10 USC Subtitle A, PART V, Subpart G: Other Special Categories Of Contracting
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TEXT OF PART V OF SUBTITLE A (3001 ET SEQ.), EFFECTIVE JANUARY 1, 2022, CURRENTLY SET OUT AS A PREVIEW

10 USC Subtitle A, PART V, Subpart G: Other Special Categories Of Contracting
From Title 10—ARMED FORCESSubtitle A—General Military LawPART V—ACQUISITION

Subpart G—Other Special Categories Of Contracting

Amendments

2018Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1830, added subpart heading.

CHAPTER 341—ACQUISITION OF SERVICES GENERALLY

Sec.
4501.
Procurement of contract services: management structure.
4502.
Procurement of contract services: senior officials responsible for management of acquisition of contract services.
4503.
[Reserved].
4504.
[Reserved].
4505.
Procurement of services: tracking of purchases.
4506.
Procurement of services: data analysis and requirements validation.
4507.
Procurement of services: contracts for professional and technical services.
4508.
Contractor performance of acquisition functions closely associated with inherently governmental functions.
4509.
Contracts for advisory and assistance services: cost comparison studies.

        

Prior Provisions

A prior chapter 341 "CONTRACTING FOR PERFORMANCE OF CIVILIAN COMMERCIAL OR INDUSTRIAL TYPE FUNCTIONS", consisting of reserved section 4501, was repealed by Pub. L. 116–283, div. A, title XVIII, §1856(b), Jan. 1, 2021, 134 Stat. 4273.

Another prior chapter 341 was renumbered chapter 721 of this title.

§4501. Procurement of contract services: management structure

(a) Requirement for Management Structure.—The Secretary of Defense shall establish and implement a management structure for the procurement of contract services for the Department of Defense. The management structure shall provide, at a minimum, for the matters specified in subsections (b), (c), (d), and (e).

(b) Policies, Procedures, and Best Practices Guidelines.—The management structure implemented pursuant to subsection (a) shall provide that the Under Secretary of Defense for Acquisition and Sustainment shall develop and maintain (in consultation with the service acquisition executives) policies, procedures, and best practices guidelines addressing the procurement of contract services, including policies, procedures, and best practices guidelines for—

(1) acquisition planning;

(2) solicitation and contract award;

(3) requirements development and management;

(4) contract tracking and oversight;

(5) performance evaluation; and

(6) risk management.


(c) Personnel and Support.—The management structure implemented pursuant to subsection (a) shall provide that the Under Secretary shall work with the service acquisition executives and other appropriate officials of the Department of Defense—

(1) to identify the critical skills and competencies needed to carry out the procurement of contract services on behalf of the Department of Defense;

(2) to develop a comprehensive strategy for recruiting, training, and deploying employees to meet the requirements for such skills and competencies; and

(3) to ensure that the military departments and Defense Agencies have staff and administrative support that are adequate to effectively perform their duties under this section and section 4502 of this title.


(d) Contract Services Acquisition Categories.—The management structure implemented pursuant to subsection (a) shall provide that the Under Secretary shall establish contract services acquisition categories, based on dollar thresholds, for the purpose of establishing the level of review, decision authority, and applicable procedures in such categories.

(e) Oversight of Implementation.—The management structure implemented pursuant to subsection (a) shall provide that the Under Secretary shall oversee the implementation of the requirements of this section and section 4502 of this title and the policies, procedures, and best practices guidelines established pursuant to subsection (b).

(f) Contract Services.—In this section, the term "contract services" has the meaning given that term in section 4502(d)(2) of this title.

(Added Pub. L. 107–107, div. A, title VIII, §801(b)(1), Dec. 28, 2001, 115 Stat. 1174, §2330; amended Pub. L. 107–314, div. A, title X, §1062(a)(8), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 109–163, div. A, title VIII, §812(a)(1), Jan. 6, 2006, 119 Stat. 3376; Pub. L. 112–239, div. A, title VIII, §845(d), Jan. 2, 2013, 126 Stat. 1848; Pub. L. 116–92, div. A, title IX, §902(51), Dec. 20, 2019, 133 Stat. 1548; renumbered §4501 and amended Pub. L. 116–283, div. A, title XVIII, §1856(c)–(e), Jan. 1, 2021, 134 Stat. 4274.)

Prior Provisions

A prior section 4501, act Aug. 10, 1956, ch. 1041, 70A Stat. 251, which related to industrial mobilization by the President in time of war, was repealed by Pub. L. 103–160, div. A, title VIII, §822(a)(2), Nov. 30, 1993, 107 Stat. 1705. See section 4882 of this title.

Amendments

2021Pub. L. 116–283, §1856(e)(2), redesignated par. (1) of subsec. (a) as subsec. (b) and subpars. (B) to (D) of former par. (1) as subsecs. (c) to (e), respectively.

Pub. L. 116–283, §1856(d), transferred subsecs. (a)(2), (3), (b) and (c) to section 4502 of this title.

Pub. L. 116–283, §1856(c), renumbered section 2330 of this title as this section.

Subsec. (a). Pub. L. 116–283, §1856(e)(1), substituted "for the matters specified in subsections (b), (c), (d), and (e)." for "for the following:".

Subsec. (b). Pub. L. 116–283, §1856(e)(3), inserted heading, substituted "The management structure implemented pursuant to subsection (a) shall provide that the Under Secretary of Defense for Acquisition and Sustainment shall develop and maintain" for "The Under Secretary of Defense for Acquisition and Sustainment shall—(A) develop and maintain", redesignated cls. (i) to (vi) as pars. (1) to (6), respectively, substituted period for semicolon at end of par. (6), and realigned margins.

Subsec. (c). Pub. L. 116–283, §1856(e)(4)(A)–(C), inserted heading, substituted "The management structure implemented pursuant to subsection (a) shall provide that the Under Secretary shall work with" for "work with" in introductory provisions, redesignated cls. (i) to (iii) as pars. (1) to (3), respectively, and realigned margins.

Subsec. (c)(3). Pub. L. 116–283, §1856(e)(4)(D), (E), substituted "under this section and section 4502 of this title." for "under this section;".

Subsec. (d). Pub. L. 116–283, §1856(e)(5), inserted heading, substituted "The management structure implemented pursuant to subsection (a) shall provide that the Under Secretary shall establish contract" for "establish contract" and period for "; and", and realigned margins.

Subsec. (e). Pub. L. 116–283, §1856(e)(6), inserted heading, substituted "The management structure implemented pursuant to subsection (a) shall provide that the Under Secretary shall oversee the" for "oversee the" and "subsection (b)" for "subparagraph (A)", inserted "and section 4502 of this title" after "of this section", and realigned margins.

Subsec. (f). Pub. L. 116–283, §1856(e)(7), added subsec. (f).

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4502. Procurement of contract services: senior officials responsible for management of acquisition of contract services

(a) Senior Officials.—The management structure implemented pursuant to section 4501 of this title shall provide for the following:

(1) The service acquisition executive of each military department shall be the senior official responsible for the management of acquisition of contract services for or on behalf of the military department.

