENTS Section 1(a)(2) of Pub. L. 105-129 provided that: "The amendment made by paragraph (1) [amending this section] shall take effect as if included in the amendment to section 2302c of title 10, United States Code, made by section 850(f)(3)(A) of the National Defense Authorization Act for Fiscal Year 1998 [Pub. L. 105-85] to which the amendment made by paragraph (1) relates." Section 850(g) of Pub. L. 105-85 provided that: "(1) Except as provided in paragraph (2), the amendments made by this section [amending this section, section 2304 of this title, section 637 of Title 15, Commerce and Trade, section 1501 of former Title 40, Public Buildings, Property, and Works, and sections 252c, 253, 416, 426, and 427 of Title 41, Public Contracts, repealing section 426a of Title 41, amending provisions set out as a note under section 413 of Title 41, and repealing provisions set out as a note under section 426a of Title 41] shall take effect 180 days after the date of the enactment of this Act [Nov. 18, 1997]. "(2) The repeal made by subsection (c) of this section [repealing provisions set out as a note under section 426a of Title 41] shall take effect on the date of the enactment of this Act." EFFECTIVE DATE Section 9002(c) of Pub. L. 103-355 provided that: "A FACNET capability may be implemented and used in an agency before the promulgation of regulations implementing this section (as provided in section 10002) [set out as a Regulations note under section 251 of Title 41, Public Contracts]. If such implementation and use occurs, the period for submission of bids or proposals under section 18(a)(3)(B) of the Office of Federal Procurement Policy Act [41 U.S.C. 416(a)(3)(B)], in the case of a solicitation through FACNET, may be less than the period otherwise applicable under that section, but shall be at least 10 days. The preceding sentence shall not be in effect after September 30, 1995." -End- -CITE- 10 USC Sec. 2302d 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2302d. Major system: definitional threshold amounts -STATUTE- (a) Department of Defense Systems. - For purposes of section 2302(5) of this title, a system for which the Department of Defense is responsible shall be considered a major system if - (1) the total expenditures for research, development, test, and evaluation for the system are estimated to be more than $115,000,000 (based on fiscal year 1990 constant dollars); or (2) the eventual total expenditure for procurement for the system is estimated to be more than $540,000,000 (based on fiscal year 1990 constant dollars). (b) Civilian Agency Systems. - For purposes of section 2302(5) of this title, a system for which a civilian agency is responsible shall be considered a major system if total expenditures for the system are estimated to exceed the greater of - (1) $750,000 (based on fiscal year 1980 constant dollars); or (2) the dollar threshold for a "major system" established by the agency pursuant to Office of Management and Budget (OMB) Circular A-109, entitled "Major Systems Acquisitions". (c) Adjustment Authority. - (1) The Secretary of Defense may adjust the amounts and the base fiscal year provided in subsection (a) on the basis of Department of Defense escalation rates. (2) An amount, as adjusted under paragraph (1), that is not evenly divisible by $5,000,000 shall be rounded to the nearest multiple of $5,000,000. In the case of an amount that is evenly divisible by $2,500,000 but not evenly divisible by $5,000,000, the amount shall be rounded to the next higher multiple of $5,000,000. (3) An adjustment under this subsection shall be effective after the Secretary transmits to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of the adjustment. -SOURCE- (Added Pub. L. 104-201, div. A, title VIII, Sec. 805(a)(2), Sept. 23, 1996, 110 Stat. 2605; amended Pub. L. 105-85, div. A, title X, Sec. 1073(a)(41), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 106-65, div. A, title X, Sec. 1067(1), Oct. 5, 1999, 113 Stat. 774.) -MISC1- AMENDMENTS 1999 - Subsec. (c)(3). Pub. L. 106-65 substituted "and the Committee on Armed Services" for "and the Committee on National Security". 1997 - Subsec. (a)(2). Pub. L. 105-85 substituted "procurement for the system is estimated to be" for "procurement of". -End- -CITE- 10 USC Sec. 2303 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2303. Applicability of chapter -STATUTE- (a) This chapter applies to the procurement by any of the following agencies, for its use or otherwise, of all property (other than land) and all services for which payment is to be made from appropriated funds: (1) The Department of Defense. (2) The Department of the Army. (3) The Department of the Navy. (4) The Department of the Air Force. (5) The Coast Guard. (6) The National Aeronautics and Space Administration. (b) The provisions of this chapter that apply to the procurement of property apply also to contracts for its installation or alteration. -SOURCE- (Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85-568, title III, Sec. 301(b), July 29, 1958, 72 Stat. 432; Pub. L. 98-369, div. B, title VII, Sec. 2722(b), July 18, 1984, 98 Stat. 1187.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at section Large) -------------------------------------------------------------------- 2303(a) 41:151(a). Feb. 19, 1948, ch. 65, Secs. 2(a), 9 (clause (b)), 62 Stat. 21, 24. 2303(b) 41:158 (clause (b), less last 5 words). 2303(c) 41:158 (last 5 words of clause (b)). -------------------------------------------------------------------- In subsection (a), the words "all property named in subsection (b), and all services" are substituted for the words "for supplies or services". The words "(each being hereinafter called the agency)", are omitted, since the revised sections of this chapter make specific reference to the agencies named in this revised section. The words "United States" before the words "Coast Guard" are omitted, since they are not a part of the official name of the Coast Guard under section 1 of title 14. In subsection (b), the introductory clause is substituted for the word "supplies". Throughout the revised chapter reference is made to "property or services covered by this chapter", instead of "supplies", since the word "supplies" is defined in section 101(26) of this title in its usual and narrower sense, rather than the sense of the source statute for this revised chapter. It is desirable to avoid a usage which conflicts with the definition in section 101(26) of this title. The word "ships" and the words "of every character, type, and description", after the word "vessels", are omitted as covered by the definition of "vessel" in section 1 of title 1. AMENDMENTS 1984 - Subsec. (a). Pub. L. 98-369, Sec. 2722(b)(1)(A), (B), substituted in provisions preceding cl. (1) "procurement" for "purchase, and contract to purchase," and "(other than land) and all services" for "named in subsection (b), and all services,". Subsec. (a)(1) to (6). Pub. L. 98-369, Sec. 2722(b)(1)(C), (D), added cl. (1) and redesignated existing cls. (1) to (5) as (2) to (6), respectively. Subsecs. (b), (c). Pub. L. 98-369, Sec. 2722(b)(2), (3), redesignated subsec. (c) as (b). Former subsec. (b), which had provided that this chapter did not cover land but did cover public works, buildings, facilities, vessels, floating equipment, aircraft, parts, accessories, equipment, and machine tools, was struck out. 1958 - Subsec. (a)(5). Pub. L. 85-568 substituted "The National Aeronautics and Space Administration" for "The National Advisory Committee for Aeronautics". 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 1958 AMENDMENT Amendment by Pub. L. 85-568 effective 90 days after July 29, 1958, or on any earlier date on which the Administrator of the National Aeronautics and Space Administration determines, and announces by proclamation, that the Administration has been organized and is prepared to discharge the duties and exercise the powers conferred upon it, see note set out under section 2302 of this title. -TRANS- TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. -MISC2- ACQUISITION, LEASE, OR RENTAL FOR USE BY THE ARMED FORCES OF MOTOR BUSES MANUFACTURED OUTSIDE THE UNITED STATES Pub. L. 90-500, title IV, Sec. 404, Sept. 20, 1968, 82 Stat. 851, which provided that no funds for the armed forces were to be used to buy or lease buses other than those manufactured in the United States, except as regulation from the Secretary of Defense might authorize solely to avoid uneconomical procurement or one contrary to the national interest, was repealed and restated as section 2400 of this title by Pub. L. 97-295, Secs. 1(29)(A), 6(b), Oct. 12, 1982, 96 Stat. 1294, 1314. -End- -CITE- 10 USC Sec. 2303a 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2303a. Repealed. -MISC1- [Sec. 2303a. Repealed. Pub. L. 98-577, title III, Sec. 302(c)(1), Oct. 30, 1984, 98 Stat. 3077]. Section, Pub. L. 98-525, title XII, Sec. 1212(a), Oct. 19, 1984, 98 Stat. 2590, related to publication of proposed regulations. See section 418b of Title 41, Public Contracts. Section, pursuant to section 1212(b) of Pub. L. 98-525, was to have taken effect with respect to procurement policies, regulations, procedures, or forms first proposed to be issued by an agency on or after the date which was 30 days after the date of enactment of Pub. L. 98-525. Pub. L. 98-525 was approved Oct. 19, 1984. However, before that effective date, the section was repealed by Pub. L. 98-577. -End- -CITE- 10 USC Sec. 2304 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2304. Contracts: competition requirements -STATUTE- (a)(1) Except as provided in subsections (b), (c), and (g) and except in the case of procurement procedures otherwise expressly authorized by statute, the head of an agency in conducting a procurement for property or services - (A) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this chapter and the Federal Acquisition Regulation; and (B) shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement. (2) In determining the competitive procedure appropriate under the circumstances, the head of an agency - (A) shall solicit sealed bids if - (i) time permits the solicitation, submission, and evaluation of sealed bids; (ii) the award will be made on the basis of price and other price-related factors; (iii) it is not necessary to conduct discussions with the responding sources about their bids; and (iv) there is a reasonable expectation of receiving more than one sealed bid; and (B) shall request competitive proposals if sealed bids are not appropriate under clause (A). (b)(1) The head of an agency may provide for the procurement of property or services covered by this chapter using competitive procedures but excluding a particular source in order to establish or maintain an alternative source or sources of supply for that property or service if the head of the agency determines that to do so - (A) would increase or maintain competition and would likely result in reduced overall costs for such procurement, or for any anticipated procurement, of property or services; (B) would be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in case of a national emergency or industrial mobilization; (C) would be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center; (D) would ensure the continuous availability of a reliable source of supply of such property or service; (E) would satisfy projected needs for such property or service determined on the basis of a history of high demand for the property or service; or (F) in the case of medical supplies, safety supplies, or emergency supplies, would satisfy a critical need for such supplies. (2) The head of an agency may provide for the procurement of property or services covered by this section using competitive procedures, but excluding concerns other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638, 644) and concerns other than small business concerns, historically Black colleges and universities, and minority institutions in furtherance of section 2323 of this title. (3) A contract awarded pursuant to the competitive procedures referred to in paragraphs (1) and (2) shall not be subject to the justification and approval required by subsection (f)(1). (4) A determination under paragraph (1) may not be made for a class of purchases or contracts. (c) The head of an agency may use procedures other than competitive procedures only when - (1) the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency; (2) the agency's need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; (3) it is necessary to award the contract to a particular source or sources in order (A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization, (B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center, or (C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify; (4) the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of procedures other than competitive procedures; (5) subject to subsection (k), a statute expressly authorizes or requires that the procurement be made through another agency or from a specified source, or the agency's need is for a brand- name commercial item for authorized resale; (6) the disclosure of the agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or (7) the head of the agency - (A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned, and (B) notifies the Congress in writing of such determination not less than 30 days before the award of the contract. (d)(1) For the purposes of applying subsection (c)(1) - (A) in the case of a contract for property or services to be awarded on the basis of acceptance of an unsolicited research proposal, the property or services shall be considered to be available from only one source if the source has submitted an unsolicited research proposal that demonstrates a concept - (i) that is unique and innovative or, in the case of a service, for which the source demonstrates a unique capability of the source to provide the service; and (ii) the substance of which is not otherwise available to the United States, and does not resemble the substance of a pending competitive procurement; and (B) in the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in - (i) substantial duplication of cost to the United States which is not expected to be recovered through competition; or (ii) unacceptable delays in fulfilling the agency's needs. (2) The authority of the head of an agency under subsection (c)(7) may not be delegated. (3)(A) The contract period of a contract described in subparagraph (B) that is entered into by an agency pursuant to the authority provided under subsection (c)(2) - (i) may not exceed the time necessary - (I) to meet the unusual and compelling requirements of the work to be performed under the contract; and (II) for the agency to enter into another contract for the required goods or services through the use of competitive procedures; and (ii) may not exceed one year unless the head of the agency entering into such contract determines that exceptional circumstances apply. (B) This paragraph applies to any contract in an amount greater than the simplified acquisition threshold. (e) The head of an agency using procedures other than competitive procedures to procure property or services by reason of the application of subsection (c)(2) or (c)(6) shall request offers from as many potential sources as is practicable under the circumstances. (f)(1) Except as provided in paragraph (2), the head of an agency may not award a contract using procedures other than competitive procedures unless - (A) the contracting officer for the contract justifies the use of such procedures in writing and certifies the accuracy and completeness of the justification; (B) the justification is approved - (i) in the case of a contract for an amount exceeding $500,000 (but equal to or less than $10,000,000), by the competition advocate for the procuring activity (without further delegation) or by an official referred to in clause (ii) or (iii); (ii) in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $75,000,000), by the head of the procuring activity (or the head of the procuring activity's delegate designated pursuant to paragraph (6)(A)); or (iii) in the case of a contract for an amount exceeding $75,000,000, by the senior procurement executive of the agency designated pursuant to section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c)) (without further delegation) or in the case of the Under Secretary of Defense for Acquisition, Technology, and Logistics, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(B); and (C) any required notice has been published with respect to such contract pursuant to section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416) and all bids or proposals received in response to that notice have been considered by the head of the agency. (2) In the case of a procurement permitted by subsection (c)(2), the justification and approval required by paragraph (1) may be made after the contract is awarded. The justification and approval required by paragraph (1) is not required - (A) when a statute expressly requires that the procurement be made from a specified source; (B) when the agency's need is for a brand-name commercial item for authorized resale; (C) in the case of a procurement permitted by subsection (c)(7); (D) in the case of a procurement conducted under (i) the Javits- Wagner-O'Day Act (41 U.S.C. 46 et seq.), or (ii) section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or (E) in the case of a procurement permitted by subsection (c)(4), but only if the head of the contracting activity prepares a document in connection with such procurement that describes the terms of an agreement or treaty, or the written directions, referred to in that subsection that have the effect of requiring the use of procedures other than competitive procedures. (3) The justification required by paragraph (1)(A) shall include - (A) a description of the agency's needs; (B) an identification of the statutory exception from the requirement to use competitive procedures and a demonstration, based on the proposed contractor's qualifications or the nature of the procurement, of the reasons for using that exception; (C) a determination that the anticipated cost will be fair and reasonable; (D) a description of the market survey conducted or a statement of the reasons a market survey was not conducted; (E) a listing of the sources, if any, that expressed in writing an interest in the procurement; and (F) a statement of the actions, if any, the agency may take to remove or overcome any barrier to competition before a subsequent procurement for such needs. (4) In no case may the head of an agency - (A) enter into a contract for property or services using procedures other than competitive procedures on the basis of the lack of advance planning or concerns related to the amount of funds available to the agency for procurement functions; or (B) procure property or services from another agency unless such other agency complies fully with the requirements of this chapter in its procurement of such property or services. The restriction contained in clause (B) is in addition to, and not in lieu of, any other restriction provided by law. (5)(A) The authority of the head of a procuring activity under paragraph (1)(B)(ii) may be delegated only to an officer or employee who - (i) if a member of the armed forces, is a general or flag officer; or (ii) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of brigadier general or rear admiral (lower half). (B) The authority of the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (1)(B)(iii) may be delegated only to - (i) an Assistant Secretary of Defense; or (ii) with respect to the element of the Department of Defense (as specified in section 111(b) of this title), other than a military department, carrying out the procurement action concerned, an officer or employee serving in or assigned or detailed to that element who - (I) if a member of the armed forces, is serving in a grade above brigadier general or rear admiral (lower half); or (II) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of major general or rear admiral. (g)(1) In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for - (A) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and (B) special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial items. (2) A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures required by paragraph (1). (3) In using simplified procedures, the head of an agency shall promote competition to the maximum extent practicable. (4) The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 31(f) of the Office of Federal Procurement Policy Act (41 U.S.C. 427). (h) For the purposes of the following, purchases or contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed-bid procedures: (1) The Walsh-Healey Act (41 U.S.C. 35 et seq.). (2) Sections 3141-3144, 3146, and 3147 of title 40. (i)(1) The Secretary of Defense shall prescribe by regulation the manner in which the Department of Defense negotiates prices for supplies to be obtained through the use of procedures other than competitive procedures, as defined in section 2302(2) of this title. (2) The regulations required by paragraph (1) shall - (A) specify the incurred overhead a contractor may appropriately allocate to supplies referred to in that paragraph; and (B) require the contractor to identify those supplies which it did not manufacture or to which it did not contribute significant value. (3) Such regulations shall not apply to an item of supply included in a contract or subcontract for which the price is based on established catalog or market prices of commercial items sold in substantial quantities to the general public. (j) The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government's requirements. (k)(1) It is the policy of Congress that an agency named in section 2303(a) of this title should not be required by legislation to award a new contract to a specific non-Federal Government entity. It is further the policy of Congress that any program, project, or technology identified in legislation be procured through merit-based selection procedures. (2) A provision of law may not be construed as requiring a new contract to be awarded to a specified non-Federal Government entity unless that provision of law - (A) specifically refers to this subsection; (B) specifically identifies the particular non-Federal Government entity involved; and (C) specifically states that the award to that entity is required by such provision of law in contravention of the policy set forth in paragraph (1). (3) For purposes of this subsection, a contract is a new contract unless the work provided for in the contract is a continuation of the work performed by the specified entity under a preceding contract. (4) This subsection shall not apply with respect to any contract that calls upon the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an agency named in section 2303(a) of this title and to report on such matters to the Congress or any agency of the Federal Government. (l)(1)(A) Except as provided in subparagraph (B), in the case of a procurement permitted by subsection (c), the head of an agency shall make publicly available, within 14 days after the award of the contract, the documents containing the justification and approval required by subsection (f)(1) with respect to the procurement. (B) In the case of a procurement permitted by subsection (c)(2), subparagraph (A) shall be applied by substituting "30 days" for "14 days". (2) The documents shall be made available on the website of the agency and through a government-wide website selected by the Administrator for Federal Procurement Policy. (3) This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5. -SOURCE- (Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85-800, Sec. 8, Aug. 28, 1958, 72 Stat. 967; Pub. L. 85-861, Sec. 33(a)(12), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 87-653, Sec. 1(a)-(c), Sept. 10, 1962, 76 Stat. 528; Pub. L. 90-268, Sec. 5, Mar. 16, 1968, 82 Stat. 50; Pub. L. 90-500, title IV, Sec. 405, Sept. 20, 1968, 82 Stat. 851; Pub. L. 93-356, Sec. 4, July 25, 1974, 88 Stat. 390; Pub. L. 96-513, title V, Sec. 511(76), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97-86, title IX, Sec. 907(a), Dec. 1, 1981, 95 Stat. 1117; Pub. L. 97-295, Sec. 1(24), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 97- 375, title I, Sec. 114, Dec. 21, 1982, 96 Stat. 1821; Pub. L. 98- 369, div. B, title VII, Secs. 2723(a), 2727(b), July 18, 1984, 98 Stat. 1187, 1194; Pub. L. 98-577, title V, Sec. 504(b)(1), (2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99-145, title IX, Sec. 961(a)(1), title XIII, Sec. 1303(a)(13), Nov. 8, 1985, 99 Stat. 703, 739; Pub. L. 99-500, Sec. 101(c) [title X, Secs. 923(a)-(c), 927(a)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-152, 1783-155, and Pub. L. 99-591, Sec. 101(c) [title X, Secs. 923(a)-(c), 927(a)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-152, 3341-155; Pub. L. 99- 661, div. A, title IX, formerly title IV, Secs. 923(a)-(c), 927(a), title XIII, Sec. 1343(a)(14), Nov. 14, 1986, 100 Stat. 3932, 3935, 3993, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100-26, Sec. 7(d)(3), Apr. 21, 1987, 101 Stat. 281; Pub. L. 100-456, div. A, title VIII, Sec. 803, Sept. 29, 1988, 102 Stat. 2008; Pub. L. 101-189, div. A, title VIII, Secs. 812, 817, 818, 853(d), Nov. 29, 1989, 103 Stat. 1493, 1501, 1502, 1519; Pub. L. 101-510, div. A, title VIII, Sec. 806(b), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 102-25, title VII, Sec. 701(d)(2), Apr. 6, 1991, 105 Stat. 114; Pub. L. 102-484, div. A, title VIII, Secs. 801(h)(2), 816, title X, Sec. 1052(23), Oct. 23, 1992, 106 Stat. 2445, 2454, 2500; Pub. L. 103-160, div. A, title IX, Sec. 904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103-355, title I, Secs. 1001-1003, 1004(b), 1005, title IV, Sec. 4401(a), title VII, Sec. 7203(a)(1), Oct. 13, 1994, 108 Stat. 3249, 3253, 3254, 3347, 3379; Pub. L. 104-106, div. D, title XLI, Secs. 4101(a), 4102(a), title XLII, Sec. 4202(a)(1), title XLIII, Sec. 4321(b)(4), (5), Feb. 10, 1996, 110 Stat. 642, 643, 652, 672; Pub. L. 104-320, Secs. 7(a)(1), 11(c)(1), Oct. 19, 1996, 110 Stat. 3871, 3873; Pub. L. 105-85, div. A, title VIII, Secs. 841(b), 850(f)(3)(B), title X, Sec. 1073(a)(42), (43), Nov. 18, 1997, 111 Stat. 1843, 1850, 1902; Pub. L. 107-107, div. A, title X, Sec. 1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 107-217, Sec. 3(b)(3), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108-375, div. A, title VIII, Sec. 815, Oct. 28, 2004, 118 Stat. 2015; Pub. L. 109- 364, div. A, title X, Sec. 1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 110-181, div. A, title VIII, Sec. 844(b), Jan. 28, 2008, 122 Stat. 239; Pub. L. 110-417, [div. A], title VIII, Sec. 862(b), Oct. 14, 2008, 122 Stat. 4546.) -MISC1- HISTORICAL AND REVISION NOTES 1956 ACT -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at section Large) -------------------------------------------------------------------- 2304(a) 41:151(c) (less proviso Feb. 19, 1948, ch. 65, of clause (11) and Secs. 2(b) (less 1st proviso of clause (16)). sentence), (c), (e), 7(d), 8, 62 Stat. 21, 22, 24. 