-CITE- 10 USC CHAPTER 137 - PROCUREMENT GENERALLY 01/03/2007 -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 Repealed.] 2302.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 Repealed.] 2304.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 Repealed.] 2318.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 Repealed.] 2323.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 contracting, and program management.(!1) AMENDMENTS 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. -FOOTNOTE- (!1) So in original. Does not conform to section catchline. -End- -CITE- 10 USC Sec. 2301 01/03/2007 -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 01/03/2007 -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'." 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, 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 2366a 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." LINKING OF AWARD AND INCENTIVE FEES TO ACQUISITION OUTCOMES 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, 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 necessary for national security purposes; 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))." 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, 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