(2) The Under Secretary of Defense for Acquisition and Sustainment shall be the senior official responsible for the management of acquisition of contract services for or on behalf of the Defense Agencies and other components of the Department of Defense outside the military departments.


(b) Duties and Responsibilities of Senior Officials Responsible for the Management of Acquisition of Contract Services.—(1) Except as provided in paragraph (2), the senior officials responsible for the management of acquisition of contract services shall assign responsibility for the review and approval of procurements in each contract services acquisition category established under section 4501(d) of this title to specific Department of Defense officials, subject to the direction, supervision, and oversight of such senior officials.

(2) With respect to the acquisition of contract services by a component or command of the Department of Defense the primary mission of which is the acquisition of products and services, such acquisition shall be conducted in accordance with policies, procedures, and best practices guidelines developed and maintained by the Under Secretary of Defense for Acquisition and Sustainment pursuant to section 4501 of this title, subject to oversight by the senior officials referred to in paragraph (1).

(c) Duties and Responsibilities.—In carrying out subsection (b)(1),,1 each senior official responsible for the management of acquisition of contract services shall—

(1) implement the requirements of this section and section 4501 of this title and the policies, procedures, and best practices guidelines developed by the Under Secretary of Defense for Acquisition and Sustainment pursuant to section 4501(b) of this title;

(2) authorize the procurement of contract services through contracts entered into by agencies outside the Department of Defense in appropriate circumstances, in accordance with the requirements of section 854 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (10 U.S.C. 2304 note), section 814 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (31 U.S.C. 1535 note), and the regulations implementing such sections;

(3) dedicate full-time commodity managers to coordinate the procurement of key categories of services;

(4) ensure that contract services are procured by means of procurement actions that are in the best interests of the Department of Defense and are entered into and managed in compliance with applicable laws, regulations, directives, and requirements;

(5) ensure that competitive procedures and performance-based contracting are used to the maximum extent practicable for the procurement of contract services; and

(6) monitor data collection under section 4505 of this title, and periodically conduct spending analyses, to ensure that funds expended for the procurement of contract services are being expended in the most rational and economical manner practicable.


(d) Definitions.—In this section:

(1) The term "procurement action" includes the following actions:

(A) Entry into a contract or any other form of agreement.

(B) Issuance of a task order, delivery order, or military interdepartmental purchase request.


(2) The term "contract services" includes all services acquired from private sector entities by or for the Department of Defense, including services in support of contingency operations. The term does not include services relating to research and development or military construction.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1856(d), (f), Jan. 1, 2021, 134 Stat. 4274, 4275.)

References in Text

Section 854 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, referred to in subsec. (c)(2), is section 854 of div. A of Pub. L. 108–375, which is set out as a note under section 2304 of this title.

Section 814 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, referred to in subsec. (c)(2), is section 814 of div. A of Pub. L. 105–261, which was formerly set out as a note under section 1535 of Title 31, Money and Finance.

Codification

The text of subsecs. (a)(2), (3), (b) and (c) of section 4501 of this title, which was transferred to this section by Pub. L. 116–283, §1856(d), was based on Pub. L. 107–107, div. A, title VIII, §801(b)(1), Dec. 28, 2001, 115 Stat. 1174, §2330; Pub. L. 107–314, div. A, title X, §1062(a)(8), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 109–163, div. A, title VIII, §812(a)(1), Jan. 6, 2006, 119 Stat. 3376; Pub. L. 112–239, div. A, title VIII, §845(d), Jan. 2, 2013, 126 Stat. 1848; Pub. L. 116–92, div. A, title IX, §902(51)(B)–(D), Dec. 20, 2019, 133 Stat. 1549; renumbered §4501, Pub. L. 116–283, div. A, title XVIII, §1856(c), Jan. 1, 2021, 134 Stat. 4274.

Prior Provisions

A prior section 4502, act Aug. 10, 1956, ch. 1041, 70A Stat. 252, which related to maintenance by Secretary of the Army of lists of plants equipped to manufacture arms or ammunition and of plants convertible into ammunition factories and provided for a Board on Mobilization of Industries Essential for Military Preparedness, was repealed by Pub. L. 103–160, div. A, title VIII, §822(a)(2), Nov. 30, 1993, 107 Stat. 1705. See sections 4883 and 4884 of this title.

Prior sections 4503 and 4504 were repealed by Pub. L. 103–160, div. A, title VIII, §§822(c)(2), 827(c), Nov. 30, 1993, 107 Stat. 1707, 1713.

Section 4503, act Aug. 10, 1956, ch. 1041, 70A Stat. 252, related to research and development programs of the Army.

Section 4504, act Aug. 10, 1956, ch. 1041, 70A Stat. 252, related to procurement of ordnance, signal, and chemical warfare supplies for experimental purposes by Secretary of the Army. See section 4004 of this title.

Amendments

2021Pub. L. 116–283, §1856(d), transferred subsecs. (a)(2), (3), (b) and (c) of section 4501 of this title to this section and inserted subsec. (a) designation, heading, and introductory provisions.

Subsec. (a). Pub. L. 116–283, §1856(f)(1), redesignated pars. (2) and (3) as (1) and (2), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1856(f)(2)(A), substituted "section 4501(d) of this title" for "subsection (a)(1)(C)".

Subsec. (b)(2). Pub. L. 116–283, §1856(f)(2)(B), substituted "section 4501 of this title" for "subsection (a)(1)".

Subsec. (b)(3). Pub. L. 116–283, §1856(f)(4), redesignated par. (3) as subsec. (c).

Subsec. (c). Pub. L. 116–283, §1856(f)(5)(A), inserted heading and substituted "In carrying out subsection (b)(1)," for "In carrying out paragraph (1)" in introductory provisions.

Pub. L. 116–283, §1856(f)(4), redesignated par. (3) of subsec. (b) as subsec. (c) and subpars. (A) to (F) as pars. (1) to (6), respectively.

Pub. L. 116–283, §1856(f)(3), redesignated subsec. (c) as (d).

Subsec. (c)(1). Pub. L. 116–283, §1856(f)(5)(B), inserted "and section 4501 of this title" after "of this section" and substituted "section 4501(b) of this title" for "subsection (a)(1)(A)".

Subsec. (c)(6). Pub. L. 116–283, §1856(f)(5)(C), substituted "section 4505" for "section 2330a".

Subsec. (d). Pub. L. 116–283, §1856(f)(3), redesignated subsec. (c) as (d).

Effective Date

Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 note preceding section 3001 of this title.

1 So in original.

§4505. Procurement of services: tracking of purchases

(a) Data Collection Required.—The Secretary of Defense shall establish a data collection system to provide management information with regard to each purchase of services by a military department or Defense Agency in excess of $3,000,000, regardless of whether such a purchase is made in the form of a contract, task order, delivery order, military interdepartmental purchase request, or any other form of interagency agreement, for services in the following service acquisition portfolio groups:

(1) Logistics management services.