2304(b) 41:156(d). 2304(c) 41:151(e). 2304(d) 41:151(b) (less 1st sentence). 2304(e) 41:151(c) (proviso of clause (11) and proviso of clause (16)). 2304(f) 41:157. -------------------------------------------------------------------- In subsection (a)(1), the words "the period of" are omitted as surplusage. In subsections (a)(4)-(10), and (12)-(15), the words "the purchase or contract is" are inserted for clarity. In subsection (a)(5), the words "to be rendered" are omitted as surplusage. In subsection (a)(6), the words "its Territories" are inserted for clarity. The words "the limits of" are omitted as surplusage. In subsection (a)(14), the words "and for which" are substituted for the word "when". In subsection (a)(15), the words "and for which" are substituted for 41:151(c)(15) (1st 22 words of proviso). In subsection (a)(16), the words "to have" are substituted for the words "be made or kept". In subsection (a)(17), the first 7 words are inserted for clarity. In subsection (b), the words "shall be kept" are substituted for the words "shall be preserved in the files". The words "six years after the date" are substituted for the words "a period of six years following". In subsection (c), the words "but such authorization shall be required in the same manner as heretofore" and "continental", in 41:151(e), are omitted as surplusage. In subsection (d), the words "before making" are substituted for the words "Whenever it is proposed to make". In subsection (e), the words "beginning six months after the effective date of this chapter" are omitted as executed. The words "on May 19 and November 19 of each year" are substituted for the words "and at the end of each six-month period thereafter", since the effective date of the source statute was May 19, 1948, and the first report was made on November 19, 1948. The words "property and services covered by each contract" are substituted for the words "work required to be performed thereunder". 1958 ACT The change is necessary to reflect the present Commonwealth status of Puerto Rico. 1982 ACT -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at section Large) -------------------------------------------------------------------- 2304(a) 10:2304 (note). Mar. 16, 1967, Pub. L. (1st 90-5, Sec. 304, 81 Stat. sentence) 6. 2304(f)( 10:2304(f)(1). 1) 2304(i) 10:2304 (note). Sept. 21, 1977, Pub. L. 95-111, Sec. 836, 91 Stat. 906. -------------------------------------------------------------------- In subsection (a), the words "The Secretary of Defense is hereby directed that insofar as practicable all contracts shall be formally advertised" are omitted as unnecessary because of 10:2304(a) (1st sentence). Subsection (f)(1) is amended to correct a mistake in spelling. In subsection (i)(1)(B), the words "or States" are omitted because of 1:1. -REFTEXT- REFERENCES IN TEXT The Javits-Wagner-O'Day Act, referred to in subsec. (f)(2)(D), is act June 25, 1938, ch. 697, 52 Stat. 1196, as amended, which is classified to sections 46 to 48c of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 46 of Title 41 and Tables. The Walsh-Healey Act, referred to in subsec. (h)(1), is act June 30, 1936, ch. 881, 49 Stat. 2036, as amended, which is classified generally to sections 35 et seq. of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 35 of Title 41 and Tables. See also section 262 of Title 29, Labor. -COD- CODIFICATION Pub. L. 99-591 is a corrected version of Pub. L. 99-500. -MISC2- AMENDMENTS 2008 - Subsec. (d)(3). Pub. L. 110-417 added par. (3). Subsec. (f)(4) to (6). Pub. L. 110-181, Sec. 844(b)(2), redesignated pars. (5) and (6) as (4) and (5), respectively, and struck out former par. (4) which read as follows: "The justification required by paragraph (1)(A) and any related information, and any document prepared pursuant to paragraph (2)(E), shall be made available for inspection by the public consistent with the provisions of section 552 of title 5." Subsec. (l). Pub. L. 110-181, Sec. 844(b)(1), added subsec. (l). 2006 - Subsec. (f)(1)(B)(iii). Pub. L. 109-364 substituted "section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))" for "section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))". 2004 - Subsec. (f)(1)(B)(ii), (iii). Pub. L. 108-375 substituted "$75,000,000" for "$50,000,000". 2002 - Subsec. (h). Pub. L. 107-217, Sec. 3(b)(3)(A), struck out "laws" after "following" in introductory provisions. Subsec. (h)(2). Pub. L. 107-217, Sec. 3(b)(3)(B), substituted "Sections 3141-3144, 3146, and 3147 of title 40" for "The Act entitled 'An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes', approved March 3, 1931 (commonly referred to as the 'Davis-Bacon Act') (40 U.S.C. 276a - 276a-5)". 2001 - Subsec. (f)(1)(B)(iii), (6)(B). Pub. L. 107-107 substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology". 1997 - Subsec. (c)(5). Pub. L. 105-85, Sec. 1073(a)(42), substituted "subsection (k)" for "subsection (j)". Subsec. (f)(1)(B)(iii). Pub. L. 105-85, Sec. 1073(a)(43)(A), substituted "(6)(B)" for "(6)(C)". Subsec. (f)(2)(E). Pub. L. 105-85, Sec. 841(b), struck out "and such document is approved by the competition advocate for the procuring activity" after "requiring the use of procedures other than competitive procedures". Subsec. (f)(6)(B), (C). Pub. L. 105-85, Sec. 1073(a)(43)(B), redesignated subpar. (C) as (B), substituted "paragraph (1)(B)(iii)" for "paragraph (1)(B)(iv)" in introductory provisions, and struck out former subpar. (B), which read as follows: "The authority of the senior procurement executive under paragraph (1)(B)(iii) may be delegated only to an officer or employee within the senior procurement executive's organization who - "(i) if a member of the armed forces, is a general or flag officer; or "(ii) if a civilian, is serving in a position in grade GS-16 or above (or in a comparable or higher position under any other schedule for civilian officers or employees)." Subsec. (g)(4). Pub. L. 105-85, Sec. 850(f)(3)(B), substituted "31(f)" for "31(g)". 1996 - Subsec. (c)(3)(C). Pub. L. 104-320 substituted "agency, or to procure the services of an expert or neutral for use" for "agency, or" and inserted "or negotiated rulemaking" after "alternative dispute resolution". Subsec. (f)(1)(B)(i). Pub. L. 104-106, Sec. 4102(a)(1), substituted "$500,000 (but equal to or less than $10,000,000)" for "$100,000 (but equal to or less than $1,000,000)" and "(ii) or (iii)" for "(ii), (iii), or (iv)". Subsec. (f)(1)(B)(ii). Pub. L. 104-106, Sec. 4102(a)(2), substituted "$10,000,000 (but equal to or less than $50,000,000)" for "$1,000,000 (but equal to or less than $10,000,000)" and inserted "or" at end. Subsec. (f)(1)(B)(iii), (iv). Pub. L. 104-106, Sec. 4102(a)(3), (4), redesignated cl. (iv) as (iii) and struck out former cl. (iii) which read as follows: "in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $50,000,000), by the senior procurement executive of the agency designated pursuant to section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3)) or the senior procurement executive's delegate designated pursuant to paragraph (6)(B), or in the case of the Under Secretary of Defense for Acquisition and Technology, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(C); or". Subsec. (f)(2)(D). Pub. L. 104-106, Sec. 4321(b)(4), substituted "the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.)," for "the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the Wagner-O'Day Act,". Subsec. (g)(1). Pub. L. 104-106, Sec. 4202(a)(1)(A), substituted "shall provide for - " and subpars. (A) and (B) for "shall provide for special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold." Subsec. (g)(4). Pub. L. 104-106, Sec. 4202(a)(1)(B), added par. (4). Subsec. (h)(1). Pub. L. 104-106, Sec. 4321(b)(5), added par. (1) and struck out former par. (1) which read as follows: "The Act entitled 'An Act to provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes', approved June 30, 1936 (commonly referred to as the 'Walsh-Healey Act') (41 U.S.C. 35-45)." Subsecs. (j), (k). Pub. L. 104-106, Sec. 4101(a), added subsec. (j) and redesignated former subsec. (j) as (k). 1994 - Subsec. (a)(1)(A). Pub. L. 103-355, Sec. 1001(1), substituted "Federal Acquisition Regulation" for "modifications to regulations promulgated pursuant to section 2752 of the Competition in Contracting Act of 1984 (41 U.S.C. 403 note)". Subsec. (b)(1)(D) to (F). Pub. L. 103-355, Sec. 1002(a), added subpars. (D) to (F). Subsec. (b)(4). Pub. L. 103-355, Sec. 1002(b), added par. (4). Subsec. (c)(3)(C). Pub. L. 103-355, Sec. 1005, added subpar. (C). Subsec. (c)(5). Pub. L. 103-355, Sec. 7203(a)(1)(A), inserted "subject to subsection (j)," after "(5)". Subsec. (f)(1)(B)(i). Pub. L. 103-355, Sec. 1003, inserted before semicolon at end "or by an official referred to in clause (ii), (iii), or (iv)". Subsec. (g)(1). Pub. L. 103-355, Secs. 1001(2), 4401(a)(1), substituted "Federal Acquisition Regulation" for "regulations modified in accordance with section 2752 of the Competition in Contracting Act of 1984 (41 U.S.C. 403 note)" and "purchases of property and services for amounts not greater than the simplified acquisition threshold" for "small purchases of property and services". Subsec. (g)(2). Pub. L. 103-355, Sec. 4401(a)(4), substituted "simplified acquisition threshold" for "small purchase threshold" and "simplified procedures" for "small purchase procedures". Pub. L. 103-355, Sec. 4401(a)(2), (3), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: "For the purposes of this subsection, a small purchase is a purchase or contract for an amount which does not exceed the small purchase threshold." Subsec. (g)(3). Pub. L. 103-355, Sec. 4401(a)(5), substituted "simplified procedures" for "small purchase procedures". Pub. L. 103-355, Sec. 4401(a)(3), redesignated par. (4) as (3). Former par. (3) redesignated (2). Subsec. (g)(4). Pub. L. 103-355, Sec. 4401(a)(3), redesignated par. (4) as (3). Subsec. (j). Pub. L. 103-355, Sec. 7203(a)(1)(B), added subsec. (j). Pub. L. 103-355, Sec. 1004(b), struck out subsec. (j) which related to authority of Secretary of Defense to enter into master agreements for advisory and assistance services. 1993 - Subsec. (f)(1)(B)(iii), (iv), (6)(C). Pub. L. 103-160 substituted "Under Secretary of Defense for Acquisition and Technology" for "Under Secretary of Defense for Acquisition". 1992 - Subsec. (b)(2). Pub. L. 102-484, Sec. 801(h)(2), substituted "section 2323 of this title" for "section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)". Subsec. (j)(3)(A). Pub. L. 102-484, Sec. 1052(23), substituted "section 8(d) of the Small Business Act (15 U.S.C. 637(d))" for "section 8(e) of the Small Business Act (15 U.S.C. 637(e))". Subsec. (j)(5). Pub. L. 102-484, Sec. 816, substituted "on September 30, 1994." for "at the end of the three-year period beginning on the date on which final regulations prescribed to carry out this subsection take effect." 1991 - Subsec. (g)(2). Pub. L. 102-25, Sec. 701(d)(2)(A)(i), substituted "subsection" for "chapter". Subsec. (g)(5). Pub. L. 102-25, Sec. 701(d)(2)(A)(ii), struck out par. (5) which provided that in this subsection, the term "small purchase threshold" has the meaning given such term in section 403(11) of title 41. See section 2302(7) of this title. Subsec. (j)(3)(A). Pub. L. 102-25, Sec. 701(d)(2)(B), substituted "the small purchase threshold" for "$25,000". 1990 - Subsec. (g). Pub. L. 101-510 substituted "the small purchase threshold" for "$25,000" in pars. (2) and (3) and added par. (5). 1989 - Subsec. (b)(2). Pub. L. 101-189, Sec. 853(d), substituted "The head of an agency" for "An executive agency" and "concerns other than" for "other than" and inserted before period at end "and concerns other than small business concerns, historically Black colleges and universities, and minority institutions in furtherance of section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)". Subsec. (f)(1)(B)(iii). Pub. L. 101-189, Sec. 818(a)(1), (3), added cl. (iii). Former cl. (iii) redesignated (iv). Subsec. (f)(1)(B)(iv). Pub. L. 101-189, Sec. 818(a)(2), (c)(1), redesignated cl. (iii) as (iv) and substituted "$50,000,000" for "$10,000,000" and "paragraph (6)(C)" for "paragraph (6)(B)". Subsec. (f)(2)(E). Pub. L. 101-189, Sec. 817(a), added subpar. (E). Subsec. (f)(4). Pub. L. 101-189, Sec. 817(b), inserted ", and any document prepared pursuant to paragraph (2)(E)," after "any related information". Subsec. (f)(6)(B). Pub. L. 101-189, Sec. 818(b)(2), added subpar. (B). Former subpar. (B) redesignated (C). Subsec. (f)(6)(C). Pub. L. 101-189, Sec. 818(b)(1), (c)(2), redesignated subpar. (B) as (C) and substituted "paragraph (1)(B)(iv)" for "paragraph (1)(B)(iii)". Subsec. (j). Pub. L. 101-189, Sec. 812, added subsec. (j). 1988 - Subsec. (f)(1)(B)(ii). Pub. L. 100-456, Sec. 803(1), substituted "(or the head of the procuring activity's delegate designated pursuant to paragraph (6)(A));" for "or a delegate who, if a member of the armed forces, is a general or flag officer or, if a civilian, is serving in a position in grade GS-16 or above under the General Schedule (or in a comparable or higher position under another schedule);". Subsec. (f)(1)(B)(iii). Pub. L. 100-456, Sec. 803(2), inserted "or in the case of the Under Secretary of Defense for Acquisition, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(B)" before semicolon at end. Subsec. (f)(6). Pub. L. 100-456, Sec. 803(3), added par. (6). 1987 - Subsec. (a)(1)(A). Pub. L. 100-26, Sec. 7(d)(3)(A), inserted "(41 U.S.C. 403 note)" after "Competition in Contracting Act of 1984". Subsec. (f)(1)(C). Pub. L. 100-26, Sec. 7(d)(3)(B), inserted "(41 U.S.C. 416)" after "Policy Act". Subsec. (g)(1). Pub. L. 100-26, Sec. 7(d)(3)(A), inserted "(41 U.S.C. 403 note)" after "Act of 1984". 1986 - Subsec. (b)(2). Pub. L. 99-661, Sec. 1343(a)(14), substituted "15 U.S.C. 638," for "15 U.S.C. 639;". Subsec. (c)(1). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec. 923(a)], Pub. L. 99-661, Sec. 923(a), amended par. (1) identically, inserting "or only from a limited number of responsible sources". Subsec. (d)(1)(A). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec. 923(b)], Pub. L. 99-661, Sec. 923(b), amended subpar. (A) identically, substituting "a concept - " for "a unique and innovative concept", adding cl. (i), and designating provision relating to nonavailability to the United States and nonresemblance to a pending competitive procurement as cl. (ii). Subsec. (d)(1)(B). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec. 923(c)], Pub. L. 99-661, Sec. 923(c), amended subpar. (B) identically, inserting ", or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures" after "highly specialized equipment", inserted a one-em dash after "would result in", paragraphed cls. (i) and (ii), in cl. (i) substituted "competition;" for "competition,", and in cl. (ii) struck out ", such property may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures" after "agency's needs". Subsec. (i). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec. 927(a)], Pub. L. 99-661, Sec. 927(a), amended section identically, adding subsec. (i). 1985 - Subsec. (a)(1)(B). Pub. L. 99-145, Sec. 1303(a)(13), substituted "procedures" for "krocedures". Subsec. (f)(2). Pub. L. 99-145, Sec. 961(a)(1), amended second sentence generally. Prior to amendment, second sentence read as follows: "The justification and approval required by paragraph (1) is not required in the case of a procurement permitted by subsection (c)(7) or in the case of a procurement conducted under - "(A) the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the Wagner-O'Day Act; or "(B) the authority of section 8(a) of the Small Business Act (15 U.S.C. 637)." 1984 - Pub. L. 98-369, Sec. 2723(a), substituted "Contracts: competition requirements" for "Purchases and contracts: formal advertising; exceptions" in section catchline and struck out subsecs. (a) to (e) and (g) to (i), redesignated subsec. (f) as (h), and added new subsecs. (a) through (g), thereby removing the prior statutory preference for formal advertising and installing instead more competitive procurement procedures, including dual sourcing, but with provision for the use of other than competitive procedures in specified situations. Subsec. (b)(2). Pub. L. 98-577, Sec. 504(b)(1), substituted provisions to the effect that executive agencies may provide for procurement of property or services covered by this section using competitive procedures but excluding other than small business concerns for provisions which provided that executive agencies shall use competitive procedures but may restrict a solicitation to allow only small business concerns to compete. Subsec. (b)(3). Pub. L. 98-577, Sec. 504(b)(1), added par. (3). Subsec. (f)(2). Pub. L. 98-577, Sec. 504(b)(2), designated existing provisions as subpar. (A) and added subpar. (B). Subsec. (h). Pub. L. 98-369, Sec. 2727(b), substituted "contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed bid procedures" for "contracts negotiated under this section shall be treated as if they were made with formal advertising". Pub. L. 98-369, Sec. 2723(a)(1)(B), redesignated subsec. (f) as (h). 1982 - Subsec. (a). Pub. L. 97-295, Sec. 1(24)(A), inserted ", and shall be awarded on a competitive bid basis to the lowest responsible bidder," after "formal advertising". Subsec. (e). Pub. L. 97-375 repealed subsec. (e) which directed that a report be made on May and November 19 of each year of purchases and contracts under cls. (11) and (16) of subsec. (a) since the last report, and that the report name each contractor, state the amount of each contract, and describe, with consideration of the national security, the property and services covered by each contract. Subsec. (f)(1). Pub. L. 97-295, Sec. 1(24)(B), substituted "Healey" for "Healy" after "Walsh-". Subsec. (i). Pub. L. 97-295, Sec. 1(24)(C), added subsec. (i). 1981 - Subsecs. (a)(3), (g). Pub. L. 97-86 substituted "$25,000" for "$10,000". 1980 - Subsec. (f). Pub. L. 96-513 substituted "(1) The Act entitled 'An Act to provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes', approved June 30, 1936 (commonly referred to as the 'Walsh-Healy Act') (41 U.S.C. 35-45).", for "(1) Sections 35-45 of title 41.", and "(2) The Act entitled 'An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes', approved March 3, 1931 (commonly referred to as the 'Davis-Bacon Act') (40 U.S.C. 276a - 276a-5)." for "(2) Sections 276a - 276a-5 of title 40.", and struck out "(3) Sections 324 and 325a of title 40". 1974 - Subsec. (a)(3). Pub. L. 93-356, Sec. 4(a), substituted "$10,000" for "$2,500". Subsec. (g). Pub. L. 93-356, Sec. 4(b), substituted "$10,000" for "$2,500". 1968 - Subsec. (g). Pub. L. 90-500 required that the proposals solicited from the maximum number of qualified sources, consistent with the nature and requirements of the supplies or services to be procured, include price. Subsec. (h). Pub. L. 90-268 added subsec. (h). 1962 - Subsec. (a). Pub. L. 87-653, Sec. 1(a), (b), provided that formal advertising be used where feasible and practicable under existing conditions and circumstances, subjected the agency head to the requirements of section 2310 of this title before negotiating a contract where formal advertising is not feasible and practicable and, in par. (14), substituted "would be likely to result in additional cost to the Government by reason of duplication of investment or would result in duplication of necessary preparation which would unduly delay the procurement of the property;" for "and competitive bidding might require duplication of investment or preparation already made or would unduly delay the procurement of that property; or". Subsec. (g). Pub. L. 87-653, Sec. 1(c), added subsec. (g). 1958 - Subsec. (a). Pub. L. 85-861 included Commonwealths in cl. (6). Pub. L. 85-800 substituted "$2,500" for "$1,000" in cl. (3) and inserted "or nonperishable" in cl. (9). EFFECTIVE DATE OF 1997 AMENDMENT Amendment by section 850(f)(3)(B) of Pub. L. 105-85 effective 180 days after Nov. 18, 1997, see section 850(g) of Pub. L. 105-85, set out as a note under section 2302c of this title. EFFECTIVE DATE OF 1996 AMENDMENT For effective date and applicability of amendments by Pub. L. 104- 106, see section 4401 of Pub. L. 104-106, set out as a note under section 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 1986 AMENDMENT Section 101(c) [title X, Sec. 923(d)] of Pub. L. 99-500 and Pub. L. 99-591, and section 923(d) of title IX, formerly title IV of Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "(1) The amendment made by subsection (a) [amending this section] shall apply with respect to contracts for which solicitations are issued after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]. "(2) The amendment made by subsection (b) [amending this section] shall apply with respect to contracts awarded on the basis of unsolicited research proposals after the end of the 180-day period beginning on the date of the enactment of this Act. "(3) The amendments made by subsection (c) [amending this section] shall apply with respect to follow-on contracts awarded after the end of the 180-day period beginning on the date of the enactment of this Act." EFFECTIVE DATE OF 1985 AMENDMENT Section 961(e) of Pub. L. 99-145 provided that: "The amendments made by subsections (a) [amending this section and section 253 of Title 41, Public Contracts], (b) [amending section 2323 (now section 2343) of this title], and (c) [amending section 759 of former Title 40, Public Buildings, Property, and Works] shall take effect as if included in the enactment of the Competition in Contracting Act of 1984 (title VII of division B of Public Law 98- 369) [see Effective Date of 1985 Amendment note set out under section 251 of Title 41]." 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 1962 AMENDMENT Section 1(h) of Pub. L. 87-653 provided that: "The amendments made by this Act [amending this section and sections 2306, 2310, and 2311 of this title] shall take effect on the first day of the third calendar month which begins after the date of enactment of this Act [Sept. 10, 1962]." EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-861 effective Aug. 10, 1956, see section 33(g) of Pub. L. 85-861, set out as a note under section 101 of this title. CONSTRUCTION OF 1994 AMENDMENT Repeal of prior subsec. (j) of this section by section 1004(b) of Pub. L. 103-355 not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former section 759 or former subchapter VI (Sec. 541 et seq.) of chapter 10 of Title 40 [now chapter 11 of Title 40, Public Buildings, Property, and Works], see section 1004(d) of Pub. L. 103- 355, set out as a note under section 2304a of this title. CONSTRUCTION OF 1984 AMENDMENT Section 2723(c) of Pub. L. 98-369 provided that: "The amendments made by this section [amending this section and section 2305 of this title] do not supersede or affect the provisions of section 8(a) of the Small Business Act (15 U.S.C. 637(a))." SMALL ARMS ACQUISITION STRATEGY AND REQUIREMENTS REVIEW Pub. L. 110-417, [div. A], title I, Sec. 143, Oct. 14, 2008, 122 Stat. 4381, provided that: "(a) Secretary of Defense Report. - Not later than 120 days 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] a report on the small arms requirements of the Armed Forces and the industrial base of the United States. The report shall include the following: "(1) An assessment of Department of Defense-wide small arms requirements in terms of capabilities and quantities, based on an analysis of the small arms capability assessments of each military department. "(2) An assessment of plans for small arms research, development, and acquisition programs to meet the requirements identified under paragraph (1). "(3) An assessment of capabilities, capacities, and risks in the small arms industrial base of the United States to meet the requirements of the Department of Defense for pistols, carbines, rifles, and light, medium, and heavy machine guns during the 20 years following the date of the report. "(4) An assessment of the costs, benefits, and risks of full and open competition for the procurement of non-developmental pistols and carbines that are not technically compatible with the M9 pistol or M4 carbine to meet the requirements identified under paragraph (1). "(b) Competition for a New Individual Weapon. - "(1) Competition required. - If the small arms capabilities based assessments by the Army identifies [sic] gaps in small arms capabilities and the Secretary of the Army determines that a new individual weapon is required to address such gaps, the Secretary shall procure the new individual weapon using full and open competition as described in paragraph (2). "(2) Full and open competition. - The full and open competition described in this paragraph is competition among all responsible manufacturers that - "(A) is open to all developmental item solutions and non- developmental item solutions; and "(B) provides for the award of a contract based on selection criteria that reflect the key performance parameters and attributes identified in a service requirements document approved by the Army. "(c) Small Arms Defined. - In this section, the term 'small arms' - "(1) means man-portable or vehicle-mounted light weapons, designed primarily for use by individual military personnel for anti-personnel use; and "(2) includes pistols, carbines, rifles, and light, medium, and heavy machine guns." IMPLEMENTATION OF STATUTORY REQUIREMENTS REGARDING THE NATIONAL TECHNOLOGY AND INDUSTRIAL BASE Pub. L. 110-417, [div. A], title VIII, Sec. 802, Oct. 14, 2008, 122 Stat. 4518, provided that: "(a) Guidance Required. - Not later than 270 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall issue guidance regarding - "(1) the appropriate application of the authority in sections 2304(b) and 2304(c)(3)(A) of title 10, United States Code, in connection with major defense acquisition programs; and "(2) the appropriate timing and performance of the requirement in section 2440 of title 10, United States Code, to consider the national technology and industrial base in the development and implementation of acquisition plans for each major defense acquisition program. "(b) Definitions. - In this section;[:] "(1) Major defense acquisition program. - The term 'major defense acquisition program' has the meaning provided in section 