(2) Equipment related services.

(3) Knowledge-based services.

(4) Electronics and communications services.


(b) Data To Be Collected.—The data required to be collected under subsection (a) includes the following:

(1) The services purchased.

(2) The total dollar amount of the purchase.

(3) The form of contracting action used to make the purchase.

(4) Whether the purchase was made through—

(A) a performance-based contract, performance-based task order, or other performance-based arrangement that contains firm fixed prices for the specific tasks to be performed;

(B) any other performance-based contract, performance-based task order, or performance-based arrangement; or

(C) any contract, task order, or other arrangement that is not performance based.


(5) In the case of a purchase made through an agency other than the Department of Defense, the agency through which the purchase is made.

(6) The extent of competition provided in making the purchase and whether there was more than one offer.

(7) Whether the purchase was made from—

(A) a small business concern;

(B) a small business concern owned and controlled by socially and economically disadvantaged individuals; or

(C) a small business concern owned and controlled by women.


(c) Inventory Summary.—(1) Not later than the end of the third quarter of each fiscal year, the Secretary of Defense shall prepare an annual inventory, and submit to Congress a summary of the inventory, of activities performed during the preceding fiscal year pursuant to staff augmentation contracts and contracts closely associated with inherently governmental functions on behalf of the Department of Defense. The guidance for compiling the inventory shall be issued by the Under Secretary of Defense for Personnel and Readiness, the Under Secretary of Defense (Comptroller), and the Under Secretary of Defense for Acquisition and Sustainment, as follows:

(A) The Under Secretary of Defense for Personnel and Readiness, as supported by the Under Secretary of Defense (Comptroller), shall be responsible for developing guidance for—

(i) the collection of data regarding functions and missions performed by contractors in a manner that is comparable to the manpower data elements used in inventories of functions performed by Department of Defense employees;

(ii) the calculation of contractor full-time equivalents for direct labor, using direct labor hours in a manner that is comparable to the calculation of Department of Defense civilian full-time employees; and

(iii) the conduct and completion of the annual review required under subsection (e)(1).


(B) The Under Secretary of Defense for Acquisition and Sustainment shall be responsible for developing guidance on other data elements and implementing procedures for requirements relating to acquisition.


(2) The entry for an activity on an inventory under this subsection shall include, for the fiscal year covered by such entry, the following:

(A) The functions and missions performed by the contractor.

(B) The contracting organization, the component of the Department of Defense administering the contract, and the organization whose requirements are being met through contractor performance of the function.

(C) The funding source for the contract under which the function is performed by appropriation and operating agency.

(D) The fiscal year for which the activity first appeared on an inventory under this section.

(E) The number of contractor employees, expressed as full-time equivalents for direct labor, using direct labor hours and associated cost data collected from contractors (except that estimates may be used where such data is not available and cannot reasonably be made available in a timely manner for the purpose of the inventory).

(F) A determination whether the contract pursuant to which the activity is performed is a personal services contract.

(G) A summary of the data required to be collected for the activity under subsection (a).


(3) The inventory required under this subsection shall be submitted in unclassified form, but may include a classified annex.

(d) Review and Planning Requirements.—Within 90 days after the date on which an inventory is submitted under subsection (c), the Secretary of the military department or head of the Defense Agency responsible for activities in the inventory shall—

(1) review the contracts and activities in the inventory for which such Secretary or agency head is responsible, with particular focus and attention on the following categories of high-risk product service codes (also referred to as Federal supply codes):

(A) Special studies or analysis that is not research and development.

(B) Information technology and telecommunications.

(C) Support, including professional, administrative, and management;


(2) ensure that—

(A) each contract on the list that is a personal services contract has been entered into, and is being performed, in accordance with applicable statutory and regulatory requirements;

(B) the activities on the list do not include any inherently governmental functions; and

(C) to the maximum extent practicable, the activities on the list do not include any functions closely associated with inherently governmental functions; and


(3) identify activities that should be considered for conversion—

(A) to performance by civilian employees of the Department of Defense pursuant to section 2463 of this title; or

(B) to an acquisition approach that would be more advantageous to the Department of Defense.


(e) Development of Plan and Enforcement and Approval Mechanisms.—The Secretary of the military department or head of the Defense Agency responsible for activities in the inventory shall develop a plan, including an enforcement mechanism and approval process, to—

(1) provide for the use of the inventory by the military department or Defense Agency to implement the requirements of section 129a of this title;

(2) ensure the inventory is used to inform strategic workforce planning;

(3) facilitate use of the inventory for compliance with section 3137 of this title; and

(4) provide for appropriate consideration of the conversion of activities identified under subsection (e)(3) within a reasonable period of time.


(f) Comptroller General Report.—Not later than March 31, 2018, the Comptroller General of the United States shall submit to the congressional defense committees a report on the status of the data collection required in subsection (a) and an assessment of the efforts by the Department of Defense to implement subsection (e).

(g) Rule of Construction.—Nothing in this section shall be construed to authorize the performance of personal services by a contractor except where expressly authorized by a provision of law other than this section.

(h) Definitions.—In this section:

(1) Performance-based.—The term "performance-based", with respect to a contract, task order, or arrangement, means that the contract, task order, or arrangement, respectively, includes the use of performance work statements that set forth contract requirements in clear, specific, and objective terms with measurable outcomes.

(2) Function closely associated with inherently governmental functions.—The term "function closely associated with inherently governmental functions" has the meaning given that term in section 4508(b)(3) of this title.

(3) Inherently governmental functions.—The term "inherently governmental functions" has the meaning given that term in section 4508(b)(2) of this title.

(4) Personal services contract.—The term "personal services contract" means a contract under which, as a result of its terms or conditions or the manner of its administration during performance, contractor personnel are subject to the relatively continuous supervision and control of one or more Government officers or employees, except that the giving of an order for a specific article or service, with the right to reject the finished product or result, is not the type of supervision or control that makes a contract a personal services contract.

(5) Service acquisition portfolio groups.—The term "service acquisition portfolio groups" means the groups identified in Department of Defense Instruction 5000.74, Defense Acquisition of Services (January 5, 2016) or successor guidance.

(6) Staff augmentation contracts.—The term "staff augmentation contracts" means services contracts for personnel who are physically present in a Government work space on a full-time or permanent part-time basis, for the purpose of advising on, providing support to, or assisting a Government agency in the performance of the agency's missions, including authorized personal services contracts (as that term is defined in section 4505(g)(5) 1 of this title).

(7) Simplified acquisition threshold.—The term "simplified acquisition threshold" has the meaning given the term in section 134 of title 41.

(8) Small business act definitions.—

(A) The term "small business concern" has the meaning given such term under section 3 of the Small Business Act (15 U.S.C. 632).

(B) The terms "small business concern owned and controlled by socially and economically disadvantaged individuals" and "small business concern owned and controlled by women" have the meanings given such terms, respectively, in section 8(d)(3) of the Small Business Act (15 U.S.C. 637(d)(3)).

(Added Pub. L. 107–107, div. A, title VIII, §801(c), Dec. 28, 2001, 115 Stat. 1176, §2330a; amended Pub. L. 110–181, div. A, title VIII, §807(a), Jan. 28, 2008, 122 Stat. 213; Pub. L. 111–84, div. A, title VIII, §803(b), Oct. 28, 2009, 123 Stat. 2402; Pub. L. 111–383, div. A, title III, §321, Jan. 7, 2011, 124 Stat. 4183; Pub. L. 112–81, div. A, title IX, §936, Dec. 31, 2011, 125 Stat. 1545; Pub. L. 113–66, div. A, title IX, §951(a), Dec. 26, 2013, 127 Stat. 839; Pub. L. 114–328, div. A, title VIII, §§812, 833(b)(2)(C)(ii), Dec. 23, 2016, 130 Stat. 2269, 2284; Pub. L. 115–91, div. A, title X, §1081(a)(30), (d)(6)(A), Dec. 12, 2017, 131 Stat. 1595, 1600; Pub. L. 115–232, div. A, title VIII, §819, Aug. 13, 2018, 132 Stat. 1853; renumbered §4505 and amended Pub. L. 116–283, div. A, title XVIII, §§1856(g), (h), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4275, 4294.)

References in Text

Section 4505(g)(5) of this title, referred to in subsec. (h)(6), meaning subsec. (g)(5) of this section, was redesignated through a series of amendments as subsec. (h)(4) of this section.

Prior Provisions

A prior section 4505, act Aug. 10, 1956, ch. 1041, 70A Stat. 252, which related to procurement by Secretary of the Army of production equipment, was repealed by Pub. L. 103–160, div. A, title VIII, §823(1), Nov. 30, 1993, 107 Stat. 1707.

Amendments

2021Pub. L. 116–283, §1856(g), renumbered section 2330a of this title as this section.

Subsec. (e)(3). Pub. L. 116–283, §1883(b)(2), substituted "section 3137" for "section 235".

Subsec. (h)(2). Pub. L. 116–283, §1883(b)(2), substituted "section 4508(b)(3)" for "section 2383(b)(3)".

Subsec. (h)(3). Pub. L. 116–283, §1856(h), substituted "section 4508(b)(2)" for "section 2383(b)(2)".

Subsec. (h)(6). Pub. L. 116–283, §1883(b)(2), substituted "section 4505(g)(5)" for "section 2330a(g)(5)".

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

1 See References in Text note below.

§4506. Procurement of services: data analysis and requirements validation

(a) In General.—The Secretary of Defense, acting through the Under Secretary of Defense (Comptroller) and Director of Cost Assessment and Program Evaluation, shall ensure that—

(1) appropriate and sufficiently detailed data are collected and analyzed to support the validation of requirements for services contracts and inform the planning, programming, budgeting, and execution process of the Department of Defense;

(2) requirements for services contracts are evaluated appropriately and in a timely manner to inform decisions regarding the procurement of services; and

(3) decisions regarding the procurement of services consider available resources and total force management policies and procedures.


(b) Specification of Amounts Requested in Budget.—Effective October 1, 2021, the Secretary of Defense, acting through the Under Secretary of Defense (Comptroller) and Director of Cost Assessment and Program Evaluation, shall annually submit to Congress information on services contracts that clearly and separately identifies the amount requested for each category of services to be procured for each Defense Agency, Department of Defense Field Activity, command, or military installation. Such information shall—

(1) be submitted at or before the time of the budget submission by the President under section 1105(a) of title 31 or on the date on which the future-years defense program is submitted to Congress under section 221 of this title;

(2) cover the fiscal year covered by such budget submission by the President;

(3) be consistent with total amounts of estimated expenditures and proposed appropriations necessary to support the programs, projects, and activities of the Department of Defense included in such budget submission by the President for that fiscal year;

(4) be organized using a common enterprise data structure developed under section 2222 of this title; and

(5) be included in the future-years defense program submitted to Congress under section 221 of this title.


(c) Data Analysis.—(1) Each Secretary of a military department shall regularly analyze past spending patterns and anticipated future requirements with respect to the procurement of services within such military department.

(2)(A) The Secretary of Defense, acting through the Under Secretary of Defense (Comptroller) and Director of Cost Assessment and Program Evaluation, shall regularly analyze past spending patterns and anticipated future requirements with respect to the procurement of services—

(i) within each Defense Agency and Department of Defense Field Activity; and

(ii) across military departments, Defense Agencies, and Department of Defense Field Activities.


(B) The Secretaries of the military departments shall make data on services contracts available to the Secretary of Defense for purposes of conducting the analysis required under subparagraph (A).

(3) The analyses conducted under this subsection shall—

(A) identify contracts for similar services that are procured for three or more consecutive years at each Defense Agency, Department of Defense Field Activity, command, or military installation;

(B) evaluate patterns in the procurement of services, to the extent practicable, at each Defense Agency, Department of Defense Field Activity, command, or military installation and by category of services procured;

(C) be used to validate requirements for services contracts entered into after the date of the enactment of this subsection; and

(D) be used to inform decisions on the award of and funding for such services contracts.


(d) Requirements Evaluation.—Each Services Requirements Review Board shall evaluate each requirement for a services contract, taking into consideration total force management policies and procedures, available resources, the analyses conducted under subsection (c), and contracting efficacy and efficiency. An evaluation of a services contract for compliance with contracting policies and procedures may not be considered to be an evaluation of a requirement for such services contract.

(e) Timely Planning to Avoid Bridge Contracts.—(1) Effective October 1, 2018, the Secretary of Defense shall ensure that a requirements owner shall, to the extent practicable, plan appropriately before the date of need of a service at a Defense Agency, Department of Defense Field Activity, command, or military installation to avoid the use of a bridge contract to provide for continuation of a service to be performed through a services contract. Such planning shall include allowing time for a requirement to be validated, a services contract to be entered into, and funding for the services contract to be secured.

(2)(A) Upon the first use, due to inadequate planning (as determined by the Secretary of Defense), of a bridge contract to provide for continuation of a service to be performed through a services contract, the requirements owner, along with the contracting officer or a designee of the contracting officer for the contract, shall—

(i) for a services contract in an amount less than $10,000,000, provide an update on the status of the bridge contract (including the rationale for using the bridge contract) to the commander or the senior civilian official of the Defense Agency concerned, Department of Defense Field Activity concerned, command concerned, or military installation concerned, as applicable; or

(ii) for a services contract in an amount equal to or greater than $10,000,000, provide an update on the status of the bridge contract (including the rationale for using the bridge contract) to the service acquisition executive for the military department concerned, the head of the Defense Agency concerned, the combatant commander concerned, or the Under Secretary of Defense for Acquisition and Sustainment, as applicable.