2430 of title 10, United States Code. "(2) National technology and industrial base. - The term 'national technology and industrial base' has the meaning provided in section 2500(1) of title 10, United States Code." PLAN FOR RESTRICTING GOVERNMENT-UNIQUE CONTRACT CLAUSES ON COMMERCIAL CONTRACTS Pub. L. 110-181, div. A, title VIII, Sec. 821, Jan. 28, 2008, 122 Stat. 226, provided that: "(a) Plan. - The Under Secretary of Defense for Acquisition, Technology, and Logistics shall develop and implement a plan to minimize the number of government-unique contract clauses used in commercial contracts by restricting the clauses to the following: "(1) Government-unique clauses authorized by law or regulation. "(2) Any additional clauses that are relevant and necessary to a specific contract. "(b) Commercial Contract. - In this section: "(1) The term 'commercial contract' means a contract awarded by the Federal Government for the procurement of a commercial item. "(2) The term 'commercial item' has the meaning provided by section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))." TELEPHONE SERVICES FOR MILITARY PERSONNEL SERVING IN COMBAT ZONES Pub. L. 110-181, div. A, title VIII, Sec. 885, Jan. 28, 2008, 122 Stat. 265, provided that: "(a) Competitive Procedures Required. - "(1) Requirement. - When the Secretary of Defense considers it necessary to provide morale, welfare, and recreation telephone services for military personnel serving in combat zones, the Secretary shall use competitive procedures when entering into a contract to provide those services. "(2) Review and determination. - Before soliciting bids or proposals for new contracts, or considering extensions to existing contracts, to provide morale, welfare, and recreation telephone services for military personnel serving in combat zones, the Secretary shall review and determine whether it is in the best interest of the Department to require bids or proposals, or adjustments for the purpose of extending a contract, to include options that minimize the cost of the telephone services to individual users while providing individual users the flexibility of using phone cards from other than the prospective contractor. The Secretary shall submit the results of this review and determination to the Committees on Armed Services of the Senate and the House of Representatives. "(b) Effective Date. - "(1) Requirement. - Subsection (a)(1) shall apply to any new contract to provide morale, welfare, and recreation telephone services for military personnel serving in combat zones that is entered into after the date of the enactment of this Act [Jan. 28, 2008]. "(2) Review and determination. - Subsection (a)(2) shall apply to any new contract or extension to an existing contract to provide morale, welfare, and recreation telephone services for military personnel serving in combat zones that is entered into or agreed upon after the date of the enactment of this Act." COMPETITION FOR PROCUREMENT OF SMALL ARMS SUPPLIED TO IRAQ AND AFGHANISTAN Pub. L. 110-181, div. A, title VIII, Sec. 892, Jan. 28, 2008, 122 Stat. 270, provided that: "(a) Competition Requirement. - For the procurement of pistols and other weapons described in subsection (b), the Secretary of Defense shall ensure, consistent with the provisions of section 2304 of title 10, United States Code, that - "(1) full and open competition is obtained to the maximum extent practicable; "(2) no responsible United States manufacturer is excluded from competing for such procurements; and "(3) products manufactured in the United States are not excluded from the competition. "(b) Procurements Covered. - This section applies to the procurement of the following: "(1) Pistols and other weapons less than 0.50 caliber for assistance to the Army of Iraq, the Iraqi Police Forces, and other Iraqi security organizations. "(2) Pistols and other weapons less than 0.50 caliber for assistance to the Army of Afghanistan, the Afghani Police Forces, and other Afghani security organizations." INTERNAL CONTROLS FOR PROCUREMENTS ON BEHALF OF THE DEPARTMENT OF DEFENSE Pub. L. 110-417, [div. A], title VIII, Sec. 804(a)-(c), Oct. 14, 2008, 122 Stat. 4519, provided that: "(a) Inclusion of Additional Non-Defense Agencies in Review. - The covered non-defense agencies specified in subsection (c) of this section shall be considered covered non-defense agencies as defined in subsection (i) of section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364; 120 Stat. 2326) [set out below] for purposes of such section. "(b) Deadlines and Applicability for Additional Non-Defense Agencies. - For each covered non-defense agency specified in subsection (c) of this section, section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364; 120 Stat. 2326) shall apply to such agency as follows: "(1) The review and determination required by subsection (a)(1) of such section shall be completed by not later than March 15, 2009. "(2) The review and determination required by subsection (a)(2) of such section, if necessary, shall be completed by not later than June 15, 2010, and such review and determination shall be a review and determination of such agency's procurement of property and services on behalf of the Department of Defense in fiscal year 2009. "(3) The memorandum of understanding required by subsection (c)(1) of such section shall be entered into by not later than 60 days after the date of the enactment of this Act [Oct. 14, 2008]. "(4) The limitation specified in subsection (d)(1) of such section shall apply after March 15, 2009, and before June 16, 2010. "(5) The limitation specified in subsection (d)(2) of such section shall apply after June 15, 2010. "(6) The limitation required by subsection (d)(3) of such section shall commence, if necessary, on the date that is 60 days after the date of the enactment of this Act. "(c) Definition of Covered Non-Defense Agency. - In this section, the term 'covered non-defense agency' means each of the following: "(1) The Department of Commerce. "(2) The Department of Energy." Pub. L. 110-181, div. A, title VIII, Sec. 801, Jan. 28, 2008, 122 Stat. 202, as amended by Pub. L. 110-417, [div. A], title VIII, Sec. 804(d), Oct. 14, 2008, 122 Stat. 4519, provided that: "(a) Inspectors General Reviews and Determinations. - "(1) In general. - For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such covered non-defense agency shall, not later than the date specified in paragraph (2), jointly - "(A) review - "(i) the procurement policies, procedures, and internal controls of such covered non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such covered non-defense agency; and "(ii) the administration of such policies, procedures, and internal controls; and "(B) determine in writing whether such covered non-defense agency is or is not compliant with defense procurement requirements. "(2) Deadline for reviews and determinations. - The reviews and determinations required by paragraph (1) shall take place as follows: "(A) In the case of the General Services Administration, by not later than March 15, 2010. "(B) In the case of the Department of the Interior, by not later than March 15, 2011. "(C) In the case of each of the Department of Veterans Affairs and the National Institutes of Health, by not later than March 15, 2012. "(D) In the case of each of the Department of Commerce and the Department of Energy, by not later than March 15, 2015. "(3) Separate reviews and determinations. - The Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency may by joint agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate government-wide acquisition contracts, of the covered non-defense agency. If such separate reviews are conducted, the Inspectors General shall make a separate determination under paragraph (1)(B) with respect to each such separate review. "(4) Memoranda of understanding for reviews and determinations. - Not later than one year before a review and determination is required under this subsection with respect to a covered non- defense agency, the Inspector General of the Department of Defense and the Inspector General of the covered non-defense agency shall enter into a memorandum of understanding with each other to carry out such review and determination. "(5) Termination of non-compliance determination. - If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency determine, pursuant to paragraph (1)(B), that a covered non-defense agency is not compliant with defense procurement requirements, the Inspectors General shall terminate such a determination effective on the date on which the Inspectors General jointly - "(A) determine that the non-defense agency is compliant with defense procurement requirements; and "(B) notify the Secretary of Defense of that determination. "(6) Resolution of disagreements. - If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency are unable to agree on a joint determination under this subsection, a determination by the Inspector General of the Department of Defense under this subsection shall be conclusive for the purposes of this section. "(b) Limitation on Procurements on Behalf of Department of Defense. - "(1) Except as provided in paragraph (2), an acquisition official of the Department of Defense may place an order, make a purchase, or otherwise procure property or services for the Department of Defense in excess of the simplified acquisition threshold through a non-defense agency only if - "(A) in the case of a procurement by any non-defense agency in any fiscal year, the head of the non-defense agency has certified that the non-defense agency will comply with defense procurement requirements for the fiscal year; "(B) in the case of - "(i) a procurement by a covered non-defense agency in a fiscal year for which a memorandum of understanding is required by subsection (a)(4), the Inspector General of the Department of Defense and the Inspector General of the covered non-defense agency have entered into such a memorandum of understanding; or "(ii) a procurement by a covered non-defense agency in a fiscal year following the Inspectors General review and determination required by subsection (a), the Inspectors General have determined that a covered non-defense agency is compliant with defense procurement requirements or have terminated a prior determination of non-compliance in accordance with subsection (a)(5); and "(C) the procurement is not otherwise prohibited by section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364) or section 811 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163) [see notes below]. "(2) Exception for procurements of necessary property and services. - "(A) In general. - The limitation in paragraph (1) shall not apply to the procurement of property and services on behalf of the Department of Defense by a non-defense agency during any fiscal year for which there is in effect a written determination of the Under Secretary of Defense for Acquisition, Technology, and Logistics that it is necessary in the interest of the Department of Defense to procure property and services through the non-defense agency during such fiscal year. "(B) Scope of particular exception. - A written determination with respect to a non-defense agency under subparagraph (A) shall apply to any category of procurements through the non- defense agency that is specified in the determination. "(c) Guidance on Interagency Contracting. - "(1) Requirement. - Not later than 180 days after the date of enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall issue guidance on the use of interagency contracting by the Department of Defense. "(2) Matters covered. - The guidance required by paragraph (1) shall address the circumstances in which it is appropriate for Department of Defense acquisition officials to procure goods or services through a contract entered into by an agency outside the Department of Defense. At a minimum, the guidance shall address - "(A) the circumstances in which it is appropriate for such acquisition officials to use direct acquisitions; "(B) the circumstances in which it is appropriate for such acquisition officials to use assisted acquisitions; "(C) the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items unique to the Department of Defense and the procedures for approving such interagency contracting; "(D) the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items that are already being provided under a contract awarded by the Department of Defense; "(E) tools that should be used by such acquisition officials to determine whether items are already being provided under a contract awarded by the Department of Defense; and "(F) procedures for ensuring that defense procurement requirements are identified and communicated to outside agencies involved in interagency contracting. "(d) Compliance With Defense Procurement Requirements. - For the purposes of this section, a non-defense agency is compliant with defense procurement requirements if the procurement policies, procedures, and internal controls of the non-defense agency applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure the compliance of the non- defense agency with the requirements of laws and regulations (including applicable Department of Defense financial management regulations) that apply to procurements of property and services made directly by the Department of Defense. "(e) Treatment of Procurements for Fiscal Year Purposes. - For the purposes of this section, a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for the procurement in that fiscal year. "(f) Definitions. - In this section: "(1) Non-defense agency. - The term 'non-defense agency' means any department or agency of the Federal Government other than the Department of Defense. Such term includes a covered non-defense agency. "(2) Covered non-defense agency. - The term 'covered non- defense agency' means each of the following: "(A) The General Services Administration. "(B) The Department of the Interior. "(C) The Department of Veterans Affairs. "(D) The National Institutes of Health. "(E) The Department of Commerce. "(F) The Department of Energy. "(3) Government-wide acquisition contract. - The term 'government-wide acquisition contract' means a task or delivery order contract that - "(A) is entered into by a non-defense agency; and "(B) may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government. "(4) Simplified acquisition threshold. - The term 'simplified acquisition threshold' has the meaning provided by section 2302(7) of title 10, United States Code. "(5) Interagency contracting. - The term 'interagency contracting' means the exercise of the authority under section 1535 of title 31, United States Code, or other statutory authority, for Federal agencies to purchase goods and services under contracts entered into or administered by other agencies. "(6) Acquisition official. - The term 'acquisition official', with respect to the Department of Defense, means - "(A) a contracting officer of the Department of Defense; or "(B) any other Department of Defense official authorized to approve a direct acquisition or an assisted acquisition on behalf of the Department of Defense. "(7) Direct acquisition. - The term 'direct acquisition', with respect to the Department of Defense, means the type of interagency contracting through which the Department of Defense orders an item or service from a government-wide acquisition contract maintained by a non-defense agency. "(8) Assisted acquisition. - The term 'assisted acquisition', with respect to the Department of Defense, means the type of interagency contracting through which acquisition officials of a non-defense agency award a contract or task or delivery order for the procurement of goods or services on behalf of the Department of Defense." Pub. L. 109-364, div. A, title VIII, Sec. 817, Oct. 17, 2006, 120 Stat. 2326, provided that: "(a) Inspector General Reviews and Determinations. - "(1) In general. - For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such non-defense agency shall, not later than March 15, 2007, jointly - "(A) review - "(i) the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and "(ii) the administration of those policies, procedures, and internal controls; and "(B) determine in writing whether - "(i) such non-defense agency is compliant with defense procurement requirements; "(ii) such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements; "(iii) neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency; or "(iv) such non-defense agency is not compliant with defense procurement requirements to such an extent that the interests of the Department of Defense are at risk in procurements conducted by such non-defense agency. "(2) Actions following certain determinations. - If the Inspectors General determine under paragraph (1) that a conclusion stated in clause (ii), (iii), or (iv) of subparagraph (B) of that paragraph is correct in the case of a covered non- defense agency, such Inspectors General shall, not later than June 15, 2008, jointly - "(A) conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency's procurement of property or services on behalf of the Department of Defense in fiscal year 2007; and "(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements. "(b) Compliance With Defense Procurement Requirements. - For the purposes of this section, a covered non-defense agency is compliant with defense procurement requirements if such non-defense agency's procurement policies, procedures, and internal controls applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure such non-defense agency's compliance with the requirements of laws and regulations that apply to procurements of property and services made directly by the Department of Defense. "(c) Memoranda of Understanding Between Inspectors General. - "(1) In general. - Not later than 60 days after the date of the enactment of this Act [Oct. 17, 2006], the Inspector General of the Department of Defense and the Inspector General of each covered non-defense agency shall enter into a memorandum of understanding with each other to carry out the reviews and make the determinations required by this section. "(2) Scope of memoranda. - The Inspector General of the Department of Defense and the Inspector General of a covered non- defense agency may by mutual agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate governmentwide acquisition contracts, of such non-defense agency. In any case where such separate reviews are conducted, the Inspectors General shall make separate determinations under paragraph (1) or (2) of subsection (a), as applicable, with respect to each such separate review. "(d) Limitations on Procurements on Behalf of Department of Defense. - "(1) Limitation during review period. - After March 15, 2007, and before June 16, 2008, no official of the Department of Defense may, except as provided in subsection (e) or (f), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through a covered non-defense agency for which a determination described in clause (iii) or (iv) of paragraph (1)(B) of subsection (a) has been made under subsection (a). "(2) Limitation after review period. - After June 15, 2008, no official of the Department of Defense may, except as provided in subsection (e) or (f), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through a covered non-defense agency that, having been subject to review under this section, has not been determined under this section as being compliant with defense procurement requirements. "(3) Limitation following failure to reach mou. - Commencing on the date that is 60 days after the date of the enactment of this Act [Oct. 17, 2006], if a memorandum of understanding between the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency cannot be attained causing the review required by this section to not be performed, no official of the Department of Defense, except as provided in subsection (e) or (f), may order, purchase or otherwise procure property or services in an amount in excess of $100,000 through such non-defense agency. "(e) Exception From Applicability of Limitations. - "(1) Exception. - No limitation applies under subsection (d) with respect to the procurement of property and services on behalf of the Department of Defense by a covered non-defense agency during any period that there is in effect a determination of the Under Secretary of Defense for Acquisition, 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 such non-defense agency. "(2) Applicability of determination. - A written determination with respect to a covered non-defense agency under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect. "(f) Termination of Applicability of Limitations. - Subsection (d) shall cease to apply to a covered non-defense agency on the date on which the Inspector General of the Department of Defense and the Inspector General of such non-defense agency jointly - "(1) determine that such non-defense agency is compliant with defense procurement requirements; and "(2) notify the Secretary of Defense of that determination. "(g) Identification of Procurements Made During a Particular Fiscal Year. - For the purposes of subsection (a), a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for that procurement in that fiscal year. "(h) Resolution of Disagreements. - If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency are unable to agree on a joint determination under subsection (a) or (f), a determination by the Inspector General of the Department of Defense under such subsection shall be conclusive for the purposes of this section. "(i) Definitions. - In this section: "(1) The term 'covered non-defense agency' means each of the following: "(A) The Department of Veterans Affairs. "(B) The National Institutes of Health. "(2) The term 'governmentwide acquisition contract', with respect to a covered non-defense agency, means a task or delivery order contract that - "(A) is entered into by the non-defense agency; and "(B) may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government." Pub. L. 109-163, div. A, title VIII, Sec. 811, Jan. 6, 2006, 119 Stat. 3374, provided that: "(a) Inspector General Reviews and Determinations. - "(1) In general. - For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such non-defense agency shall, not later than March 15, 2006, jointly - "(A) review - "(i) the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and "(ii) the administration of those policies, procedures, and internal controls; and "(B) determine in writing whether - "(i) such non-defense agency is compliant with defense procurement requirements; "(ii) such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements; or "(iii) neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency. "(2) Actions following certain determinations. - If the Inspectors General determine under paragraph (1) that the conclusion stated in clause (ii) or (iii) of subparagraph (B) of that paragraph is correct in the case of a covered non-defense agency, such Inspectors General shall, not later than June 15, 2007, jointly - "(A) conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency's procurement of property or services on behalf of the Department of Defense in fiscal year 2006; and "(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements. "(b) Compliance With Defense Procurement Requirements. - For the purposes of this section, a covered non-defense agency is compliant with defense procurement requirements if such non-defense agency's procurement policies, procedures, and internal controls applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure such non-defense agency's compliance with the requirements of laws and regulations that apply to procurements of property and services made directly by the Department of Defense. "(c) Memoranda of Understanding Between Inspectors General. - "(1) In general. - Not later than 60 days after the date of the enactment of this Act [Jan. 6, 2006], the Inspector General of the Department of Defense and the Inspector General of each covered non-defense agency shall enter into a memorandum of understanding with each other to carry out the reviews and make the determinations required by this section. "(2) Scope of memoranda. - The Inspector General of the Department of Defense and the Inspector General of a covered non- defense agency may by mutual agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate governmentwide acquisition contracts, of such non-defense agency. In any case where such separate reviews are conducted, the Inspectors General shall make separate determinations under paragraph (1) or (2) of subsection (a), as applicable, with respect to each such separate review. "(d) Limitations on Procurements on Behalf of Department of Defense. - "(1) Limitation during review period. - After March 15, 2006, and before June 16, 2007, no official of the Department of Defense may, except as provided in subsection (e) or (f), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through a covered non-defense agency for which a determination described in paragraph (1)(B)(iii) of subsection (a) has been made under that subsection. "(2) Limitation after review period. - After June 15, 2007, no official of the Department of Defense may, except as provided in subsection (e) or (f), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through a covered non-defense agency that, having been subject to review under this section, has not been determined under this section as being compliant with defense procurement requirements. "(3) Limitation following failure to reach mou. - Commencing on the date that is 60 days after the date of the enactment of this Act [Jan. 6, 2006], if a memorandum of understanding between the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency cannot be attained causing the review required by this section to not be performed, no official of the Department of Defense, except as provided in subsection (e) or (f), may order, purchase or otherwise procure property or services in an amount in excess of $100,000 through such non-defense agency. "(e) Exception From Applicability of Limitations. - "(1) Exception. - No limitation applies under subsection (d) with respect to the procurement of property and services on behalf of the Department of Defense by a covered non-defense agency during any period that there is in effect a determination of the Under Secretary of Defense for Acquisition, 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 such non-defense agency. "(2) Applicability of determination. - A written determination with respect to a covered non-defense agency under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect. "(f) Termination of Applicability of Limitations. - Subsection (d) shall cease to apply to a covered non-defense agency on