(B) Upon the second use, due to inadequate planning (as determined by the Secretary of Defense), of a bridge contract to provide for continuation of a service to be performed through a services contract in an amount less than $10,000,000, the commander or senior civilian official referred to in subparagraph (A)(i) shall provide notification of such second use to the Vice Chief of Staff of the armed force concerned and the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the combatant commander concerned, or the Under Secretary of Defense for Acquisition and Sustainment, as applicable.

(f) Exception.—Except with respect to the analyses required under subsection (c), this section shall not apply to—

(1) services contracts in support of contingency operations, humanitarian assistance, or disaster relief;

(2) services contracts in support of a national security emergency declared with respect to a named operation; or

(3) services contracts entered into pursuant to an international agreement.


(g) Definitions.—In this section:

(1) The term "bridge contract" means—

(A) an extension to an existing contract beyond the period of performance to avoid a lapse in service caused by a delay in awarding a subsequent contract; or

(B) a new short-term contract awarded on a sole-source basis to avoid a lapse in service caused by a delay in awarding a subsequent contract.


(2) The term "requirements owner" means a member of the armed forces (other than the Coast Guard) or a civilian employee of the Department of Defense responsible for a requirement for a service to be performed through a services contract.

(3) The term "Services Requirements Review Board" has the meaning given in Department of Defense Instruction 5000.74, titled "Defense Acquisition of Services" and dated January 5, 2016, or a successor instruction.

(Added Pub. L. 115–91, div. A, title VIII, §851(a)(1), Dec. 12, 2017, 131 Stat. 1489, §2329; amended Pub. L. 115–232, div. A, title VIII, §818(a), Aug. 13, 2018, 132 Stat. 1852; Pub. L. 116–92, div. A, title VIII, §817(a), title XVII, §1731(a)(42), Dec. 20, 2019, 133 Stat. 1488, 1814; renumbered §4506, Pub. L. 116–283, div. A, title XVIII, §1856(g), Jan. 1, 2021, 134 Stat. 4275.)

References in Text

The date of the enactment of this subsection, referred to in subsec. (c)(3)(C), is the date of enactment of Pub. L. 115–91, which was approved Dec. 12, 2017.

Prior Provisions

A prior section 4506, act Aug. 10, 1956, ch. 1041, 70A Stat. 253, which related to sale, loan, or gift of samples, drawings, and information to contractors, was repealed by Pub. L. 103–160, div. A, title VIII, §822(b)(3), Nov. 30, 1993, 107 Stat. 1706.

Amendments

2021Pub. L. 116–283 renumbered section 2329 of this title as this section.

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4507. Procurement of services: contracts for professional and technical services

(a) In General.—The Secretary of Defense shall prescribe regulations to ensure, to the maximum extent practicable, that professional and technical services are acquired on the basis of the task to be performed rather than on the basis of the number of hours of services provided.

(b) Content of Regulations.—With respect to contracts to acquire services on the basis of the number of hours of services provided, the regulations described in subsection (a) shall—

(1) include standards and approval procedures to minimize the use of such contracts;

(2) establish criteria to ensure that proposals for contracts for technical and professional services are evaluated on a basis which does not encourage contractors to propose uncompensated overtime;

(3) ensure appropriate emphasis on technical and quality factors in the source selection process;

(4) require identification of any hours in excess of 40-hour weeks included in a proposal;

(5) ensure that offerors are notified that proposals which include unrealistically low labor rates or which do not otherwise demonstrate cost realism will be considered in a risk assessment and evaluated appropriately; and

(6) provide guidance to contracting officers to ensure that any use of uncompensated overtime will not degrade the level of technical expertise required to perform the contract.

(Added Pub. L. 101–510, div. A, title VIII, §834(a)(1), Nov. 5, 1990, 104 Stat. 1613, §2331; amended Pub. L. 102–25, title VII, §701(a), Apr. 6, 1991, 105 Stat. 113; Pub. L. 103–355, title I, §1004(c), Oct. 13, 1994, 108 Stat. 3253; Pub. L. 107–107, div. A, title VIII, §801(g)(1), Dec. 28, 2001, 115 Stat. 1177; renumbered §4507, Pub. L. 116–283, div. A, title XVIII, §1856(g), Jan. 1, 2021, 134 Stat. 4275.)

Prior Provisions

A prior section 4507, act Aug. 10, 1956, ch. 1041, 70A Stat. 253, which related to sale of ordnance and ordnance stores to designers, was repealed by Pub. L. 103–160, div. A, title VIII, §822(b)(3), Nov. 30, 1993, 107 Stat. 1706.

Amendments

2021Pub. L. 116–283 renumbered section 2331 of this title as this section.

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4508. Contractor performance of acquisition functions closely associated with inherently governmental functions

(a) Limitation.—The head of an agency may enter into a contract for the performance of acquisition functions closely associated with inherently governmental functions only if the contracting officer for the contract ensures that—

(1) appropriate military or civilian personnel of the Department of Defense cannot reasonably be made available to perform the functions;

(2) appropriate military or civilian personnel of the Department of Defense are—

(A) to supervise contractor performance of the contract; and

(B) to perform all inherently governmental functions associated with the functions to be performed under the contract; and


(3) the agency addresses any potential organizational conflict of interest of the contractor in the performance of the functions under the contract, consistent with subpart 9.5 of part 9 of the Federal Acquisition Regulation and the best interests of the Department of Defense.


(b) Definitions.—In this section:

(1) The term "head of an agency" does not include the Secretary of Homeland Security or the Administrator of the National Oceanic and Atmospheric Administration.

(2) The term "inherently governmental functions" has the meaning given such term in subpart 7.5 of part 7 of the Federal Acquisition Regulation.

(3) The term "functions closely associated with inherently governmental functions" means the functions described in section 7.503(d) of the Federal Acquisition Regulation.

(4) The term "organizational conflict of interest" has the meaning given such term in subpart 9.5 of part 9 of the Federal Acquisition Regulation.

(Added Pub. L. 108–375, div. A, title VIII, §804(a)(1), Oct. 28, 2004, 118 Stat. 2007, §2383; renumbered §4508 and amended Pub. L. 116–283, div. A, title XVIII, §1856(g), (i), Jan. 1, 2021, 134 Stat. 4275.)

Prior Provisions

A prior section 4508, acts Aug. 10, 1956, ch. 1041, 70A Stat. 253; Nov. 2, 1966, Pub. L. 89–718, §27, 80 Stat. 1119, which related tests of iron, steel, and other materials, was repealed by Pub. L. 103–160, div. A, title VIII, §822(b)(3), Nov. 30, 1993, 107 Stat. 1706.

Amendments

2021Pub. L. 116–283 renumbered section 2383 of this title as this section.

Subsec. (b)(1). Pub. L. 116–283, §1856(i), which directed striking out "has the meaning given in section 2302(1) of this title, except that such term", was executed by striking out "has the meaning given such term in section 2302(1) of this title, except that such term" before "does not include", to reflect the probable intent of Congress.

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4509. Contracts for advisory and assistance services: cost comparison studies

(a) Requirement.—(1)(A) Before the Secretary of Defense enters into a contract described in subparagraph (B), the Secretary shall determine whether Department of Defense personnel have the capability to perform the services proposed to be covered by the contract.

(B) Subparagraph (A) applies to any contract of the Department of Defense for advisory and assistance services that is expected to have a value in excess of $100,000.

(2) If the Secretary determines that Department of Defense personnel have the capability to perform the services to be covered by the contract, the Secretary shall conduct a study comparing the cost of performing the services with Department of Defense personnel and the cost of performing the services with contractor personnel.

(b) Waiver.—The Secretary of Defense may, pursuant to guidelines prescribed by the Secretary, waive the requirement to perform a cost comparison study under subsection (a)(2) based on factors that are not related to cost.

(Added Pub. L. 103–337, div. A, title III, §363(a)(1), Oct. 5, 1994, 108 Stat. 2733, §2410l; renumbered §4509, Pub. L. 116–283, div. A, title XVIII, §1856(g), Jan. 1, 2021, 134 Stat. 4275.)

Prior Provisions

A prior section 4531, act Aug. 10, 1956, ch. 1041, 70A Stat. 253, authorized Secretary of the Army to procure materials and facilities necessary to maintain and support the Army, prior to repeal by Pub. L. 103–160, div. A, title VIII, §823(2), Nov. 30, 1993, 107 Stat. 1707.

A prior section 4532 was renumbered section 7532 of this title.

Prior sections 4533 to 4535 were repealed by Pub. L. 103–160, div. A, title VIII, §823(3)–(5), Nov. 30, 1993, 107 Stat. 1707.

Section 4533, act Aug. 10, 1956, ch. 1041, 70A Stat. 254, related to purchases of army rations.

Section 4534, act Aug. 10, 1956, ch. 1041, 70A Stat. 254, related to subsistence supplies, contract stipulations, and place of delivery on inspection.

Section 4535, act Aug. 10, 1956, ch. 1041, 70A Stat. 254, provided that exceptional subsistence supplies could be purchased without advertising.

A prior section 4536 was renumbered section 7536 of this title.

Prior sections 4537 and 4538 were repealed by Pub. L. 103–160, div. A, title VIII, §823(6), (7), Nov. 30, 1993, 107 Stat. 1707.

Section 4537, acts Aug. 10, 1956, ch. 1041, 70A Stat. 254; Nov. 2, 1966, Pub. L. 89–718, §8(a), 80 Stat. 1117; Dec. 12, 1980, Pub. L. 96–513, title V, §512(14), 94 Stat. 2930, authorized Secretary of the Army to obtain assistance of United States mapping agencies in making and developing military surveys and maps.

Section 4538, acts Aug. 10, 1956, ch. 1041, 70A Stat. 255; Dec. 12, 1980, Pub. L. 96–513, title V, §512(15), 94 Stat. 2930, related to exchange and reclamation of unserviceable ammunition.

A prior section 4539, act Aug. 10, 1956, ch. 1041, 70A Stat. 255, provided for purchase of horses and mules in open market at Army posts, within maximum prices prescribed by Secretary of the Army, prior to repeal by Pub. L. 91–482, §1(a), Oct. 21, 1970, 84 Stat. 1082.

A prior section 4540 was renumbered section 7540 of this title.

Another prior section 4541 was renumbered section 7541 of this title.

Prior sections 4542 to 4544, 4551 to 4555, and 4561 to 4565 were renumbered sections 7542 to 7544, 7551 to 7555, and 7561 to 7565 of this title, respectively.

Amendments

2021Pub. L. 116–283 renumbered section 2410l of this title as this section.

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

CHAPTER 343—ACQUISITION OF SERVICES OF CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS

Subchapter
Sec.
I.
Contractors Performing Private Security Functions in Areas of Combat Operations or Other Significant Military Operations
4541
II.
Standards and Certification for Private Security
4551

        

Prior Provisions

A prior chapter 343 "ACQUISITION OF SERVICES", consisting of reserved section 4541, was repealed by Pub. L. 116–283, div. A, title XVIII, §1856(b), Jan. 1, 2021, 134 Stat. 4273.

Another prior chapter 343 was renumbered chapter 723 of this title.

SUBCHAPTER I—CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS IN AREAS OF COMBAT OPERATIONS OR OTHER SIGNIFICANT MILITARY OPERATIONS

Sec.
4541.
[Reserved].

        

SUBCHAPTER II—STANDARDS AND CERTIFICATION FOR PRIVATE SECURITY CONTRACTORS

Sec.
4551.
[Reserved].

        

CHAPTER 345—ACQUISITION OF INFORMATION TECHNOLOGY

Sec.
4571.
Information technology acquisition: planning and oversight processes.
4572.
[Reserved].
4573.
[Reserved].
4574.
[Reserved].
4575.
[Reserved].
4576.
Requirement for consideration of certain matters during acquisition of noncommercial computer software.

        

Prior Provisions

A prior chapter 345 "ACQUISITION OF INFORMATION TECHNOLOGY", consisting of reserved section 4571, was repealed by Pub. L. 116–283, div. A, title XVIII, §1857(a), Jan. 1, 2021, 134 Stat. 4276.

Another prior chapter 345 was renumbered chapter 725 of this title.

§4571. Information technology acquisition: planning and oversight processes

(a) Establishment of Program.—The Secretary of Defense shall establish a program to improve the planning and oversight processes for the acquisition of major automated information systems by the Department of Defense.

(b) Program Components.—The program established under subsection (a) shall include—

(1) a documented process for information technology acquisition planning, requirements development and management, project management and oversight, earned value management, and risk management;

(2) the development of appropriate metrics that can be implemented and monitored on a real-time basis for performance measurement of—

(A) processes and development status of investments in major automated information system programs;

(B) continuous process improvement of such programs; and

(C) achievement of program and investment outcomes;


(3) a process to ensure that key program personnel have an appropriate level of experience, training, and education in the planning, acquisition, execution, management, and oversight of information technology systems;

(4) a process to ensure sufficient resources and infrastructure capacity for test and evaluation of information technology systems;

(5) a process to ensure that military departments and Defense Agencies adhere to established processes and requirements relating to the planning, acquisition, execution, management, and oversight of information technology programs and developments; and

(6) a process under which an appropriate Department of Defense official may intervene or terminate the funding of an information technology investment if the investment is at risk of not achieving major project milestones.

(Added Pub. L. 111–383, div. A, title VIII, §805(a)(1), Jan. 7, 2011, 124 Stat. 4259, §2223a; renumbered §4571 and amended Pub. L. 116–283, div. A, title XVIII, §1857(b), Jan. 1, 2021, 134 Stat. 4276.)

Amendments

2021Pub. L. 116–283, §1857(b)(2), amended section catchline generally. Prior to amendment, section catchline read as follows: "Information technology acquisition planning and oversight requirements".

Pub. L. 116–283, §1857(b)(1), renumbered section 2223a of this title as this section.