the date on which the Inspector General of the Department of Defense and the Inspector General of such non-defense agency jointly - "(1) determine that such non-defense agency is compliant with defense procurement requirements; and "(2) notify the Secretary of Defense of that determination. "(g) Identification of Procurements Made During a Particular Fiscal Year. - For the purposes of subsection (a), a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for that procurement in that fiscal year. "(h) Definitions. - In this section: "(1) The term 'covered non-defense agency' means each of the following: "(A) The Department of the Treasury. "(B) The Department of the Interior. "(C) The National Aeronautics and Space Administration. "(2) The term 'governmentwide acquisition contract', with respect to a covered non-defense agency, means a task or delivery order contract that - "(A) is entered into by the non-defense agency; and "(B) may be used as the contract under which property or services are procured for 1 or more other departments or agencies of the Federal Government." EMPLOYMENT OF STATE RESIDENTS IN STATES HAVING UNEMPLOYMENT RATE IN EXCESS OF NATIONAL AVERAGE Pub. L. 109-289, div. A, title VIII, Sec. 8048, Sept. 29, 2006, 120 Stat. 1284, provided that: "Notwithstanding any other provision of law, each contract awarded by the Department of Defense during the current fiscal year and hereafter for construction or service performed in whole or in part in a State (as defined in section 381(d) of title 10, United States Code) which is not contiguous with another State and has an unemployment rate in excess of the national average rate of unemployment as determined by the Secretary of Labor, shall include a provision requiring the contractor to employ, for the purpose of performing that portion of the contract in such State that is not contiguous with another State, individuals who are residents of such State and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills: Provided, That the Secretary of Defense may waive the requirements of this section, on a case-by- case basis, in the interest of national security." REVIEW AND DEMONSTRATION PROJECT RELATING TO CONTRACTOR EMPLOYEES Pub. L. 108-375, div. A, title VIII, Sec. 851, Oct. 28, 2004, 118 Stat. 2019, provided that: "(a) General Review. - (1) The Secretary of Defense shall conduct a review of policies, procedures, practices, and penalties of the Department of Defense relating to employees of defense contractors for purposes of ensuring that the Department of Defense is in compliance with Executive Order No. 12989 [8 U.S.C. 1324a note] (relating to a prohibition on entering into contracts with contractors that are not in compliance with the Immigration and Nationality Act [8 U.S.C. 1101 et seq.]). "(2) In conducting the review, the Secretary shall - "(A) identify potential weaknesses and areas for improvement in existing policies, procedures, practices, and penalties; "(B) develop and implement reforms to strengthen, upgrade, and improve policies, procedures, practices, and penalties of the Department of Defense and its contractors; and "(C) review and analyze reforms developed pursuant to this paragraph to identify for purposes of national implementation those which are most efficient and effective. "(3) The review under this subsection shall be completed not later than 180 days after the date of the enactment of this Act [Oct. 28, 2004]. "(b) Demonstration Project. - The Secretary of Defense shall conduct a demonstration project in accordance with this section, in one or more regions selected by the Secretary, for purposes of promoting greater contracting opportunities for contractors offering effective, reliable staffing plans to perform defense contracts that ensure all contract personnel employed for such projects, including management employees, professional employees, craft labor personnel, and administrative personnel, are lawful residents or persons properly authorized to be employed in the United States and properly qualified to perform services required under the contract. The demonstration project shall focus on contracts for construction, renovation, maintenance, and repair services for military installations. "(c) Demonstration Project Procurement Procedures. - As part of the demonstration project under subsection (b), the Secretary of Defense may conduct a competition in which there is a provision in contract solicitations and request for proposal documents to require significant weight or credit be allocated to - "(1) reliable, effective workforce programs offered by prospective contractors that provide background checks and other measures to ensure the contractor is in compliance with the Immigration and Nationality Act; and "(2) reliable, effective project staffing plans offered by prospective contractors that specify for all contract employees (including management employees, professionals, and craft labor personnel) the skills, training, and qualifications of such persons and the labor supply sources and hiring plans or procedures used for employing such persons. "(d) Implementation of Demonstration Project. - The Secretary of Defense shall begin operation of the demonstration project required under this section after completion of the review under subsection (a), but in no event later than 270 days after the date of the enactment of this Act. "(e) Report on Demonstration Project. - Not later than six months after award of a contract under the demonstration project, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report setting forth a review of the demonstration project and recommendations on the actions, if any, that can be implemented to ensure compliance by the Department of Defense with Executive Order No. 12989. "(f) Definition. - In this section, the term 'military installation' means a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the Department of Defense, including any leased facility, which is located within any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, or Guam. Such term does not include any facility used primarily for civil works, rivers and harbors projects, or flood control projects." DEFENSE PROCUREMENTS MADE THROUGH CONTRACTS OF OTHER AGENCIES Pub. L. 108-375, div. A, title VIII, Sec. 854, Oct. 28, 2004, 118 Stat. 2022, provided that: "(a) Limitation. - The head of an agency may not procure goods or services (under section 1535 of title 31, United States Code, pursuant to a designation under section 11302(e) of title 40, United States Code, or otherwise) through a contract entered into by an agency outside the Department of Defense for an amount greater than the simplified acquisition threshold referred to in section 2304(g) of title 10, United States Code, unless the procurement is done in accordance with procedures prescribed by that head of an agency for reviewing and approving the use of such contracts. "(b) Effective Date. - The limitation in subsection (a) shall apply only with respect to orders for goods or services that are issued by the head of an agency to an agency outside the Department of Defense on or after the date that is 180 days after the date of the enactment of this Act [Oct. 28, 2004]. "(c) Inapplicability to Contracts for Certain Services. - This section does not apply to procurements of the following services: "(1) Printing, binding, or blank-book work to which section 502 of title 44, United States Code, applies. "(2) Services available under programs pursuant to section 103 of the Library of Congress Fiscal Operations Improvement Act of 2000 (Public Law 106-481; 114 Stat. 2187; 2 U.S.C. 182c). "(d) Annual Report. - (1) For each of fiscal years 2005 and 2006, each head of an agency shall submit to the Secretary of Defense a report on the service charges imposed on purchases made for an amount greater than the simplified acquisition threshold during such fiscal year through a contract entered into by an agency outside the Department of Defense. "(2) In the case of procurements made on orders issued by the head of a Defense Agency, Department of Defense Field Activity, or any other organization within the Department of Defense (other than a military department) under the authority of the Secretary of Defense as the head of an agency, the report under paragraph (1) shall be submitted by the head of that Defense Agency, Department of Defense Field Activity, or other organization, respectively. "(3) The report for a fiscal year under this subsection shall be submitted not later than December 31 of the calendar year in which such fiscal year ends. "(e) Definitions. - In this section: "(1) The term 'head of an agency' means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force. "(2) The term 'Defense Agency' has the meaning given such term in section 101(a)(11) of title 10, United States Code. "(3) The term 'Department of Defense Field Activity' has the meaning given such term in section 101(a)(12) of such title." RESOURCES-BASED SCHEDULES FOR COMPLETION OF PUBLIC-PRIVATE COMPETITIONS FOR PERFORMANCE OF DEPARTMENT OF DEFENSE FUNCTIONS Pub. L. 108-136, div. A, title III, Sec. 334, Nov. 24, 2003, 117 Stat. 1443, provided that: "(a) Application of Timeframes. - Any interim or final deadline or other schedule-related milestone for the completion of a Department of Defense public-private competition shall be established solely on the basis of considered research and sound analysis regarding the availability of sufficient personnel, training, and technical resources to the Department of Defense to carry out such competition in a timely manner. "(b) Extension of Timeframes. - (1) The Department of Defense official responsible for managing a Department of Defense public- private competition shall extend any interim or final deadline or other schedule-related milestone established (consistent with subsection (a)) for the completion of the competition if the official determines that the personnel, training, or technical resources available to the Department of Defense to carry out the competition in a timely manner are insufficient. "(2) A determination under this subsection shall be made pursuant to procedures prescribed by the Secretary of Defense." COMPETITION REQUIREMENT FOR PURCHASE OF SERVICES PURSUANT TO MULTIPLE AWARD CONTRACTS Pub. L. 107-107, div. A, title VIII, Sec. 803, Dec. 28, 2001, 115 Stat. 1178, which required the Secretary of Defense to promulgate in the Department of Defense Supplement to the Federal Acquisition Regulation, not later than 180 days after Dec. 28, 2001, regulations requiring competition in the purchase of services by the Department of Defense pursuant to multiple award contracts, was repealed by Pub. L. 110-417, [div. A], title VIII, Sec. 863(f), Oct. 14, 2008, 122 Stat. 4548. REQUIREMENT TO DISREGARD CERTAIN AGREEMENTS IN AWARDING CONTRACTS FOR PURCHASE OF FIREARMS OR AMMUNITION Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 826], Oct. 30, 2000, 114 Stat. 1654, 1654A-220, provided that: "In accordance with the requirements contained in the amendments enacted in the Competition in Contracting Act of 1984 (title VII of division B of Public Law 98-369; 98 Stat. 1175) [see Short Title of 1984 Amendments note set out under section 251 of Title 41, Public Contracts], the Secretary of Defense may not, in awarding a contract for the purchase of firearms or ammunition, take into account whether a manufacturer or vendor of firearms or ammunition is a party to an agreement under which the manufacturer or vendor agrees to adopt limitations with respect to importing, manufacturing, or dealing in firearms or ammunition in the commercial market." GAO REPORT Pub. L. 106-65, div. A, title VIII, Sec. 806(b), Oct. 5, 1999, 113 Stat. 705, directed the Comptroller General, not later than Mar. 1, 2001, to submit to Congress an evaluation of the test program authorized by the provisions in Pub. L. 104-106, Sec. 4202 (amending this section and section 2305 of this title and sections 253, 253a, 416, and 427 of Title 41, Public Contracts, and enacting provisions set out as a note below), together with any recommendations that the Comptroller General considered appropriate regarding the test program or the use of special simplified procedures for purchases of commercial items in excess of the simplified acquisition threshold. PROCUREMENT OF CONVENTIONAL AMMUNITION Pub. L. 105-261, div. A, title VIII, Sec. 806, Oct. 17, 1998, 112 Stat. 2084, provided that: "(a) Authority. - The official in the Department of Defense designated as the single manager for conventional ammunition in the Department shall have the authority to restrict the procurement of conventional ammunition to sources within the national technology and industrial base in accordance with the authority in section 2304(c) of title 10, United States Code. "(b) Requirement. - The official in the Department of Defense designated as the single manager for conventional ammunition in the Department of Defense shall limit a specific procurement of ammunition to sources within the national technology and industrial base in accordance with section 2304(c)(3) of title 10, United States Code, in any case in which that manager determines that such limitation is necessary to maintain a facility, producer, manufacturer, or other supplier available for furnishing an essential item of ammunition or ammunition component in cases of national emergency or to achieve industrial mobilization. "(c) Conventional Ammunition Defined. - For purposes of this section, the term 'conventional ammunition' has the meaning given that term in Department of Defense Directive 5160.65, dated March 8, 1995." WARRANTY CLAIMS RECOVERY PILOT PROGRAM Pub. L. 105-85, div. A, title III, Sec. 391, Nov. 18, 1997, 111 Stat. 1716, as amended by Pub. L. 106-65, div. A, title III, Sec. 382, Oct. 5, 1999, 113 Stat. 583; Pub. L. 107-107, div. A, title III, Sec. 364, Dec. 28, 2001, 115 Stat. 1068; Pub. L. 107-314, div. A, title III, Sec. 368, Dec. 2, 2002, 116 Stat. 2524; Pub. L. 108- 375, div. A, title III, Sec. 343, Oct. 28, 2004, 118 Stat. 1857, provided that: "(a) Pilot Program Required. - The Secretary of Defense may carry out a pilot program to use commercial sources of services to improve the collection of Department of Defense claims under aircraft engine warranties. "(b) Contracts. - Exercising the authority provided in section 3718 of title 31, United States Code, the Secretary of Defense may enter into contracts under the pilot program to provide for the following services: "(1) Collection services. "(2) Determination of amounts owed the Department of Defense for repair of aircraft engines for conditions covered by warranties. "(3) Identification and location of the sources of information that are relevant to collection of Department of Defense claims under aircraft engine warranties, including electronic data bases and document filing systems maintained by the Department of Defense or by the manufacturers and suppliers of the aircraft engines. "(4) Services to define the elements necessary for an effective training program to enhance and improve the performance of Department of Defense personnel in collecting and organizing documents and other information that are necessary for efficient filing, processing, and collection of Department of Defense claims under aircraft engine warranties. "(c) Contractor Fee. - Under the authority provided in section 3718(d) of title 31, United States Code, a contract entered into under the pilot program shall provide for the contractor to be paid, out of the amount recovered by the contractor under the program, such percentages of the amount recovered as the Secretary of Defense determines appropriate. "(d) Retention of Recovered Funds. - Subject to any obligation to pay a fee under subsection (c), any amount collected for the Department of Defense under the pilot program for a repair of an aircraft engine for a condition covered by a warranty shall be credited to an appropriation available for repair of aircraft engines for the fiscal year in which collected and shall be available for the same purposes and same period as the appropriation to which credited. "(e) Regulations. - The Secretary of Defense shall prescribe regulations to carry out this section. "(f) Termination of Authority. - The pilot program shall terminate on September 30, 2006, and contracts entered into under this section shall terminate not later than that date. "(g) Reporting Requirement. - Not later than February 1, 2006, the Secretary of Defense shall submit to Congress a report on the pilot program, including - "(1) a description of the extent to which commercial firms have been used to provide the services specified in subsection (b) and the type of services procured; "(2) a description of any problems that have limited the ability of the Secretary to utilize the pilot program to procure such services; and "(3) the recommendation of the Secretary regarding whether the pilot program should be made permanent or extended beyond September 30, 2006." REQUIREMENTS RELATING TO MICRO-PURCHASES Section 848 of Pub. L. 105-85 provided that: "(a) Requirement. - (1) Not later than October 1, 1998, at least 60 percent of all eligible purchases made by the Department of Defense for an amount less than the micro-purchase threshold shall be made through streamlined micro-purchase procedures. "(2) Not later than October 1, 2000, at least 90 percent of all eligible purchases made by the Department of Defense for an amount less than the micro-purchase threshold shall be made through streamlined micro-purchase procedures. "(b) Eligible Purchases. - The Secretary of Defense shall establish which purchases are eligible for purposes of subsection (a). In establishing which purchases are eligible, the Secretary may exclude those categories of purchases determined not to be appropriate or practicable for streamlined micro-purchase procedures. "(c) Plan. - Not later than March 1, 1998, the Secretary of Defense shall provide to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a plan to implement this section. "(d) Report. - Not later than March 1 in each of the years 1999, 2000, and 2001, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of Senate and House of Representatives] a report on the implementation of this section. Each report shall include - "(A) the total dollar amount of all Department of Defense purchases for an amount less than the micro-purchase threshold in the fiscal year preceding the year in which the report is submitted; "(B) the total dollar amount of such purchases that were considered to be eligible purchases; "(C) the total amount of such eligible purchases that were made through a streamlined micro-purchase method; and "(D) a description of the categories of purchases excluded from the definition of eligible purchases established under subsection (b). "(e) Definitions. - In this section: "(1) The term 'micro-purchase threshold' has the meaning provided in section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428). "(2) The term 'streamlined micro-purchase procedures' means procedures providing for the use of the Government-wide commercial purchase card or any other method for carrying out micro-purchases that the Secretary of Defense prescribes in the regulations implementing this subsection." TERMINATION OF AUTHORITY TO ISSUE SOLICITATIONS FOR PURCHASES OF COMMERCIAL ITEMS IN EXCESS OF SIMPLIFIED ACQUISITION THRESHOLD Pub. L. 104-106, div. D, title XLII, Sec. 4202(e), Feb. 10, 1996, 110 Stat. 654, as amended by Pub. L. 106-65, div. A, title VIII, Sec. 806(a), Oct. 5, 1999, 113 Stat. 705; Pub. L. 107-107, div. A, title VIII, Sec. 823, Dec. 28, 2001, 115 Stat. 1183; Pub. L. 107- 314, div. A, title VIII, Sec. 812(a), Dec. 2, 2002, 116 Stat. 2609; Pub. L. 108-136, div. A, title XIV, Sec. 1443(b), Nov. 24, 2003, 117 Stat. 1676; Pub. L. 108-375, div. A, title VIII, Sec. 817, Oct. 28, 2004, 118 Stat. 2015; Pub. L. 110-181, div. A, title VIII, Sec. 822(a), Jan. 28, 2008, 122 Stat. 226, provided that: "The authority to issue solicitations for purchases of commercial items in excess of the simplified acquisition threshold pursuant to the special simplified procedures authorized by section 2304(g)(1) of title 10, United States Code, section 303(g)(1) of the Federal Property and Administrative Services Act of 1949 [41 U.S.C. 253(g)(1)], and section 31(a) of the Office of Federal Procurement Policy Act [41 U.S.C. 427(a)], as amended by this section, shall expire January 1, 2010. Contracts may be awarded pursuant to solicitations that have been issued before such authority expires, notwithstanding the expiration of such authority." REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note under section 5376 of Title 5. AUTHORITY OF BASE COMMANDERS OVER CONTRACTING FOR COMMERCIAL ACTIVITIES Pub. L. 100-180, div. A, title XI, Sec. 1111, Dec. 4, 1987, 101 Stat. 1146, directed the Secretary of Defense to authorize the commander of each military installation to (1) prepare an inventory each fiscal year of commercial activities carried out by Government personnel on the military installation, (2) decide which commercial activities were to be reviewed pursuant to Office of Management and Budget Circular A-76 or any successor administrative regulation or policy, (3) conduct a solicitation for contracts for those commercial activities selected for conversion to contractor performance under the Circular A-76 process, and (4) assist in finding suitable employment for any employee of the Department of Defense who had been displaced because of a contract entered into with a contractor for performance of a commercial activity on the military installation; directed the Secretary to prescribe regulations required by the preceding authority no later than 60 days after Dec. 4, 1987; and provided for termination of the authority on Oct. 1, 1989. EVALUATION OF CONTRACTS FOR PROFESSIONAL AND TECHNICAL SERVICES Section 804 of Pub. L. 100-456, as amended by Pub. L. 103-160, div. A, title IX, Sec. 904(f), Nov. 30, 1993, 107 Stat. 1729, directed Secretary of Defense, within 120 days after Sept. 29, 1988, to establish criteria to ensure that proposals for contracts for professional and technical services be evaluated on a basis which does not encourage contractors to propose mandatory uncompensated overtime for professional and technical employees and, within 30 days after Sept. 29, 1988, to establish an advisory committee to make recommendations on the criteria. REGULATIONS ON USE OF FIXED-PRICE DEVELOPMENT CONTRACTS Pub. L. 100-456, div. A, title VIII, Sec. 807, Sept. 29, 1988, 102 Stat. 2011, as amended by Pub. L. 103-160, div. A, title IX, Sec. 904(f), Nov. 30, 1993, 107 Stat. 1729, which provided that not later than 120 days after Sept. 29, 1988, the Secretary of Defense was to make certain revisions to Department of Defense regulations that provide for the use of fixed-price type contracts in a development program, was repealed by Pub. L. 109-364, div. A, title VIII, Sec. 818(a), Oct. 17, 2006, 120 Stat. 2329. PROHIBITION OF PURCHASE OF ANGOLAN PETROLEUM PRODUCTS FROM COMPANIES PRODUCING OIL IN ANGOLA Section 842 of Pub. L. 102-484 provided that: "The prohibition in section 316 of the National Defense Authorization Act for Fiscal Year 1987 [Pub. L. 99-661] (100 Stat. 3855; 10 U.S.C. 2304 note) shall cease to be effective on the date on which the President certifies to Congress that free, fair, and democratic elections have taken place in Angola." Determination of President of the United States, No. 93-32, July 19, 1993, 58 F.R. 40309, provided: Pursuant to the authority vested in me by Public Law 102-484, section 842 [set out as a note above], I hereby certify that free, fair, and democratic elections have taken place in Angola. You are authorized and directed to report this determination to the Congress and publish it in the Federal Register. William J. Clinton. Section 316 of Pub. L. 99-661 provided that: "(a) General Rule. - The Secretary of Defense may not enter into a contract with a company for the purchase of petroleum products which originated in Angola if the company (or a subsidiary or partnership of the company) is engaged in the production of petroleum products in Angola. "(b) Waiver Authority. - The Secretary of Defense may waive the limitation in subsection (a) if the Secretary determines that such action is in the best interest of the United States. "(c) Petroleum Product Defined. - For purposes of this section, the term 'petroleum product' means - "(1) natural or synthetic crude; "(2) blends of natural or synthetic crude; and "(3) products refined or derived from natural or synthetic crude or from such blends. "(d) Effective Date. - This section shall take effect six months after the date of the enactment of this Act [Nov. 14, 1986]." DEADLINE FOR PRESCRIBING REGULATIONS Section 101(c) [title X, Sec. 927(b)] of Pub. L. 99-500 and Pub. L. 99-591, and section 927(b) of title IX, formerly title IV, of Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The Secretary of Defense shall prescribe the regulations required by section 2304(i) of such title (as added by subsection (a)) not later than 180 days after the date of the enactment of this Act [Oct. 18, 1986]." ONE-YEAR SECURITY-GUARD PROHIBITION Section 1222(b) of Pub. L. 99-661 provided that: "(1) Except as provided in paragraph (2), funds appropriated to the Department of Defense may not be obligated or expended before October 1, 1987, for the purpose of entering into a contract for the performance of security-guard functions at any military installation or facility. "(2) The prohibition in paragraph (1) does not apply - "(A) to a contract to be carried out at a location outside the United States (including its commonwealths, territories, and possessions) at which military personnel would have to be used for the performance of the function described in paragraph (1) at the expense of unit readiness; "(B) to a contract to be carried out on a Government-owned but privately operated installation; "(C) to a contract (or the renewal of a contract) for the performance of a function under contract on September 24, 1983; or "(D) to a contract for the performance of security-guard functions if (i) the requirement for the functions arises after the date of the enactment of this Act [Nov. 14, 1986], and (ii) the Secretary of Defense determines the functions can be performed by contractor personnel without adversely affecting installation security, safety, or readiness." CONTRACTING OUT PERFORMANCE OF DEPARTMENT OF DEFENSE SUPPLY AND SERVICE FUNCTIONS Section 1223 of Pub. L. 99-661, which required Secretary to contract for Department of Defense supplies and services from private sector after a cost comparison demonstrates lower cost than Department of Defense can provide, and to ensure that