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Governance of Fifth-Generation Wireless Networking in the Department of Defense

Pub. L. 116–283, div. A, title II, §224, Jan. 1, 2021, 134 Stat. 3472, provided that:

"(a) Transition of 5G Wireless Networking to Operational Use.—

"(1) Transition plan required.—The Under Secretary of Defense for Research and Engineering, in consultation with the cross functional team established under subsection (c), shall develop a plan to transition fifth-generation (commonly known as '5G') wireless technology to operational use within the Department of Defense.

"(2) Elements.—The transition plan under paragraph (1) shall include the following:

"(A) A timeline for the transition of responsibility for 5G wireless networking to the Chief Information Officer, as required under subsection (b)(1).

"(B) A description of the roles and responsibilities of the organizations and elements of the Department of Defense with respect to the acquisition, sustainment, and operation of 5G wireless networking for the Department, as determined by the Secretary of Defense in accordance with subsection (d).

"(3) Interim briefing.—Not later than March 31, 2021[,] the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the status of the plan required under paragraph (1).

"(4) Final report.—Not later than September 30, 2021, the Secretary of Defense shall submit to the congressional defense committees a report that includes the plan developed under paragraph (1).

"(b) Senior Official for 5G Wireless Networking.—

"(1) Designation of chief information officer.—Not later than October 1, 2023, the Secretary of Defense shall designate the Chief Information Officer as the senior official within Department of Defense with primary responsibility for—

"(A) policy, oversight, guidance, research, and coordination on matters relating to 5G wireless networking; and

"(B) making proposals to the Secretary on governance, management, and organizational policy for 5G wireless networking.

"(2) Role of under secretary of defense for research and engineering.—The Under Secretary of Defense for Research and Engineering shall carry out the responsibilities specified in paragraph (1) until the date on which the Secretary of Defense designates the Chief Information Officer as the senior official responsible for 5G wireless networking under such paragraph.

"(c) Cross-functional Team for 5G Wireless Networking.—

"(1) Establishment.—Using the authority provided under section 911(c) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 10 U.S.C. 111 note), the Secretary of Defense shall establish a cross-functional team for 5G wireless networking.

"(2) Duties.—The duties of the cross-functional team established under paragraph (1) shall be—

"(A) to assist the Secretary of Defense in determining the roles and responsibilities of the organizations and elements of the Department of Defense with respect to the acquisition, sustainment, and operation of 5G wireless networking, as required under subsection (d);

"(B) to assist the senior official responsible for 5G wireless networking in carrying out the responsibilities assigned to such official under subsection (b);

"(C) to oversee the implementation of the strategy developed under section 254 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92; 10 U.S.C. 2223a note) for harnessing 5G wireless networking technologies, coordinated across all relevant elements of the Department;

"(D) to advance the adoption of commercially available, next-generation wireless communication technologies, capabilities, security, and applications by the Department and the defense industrial base; and

"(E) to support public-private partnerships between the Department and industry on matters relating to 5G wireless networking;

"(F) to coordinate research and development, implementation and acquisition activities, warfighting concept development, spectrum policy, industrial policy and commercial outreach and partnership relating to 5G wireless networking in the Department, and interagency and international engagement;

"(G) to integrate the Department's 5G wireless networking programs and policies with major initiatives, programs, and policies of the Department relating to secure microelectronics and command and control; and

"(H) to oversee, coordinate, execute, and lead initiatives to advance 5G wireless network technologies and associated applications developed for the Department.

"(3) Team leader.—The Under Secretary of Defense for Research and Engineering shall lead the cross-functional team established under paragraph (1) until the date on which the Secretary of Defense designates the Chief Information Officer as the senior official responsible for 5G wireless networking as required under subsection (b)(1). Beginning on the date of such designation, the Chief Information Officer shall lead the cross functional team.

"(d) Determination of Organizational Roles and Responsibilities.—The Secretary of Defense, acting through the cross-functional team established under subsection (c), shall determine the roles and responsibilities of the organizations and elements of the Department of Defense with respect to the acquisition, sustainment, and operation of 5G wireless networking for the Department, including the roles and responsibilities of the Office of the Secretary of Defense, the intelligence components of the Department, Defense Agencies and Department of Defense Field Activities, the Armed Forces, combatant commands, and the Joint Staff.

"(e) Briefing.—Not later than 90 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall submit to the congressional defense committees a briefing on the progress of the Secretary in—

"(1) establishing the cross-functional team under subsection (c); and

"(2) determining the roles and responsibilities of the organizations and elements of the Department of Defense with respect to 5G wireless networking as required under subsection (d).

"(f) 5G Procurement Decisions.—Each Secretary of a military department shall be responsible for decisions relating to the procurement of 5G wireless technology for that department.

"(g) Telecommunications Security Program.—

"(1) Program required.—The Secretary of Defense shall carry out a program to identify and mitigate vulnerabilities in the 5G telecommunications infrastructure of the Department of Defense.

"(2) Elements.—In carrying out the program under paragraph (1), the Secretary shall—

"(A) develop a capability to communicate clearly and authoritatively about threats by foreign adversaries;

"(B) conduct independent red-team security analysis of systems, subsystems, devices, and components of the Department of Defense including no-knowledge testing and testing with limited or full knowledge of expected functionalities;

"(C) verify the integrity of personnel who are tasked with design fabrication, integration, configuration, storage, test, and documentation of noncommercial 5G technology to be used by the Department;

"(D) verify the efficacy of the physical security measures used at Department locations where system design, fabrication, integration, configuration, storage, test, and documentation of 5G technology occurs;

"(E) direct the Chief Information Officer to assess, using existing government evaluation models and schema where applicable, 5G core service providers whose services will be used by the Department through the Department's provisional authorization process; and

"(F) direct the Defense Information Systems Agency and the United States Cyber Command to develop a capability for continuous, independent monitoring of non-commercial, government-transiting packet streams for 5G data on frequencies assigned to the Department to validate the availability, confidentiality, and integrity of the Department's communications systems.

"(3) Implementation plan.—Not later than 90 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall submit to Congress a plan for the implementation of the program under paragraph (1).

"(4) Report.—Not later than 270 days after submitting the plan under paragraph (3), the Secretary of Defense shall submit to Congress a report that includes—

"(A) a comprehensive assessment of the findings and conclusions of the program under paragraph (1);

"(B) recommendations on how to mitigate vulnerabilities in the telecommunications infrastructure of the Department of Defense; and

"(C) an explanation of how the Department plans to implement such recommendations.

"(h) Rule of Construction.—

"(1) In general.—Nothing in this section shall be construed as providing the Chief Information Officer immediate responsibility for the activities of the Department of Defense in fifth-generation wireless networking experimentation and science and technology development.

"(2) Purview of experimentation and science and technology development.—The activities described in paragraph (1) shall remain within the purview of the Under Secretary of Defense for Research and Engineering, but shall inform and be informed by the activities of the cross-functional team established pursuant to subsection (c)."

Demonstration Project on Use of Certain Technologies for Fifth-Generation Wireless Networking Services

Pub. L. 116–283, div. A, title II, §225, Jan. 1, 2021, 134 Stat. 3475, provided that:

"(a) Demonstration Project.—The Secretary of Defense shall carry out a demonstration project to evaluate the maturity, performance, and cost of covered technologies to provide additional options for providers of fifth-generation wireless network services.

"(b) Location.—The Secretary of Defense shall carry out the demonstration project under subsection (a) in at least one location where the Secretary plans to deploy a fifth-generation wireless network.

"(c) Coordination.—The Secretary shall carry out the demonstration project under subsection (a) in coordination with at least one major wireless network service provider based in the United States.

"(d) Covered Technologies Defined.—In this section, the term 'covered technologies' means—

"(1) a disaggregated or virtualized radio access network and core in which components can be provided by different vendors and interoperate through open protocols and interfaces, including those protocols and interfaces utilizing the Open Radio Access Network (commonly known as 'Open RAN' or 'oRAN') approach; and

"(2) one or more massive multiple-input, multiple-output radio arrays, provided by one or more companies based in the United States, that have the potential to compete favorably with radios produced by foreign companies in terms of cost, performance, and efficiency."

Pilot Program on the Use of Consumption-Based Solutions To Address Software-Intensive Warfighting Capability

Pub. L. 116–283, div. A, title VIII, §834, Jan. 1, 2021, 134 Stat. 3754, provided that:

"(a) In General.—Subject to the availability of appropriations, the Secretary of Defense is authorized to establish a pilot program to explore the use of consumption-based solutions to address software-intensive warfighting capability.

"(b) Selection of Initiatives.—Each Secretary of a military department and each commander of a combatant command with acquisition authority shall propose for selection by the Secretary of Defense for the pilot program at least one and not more than three initiatives that are well-suited to explore consumption-based solutions, to include addressing software-intensive warfighting capability. The initiatives may be new or existing programs of record, and may include applications that—

"(1) rapidly analyze sensor data;

"(2) secure warfighter networks, including multilevel security;

"(3) swiftly transport information across various networks and network modalities;

"(4) enable joint all-domain operational concepts, including in a contested environment; or

"(5) advance military capabilities and effectiveness.

"(c) Requirements.—A contract or other agreement for consumption-based solutions entered into under the pilot program shall require—

"(1) the effectiveness of the solution to be measurable at regular intervals customary for the type of solution provided under contract or other agreement; and

"(2) that the awardee notify the Secretary of Defense when consumption under the contract or other agreement reaches 75 percent and 90 percent of the funded amount, respectively, of the contract or other agreement.

"(d) Exemption.—A modification to a contract or other agreement entered into under this section to add new features or capabilities in an amount less than or equal to 25 percent of the total value of such contract or other agreement shall be exempt from the requirements of full and open competition (as defined in section 2302 of title 10, United States Code).

"(e) Duration.—The duration of a contract or other agreement entered into under this section may not exceed three years.

"(f) Monitoring and Evaluation of Pilot Program.—The Director of Cost Assessment and Program Evaluation shall continuously monitor and evaluate the pilot program, including by collecting data on cost, schedule, and performance from the program office, the user community, and the awardees involved in the program.

"(g) Reports.—

"(1) Initial report.—Not later than May 15, 2021, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on initiatives selected for the pilot program, roles, and responsibilities for implementing the program, and the monitoring and evaluation approach that will be used for the program.

"(2) Progress report.—Not later than October 15, 2021, the Secretary of Defense shall submit to the congressional defense committees a report on the progress of the initiatives selected for the pilot program.

"(3) Final report.—Not later than 3 years after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall submit to the congressional defense committees a report on the cost, schedule, and performance outcomes of the initiatives carried out under the pilot program. The report shall also include lessons learned about the use of consumption-based solutions for software-intensive capabilities and any recommendations for statutory or regulatory changes to facilitate the use of such solutions.

"(h) Consumption-based Solution Defined.—In this section, the term 'consumption-based solution' means any combination of software, hardware or equipment, and labor or services that provides a seamless capability that is metered and billed based on actual usage and predetermined pricing per resource unit, and includes the ability to rapidly scale capacity up or down."

Balancing Security and Innovation in Software Development and Acquisition

Pub. L. 116–283, div. A, title VIII, §835, Jan. 1, 2021, 134 Stat. 3755, provided that:

"(a) Requirements for Solicitations of Commercial and Developmental Solutions.—The Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Chief Information Officer of the Department of Defense, shall develop requirements for appropriate software security criteria to be included in solicitations for commercial and developmental solutions and the evaluation of bids submitted in response to such solicitations, including a delineation of what processes were or will be used for a secure software development life cycle. Such requirements shall include—

"(1) establishment and enforcement of secure coding practices;

"(2) management of supply chain risks and third-party software sources and component risks;

"(3) security of the software development environment;

"(4) secure deployment, configuration, and installation processes; and

"(5) an associated vulnerability management plan and identification of tools that will be applied to achieve an appropriate level of security.

"(b) Security Review of Code.—The Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Chief Information Officer of the Department of Defense, shall develop—

"(1) procedures for the security review of code; and

"(2) other procedures necessary to fully implement the pilot program required under section 875 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91; 10 U.S.C. 2223 note).

"(c) Coordination With Cybersecurity Acquisition Policy Efforts.—The Under Secretary of Defense for Acquisition and Sustainment shall develop the requirements and procedures described under subsections (a) and (b) in coordination with the efforts of the Department of Defense to develop new cybersecurity and program protection policies and guidance that are focused on cybersecurity in the context of acquisition and program management and on safeguarding information."

§4576. Requirement for consideration of certain matters during acquisition of noncommercial computer software

(a) Consideration Required.—As part of any negotiation for the acquisition of noncommercial computer software, the Secretary of Defense shall ensure that such negotiations consider, to the maximum extent practicable, acquisition, at the appropriate time in the life cycle of the noncommercial computer software, of all software and related materials necessary—

(1) to reproduce, build, or recompile the software from original source code and required libraries;

(2) to conduct required computer software testing; and

(3) to deploy working computer software system binary files on relevant system hardware.


(b) Delivery of Software and Related Materials.—Any noncommercial computer software or related materials required to be delivered as a result of considerations in subsection (a) shall, to the extent appropriate as determined by the Secretary—

(1) include computer software delivered in a useable, digital format;

(2) not rely on external or additional software code or data, unless such software code or data is included in the items to be delivered; and

(3) in the case of negotiated terms that do not allow for the inclusion of dependent software code or data, sufficient documentation to support maintenance and understanding of interfaces and software revision history.

(Added Pub. L. 115–91, div. A, title VIII, §871(a)(1), Dec. 12, 2017, 131 Stat. 1496, §2322a; renumbered §4576, Pub. L. 116–283, div. A, title XVIII, §1857(c), Jan. 1, 2021, 134 Stat. 4276.)

Prior Provisions

Prior sections 4591 to 4595 were renumbered sections 7591 to 7595 of this title, respectively.

Amendments

2021Pub. L. 116–283 renumbered section 2322a of this title as this section.

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.