overhead costs considered are realistic and fair, was repealed and restated in section 2462 of this title by Pub. L. 100-370, Sec. 2(a)(1), (c)(3), July 19, 1988, 102 Stat. 853, 854. REPORTS ON SAVINGS OR COSTS FROM INCREASED USE OF CIVILIAN PERSONNEL Section 1224 of Pub. L. 99-661, which required Secretary to maintain cost comparison data on performance of a commercial or industrial type activity taken over by Department of Defense comparing performance by employees of private contractor to that of civilian employees of Department of Defense, and to submit semi- annual report on savings or loss to United States, was repealed and restated in section 2463 of this title by Pub. L. 100-370, Sec. 2(a)(1), (c)(3), July 19, 1988, 102 Stat. 853, 854. LIMITATIONS ON CONTRACTING PERFORMED BY COAST GUARD Pub. L. 101-225, title II, Sec. 205, Dec. 12, 1989, 103 Stat. 1912, provided that: "Notwithstanding any other provision of law, an officer or employee of the United States may not enter into a contract for procurement of performance of any function being performed by Coast Guard personnel as of January 1, 1989, before - "(1) a study has been performed by the Secretary of Transportation under the Office of Management and Budget Circular A-76 with respect to that procurement; "(2) the Secretary of Transportation has performed a study, in addition to the study required by paragraph (1) of this subsection, to determine the impact of that procurement on the multimission capabilities of the Coast Guard; and "(3) copies of the studies required by paragraphs (1) and (2) of this subsection are submitted to the Committee on Merchant Marine and Fisheries [now Committee on Transportation and Infrastructure] of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate." Pub. L. 100-448, Sec. 5, Sept. 28, 1988, 102 Stat. 1837, as amended by Pub. L. 104-66, title I, Sec. 1121(b), Dec. 21, 1995, 109 Stat. 724, provided that: "(a) Maintenance of Logistics Capability. - "(1) Statement of national interest. - It is in the national interest for the Coast Guard to maintain a logistics capability (including personnel, equipment, and facilities) to provide a ready and controlled source of technical competence and resources necessary to ensure the effective and timely performance of Coast Guard missions in behalf of the security, safety, and economic and environmental well-being of the United States. "[(2) Repealed. Pub. L. 104-66, title I, Sec. 1121(b), Dec. 21, 1995, 109 Stat. 724.] "[(b) Repealed. Pub. L. 104-66, title I, Sec. 1121(b), Dec. 21, 1995, 109 Stat. 724.] "(c) Submisison [sic] of List of Activities Contracted for Performance. - At least 30 days before the beginning of each fiscal year, the Secretary shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and Fisheries [now Committee on Transportation and Infrastructure] of the House of Representatives a list of activities that will be contracted for performance by non- Government personnel under the procedures of Office of Management and Budget Circular A-76 during that fiscal year. "(d) Employment of Local Residents To Perform Contracts. - "(1) In general. - Notwithstanding any other provision of law, each contract awarded by the Coast Guard in fiscal years 1988 and 1989 for construction or services to be performed in whole or in part in a State which has an unemployment rate in excess of the national average rate of unemployment (as determined by the Secretary of Labor) shall include a provision requiring the contractor to employ, for the purpose of performing that portion of the contract in that State, individuals who are local residents and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills. The Secretary of the department in which the Coast Guard is operating may waive this subsection in the interest of national security or economic efficiency. "(2) Local resident defined. - As used in this subsection, the term 'local resident' means a resident of a State described in paragraph (1), and any individual who commutes daily to a State described in paragraph (1)." [For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.] Similar provisions were contained in the following prior authorization act: Pub. L. 99-640, Sec. 5, Nov. 10, 1986, 100 Stat. 3546. CONTRACTED ADVISORY AND ASSISTANCE SERVICES Section 918 of Pub. L. 99-145, which provided that Secretary of Defense require each military department to establish accounting procedure to aid in control of expenditures for contracted advisory and assistance services, prescribe regulations to identify such services and which services are in direct support of a weapons system, consider specific list of factors in prescribing regulations, and identify total amount requested and separate category amount requested in budget documents for Department of Defense presented to Congress, was repealed and restated in section 2212 of this title by Pub. L. 100-370, Sec. 1(d)(2), July 19, 1988, 102 Stat. 842. ASSIGNMENT OF PRINCIPAL CONTRACTING OFFICERS Section 925 of Pub. L. 99-145 required Secretary of Defense to develop a policy regarding mobility and regular rotation of principal administrative and corporate administrative contracting officers in Department of Defense and to report to Committees on Armed Services of Senate and House of Representatives not later than January 1, 1986, on such policy, prior to repeal by Pub. L. 101-510, div. A, title XII, Sec. 1207(a), Nov. 5, 1990, 104 Stat. 1665. PROHIBITION ON FELONS CONVICTED OF DEFENSE-CONTRACT-RELATED FELONIES AND PENALTY ON EMPLOYMENT OF SUCH PERSONS BY DEFENSE CONTRACTORS Pub. L. 99-145, title IX, Sec. 932, Nov. 8, 1985, 99 Stat. 699, prohibited certain felons from working on defense contracts and penalized employment of such persons by defense contractors, prior to repeal by Pub. L. 99-500, Sec. 101(c) [title X, Sec. 941(b)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-162, and Pub. L. 99-591, Sec. 101(c) [title X, Sec. 941(b)], Oct. 30, 1986, 100 Stat. 3341- 82, 3341-162; Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 941(b), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273. REIMBURSEMENT, INTEREST CHARGES, AND PENALTIES FOR OVERPAYMENTS DUE TO COST AND PRICING DATA Pub. L. 99-145, title IX, Sec. 934(a), Nov. 8, 1985, 99 Stat. 700, which provided for interest payments and penalties for overpayments due to faulty cost and pricing data, was repealed by Pub. L. 99-500, Sec. 101(c) [title X, Sec. 952(b)(2), (d)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-169, and Pub. L. 99-591, Sec. 101(c) [title X, Sec. 952(b)(2), (d)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-169; Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 952(b)(2), (d), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273, effective with respect to contracts or modifications on contracts entered into after the end of the 120-day period beginning on Oct. 18, 1986. PERSONNEL FOR PERFORMANCE OF SERVICES AND ACTIVITIES Pub. L. 99-145, title XII, Sec. 1233, Nov. 8, 1985, 99 Stat. 734, related to services and activities to be performed by non- Government personnel, prior to repeal by Pub. L. 99-661, div. A, title XII, Sec. 1222(c), Nov. 14, 1986, 100 Stat. 3977. LIMITATION ON CONTRACTING-OUT CORE LOGISTICS FUNCTIONS Section 1231(a)-(e) of Pub. L. 99-145 declared that certain specifically described functions of the Department of Defense shall be deemed logistics activities necessary to maintain the logistics capability described in section 307(a)(1) of Pub. L. 98-525, formerly set out below; contained a description of the functions, i.e., depot-level maintenance of mission-essential materiel at specifically located activities of the Army, the Navy, the Marine Corps, the Air Force, the Defense Logistics Agency, and the Defense Mapping Agency; included certain matters within the specified functions and excluded certain functions; and defined "mission- essential materiel" as related to such functions. Section 307 of Pub. L. 98-525, as amended by Pub. L. 99-145, title XII, Sec. 1231(f), Nov. 8, 1985, 99 Stat. 733, which prohibited contracting to non-Government personnel of logistics activities necessary for effective response to national emergencies unless Secretary waives such prohibition after a determination that Government performance of such activity is no longer required for national defense reasons, and reports to Congress on waiver, was repealed and restated in section 2464 of this title by Pub. L. 100- 370, Sec. 2(a)(1), (c)(2), July 19, 1988, 102 Stat. 853, 854. SHIPBUILDING CLAIMS FOR CONTRACT PRICE ADJUSTMENTS Pub. L. 98-473, title I, Sec. 101(h) [title VIII, Sec. 8078], Oct. 12, 1984, 98 Stat. 1904, 1938, prohibited expenditure of funds to adjust any contract price in any shipbuilding claim, request for equitable adjustment, or demand for payment incurred due to the preparation, submission, or adjudication of any such shipbuilding claim, request, or demand under a contract entered into after Oct. 12, 1984, arising out of events occurring more than eighteen months prior to the submission of such shipbuilding claim, request, or demand, prior to repeal by Pub. L. 100-370, Sec. 1(p)(2), July 19, 1988, 102 Stat. 851. Pub. L. 98-212, title VII, Sec. 787, Dec. 8, 1983, 97 Stat. 1453, which contained similar provisions relating to shipbuilding claims for contract price adjustments, was repealed and restated in section 2405 of this title by Pub. L. 98-525, title XII, Sec. 1234(a), (b)(2), Oct. 19, 1984, 98 Stat. 2604, effective Oct. 19, 1984. WEAPON SYSTEM GUARANTEES; GOVERNMENT-AS-SOURCE EXCEPTION; WAIVER Pub. L. 98-212, title VII, Sec. 794, Dec. 8, 1983, 97 Stat. 1454, provided for weapon system guarantees, Government-as-Source exception, and waiver, prior to repeal by Pub. L. 98-525, title XII, Sec. 1234(b)(1), Oct. 19, 1984, 98 Stat. 2604, effective Jan. 1, 1985. FIGHTER AIRCRAFT ENGINE WARRANTY Pub. L. 97-377, title I, Sec. 101(c) [title VII, Sec. 797], Dec. 21, 1982, 96 Stat. 1865, provided that: "None of the funds made available in the Act or any subsequent Act shall be available for the purchase of the alternate or new model fighter aircraft engine that does not have a written warranty or guarantee attesting that it will perform not less than 3,000 tactical cycles. The warranty will provide that the manufacturer must perform the necessary improvements or replace any parts to achieve the required performance at no cost to the Government." INSURANCE TO PROTECT GOVERNMENT CONTRACTORS AGAINST COST OF CORRECTING CONTRACTOR'S OWN DEFECTS; REIMBURSEMENT PROHIBITED Pub. L. 97-12, title I, Sec. 100, June 5, 1981, 95 Stat. 29, and Pub. L. 97-114, title VII, Sec. 770, Dec. 29, 1981, 95 Stat. 1590, which provided that no funds authorized for the Department of Defense in fiscal year 1981 and thereafter would be available to reimburse a contractor for the cost of commercial insurance, except for that normally maintained in the conduct of his business, that would protect against the cost for correction for the contractor's own defects in materials or workmanship such as were not a fortuitous casualty or loss, were repealed and restated in section 2399 of this title by Pub. L. 97-295, Secs. 1(29)(A), 6(b), Oct. 12, 1982, 96 Stat. 1293, 1315. RESTRICTIONS ON CONVERSION OF PERFORMANCE OF COMMERCIAL AND INDUSTRIAL TYPE FUNCTIONS FROM DEPARTMENT OF DEFENSE PERSONNEL TO PRIVATE CONTRACTORS; ANNUAL REPORT TO CONGRESS Pub. L. 96-342, title V, Sec. 502, Sept. 8, 1980, 94 Stat. 1086, as amended by Pub. L. 97-252, title XI, Sec. 1112(a), Sept. 8, 1982, 96 Stat. 747; Pub. L. 99-145, title XII, Sec. 1234(a), Nov. 8, 1985, 99 Stat. 734; Pub. L. 99-661, div. A, title XII, Sec. 1221, Nov. 14, 1986, 100 Stat. 3976, which provided that no commercial or industrial type function of the Department of Defense that on October 1, 1980, was being performed by Department of Defense civilian employees could be converted to performance by a private contractor to circumvent any civilian personnel ceiling unless Secretary of Defense submitted favorable cost comparisons and certifications, and reported annually to Congress with regard to such conversions, was repealed and restated in section 2461 of this title by Pub. L. 100-370, Sec. 2(a)(1), (c)(1), July 19, 1988, 102 Stat. 851, 854. Similar provisions for fiscal year 1980 were contained in Pub. L. 96-107, title VIII, Sec. 806, Nov. 9, 1979, 93 Stat. 813. CONTRACT CLAIMS; REQUEST FOR EQUITABLE ADJUSTMENT; REQUEST FOR RELIEF; CERTIFICATION Pub. L. 95-485, title VIII, Sec. 813, Oct. 20, 1978, 92 Stat. 1624, which prohibited payment of a contract claim, request for equitable adjustment, or request for relief which exceeded $100,000 unless a senior company official certified that request was made in good faith and that supporting data was accurate and complete, was repealed and restated in section 2410 of this title by Pub. L. 100- 370, Sec. 1(h)(2), (p)(4), July 19, 1988, 102 Stat. 847, 851. REPORT TO CONGRESS BY SECRETARY OF DEFENSE; CHANGES IN POLICY OR REGULATIONS CONCERNING USE OF PRIVATE CONTRACTORS FOR COMMERCIAL OR INDUSTRIAL TYPE FUNCTION AT DEPARTMENT OF DEFENSE INSTALLATIONS; RESTRICTIONS Pub. L. 95-485, title VIII, Sec. 814, Oct. 20, 1978, 92 Stat. 1625, directed the Secretary of Defense to report to the House and Senate Committees on Armed Services any proposed change in policy or regulations from those in effect before June 30, 1976, as to whether commercial or industrial functions at Defense Department installations in the United States, Puerto Rico, and Guam should be performed by Department of Defense personnel or by private contractors during the period Oct. 1, 1978 to Sept. 30, 1979; prohibited such functions to be performed privately unless such contractor performance began before Oct. 20, 1978 or performance would have been allowed by policy and regulations in effect before June 30, 1976; and provided that such prohibition would apply until the end of the 60 day period beginning on the date the report by the Secretary of Defense is received by the House and Senate Committees. REPORTING REQUIREMENTS FOR SECRETARY OF DEFENSE AND PRIME CONTRACTORS CONCERNING PAYMENTS BY PRIME CONTRACTORS FOR WORK PERFORMED BY SUBCONTRACTORS Pub. L. 95-111, title VIII, Sec. 836, Sept. 21, 1977, 91 Stat. 906, which directed the Secretary of Defense to require all prime contractors with more than $500,000 of defense contract awards to report in dollars at the end of each year the amount of work done in that year and the State where performed, and requiring the Secretary of Defense to report annually to Congress the amount of funds spent for such work in each State, was repealed and restated in subsec. (i) of this section by Pub. L. 97-295, Secs. 1(24)(C), 6(b), Oct. 12, 1982, 96 Stat. 1291, 1315. PERFORMANCE REVIEW OF DEPARTMENT OF DEFENSE COMMERCIAL OR INDUSTRIAL FUNCTIONS Pub. L. 95-79, title VIII, Sec. 809, July 30, 1977, 91 Stat. 334, directed the Secretary of Defense and the Director of the Office of Management and Budget to review criteria used in determining whether commercial or industrial type functions at Department of Defense installations within the United States, Puerto Rico, and Guam should be performed by Department of Defense personnel or by private contractors and to report to the House and Senate Armed Services Committees before Jan. 1, 1978, the results of the review; prohibited commercial or industrial type functions being performed on July 30, 1977 by Department of Defense personnel from being converted to performance by private contractors before the earlier of Mar. 15, 1978 or the end of the 90-day period beginning on the date the report is received by the House and Senate Committees; exempted from such prohibition the conversion to performance by private contractors of industrial or commercial type functions if the conversion would have been made under policies and regulations in effect before June 30, 1976; and required the Secretary of Defense to report to the House and Senate Committees on Armed Services before Jan. 1, 1978, detailing the Department's rationale for establishing goals for the percentage of work at defense research installations to be performed by private contractors and for any direction in effect on July 30, 1977 establishing a minimum or maximum percentage for the allocation of work at any defense research installation to be performed by private contractors or directing a change in any such allocation in effect on July 30, 1977. DISCRIMINATION IN PETROLEUM SUPPLIES TO ARMED FORCES PROHIBITED; ENFORCEMENT PROCEDURE; PENALTIES; EXPIRATION Pub. L. 94-106, title VIII, Sec. 816, Oct. 7, 1975, 89 Stat. 540, as amended by Pub. L. 98-620, title IV, Sec. 402(8), Nov. 8, 1984, 98 Stat. 3357, provided a remedy for discrimination by citizens of nationals of the United States or corporations organized or operating within the United States, and by organizations controlled by them, against the Department of Defense in the supply of petroleum products for two years after Oct. 7, 1975. ANNOUNCEMENTS OF AWARD OF CONTRACTS BY DEPARTMENT OF DEFENSE; DISCLOSURE OF IDENTITY OF CONTRACTOR PRIOR TO ANNOUNCEMENT PROHIBITED Pub. L. 91-441, title V, Sec. 507, Oct. 7, 1970, 84 Stat. 913, which had provided that the identity or location of a recipient of a contract from the Department of Defense may not be revealed prior to the public announcement of such identity by the Secretary of Defense, was repealed and restated in section 2316 of this title by Pub. L. 97-295, Secs. 1(26)(A), 6(b), Oct. 12, 1982, 96 Stat. 1291, 1314. AWARD OF CONTRACTS THROUGH FORMAL ADVERTISING AND COMPETITIVE BIDDING WHERE PRACTICABLE Pub. L. 90-5, title III, Sec. 304, Mar. 16, 1967, 81 Stat. 6, which had provided that the Secretary of Defense was directed, insofar as practicable, that all contracts be formally advertised and awarded on a competitive bid basis to the lowest responsible bidder, was repealed and restated in subsec. (a) of this section by Pub. L. 97-295, Secs. 1(24)(A), 6(b), Oct. 12, 1982, 96 Stat. 1290, 1314. NON-APPLICABILITY OF NATIONAL EMERGENCIES ACT Provisions of the National Emergencies Act not applicable to the powers and authorities conferred by subsec. (a)(1) of this section and actions taken hereunder, see section 1651(a)(5) of Title 50, War and National Defense. -End- -CITE- 10 USC Sec. 2304a 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2304a. Task and delivery order contracts: general authority -STATUTE- (a) Authority To Award. - Subject to the requirements of this section, section 2304c of this title, and other applicable law, the head of an agency may enter into a task or delivery order contract (as defined in section 2304d of this title) for procurement of services or property. (b) Solicitation. - The solicitation for a task or delivery order contract shall include the following: (1) The period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option, if any. (2) The maximum quantity or dollar value of the services or property to be procured under the contract. (3) A statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract. (c) Applicability of Restriction on Use of Noncompetitive Procedures. - The head of an agency may use procedures other than competitive procedures to enter into a task or delivery order contract under this section only if an exception in subsection (c) of section 2304 of this title applies to the contract and the use of such procedures is approved in accordance with subsection (f) of such section. (d) Single and Multiple Contract Awards. - (1) The head of an agency may exercise the authority provided in this section - (A) to award a single task or delivery order contract; or (B) if the solicitation states that the head of the agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to two or more sources. (2) No determination under section 2304(b) of this title is required for award of multiple task or delivery order contracts under paragraph (1)(B). (3)(A) No task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source unless the head of the agency determines in writing that - (i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work; (ii) the contract provides only for firm, fixed price task orders or delivery orders for - (I) products for which unit prices are established in the contract; or (II) services for which prices are established in the contract for the specific tasks to be performed; (iii) only one source is qualified and capable of performing the work at a reasonable price to the government; or (iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source. (B) The head of the agency shall notify Congress within 30 days after any determination under subparagraph (A)(iv). (4) The regulations implementing this subsection shall - (A) establish a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property under the authority of paragraph (1)(B); and (B) establish criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government. (e) Contract Modifications. - A task or delivery order may not increase the scope, period, or maximum value of the task or delivery order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract. (f) Contract Period. - The head of an agency entering into a task or delivery order contract under this section may provide for the contract to cover any period up to five years and may extend the contract period for one or more successive periods pursuant to an option provided in the contract or a modification of the contract. The total contract period as extended may not exceed 10 years unless such head of an agency determines in writing that exceptional circumstances necessitate a longer contract period. (g) Inapplicability to Contracts for Advisory and Assistance Services. - Except as otherwise specifically provided in section 2304b of this title, this section does not apply to a task or delivery order contract for the procurement of advisory and assistance services (as defined in section 1105(g) of title 31). (h) Relationship to Other Contracting Authority. - Nothing in this section may be construed to limit or expand any authority of the head of an agency or the Administrator of General Services to enter into schedule, multiple award, or task or delivery order contracts under any other provision of law. -SOURCE- (Added Pub. L. 103-355, title I, Sec. 1004(a)(1), Oct. 13, 1994, 108 Stat. 3249; amended Pub. L. 108-136, div. A, title VIII, Sec. 843(b), Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108-375, div. A, title VIII, Sec. 813(a), Oct. 28, 2004, 118 Stat. 2014; Pub. L. 110- 181, div. A, title VIII, Sec. 843(a)(1), Jan. 28, 2008, 122 Stat. 236.) -COD- CODIFICATION Another section 2304a was renumbered section 2304e of this title. -MISC1- AMENDMENTS 2008 - Subsec. (d)(3), (4). Pub. L. 110-181 added par. (3) and redesignated former par. (3) as (4). 2004 - Subsec. (f). Pub. L. 108-375 substituted "any period up to five years and may extend the contract period for one or more successive periods pursuant to an option provided in the contract or a modification of the contract. The total contract period as extended may not exceed 10 years unless such head of an agency determines in writing that exceptional circumstances necessitate a longer contract period" for "a total period of not more than five years". 2003 - Subsecs. (f) to (h). Pub. L. 108-136 added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively. EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110-181, div. A, title VIII, Sec. 843(a)(3)(A), Jan. 28, 2008, 122 Stat. 237, provided that: "The amendments made by paragraph (1) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 28, 2008], and shall apply with respect to any contract awarded on or after such date." EFFECTIVE DATE For effective date and applicability of section, see section 10001 of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note under section 251 of Title 41, Public Contracts. PROVISIONS NOT AFFECTED BY PUB. L. 103-355 Section 1004(d) of Pub. L. 103-355, as amended by Pub. L. 108- 136, div. A, title X, Sec. 1045(f), Nov. 24, 2003, 117 Stat. 1613, provided that: "Nothing in section 2304a, 2304b, 2304c, or 2304d of title 10, United States Code, as added by subsection (a), and nothing in the amendments made by subsections (b) and (c) [amending sections 2304 and 2331 of this title], shall be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under chapter 11 of title 40, United States Code." -End- -CITE- 10 USC Sec. 2304b 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2304b. Task order contracts: advisory and assistance services -STATUTE- (a) Authority To Award. - (1) Subject to the requirements of this section, section 2304c of this title, and other applicable law, the head of an agency may enter into a task order contract (as defined in section 2304d of this title) for procurement of advisory and assistance services. (2) The head of an agency may enter into a task order contract for procurement of advisory and assistance services only under the authority of this section. (b) Limitation on Contract Period. - The period of a task order contract entered into under this section, including all periods of extensions of the contract under options, modifications, or otherwise, may not exceed five years unless a longer period is specifically authorized in a law that is applicable to such contract. (c) Content of Notice. - The notice required by section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416) and section 8(e) of the Small Business Act (15 U.S.C. 637(e)) shall reasonably and fairly describe the general scope, magnitude, and duration of the proposed task order contract in a manner that would reasonably enable a potential offeror to decide whether to request the solicitation and consider submitting an offer. (d) Required Content of Solicitation and Contract. - (1) The solicitation for the proposed task order contract shall include the information (regarding services) described in section 2304a(b) of this title. (2) A task order contract entered into under this section shall contain the same information that is required by paragraph (1) to be included in the solicitation of offers for that contract. (e) Multiple Awards. - (1) The head of an agency may, on the basis of one solicitation, award separate task order contracts under this section for the same or similar services to two or more sources if the solicitation states that the head of the agency has the option to do so. (2) If, in the case of a task order contract for advisory and assistance services to be entered into under this section, the contract period is to exceed three years and the contract amount is estimated to exceed $10,000,000 (including all options), the solicitation shall - (A) provide for a multiple award authorized under paragraph (1); and (B) include a statement that the head of the agency may also elect to award only one task order contract if the head of the agency determines in writing that only one of the offerers is capable of providing the services required at the level of quality required. (3) Paragraph (2) does not apply in the case of a solicitation for which the head of the agency concerned determines in writing that, because the services required under the task order contract are unique or highly specialized, it is not practicable to award more than one contract. (f) Contract Modifications. - (1) A task order may not increase the scope, period, or maximum value of the task order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract. (2) Unless use of procedures other than competitive procedures is authorized by an exception in subsection (c) of section 2304 of this title and approved in accordance with subsection (f) of such section, competitive procedures shall be used for making such a modification. (3) Notice regarding the modification shall be provided in accordance with section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416) and section 8(e) of the Small Business Act (15 U.S.C. 637(e)). (g) Contract Extensions. - (1) Notwithstanding the limitation on the contract period set forth in subsection (b) or in a solicitation or contract pursuant to subsection (e), a task order contract entered into by the head of an agency under this section may be extended on a sole-source basis for a period not exceeding six months if the head of such agency determines that - (A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the initial contract was entered into; and (B) the extension is necessary in order to ensure continuity of the receipt of services pending the award of, and commencement of performance under, the follow-on contract. (2) A task order contract may be extended under the authority of paragraph (1) only once and only in accordance with the limitations and requirements of this subsection. (h) Inapplicability to Certain Contracts. - This section does not apply to a contract for the acquisition of property or services that includes acquisition of advisory and assistance services if the head of an agency entering into such contract determines that, under the contract, advisory and assistance services are necessarily incident to, and not a significant component of, the contract. (i) Advisory and Assistance Services Defined. - In this section, the term "advisory and assistance services" has the meaning given such term in section 1105(g) of title 31. -SOURCE- (Added Pub. L. 103-355, title I, Sec. 1004(a)(1), Oct. 13, 1994, 108 Stat. 3251.) -MISC1- EFFECTIVE DATE For effective date and applicability of section, see section 10001 of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note under section 251 of Title 41, Public Contracts. PROVISIONS NOT AFFECTED BY PUB. L. 103-355 This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103- 355, set out as a note under section 2304a of this title. WAIVERS TO EXTEND TASK ORDER CONTRACTS FOR ADVISORY AND ASSISTANCE SERVICES For authority of head of an agency to issue a waiver to extend a task order contract entered into under this section for a period not exceeding 10 years, through five one-year options, see section 834 of Pub. L. 109-364, set out as a note under section 253i of Title 41, Public Contracts. -End- -CITE- 10 USC Sec. 2304c 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2304c. Task and delivery order contracts: orders -STATUTE- (a) Issuance of Orders. - The following actions are not required for issuance of a task or delivery order under a task or delivery order contract: (1) A separate notice for such order under section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416) or section 8(e) of the Small Business Act (15 U.S.C. 637(e)). (2) Except as provided in subsection (b), a competition (or a waiver of competition approved in accordance with section 2304(f) of this title) that is separate from that used for entering into the contract. (b) Multiple Award Contracts. - When multiple task or delivery order contracts are awarded under section 2304a(d)(1)(B) or 2304b(e) of this title, all contractors awarded such contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of $2,500 that is to be issued under any of the contracts unless - (1) the agency's need for the services or property ordered is of such unusual urgency that providing such opportunity to all such contractors would result in unacceptable delays in fulfilling that need; (2) only one such contractor is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized; (3) the task or delivery order should be issued on a sole- source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or (4) it is necessary to place the order with a particular contractor in order to satisfy a minimum guarantee. (c) Statement of Work. - A task or delivery order shall include a statement of work that clearly specifies all tasks to be performed or property to be delivered under the order. (d) Enhanced Competition for Orders in Excess of $5,000,000. - In the case of a task or delivery order in excess of $5,000,000, the requirement to provide all contractors a fair opportunity to be considered under subsection (b) is not met unless all such contractors are provided, at a minimum - (1) a notice of the task or delivery order that includes a clear statement of the agency's requirements; (2) a reasonable period of time to provide a proposal in response to the notice; (3) disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating such proposals, and their relative importance; (4) in the case of an award that is to be made on a best value basis, a written statement documenting the basis for the award and the relative importance of quality and price or cost factors; and (5) an opportunity for a post-award debriefing consistent with the requirements of section 2305(b)(5) of this title. (e) Protests. - (1) A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for - (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $10,000,000. (2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B). (3) This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008. (f) Task and Delivery Order Ombudsman. - Each head of an agency who awards multiple task or delivery order contracts pursuant to section 2304a(d)(1)(B) or 2304b(e) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on such contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (b). The task and delivery order ombudsman shall be a senior agency official who is independent of the contracting officer for the contracts and may be the agency's competition advocate. (g) Applicability. - This section applies to task and delivery order contracts entered into under sections 2304a and 2304b of this title. -SOURCE- (Added Pub. L. 103-355, title I, Sec. 1004(a)(1), Oct. 13, 1994, 108 Stat. 3252; Pub. L. 110-181, div. A, title VIII, Sec. 843(a)(2), Jan. 28, 2008, 122 Stat. 237.) -REFTEXT- REFERENCES IN TEXT The date of the enactment of the National Defense Authorization Act for Fiscal Year 2008, referred to in subsec. (e)(3), is the date of enactment of Pub. L. 110-181, which was approved Jan. 28, 2008. -MISC1- AMENDMENTS 2008 - Subsec. (d). Pub. L. 110-181, Sec. 843(a)(2), added subsec. (d). Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 110-181, Sec. 843(a)(2)(C), which directed that subsec. (e) be added and former subsec. (e) "as redesignated by paragraph (1)" be struck out, was executed by adding subsec. (e) and striking out heading and text of former subsec. (e) as redesignated by section 843(a)(2)(A) of Pub. L. 110-181 to reflect the probable intent of Congress. See below. Former text read as follows: "A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued." Pub. L. 110-181, Sec. 843(a)(2)(A), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f). Subsecs. (f), (g). Pub. L. 110-181, Sec. 843(a)(2)(A), redesignated subsecs. (e) and (f) as (f) and (g), respectively. EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110-181, div. A, title VIII, Sec. 843(a)(3)(B), Jan. 28, 2008, 122 Stat. 238, provided that: "The amendments made by paragraph (2) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 28, 2008], and shall apply with respect to any task or delivery order awarded on or after such date." EFFECTIVE DATE For effective date and applicability of section, see section 10001 of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note under section 251 of Title 41, Public Contracts. PROVISIONS NOT AFFECTED BY PUB. L. 103-355 This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103- 355, set out as a note under section 2304a of this title. -End- -CITE- 10 USC Sec. 2304d 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2304d. Task and delivery order contracts: definitions -STATUTE- In sections 2304a, 2304b, and 2304c of this title: (1) The term "task order contract" means a contract for services that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity) and that provides for the issuance of orders for the performance of tasks during the period of the contract. (2) The term "delivery order contract" means a contract for property that does not procure or specify a firm quantity of property (other than a minimum or maximum quantity) and that provides for the issuance of orders for the delivery of property during the period of the contract. -SOURCE- (Added Pub. L. 103-355, title I, Sec. 1004(a)(1), Oct. 13, 1994, 108 Stat. 3253.) -MISC1- EFFECTIVE DATE For effective date and applicability of section, see section 10001 of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note under section 251 of Title 41, Public Contracts. PROVISIONS NOT AFFECTED BY PUB. L. 103-355 This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103- 355, set out as a note under section 2304a of this title. -End- -CITE- 10 USC Sec. 2304e 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2304e. Contracts: prohibition on competition between Department of Defense and small businesses and certain other entities -STATUTE- (a) Exclusion. - In any case in which the Secretary of Defense plans to use competitive procedures for a procurement, if the procurement is to be conducted as described in subsection (b), then the Secretary shall exclude the Department of Defense from competing in the procurement. (b) Procurement Description. - The requirement to exclude the Department of Defense under subsection (a) applies in the case of a procurement to be conducted by excluding from competition entities in the private sector other than - (1) small business concerns in furtherance of section 8 or 15 of the Small Business Act (15 U.S.C. 637 or 644); or (2) entities described in subsection (a)(1) of section 2323 of this title in furtherance of the goal specified in that subsection. -SOURCE- (Added Pub. L. 103-160, div. A, title VIII, Sec. 848(a)(1), Nov. 30, 1993, 107 Stat. 1724, Sec. 2304a; renumbered Sec. 2304e, Pub. L. 104-106, div. D, title XLIII, Sec. 4321(b)(6)(A), Feb. 10, 1996, 110 Stat. 672.) -MISC1- AMENDMENTS 1996 - Pub. L. 104-106 renumbered section 2304a of this title as this section. EFFECTIVE DATE Section 848(b) of Pub. L. 103-160 provided that: "Section 2304a [now 2304e] of title 10, United States Code, as added by subsection (a), shall take effect on the date of the enactment of this Act [Nov. 30, 1993]." -End- -CITE- 10 USC Sec. 2305 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2305. Contracts: planning, solicitation, evaluation, and award procedures -STATUTE- (a)(1)(A) In preparing for the procurement of property or services, the head of an agency shall - (i) specify the agency's needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement; (ii) use advance procurement planning and market research; and (iii) develop specifications in such manner as is necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired. (B) Each solicitation under this chapter shall include specifications which - (i) consistent with the provisions of this chapter, permit full and open competition; and (ii) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency or as authorized by law. (C) For the purposes of subparagraphs (A) and (B), the type of specification included in a solicitation shall depend on the nature of the needs of the agency and the market available to satisfy such needs. Subject to such needs, specifications may be stated in terms of - (i) function, so that a variety of products or services may qualify; (ii) performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or (iii) design requirements. (2) In addition to the specifications described in paragraph (1), a solicitation for sealed bids or competitive proposals (other than for a procurement for commercial items using special simplified procedures or a purchase for an amount not greater than the simplified acquisition threshold) shall at a minimum include - (A) a statement of - (i) all significant factors and significant subfactors which the head of the agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price- related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and (ii) the relative importance assigned to each of those factors and subfactors; and (B)(i) in the case of sealed bids - (I) a statement that sealed bids will be evaluated without discussions with the bidders; and (II) the time and place for the opening of the sealed bids; or (ii) in the case of competitive proposals - (I) either a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and (II) the time and place for submission of proposals. (3)(A) In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency - (i) shall clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror); (ii) shall include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and (iii) shall disclose to offerors whether all evaluation factors other than cost or price, when combined, are - (I) significantly more important than cost or price; (II) approximately equal in importance to cost or price; or (III) significantly less important than cost or price. (B) The regulations implementing clause (iii) of subparagraph (A) may not define the terms "significantly more important" and "significantly less important" as specific numeric weights that would be applied uniformly to all solicitations or a class of solicitations. (4) Nothing in this subsection prohibits an agency from - (A) providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or (B) stating in a solicitation that award will be made to the offeror that meets the solicitation's mandatory requirements at the lowest cost or price. (5) The head of an agency, in issuing a solicitation for a contract to be awarded using sealed bid procedures, may not include in such solicitation a clause providing for the evaluation of prices for options to purchase additional property or services under the contract unless the head of the agency has determined that there is a reasonable likelihood that the options will be exercised. (b)(1) The head of an agency shall evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation. (2) All sealed bids or competitive proposals received in response to a solicitation may be rejected if the head of the agency determines that such action is in the public interest. (3) Sealed bids shall be opened publicly at the time and place stated in the solicitation. The head of the agency shall evaluate the bids in accordance with paragraph (1) without discussions with the bidders and, except as provided in paragraph (2), shall award a contract with reasonable promptness to the responsible bidder whose bid conforms to the solicitation and is most advantageous to the United States, considering only price and the other price-related factors included in the solicitation. The award of a contract shall be made by transmitting, in writing or by electronic means, notice of the award to the successful bidder. Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded. (4)(A) The head of an agency shall evaluate competitive proposals in accordance with paragraph (1) and may award a contract - (i) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or (ii) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary. (B) If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subparagraph (A)(i) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with such criteria. (C) Except as provided in paragraph (2), the head of the agency shall award a contract with reasonable promptness to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation. The head of the agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to such source and, within three days after the date of contract award, shall notify, in writing or by electronic means, all other offerors of the rejection of their proposals. This subparagraph does not apply with respect to the award of a contract for the acquisition of perishable subsistence items. (5)(A) When a contract is awarded by the head of an agency on the basis of competitive proposals, an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award. The head of the agency shall debrief the offeror within, to the maximum extent practicable, five days after receipt of the request by the agency. (B) The debriefing shall include, at a minimum - (i) the agency's evaluation of the significant weak or deficient factors in the offeror's offer; (ii) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror; (iii) the overall ranking of all offers; (iv) a summary of the rationale for the award; (v) in the case of a proposal that includes a commercial item that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract; and (vi) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency. (C) The debriefing may not include point-by-point comparisons of the debriefed offeror's offer with other offers and may not disclose any information that is exempt from disclosure under section 552(b) of title 5. (D) Each solicitation for competitive proposals shall include a statement that information described in subparagraph (B) may be disclosed in post-award debriefings. (E) If, within one year after the date of the contract award and as a result of a successful procurement protest, the agency seeks to fulfill the requirement under the protested contract either on the basis of a new solicitation of offers or on the basis of new best and final offers requested for that contract, the agency shall make available to all offerors - (i) the information provided in debriefings under this paragraph regarding the offer of the contractor awarded the contract; and (ii) the same information that would have been provided to the original offerors. (6)(A) When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes such an offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within three days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award. The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as practicable but may refuse the request for a debriefing if it is not in the best interests of the Government to conduct a debriefing at that time. (B) The contracting officer is required to debrief an excluded offeror in accordance with paragraph (5) only if that offeror requested and was refused a preaward debriefing under subparagraph (A). (C) The debriefing conducted under subparagraph (A) shall include - (i) the executive agency's evaluation of the significant elements in the offeror's offer; (ii) a summary of the rationale for the offeror's exclusion; and (iii) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency. (D) The debriefing conducted under subparagraph (A) may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors' proposals. (7) The contracting officer shall include a summary of any debriefing conducted under paragraph (5) or (6) in the contract file. (8) The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract. (9) If the head of an agency considers that a bid or proposal evidences a violation of the antitrust laws, he shall refer the bid or proposal to the Attorney General for appropriate action. (c) The Secretary of Defense shall ensure that before a contract for the delivery of supplies to the Department of Defense is entered into - (1) when the appropriate officials of the Department are making an assessment of the most advantageous source for acquisition of the supplies (considering quality, price, delivery, and other factors), there is a review of the availability and cost of each item of supply - (A) through the supply system of the Department of Defense; and (B) under standard Government supply contracts, if the item is in a category of supplies defined under regulations of the Secretary of Defense as being potentially available under a standard Government supply contract; and (2) there is a review of both the procurement history of the item and a description of the item, including, when necessary for an adequate description of the item, a picture, drawing, diagram, or other graphic representation of the item. (d)(1)(A) The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a development contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in subparagraph (B). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system's required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror's price. (B) Proposals referred to in the first sentence of subparagraph (A) are the following: (i) Proposals to incorporate in the design of the major system items which are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source. (ii) With respect to items that are likely to be required in substantial quantities during the system's service life, proposals to incorporate in the design of the major system items which the United States will be able to acquire competitively in the future. (2)(A) The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a production contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in subparagraph (B). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system's required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror's price. (B) Proposals referred to in the first sentence of subparagraph (A) are proposals identifying opportunities to ensure that the United States will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals submitted in response to such requirement may include the following: (i) Proposals to provide to the United States the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the United States, if any, of acquiring such technical data and the right to use such data. (ii) Proposals for the qualification or development of multiple sources of supply for the item. (3) If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in paragraphs (1) and (2) to be considered in evaluating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. Such objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law. (4)(A) Whenever the head of an agency requires that proposals described in paragraph (1)(B) or (2)(B) be submitted by an offeror in its offer, the offeror shall not be required to provide a proposal that enables the United States to acquire competitively in the future an identical item if the item was developed exclusively at private expense unless the head of the agency determines that - (i) the original supplier of such item will be unable to satisfy program schedule or delivery requirements; or (ii) proposals by the original supplier of such item to meet the mobilization requirements are insufficient to meet the agency's mobilization needs. (B) In considering offers in response to a solicitation requiring proposals described in paragraph (1)(B) or (2)(B), the head of an agency shall base any evaluation of items developed exclusively at private expense on an analysis of the total value, in terms of innovative design, life-cycle costs, and other pertinent factors, of incorporating such items in the system. (e) Protest File. - (1) If, in the case of a solicitation for a contract issued by, or an award or proposed award of a contract by, the head of an agency, a protest is filed pursuant to the procedures in subchapter V of chapter 35 of title 31 and an actual or prospective offeror so requests, a file of the protest shall be established by the procuring activity and reasonable access shall be provided to actual or prospective offerors. (2) Information exempt from disclosure under section 552 of title 5 may be redacted in a file established pursuant to paragraph (1) unless an applicable protective order provides otherwise. (f) Agency Actions on Protests. - If, in connection with a protest, the head of an agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the agency - (1) may take any action set out in subparagraphs (A) through (F) of subsection (b)(1) of section 3554 of title 31; and (2) may pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits referred to in paragraph (2) of such section. (g) Prohibition on Release of Contractor Proposals. - (1) Except as provided in paragraph (2), a proposal in the possession or control of an agency named in section 2303 of this title may not be made available to any person under section 552 of title 5. (2) Paragraph (1) does not apply to any proposal that is set forth or incorporated by reference in a contract entered into between the Department and the contractor that submitted the proposal. (3) In this subsection, the term "proposal" means any proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. -SOURCE- (Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 85-861, Sec. 1(44), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 90-268, Sec. 3, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98-369, div. B, title VII, Sec. 2723(b), July 18, 1984, 98 Stat. 1191; Pub. L. 98-525, title XII, Sec. 1213(a), Oct. 19, 1984, 98 Stat. 2591; Pub. L. 99-145, title XIII, Sec. 1303(a)(14), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99-500, Sec. 101(c) [title X, Sec. 924(a), (b)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-153, and Pub. L. 99-591, Sec. 101(c) [title X, Sec. 924(a), (b)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-153; Pub. L. 99-661, div. A, title III, Sec. 313(b), title IX, formerly title IV, Sec. 924(a), (b), Nov. 14, 1986, 100 Stat. 3853, 3932, 3933, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100-456, div. A, title VIII, Sec. 806, Sept. 29, 1988, 102 Stat. 2010; Pub. L. 101-189, div. A, title VIII, Sec. 853(f), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 101-510, div. A, title VIII, Sec. 802(a)-(d), Nov. 5, 1990, 104 Stat. 1588, 1589; Pub. L. 103-160, div. A, title XI, Sec. 1182(a)(5), Nov. 30, 1993, 107 Stat. 1771; Pub. L. 103-355, title I, Secs. 1011-1016, title IV, Sec. 4401(b), Oct. 13, 1994, 108 Stat. 3254-3257, 3347; Pub. L. 104-106, div. D, title XLI, Secs. 4103(a), 4104(a), title XLII, Sec. 4202(a)(2), div. E, title LVI, Sec. 5601(a), Feb. 10, 1996, 110 Stat. 643, 644, 653, 699; Pub. L. 104-201, div. A, title VIII, Sec. 821(a), title X, Sec. 1074(a)(11), (b)(4)(A), Sept. 23, 1996, 110 Stat. 2609, 2659, 2660; Pub. L. 106-65, div. A, title VIII, Sec. 821, Oct. 5, 1999, 113 Stat. 714.) -MISC1- HISTORICAL AND REVISION NOTES 1956 ACT -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at section Large) -------------------------------------------------------------------- 2305(a) 41:152 (less clause (b)). Feb. 19, 1948, ch. 65, Secs. 2(d), 3, 62 Stat. 22. 2305(b) 41:152 (clause (b)). 2305(c) 41:151(d). -------------------------------------------------------------------- In subsection (a), the word "needed" is substituted for the words "necessary to meet the requirements". In subsection (b), the words "United States" are substituted for the word "Government". 1958 ACT -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at section Large) -------------------------------------------------------------------- 2305 41:152(c). Aug. 9, 1955, ch. 628, Sec. 15, 69 Stat. 551. -------------------------------------------------------------------- Reference to bids is omitted as surplusage (see opinion of the Judge Advocate General of the Army (JAGT 1956/9122, 21 Dec. 1956)). The word "attachments" is substituted for the words "material required". The words "the specifications in" are inserted in the second sentence for clarity. The word "available" is omitted as covered by the word "accessible." The words "no award may be made" are substituted for the words "and any award or awards made to any bidder in such case shall be invalidated and rejected". -COD- CODIFICATION Pub. L. 99-591 is a corrected version of Pub. L. 99-500. -MISC2- AMENDMENTS 1999 - Subsec. (g)(1). Pub. L. 106-65 substituted "an agency named in section 2303 of this title" for "the Department of Defense". 1996 - Subsec. (a)(2). Pub. L. 104-106, Sec. 4202(a)(2), inserted "a procurement for commercial items using special simplified procedures or" after "(other than for". Subsec. (b)(4)(B). Pub. L. 104-106, Sec. 4103(a)(3), added subpar. (B). Former subpar. (B) redesignated (C). Pub. L. 104-106, Sec. 4103(a)(1), transferred text of subpar. (C) to end of subpar. (B) and substituted "This subparagraph" for "Subparagraph (B)" at beginning of that text. Subsec. (b)(4)(C). Pub. L. 104-106, Sec. 4103(a)(2), redesignated subpar. (B) as (C). Pub. L. 104-106, Sec. 4103(a)(1), struck out "(C)" before "Subparagraph (B)" and transferred text of subpar. (C) to end of subpar. (B). Subsec. (b)(5)(F). Pub. L. 104-106, Sec. 4104(a)(1), struck out subpar. (F) which read as follows: "The contracting officer shall include a summary of the debriefing in the contract file." Subsec. (b)(6). Pub. L. 104-106, Sec. 4104(a)(3), added par. (6). Former par. (6) redesignated (9). Subsec. (b)(6)(B). Pub. L. 104-201, Sec. 1074(a)(11)(A), struck out "of this section" after "paragraph (5)" and "of this paragraph" after "subparagraph (A)". Subsec. (b)(6)(C). Pub. L. 104-201, Sec. 1074(a)(11)(B), substituted "subparagraph (A)" for "this subsection" in introductory provisions. Subsec. (b)(6)(D). Pub. L. 104-201, Sec. 1074(a)(11)(C), substituted "under subparagraph (A)" for "pursuant to this subsection". Subsec. (b)(7), (8). Pub. L. 104-106, Sec. 4104(a)(3), added pars. (7) and (8). Subsec. (b)(9). Pub. L. 104-106, Sec. 4104(a)(2), redesignated par. (6) as (9). Subsec. (e)(3). Pub. L. 104-106, Sec. 5601(a), as amended by Pub. L. 104-201, Sec. 1074(b)(4)(A), struck out par. (3) which read as follows: "Regulations implementing this subsection shall be consistent with the regulations regarding the preparation and submission of an agency's protest file (the so-called 'rule 4 file') for protests to the General Services Board of Contract Appeals under section 111 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 759)." Subsec. (g). Pub. L. 104-201, Sec. 821(a), added subsec. (g). 1994 - Subsec. (a)(2). Pub. L. 103-355, Sec. 4401(b), substituted "a purchase for an amount not greater than the simplified acquisition threshold)" for "small purchases)" in introductory provisions. Subsec. (a)(2)(A)(i). Pub. L. 103-355, Sec. 1011(a)(1), substituted "and significant subfactors" for "(and significant subfactors)" and "cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors" for "cost- or price-related factors, and noncost- or nonprice-related factors". Subsec. (a)(2)(A)(ii). Pub. L. 103-355, Sec. 1011(a)(2), substituted "and subfactors" for "(and subfactors)". Subsec. (a)(2)(B)(ii)(I). Pub. L. 103-355, Sec. 1011(a)(3), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: "a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), unless discussions are determined to be necessary; and". Subsec. (a)(3). Pub. L. 103-355, Sec. 1011(b), added par. (3) and struck out former par. (3), which read as follows: "In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency shall clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, and prior experience of the offeror)." Subsec. (a)(4). Pub. L. 103-355, Sec. 1011(b), added par. (4). Subsec. (a)(5). Pub. L. 103-355, Sec. 1012, added par. (5). Subsec. (b)(3). Pub. L. 103-355, Sec. 1013(a), substituted "transmitting, in writing or by electronic means, notice" for "transmitting written notice" and inserted at end "Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded." Subsec. (b)(4)(B). Pub. L. 103-355, Sec. 1013(b), substituted "transmitting, in writing or by electronic means, notice" for "transmitting written notice" and ", within three days after the date of contract award, shall notify, in writing or by electronic means," for "shall promptly notify". Subsec. (b)(5), (6). Pub. L. 103-355, Sec. 1014, added par. (5) and redesignated former par. (5) as (6). Subsec. (e). Pub. L. 103-355, Sec. 1015, added subsec. (e). Subsec. (f). Pub. L. 103-355, Sec. 1016, added subsec. (f). 1993 - Subsec. (b)(4)(A). Pub. L. 103-160 realigned margins of cls. (i) and (ii). 1990 - Subsec. (a)(2)(A)(i). Pub. L. 101-510, Sec. 802(a)(1), inserted "(and significant subfactors)" after "significant factors" and substituted "(including cost or price, cost- or price-related factors, and noncost- or nonprice-related factors)" for "(including cost or price)". Subsec. (a)(2)(A)(ii). Pub. L. 101-510, Sec. 802(a)(2), inserted "(and subfactors)" after "those factors". Subsec. (a)(2(B)(ii)(I). Pub. L. 101-510, Sec. 802(b), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: "a statement that the proposals are intended to be evaluated with, and awards made after, discussions with the offerors, but might be evaluated and awarded without discussions with the offerors; and". Subsec. (a)(3). Pub. L. 101-510, Sec. 802(c), substituted "the evaluation factors and subfactors, including the quality of the product or services" for "the quality of the services". Subsec. (b)(1). Pub. L. 101-510, Sec. 802(d)(1), inserted "and make an award" after "competitive proposals". Subsec. (b)(3). Pub. L. 101-510, Sec. 802(d)(2), inserted "in accordance with paragraph (1)" after "shall evaluate the bids". Subsec. (b)(4)(A). Pub. L. 101-510, Sec. 802(d)(3)(A), substituted "competitive proposals in accordance with paragraph (1)" for "competitive proposals" in introductory provisions, added cls. (i) and (ii), and struck out former cls. (i) and (ii) which read as follows: "(i) after discussions conducted with the offerors at any time after receipt of the proposals and before the award of the contract; or "(ii) without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) when it can be clearly demonstrated from the existence of full and open competition or accurate prior cost experience with the product or service that acceptance of an initial proposal without discussions would result in the lowest overall cost to the United States." Subsec. (b)(4)(B) to (E). Pub. L. 101-510, Sec. 802(d)(3)(B)-(D), redesignated subpars. (D) and (E) as (B) and (C), respectively, substituted "Subparagraph (B)" for "Subparagraph (D)" in subpar. (C), and struck out former subpars. (B) and (C) which read as follows: "(B) In the case of award of a contract under subparagraph (A)(i), the head of the agency shall conduct, before such award, written or oral discussions with all responsible sources who submit proposals within the competitive range, considering only cost or price and the other factors included in the solicitation. "(C) In the case of award of a contract under subparagraph (A)(ii), the head of the agency shall award the contract based on the proposals received (and as clarified, if necessary, in discussions conducted for the purpose of minor clarification)." 1989 - Subsec. (b)(4)(D). Pub. L. 101-189 inserted "cost or" after "considering only". 1988 - Subsec. (d)(1)(B). Pub. L. 100-456, Sec. 806(b), substituted "Proposals referred to in the first sentence of subparagraph (A) are" for "The proposals that the head of an agency is to consider requiring in a solicitation for the award of a development contract are". Subsec. (d)(2)(B). Pub. L. 100-456, Sec. 806(b), substituted "Proposals referred to in the first sentence of subparagraph (A) are" for "The proposals that the head of an agency is to consider requiring in a solicitation for the award of a production contract are". Subsec. (d)(3). Pub. L. 100-456, Sec. 806(a)(2), inserted provision that objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law. Subsec. (d)(4). Pub. L. 100-456, Sec. 806(a)(1), added par. (4). 1986 - Subsec. (a). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec. 924(a)], Pub. L. 99-661, Sec. 924(a), amended subsec. (a) identically, in par. (2)(A)(i) striking out "(including price)" after "factors" and inserting "(including price)" and "(including cost and price)" and adding par. (3). Subsec. (b)(4)(B). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec. 924(b)], Pub. L. 99-661, Sec. 924(b), amended subpar. (B) identically, inserting "cost or". Subsec. (b)(4)(E). Pub. L. 99-661, Sec. 313(b), added subpar. (E). 1985 - Subsec. (b)(5). Pub. L. 99-145 aligned the margin of par. (5). 1984 - Subsecs. (c), (d). Pub. L. 98-525 added subsecs. (c) and (d). Catchline, subsecs. (a) to (d). Pub. L. 98-369 substituted "Contracts: planning, solicitation, evaluation, and award procedures" for "Formal advertisements for bids; time; opening; award; rejection" and completely revised the text to substitute a program using solicitation requirements covering military procurement for former provisions which had used the approach of utilizing formal advertisements, struck out former provisions which had directed that, except in cases where the Secretary of Defense had determined that military requirements necessitated the specification of container size, no advertisement or invitation to bid for the carriage of government property in other than government-owned cargo containers could specify carriage of such property in cargo containers of any stated length, height, or width, and carried forward into new subsecs. (a)(1)(A)(iii), (B)(i), and (b)(2) and (5) the content of former section. 1968 - Subsec. (a). Pub. L. 90-268 inserted provision that, except in cases where the Secretary of Defense determines that military requirements necessitate such specification, no advertisement or invitation to bid for the carriage of Government property in other than Government-owned cargo containers shall specify carriage of such property in cargo containers of any stated length, height, or width. 1958 - Subsecs. (b) to (d). Pub. L. 85-861 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively. EFFECTIVE DATE OF 1996 AMENDMENT For effective date and applicability of amendment by sections 4103(a), 4104(a), and 4202(a)(2) of Pub. L. 104-106, see section 4401 of Pub. L. 104-106, set out as a note under section 251 of Title 41, Public Contracts. Amendment by section 5601(a) of Pub. L. 104-106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104-106, Feb. 10, 1996, 110 Stat. 702. 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 1990 AMENDMENT Section 802(e) of Pub. L. 101-510 provided that: "(1) Except as provided in paragraph (2), the amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 120-day period beginning on the date of the enactment of this Act [Nov. 5, 1990]. "(2) The Secretary of Defense may require the amendments made by this section to apply with respect to solicitations issued before the end of the period referred to in paragraph (1). The Secretary of Defense shall publish in the Federal Register notice of any such earlier effective date." EFFECTIVE DATE OF 1986 AMENDMENT Section 101(c) [title X, Sec. 924(c)] of Pub. L. 99-500 and Pub. L. 99-591, and section 924(c) of title IX, formerly title IV, of Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]." EFFECTIVE DATE OF 1984 AMENDMENTS Section 1213(b) of Pub. L. 98-525 provided that: "The amendment made by subsection (a) [amending this section] shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984]." Amendment by Pub. L. 98-369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98-369, set out as a note under section 251 of Title 41, Public Contracts. GUIDANCE ON USE OF TIERED EVALUATIONS OF OFFERS FOR CONTRACTS AND TASK ORDERS UNDER CONTRACTS Pub. L. 109-163, div. A, title VIII, Sec. 816, Jan. 6, 2006, 119 Stat. 3382, provided that: "(a) Guidance Required. - The Secretary of Defense shall prescribe guidance for the military departments and the Defense Agencies on the use of tiered evaluations of offers for contracts and for task or delivery orders under contracts. "(b) Elements. - The guidance prescribed under subsection (a) shall include a prohibition on the initiation by a contracting officer of a tiered evaluation of an offer for a contract or for a task or delivery order under a contract unless the contracting officer - "(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the award of such contract or task or delivery order under applicable law and regulations; "(2) is unable, after conducting market research under paragraph (1), to make the determination described in that paragraph; and "(3) includes in the contract file a written explanation of why such contracting officer was unable to make such determination." AUTHORIZATION OF EVALUATION FACTOR FOR DEFENSE CONTRACTORS EMPLOYING OR SUBCONTRACTING WITH MEMBERS OF THE SELECTED RESERVE OF THE RESERVE COMPONENTS OF THE ARMED FORCES Pub. L. 109-163, div. A, title VIII, Sec. 819, Jan. 6, 2006, 119 Stat. 3385, provided that: "(a) Defense Contracts. - In awarding any contract for the procurement of goods or services to an entity, the Secretary of Defense is authorized to use as an evaluation factor whether the entity intends to carry out the contract using employees or individual subcontractors who are members of the Selected Reserve of the reserve components of the Armed Forces. "(b) Documentation of Selected Reserve-Related Evaluation Factor. - Any entity claiming intent to carry out a contract using employees or individual subcontractors who are members of the Selected Reserve of the reserve components of the Armed Forces shall submit proof of the use of such employees or subcontractors for the Department of Defense to consider in carrying out subsection (a) with respect to that contract. "(c) Regulations. - The Federal Acquisition Regulation shall be revised as necessary to implement this section." CERTIFICATE OF COMPETENCY REQUIREMENTS Pub. L. 102-484, div. A, title VIII, Sec. 804, Oct. 23, 1992, 106 Stat. 2447, provided that, in case of contract to be entered into pursuant to this chapter, other than pursuant to simplified procedures under section 2304(g) of this title, solicitation was to contain notice of right of bidding small business concern, in case of determination by contracting officer that concern was nonresponsible, to request Small Business Administration to make determination of responsibility under section 637(b)(7) of Title 15, Commerce and Trade, that if contracting officer determined that concern was nonresponsible, such officer was to notify concern in writing, of such determination, that concern had right to request Small Business Administration to make determination, and that, if concern desired to request such determination, concern was to inform officer in writing, within 14 days after receipt of notice, of such desire, and that, after being so informed, officer was to transmit request to Administration, or, if not so informed, officer was to proceed with award of contract, and contained provisions relating to effective and termination dates and report to be submitted to Congress, prior to repeal by Pub. L. 103-355, title VII, Sec. 7101(b), Oct. 13, 1994, 108 Stat. 3367. CONSTRUCTION OF 1984 AMENDMENT Amendment by Pub. L. 98-369 as not superseding or affecting the provisions of section 637(a) of Title 15, Commerce and Trade, see section 2723(c) of Pub. L. 98-369, set out as a note under section 2304 of this title. -End- -CITE- 10 USC Sec. 2305a 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2305a. Design-build selection procedures -STATUTE- (a) Authorization. - Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (b) that the procedures are appropriate for use. (b) Criteria for Use. - A contracting officer shall make a determination whether two-phase selection procedures are appropriate for use for entering into a contract for the design and construction of a public building, facility, or work when the contracting officer anticipates that three or more offers will be received for such contract, design work must be performed before an offeror can develop a price or cost proposal for such contract, the offeror will incur a substantial amount of expense in preparing the offer, and the contracting officer has considered information such as the following: (1) The extent to which the project requirements have been adequately defined. (2) The time constraints for delivery of the project. (3) The capability and experience of potential contractors. (4) The suitability of the project for use of the two-phase selection procedures. (5) The capability of the agency to manage the two-phase selection process. (6) Other criteria established by the agency. (c) Procedures Described. - Two-phase selection procedures consist of the following: (1) The agency develops, either in-house or by contract, a scope of work statement for inclusion in the solicitation that defines the project and provides prospective offerors with sufficient information regarding the Government's requirements (which may include criteria and preliminary design, budget parameters, and schedule or delivery requirements) to enable the offerors to submit proposals which meet the Government's needs. If the agency contracts for development of the scope of work statement, the agency shall contract for architectural and engineering services as defined by and in accordance with chapter 11 of title 40. (2) The contracting officer solicits phase-one proposals that - (A) include information on the offeror's - (i) technical approach; and (ii) technical qualifications; and (B) do not include - (i) detailed design information; or (ii) cost or price information. (3) The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include specialized experience and technical competence, capability to perform, past performance of the offeror's team (including the architect- engineer and construction members of the team) and other appropriate factors, except that cost-related or price-related evaluation factors are not permitted. Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals. The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation. (4) The contracting officer selects as the most highly qualified the number of offerors specified in the solicitation to provide the property or services under the contract and requests the selected offerors to submit phase-two competitive proposals that include technical proposals and cost or price information. Each solicitation establishes with respect to phase two - (A) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work (or both), and (B) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with paragraphs (2), (3), and (4) of section 2305(a) of this title. The contracting officer separately evaluates the submissions described in subparagraphs (A) and (B). (5) The agency awards the contract in accordance with section 2305(b)(4) of this title. (d) Solicitation to State Number of Offerors To Be Selected for Phase Two Requests for Competitive Proposals. - A solicitation issued pursuant to the procedures described in subsection (c) shall state the maximum number of offerors that are to be selected to submit competitive proposals pursuant to subsection (c)(4). The maximum number specified in the solicitation shall not exceed 5 unless the agency determines with respect to an individual solicitation that a specified number greater than 5 is in the Government's interest and is consistent with the purposes and objectives of the two-phase selection process. (e) Requirement for Guidance and Regulations. - The Federal Acquisition Regulation shall include guidance - (1) regarding the factors that may be considered in determining whether the two-phase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations; (2) regarding the factors that may be used in selecting contractors; and (3) providing for a uniform approach to be used Government- wide. (f) Special Authority for Military Construction Projects. - (1) The Secretary of a military department may use funds available to the Secretary under section 2807(a) or 18233(e) of this title to accelerate the design effort in connection with a military construction project for which the two-phase selection procedures described in subsection (c) are used to select the contractor for both the design and construction portion of the project before the project is specifically authorized by law and before funds are appropriated for the construction portion of the project. Notwithstanding the limitations contained in such sections, use of such funds for the design portion of a military construction project may continue despite the subsequent authorization of the project. The advance notice requirement of section 2807(b) of this title shall continue to apply whenever the estimated cost of the design portion of the project exceeds the amount specified in such section. (2) Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience before funds are first made available for construction may not exceed an amount attributable to the final design of the project. (3) For each fiscal year during which the authority provided by this subsection is in effect, the Secretary of a military department may select not more than two military construction projects to include the accelerated design effort authorized by paragraph (1) for each armed force under the jurisdiction of the Secretary. To be eligible for selection under this subsection, a request for the authorization of the project, and for the authorization of appropriations for the project, must have been included in the annual budget of the President for a fiscal year submitted to Congress under section 1105(a) of title 31. (4) Not later than March 1, 2008, the Secretary of Defense shall submit to the congressional defense committees a report evaluating the usefulness of the authority provided by this subsection in expediting the design and construction of military construction projects. The authority provided by this subsection expires September 30, 2008, except that, if the report required by this paragraph is not submitted by March 1, 2008, the authority shall expire on that date. -SOURCE- (Added Pub. L. 104-106, div. D, title XLI, Sec. 4105(a)(1), Feb. 10, 1996, 110 Stat. 645; amended Pub. L. 105-85, div. A, title X, Sec. 1073(a)(44), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 107-217, Sec. 3(b)(4), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108-178, Sec. 4(b)(3), Dec. 15, 2003, 117 Stat. 2641; Pub. L. 108-375, div. B, title XXVIII, Sec. 2807, Oct. 28, 2004, 118 Stat. 2123; Pub. L. 109- 163, div. B, title XXVIII, Sec. 2807, Jan. 6, 2006, 119 Stat. 3508.) -MISC1- PRIOR PROVISIONS A prior section 2305a was renumbered section 2438 of this title. AMENDMENTS 2006 - Subsec. (f)(2). Pub. L. 109-163, Sec. 2807(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience may not exceed the actual costs incurred as of the termination date." Subsec. (f)(4). Pub. L. 109-163, Sec. 2807(b), substituted "2008" for "2007" wherever appearing. 2004 - Subsec. (f). Pub. L. 108-375 added subsec. (f). 2003 - Subsec. (c)(1). Pub. L. 108-178 substituted "chapter 11 of title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)". 2002 - Subsec. (a). Pub. L. 107-217 substituted "chapter 11 of title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)". 1997 - Subsec. (a). Pub. L. 105-85 substituted "(40 U.S.C." for "(41 U.S.C.". EFFECTIVE DATE OF 2003 AMENDMENT Amendment by Pub. L. 108-178 effective Aug. 21, 2002, see section 5 of Pub. L. 108-178, set out as a note under section 5334 of Title 5, Government Organization and Employees. EFFECTIVE DATE For effective date and applicability of section, see section 4401 of Pub. L. 104-106, set out as an Effective Date of 1996 Amendment note under section 251 of Title 41, Public Contracts. -End- -CITE- 10 USC Sec. 2306 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2306. Kinds of contracts -STATUTE- (a) The cost-plus-a-percentage-of-cost system of contracting may not be used. Subject to the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into any kind of contract that he considers will promote the best interests of the United States. (b) Each contract awarded under this chapter after using procedures other than sealed-bid procedures shall contain a warranty, determined to be suitable by the head of the agency, that the contractor has employed or retained no person or selling agency to solicit or obtain the contract under an understanding or agreement for a commission, percentage, brokerage, or contingent fee, except a bona fide employee or established commercial or selling agency maintained by him to obtain business. If a contractor breaks such a warranty the United States may annul the contract without liability or may deduct the commission, percentage, brokerage, or contingent fee from the contract price or consideration. This subsection does not apply to a contract that is for an amount not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items. [(c) Repealed. Pub. L. 103-355, title I, Sec. 1021, Oct. 13, 1994, 108 Stat. 3257.] (d) The fee for performing a cost-plus-a-fixed-fee contract for experimental, developmental, or research work may not be more than 15 percent of the estimated cost of the contract, not including the fee. The fee for performing a cost-plus-a-fixed-fee contract for architectural or engineering services for a public work or utility plus the cost of those services to the contractor may not be more than 6 percent of the estimated cost of that work or project, not including fees. The fee for performing any other cost-plus-a-fixed- fee contract may not be more than 10 percent of the estimated cost of the contract, not including the fee. Determinations under this subsection of the estimated costs of a contract or project shall be made by the head of the agency at the time the contract is made. (e)(1) Except as provided in paragraph (2), each cost contract and each cost-plus-a-fixed-fee contract shall provide for notice to the agency by the contractor before the making, under the prime contract, of - (A) a cost-plus-a-fixed-fee subcontract; or (B) a fixed-price subcontract or purchase order involving more than the greater of (i) the simplified acquisition threshold, or (ii) 5 percent of the estimated cost of the prime contract. (2) Paragraph (1) shall not apply to a prime contract with a contractor that maintains a purchasing system approved by the contracting officer for the contract. (f) So-called "truth-in-negotiations" provisions relating to cost or pricing data to be submitted by certain contractors and subcontractors are provided in section 2306a of this title. (g) Multiyear contracting authority for the acquisition of services is provided in section 2306c of this title. (h) Multiyear contracting authority for the purchase of property is provided in section 2306b of this title. -SOURCE- (Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 87-653, Sec. 1(d), (e), Sept. 10, 1962, 76 Stat. 528; Pub. L. 90-378, Sec. 1, July 5, 1968, 82 Stat. 289; Pub. L. 90-512, Sept. 25, 1968, 82 Stat. 863; Pub. L. 96-513, title V, Sec. 511(77), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97-86, title IX, Secs. 907(b), 909(b), Dec. 1, 1981, 95 Stat. 1117, 1118; Pub. L. 98-369, div. B, title VII, Sec. 2724, July 18, 1984, 98 Stat. 1192; Pub. L. 99-145, title XIII, Sec. 1303(a)(15), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99-500, Sec. 101(c) [title X, Sec. 952(b)(1), (c)(1)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-169, and Pub. L. 99-591, Sec. 101(c) [title X, Sec. 952(b)(1), (c)(1)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-169; Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 952(b)(1), (c)(1), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101-189, div. A, title VIII, Sec. 805(a), Nov. 29, 1989, 103 Stat. 1488; Pub. L. 101-510, div. A, title VIII, Sec. 808, Nov. 5, 1990, 104 Stat. 1593; Pub. L. 102-25, title VII, Sec. 701(d)(3), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103-355, title I, Secs. 1021, 1022(b), title IV, Secs. 4102(b), 4401(c), title VIII, Sec. 8105(a), Oct. 13, 1994, 108 Stat. 3257, 3260, 3340, 3348, 3392; Pub. L. 105-85, div. A, title X, Sec. 1073(a)(45), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 802(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-205; Pub. L. 108-136, div. A, title VIII, Sec. 842, Nov. 24, 2003, 117 Stat. 1552.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at section Large) -------------------------------------------------------------------- 2306(a) 41:153(a) (1st sentence). Feb. 19, 1948, ch. 65, Sec. 4 (less words after semicolon of last sentence of (b), and less (c)), 62 Stat. 23. 2306(b) 41:153(b) (1st 14 words of 1st sentence). 41:153(a) (less 1st sentence). 2306(c) 41:153(b) (2d sentence). 2306(d) 41:153(b) (1st sentence, less 1st 14 words). 2306(e) 41:153(b) (less 1st and 2d sentences; and less words after semicolon of last sentence). -------------------------------------------------------------------- In subsection (a), the words "subject to subsections (b)-(e)" are substituted for the words "Except as provided in subsection (b) of this section". The words "United States" are substituted for the word "Government". In subsection (b), the words "under section 2304 of this title" are substituted for the words "pursuant to section 151(c) of this title". The words "full amount of such" and "violation" are omitted as surplusage. In subsection (c), the words "under section 2304 of this title" are inserted for clarity. -COD- CODIFICATION Pub. L. 99-591 is a corrected version of Pub. L. 99-500. -MISC2- PRIOR PROVISIONS Provisions similar to those in subsec. (h)(11) of this section were contained in Pub. L. 100-526, title I, Sec. 104(a), Oct. 24, 1988, 102 Stat. 2624, which was set out below, prior to repeal by Pub. L. 101-189, Sec. 805(b). AMENDMENTS 2003 - Subsec. (e). Pub. L. 108-136 substituted "(1) Except as provided in paragraph (2), each" for "Each", redesignated former pars. (1) and (2) as subpars. (A) and (B) of par. (1), respectively, redesignated cls. (A) and (B) of former par. (2) as cls. (i) and (ii) of subpar. (B) of par. (1), respectively, and added par. (2). 2000 - Subsec. (g). Pub. L. 106-398 amended subsec. (g) generally. Prior to amendment, subsec. (g) consisted of pars. (1) to (3) authorizing the head of an agency to enter into contracts for periods of not more than five years for certain types of services. 1997 - Subsec. (h). Pub. L. 105-85 inserted "for the purchase of property" after "Multiyear contracting authority". 1994 - Subsec. (b). Pub. L. 103-355, Secs. 4102(b), 8105(a), inserted at end "This subsection does not apply to a contract that is for an amount not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items." Subsec. (c). Pub. L. 103-355, Sec. 1021, struck out subsec. (c) which read as follows: "No cost contract, cost-plus-a-fixed-fee contract, or incentive contract may be made under this chapter unless the head of the agency determines that such a contract is likely to be less costly to the United States than any other kind of contract or that it is impracticable to obtain property or services of the kind or quality required except under such a contract." Subsec. (e)(2)(A). Pub. L. 103-355, Sec. 4401(c), substituted "simplified acquisition threshold" for "small purchase threshold". Subsec. (h). Pub. L. 103-355, Sec. 1022(b), amended subsec. (h) generally. Prior to amendment, subsec. (h) related to requirements for multiyear contracts for purchase of property, including weapon systems and items and services associated with weapons systems. 1991 - Subsec. (e)(2)(A). Pub. L. 102-25 substituted "the small purchase threshold" for "the small purchase amount under section 2304(g) of this title". 1990 - Subsec. (h)(1). Pub. L. 101-510, Sec. 808(a), struck out "(other than contracts described in paragraph (6))" after "multiyear contracts" in introductory provisions and substituted "substantial savings of the total anticipated costs of carrying out the program through annual contracts" for "reduced total costs under the contract" in subpar. (A). Subsec. (h)(6). Pub. L. 101-510, Sec. 808(b), struck out "contracts for the construction, alteration, or major repair of improvements to real property or" after "not apply to". Subsec. (h)(9). Pub. L. 101-510, Sec. 808(c)(1), inserted "for a defense acquisition program that has been specifically authorized by law to be carried out using multiyear contract authority" after "under this subsection" in introductory provisions. Subsec. (h)(9)(C). Pub. L. 101-510, Sec. 808(c)(2), struck out subpar. (C) which read as follows: "The proposed multiyear contract - "(i) achieves a 10 percent savings as compared to the cost of current negotiated contracts, adjusted for changes in quantity and for inflation; or "(ii) achieves a 10 percent savings as compared to annual contracts if no recent contract experience exists." 1989 - Subsec. (h)(9) to (11). Pub. L. 101-189 added pars. (9) to (11). 1986 - Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec. 952(c)(1)], Pub. L. 99-661, Sec. 952(c)(1), amended section identically, striking out ": cost or pricing data: truth in negotiation" after "contracts" in section catchline. Subsec. (f). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec. 952(b)(1)], Pub. L. 99-661, Sec. 952(b)(1), amended generally subsec. (f) identically, substituting provision that "truth-in- negotiations" provisions relating to cost and pricing data for contractors and subcontractors are provided in section 2306a of this title for provision relating to certification by contractors and subcontractors on cost and pricing data, circumstances under which such certification will be required, circumstances under which such certification, although not required, may be requested, and evaluation of the accuracy of the data submitted. 1985 - Subsec. (a). Pub. L. 99-145, Sec. 1303(a)(15)(A), inserted a period at end. Subsec. (b). Pub. L. 99-145, Sec. 1303(a)(15)(B), struck out "of this title" before "shall contain". 1984 - Pub. L. 98-369, Sec. 2724(f), substituted "Kinds of contracts; cost or pricing data: truth in negotiation" for "Kinds of contracts" in section catchline. Subsec. (a). Pub. L. 98-369, Sec. 2724(a), substituted "the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into" for "this limitation and subject to subsections (b)-(f), the head of any agency may, in negotiating contracts under section 2304 of this title, make". Subsec. (b). Pub. L. 98-369, Sec. 2724(b), substituted "awarded under this chapter after using procedures other than sealed-bid procedures" for "negotiated under section 2304". Subsec. (c). Pub. L. 98-369, Sec. 2724(c), substituted "this chapter" for "section 2304 of this title,". Subsec. (e)(2). Pub. L. 98-369, Sec. 2724(d), substituted "the greater of (A) the small purchase amount under section 2304(g) of this title, or (B)" for "$25,000 or". Subsec. (f)(1). Pub. L. 98-369, Sec. 2724(e)(A)(i), (ii), substituted "such contractor's or subcontractor's" for "his" and struck out "he" before "submitted was accurate" in provisions preceding subpar. (A). Subsec. (f)(1)(A). Pub. L. 98-369, Sec. 2724(3)(A)(iii), (vi), (vii), substituted "prime contract under this chapter entered into after using procedures other than sealed-bid procedures, if" for "negotiated prime contract under this title where", "$100,000" for "$500,000", and "before" for "prior to". Subsec. (f)(1)(B). Pub. L. 98-369, Sec. 2724(e)(A)(iv), (vi), (vii), substituted "if" for "for which", "$100,000" for "$500,000", and "before" for "prior to". Subsec. (f)(1)(C). Pub. L. 98-369, Sec. 2724(e)(A)(v)-(vii), substituted "when" for "where", "$100,000" for "$500,000", and "before" for "prior to". Subsec. (f)(1)(D). Pub. L. 98-369, Sec. 2724(e)(A)(iv), (vi), (vii), substituted "if" for "for which", "$100,000" for "$500,000", and "before" for "prior to". Subsec. (f)(2). Pub. L. 98-369, Sec. 2724(e)(B), (D), (E), struck out "negotiated" before "price as is practicable" and before "is based on adequate price competition", redesignated as par. (3) the proviso formerly set out in this par., and as part of the redesignation substituted a period for ": Provided, That" after "or noncurrent". Subsec. (f)(3). Pub. L. 98-369, Sec. 2724(e)(E), designated as par. (3) the proviso formerly set out in par. (2). Former par. (3) redesignated (5). Subsec. (f)(4). Pub. L. 98-369, Sec. 2724(e)(F), added par. (4). Subsec. (f)(5). Pub. L. 98-369, Sec. 2724(e)(C), redesignated former par. (3) as (5) and substituted "proposal for the contract, the discussions conducted on the proposal" for "negotiation". 1981 - Subsec. (f)(1). Pub. L. 97-86, Sec. 907(b), substituted "$500,000" for "$100,000" in subpars. (A) to (D). Subsec. (g)(1). Pub. L 97-86, Sec. 909(b)(1), struck out "to be performed outside the forty-eight contiguous States and the District of Columbia" after "(and items of supply related to such services)" in provisions preceding subpar. (A). Subsec. (h). Pub. L. 97-86, Sec. 909(b)(2), added subsec. (h). 1980 - Subsec. (f). Pub. L. 96-513, Sec. 511(77)(A), designated existing provisions as pars. (1) to (3) and in par. (1), as so designated, substituted "(A)" to "(D)" for "(1)" to "(4)", respectively, "prior" for "Prior" wherever appearing, and "clause (C)" for "(3) above". Subsec. (g). Pub. L. 96-513, Sec. 511(77)(B), in par. (1) substituted "that - " for "that:", in par. (2) substituted "(A) The" for "(A) the", "(B) Consideration" for "(B) consideration", and "(C) Consideration" for "(C) consideration", and in par. (3) substituted "from - " for "from:". 1968 - Subsec. (f). Pub. L. 90-512 inserted last par. Subsec. (g). Pub. L. 90-378 added subsec. (g). 1962 - Subsec. (a). Pub. L. 87-653, Sec. 1(d), substituted "subsections (b)-(f)" for "subsections (b)-(e)". Subsec. (f). Pub. L. 87-653, Sec. 1(e), added subsec. (f). 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 1986 AMENDMENT Amendment by section 101(c) [title X, Sec. 952(b)(1)] of Pub. L. 99-500 and Pub. L. 99-591, and section 952(b)(1) of Pub. L. 99-661 applicable with respect to contracts or modifications on contracts entered into after end of 120-day period beginning Oct. 18, 1986, see section 101(c) of Pub. L. 99-500 and Pub. L. 99-591, and section 952(d) of Pub. L. 99-661, set out as a note under section 2306a of this title. 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 1962 AMENDMENT For effective date of amendment by Pub. L. 87-653 see section 1(h) of Pub. L. 87-653, set out as a note under section 2304 of this title. TRANSITION PROVISION Section 805(c) of Pub. L. 101-189 provided that: "Subparagraph (C) of paragraph (9) of section 2306(h) of title 10, United States Code, as added by subsection (a), does not apply to programs that are under a multiyear contract on the date of the enactment of this Act [Nov. 29, 1989]." DETERMINATION OF CONTRACT TYPE FOR DEVELOPMENT PROGRAMS Pub. L. 109-364, div. A, title VIII, Sec. 818(b)-(e), Oct. 17, 2006, 120 Stat. 2329, 2330, provided that: "(b) Modification of Regulations. - Not later than 120 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall modify the regulations of the Department of Defense regarding the determination of contract type for development programs. "(c) Elements. - As modified under subsection (b), the regulations shall require the Milestone Decision Authority for a major defense acquisition program to select the contract type for a development program at the time of a decision on Milestone B approval (or Key Decision Point B approval in the case of a space program) that is consistent with the level of program risk for the program. The Milestone Decision Authority may select - "(1) a fixed-price type contract (including a fixed price incentive contract); or "(2) a cost type contract. "(d) Conditions With Respect to Authorization of Cost Type Contract. - As modified under subsection (b), the regulations shall provide that the Milestone Decision Authority may authorize the use of a cost type contract under subsection (c) for a development program only upon a written determination that - "(1) the program is so complex and technically challenging that it would not be practicable to reduce program risk to a level that would permit the use of a fixed-price type contract; and "(2) the complexity and technical challenge of the program is not the result of a failure to meet the requirements established in section 2366a of title 10, United States Code. "(e) Justification for Selection of Contract Type. - As modified under subsection (b), the regulations shall require the Milestone Decision Authority to document the basis for the contract type selected for a program. The documentation shall include an explanation of the level of program risk for the program and, if the Milestone Decision Authority determines that the level of program risk is high, the steps that have been taken to reduce program risk and reasons for proceeding with Milestone B approval despite the high level of program risk." MULTIYEAR PROCUREMENT AUTHORITY; REQUESTS FOR RELIEF Pub. L. 100-526, title I, Sec. 104(a), Oct. 24, 1988, 102 Stat. 2624, which provided that if for any fiscal year a multiyear contract was to be entered into under 10 U.S.C. 2306(h) was authorized by law for a particular procurement program and that authorization was subject to certain conditions established by law (including a condition as to cost savings to be achieved under the multiyear contract in comparison to specified other contracts) and if it appeared (after negotiations with contractors) that such savings could not be achieved, but that substantial savings could nevertheless be achieved through the use of a multiyear contract rather than specified other contracts, the President was to submit to Congress a request for relief from the specified cost savings that was to be achieved through multiyear contracting for that program and that any such request by the President was to include details about the request for a multiyear contract, including details about the negotiated contract terms and conditions, was repealed and restated as subsec. (h)(11) of this section by Pub. L. 101-189, Sec. 805(b), (c). TECHNICAL DATA AND COMPUTER SOFTWARE PACKAGES; PROCUREMENT; CONTRACTING PERIOD; DEFERRED ORDERING CLAUSE; EXEMPTIONS; REPORT TO CONGRESSIONAL COMMITTEES; DEFINITIONS Pub. L. 94-361, title VIII, Sec. 805, July 14, 1976, 90 Stat. 932, required that military contracts entered into during Oct. 1, 1976 to Sept. 30, 1978 for development or procurement of a major system include a deferred ordering clause with an option to purchase from the contractor technical data and computer software packages relating to the system, directed that such clause require such packages to be sufficiently detailed so as to enable procurement of such system or subsystem from another contractor, authorized that a particular contract may be exempted from the deferred ordering clause if the procuring authority reports to the House and Senate Committees on Armed Services his intent to so contract with an explanation for the exemption, and set out definitions for "major system", "deferred ordering", and "technical data". -End- -CITE- 10 USC Sec. 2306a 01/05/2009 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 137 - PROCUREMENT GENERALLY -HEAD- Sec. 2306a. Cost or pricing data: truth in negotiations -STATUTE- (a) Required Cost or Pricing Data and Certification. - (1) The head of an agency shall require offerors, contractors, and subcontractors to make cost or pricing data available as follows: (A) An offeror for a prime contract under this chapter to be entered into using procedures other than sealed-bid procedures shall be required to submit cost or pricing data before the award of a contract if - (i) in the case of a prime contract entered into after December 5, 1990, the price of the contract to the United States is expected to exceed $500,000; and (ii) in the case of a prime contract entered into on or before December 5, 1990, the price of the contract to the United States is expected to exceed $100,000. (B) The contractor for a prime contract under this chapter shall be required to submit cost or pricing data before the pricing of a change or modification to the contract if - (i) in the case of a change or modification made to a prime contract referred to in subparagraph (A)(i), the price adjustment is expected to exceed $500,000; (ii) in the case of a change or modification made after December 5, 1991, to a prime contract that was entered into on or before December 5, 1990, and that has been modified pursuant to paragraph (6), the price adjustment is expected to exceed $500,000; and (iii) in the case of a change or modification not covered by clause (i) or (ii), the price adjustment is expected to exceed $100,000. (C) An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section and - (i) in the case of a subcontract under a prime contract referred to in subparagraph (A)(i), the price of the subcontract is expected to exceed $500,000; (ii) in the case of a subcontract entered into after December 5, 1991, under a prime contract that was entered into on or before December 5, 1990, and that has been modified pursuant to paragraph (6), the price of the subcontract is expected to exceed $500,000; and (iii) in the case of a subcontract not covered by clause (i) or (ii), the price of the subcontract is expected to exceed $100,000. (D) The subcontractor for a subcontract covered by subparagraph (C) shall be required to submit cost or pricing data before the pricing of a change or modification to the subcontract if - (i) in the case of a change or modification to a subcontract referred to in subparagraph (C)(i) or (C)(ii), the price adjustment is expected to exceed $500,000; and (ii) in the case of a change or modification to a subcontract referred to in subparagraph (C)(iii), the price adjustment is expected to exceed $100,000. (2) A person required, as an offeror, contractor, or subcontractor, to submit cost or pricing data under paragraph (1) (or required by the head of the agency concerned to submit such data under subsection (c)) shall be required to certify that, to the best of the person's knowledge and belief, the cost or pricing data submitted are accurate, complete, and current. (3) Cost or pricing data required to be submitted under paragraph (1) (or under subsection (c)), and a certification required to be submitted under paragraph (2), shall be submitted - (A) in the case of a submission by a prime contractor (or an offeror for a prime contract), to the contracting officer for the contract (or to a designated representative of the contracting officer); or (B) in the case of a submission by a subcontractor (or an offeror for a subcontract), to the prime contractor. (4) Except as provided under subsection (b), this section applies to contracts entered into by the head of an agency on behalf of a foreign government. (5) A waiver of requirements for submission of certified cost or pricing data that is granted under subsection (b)(1)(C) in the case of a contract or subcontract does not waive the requirement under paragraph (1)(C) for submission of cost or pricing data in the case of subcontracts under that contract or subcontract unless the head of the procuring activity granting the waiver determines that the requirement under that paragraph should be waived in the case of such subcontracts and justifies in writing the reasons for the determination. (6) Upon the request of a contractor that was required to submit cost or pricing data under paragraph (1) in connection with a prime contract entered into on or before December 5, 1990, the head of the agency that entered into such contract shall modify the contract to reflect subparagraphs (B)(ii) and (C)(ii) of paragraph (1). All such modifications shall be made without requiring consideration. (7) Effective on October 1 of each year that is divisible by 5, each amount set forth in paragraph (1) shall be adjusted to the amount that is equal to the fiscal year 1994 constant dollar value of the amount set forth. Any amount, as so adjusted, that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. In the case of an amount that is evenly divisible by $25,000 but not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000. (b) Exceptions. - (1) In general. - Submission of certified cost or pricing data shall not be required under subsection (a) in the case of a contract, a subcontract, or modification of a contract or subcontract - (A) for which the price agreed upon is based on - (i) adequate price competition; or (ii) prices set by law or regulation; (B) for the acquisition of a commercial item; or (C) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this section may be waived and justifies in writing the reasons for such determination. (2) Modifications of contracts and subcontracts for commercial items. - In the case of a modification of a contract or subcontract for a commercial item that is not covered by the exception to the submission of certified cost or pricing data in paragraph (1)(A) or (1)(B), submission of certified cost or pricing data shall not be required under subsection (a) if - (A) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1)(A) or (1)(B); and (B) the modification would not change the contract or subcontract, as the case may be, from a contract or subcontract for the acquisition of a commercial item to a contract or subcontract for the acquisition of an item other than a commercial item. (3) Noncommercial modifications of commercial items. - (A) The exception in paragraph (1)(B) does not apply to cost or pricing data on noncommercial modifications of a commercial item that are expected to cost, in the aggregate, more than the amount specified in subsection (a)(1)(A)(i), as adjusted from time to time under subsection (a)(7), or 5 percent of the total price of the contract (at the time of contract award), whichever is greater. (B) In this paragraph, the term "noncommercial modification", with respect to a commercial item, means a modification of such item that is not a modification described in section 4(12)(C)(i) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)(C)(i)). (C) Nothing in subparagraph (A) shall be construed - (i) to limit the applicability of the exception in subparagraph (A) or (C) of paragraph (1) to cost or pricing data on a noncommercial modification of a commercial item; or (ii) to require the submission of cost or pricing data on any aspect of an acquisition of a commercial item other than the cost and pricing of noncommercial modifications of such item. (c) Cost or Pricing Data on Below-Threshold Contracts. - (1) Authority to require submission. - Subject to paragraph (2), when certified cost or pricing data are not required to be submitted by subsection (a) for a contract, subcontract, or modification of a contract or subcontract, such data may nevertheless be required to be submitted by the head of the procuring activity, but only if the head of the procuring activity determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract. In any case in which the head of the procuring activity requires such data to be submitted under this subsection, the head of the procuring activity shall justify in writing the reason for such requirement. (2) Exception. - The head of the procuring activity may not require certified cost or pricing data to be submitted under this paragraph for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in subparagraph (A) or (B) of subsection (b)(1). (3) Delegation of authority prohibited. - The head of a procuring activity may not delegate functions under this paragraph. (d) Submission of Other Information. - (1) Authority to require submission. - When certified cost or pricing data are not required to be submitted under this section for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the exceptions in subsection (b)(1)(A), the contracting officer shall require that the data submitted include, at a minimum, appropriate information on the prices at which the same item or similar items have previously been sold that is adequate for evaluating the reasonableness of the price for the procurement. (2) Limitations on authority. - The Federal Acquisition Regulation shall include the following provisions regarding the types of information that contracting officers