§2302. Definitions
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.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2302 | 41:158 (less clause (b)). | Feb. 19, 1948, ch. 65, §9 (less clause (b)), |
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,
Clauses (2) and (3) are inserted for clarity, and are based on the usage of those terms throughout the revised chapter.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2302(3) | [No source]. | [No source]. |
The amendments reflect section 1(44) of the bill [amending section 2305 of Title 10].
Amendments
2002-Par. (1).
Par. (2)(A).
1997-Pars. (7), (8).
1996-Par. (3)(K).
Par. (5).
Par. (7).
1994-Par. (3).
Par. (7).
1991-Par. (7).
1989-Par. (6).
1987-
1986-Par. (2)(A).
1984-
Cl. (2)(D), (E).
Cls. (4), (5).
1980-Cl. (1).
1958-Cl. (1).
Cl. (3).
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1996 Amendment
For effective date and applicability of amendment by
Effective Date of 1994 Amendment
For effective date and applicability of amendment by
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1958 Amendment
Section 301(e) of
Short Title of 1986 Amendment
Section 101(c) [title X, §900] of
Short Title of 1985 Amendment
Short Title of 1984 Amendment
Section 1201 of title XII of
Quality Control in Procurement of Ship Critical Safety Items and Related Services
"(a)
"(1) Ship critical safety items.
"(2) Modifications, repair, and overhaul of ship critical safety items.
"(b)
"(1) That the head of the design control activity for ship critical safety items establish processes to identify and manage the procurement, modification, repair, and overhaul of such items.
"(2) That the head of the contracting activity for a ship critical safety item enter into a contract for the procurement, modification, repair, or overhaul of such item only with a source on a qualified manufacturers list or a source approved by the design control activity in accordance with section 2319 of title 10, United States Code (as amended by subsection (d)).
"(3) That the ship critical safety items delivered, and the services performed with respect to such items, meet all technical and quality requirements specified by the design control activity.
"(c)
Pilot Program on Time-Certain Development in Acquisition of Major Weapon Systems
"(a)
"(b)
"(1) disciplined decision-making;
"(2) emphasis on technological maturity; and
"(3) appropriate trade-offs between-
"(A) cost and system performance; and
"(B) program schedule.
"(c)
"(1)
"(A) the major weapon system meets the criteria under paragraph (2) in accordance with that paragraph; and
"(B) the Milestone Decision Authority nominates such program to the Secretary of Defense for inclusion in the program.
"(2)
"(A) the certification requirements of section 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)
"(d)
"(e)
"(f)
"(1)
"(2)
"(A) funds made available for any major weapon system included in the pilot program to cover termination liability;
"(B) funds made available for any major weapon system included in the pilot program for award fees that may be earned by contractors; and
"(C) funds appropriated to the special reserve account.
"(3)
"(A) To cover termination liability for any major weapon system included in the pilot program.
"(B) To pay award fees that are earned by any contractor for a major weapon system included in the pilot program.
"(C) To address unforeseen contingencies that could prevent a major weapon system included in the pilot program from meeting critical schedule or performance requirements.
"(4)
"(5)
"(g)
"(1) provide for the use of program status reports based on earned value data to track progress on a major weapon system under the pilot program against baseline estimates applicable to such system at each systems engineering technical review point; and
"(2) grant authority, to the maximum extent practicable, to the program manager for the acquisition program for a major weapon system to make key program decisions and trade-offs, subject to management reviews only if cost or schedule deviations exceed the baselines for such acquisition program by 10 percent or more.
"(h)
"(1) the weapon system receives Milestone C approval; or
"(2) the Secretary determines that the weapon system is no longer in substantial compliance with the criteria in subsection (c)(2) or is otherwise no longer appropriate for inclusion in the pilot program.
"(i)
"(1)
"(2)
"(j)
"(1)
"(2)
"(A) a description of progress under the pilot program, and on each major weapon system included in the pilot program, during the period covered by such report;
"(B) a description of the use of all funds in the special reserve account established under subsection (f); and
"(C) such other matters as the Secretary considers appropriate.
"(k)
Linking of Award and Incentive Fees to Acquisition Outcomes
"(a)
"(b)
"(1) ensure that all new contracts using award fees link such fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance);
"(2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts;
"(3) provide guidance on the circumstances in which contractor performance may be judged to be 'excellent' or 'superior' and the percentage of the available award fee which contractors should be paid for such performance;
"(4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be 'acceptable', 'average', 'expected', 'good', or 'satisfactory';
"(5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract;
"(6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods;
"(7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the military departments and Defense Agencies;
"(8) ensure that the Department of Defense-
"(A) collects relevant data on award and incentive fees paid to contractors; and
"(B) has mechanisms in place to evaluate such data on a regular basis;
"(9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and
"(10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials.
"(c)
"(1)
"(2)
"(A) held in a separate fund or funds of the Department of Defense; and
"(B) allocated to a specific program only upon a determination by an independent board, charged with comparing contractor performance across programs, that such fees have been earned by the contractor for such program.
"(3)
Limitation on Contracts for the Acquisition of Certain Services
"(a)
"(b)
"(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)
"(1) A clear explanation of the need for the contract.
"(2) An examination of at least two alternatives for fulfilling the requirements that the contract is meant to fulfill, including the following with respect to each alternative:
"(A) A rationale for including the alternative.
"(B) A cost estimate of the alternative and an analysis of the quality of each cost estimate.
"(C) A discussion of the benefits to be realized from the alternative.
"(D) A best value determination of each alternative and a detailed explanation of the life-cycle cost calculations used in the determination.
"(d)
"(1) The term 'military flight simulator' means any major system to simulate the form, fit, and function of a military aircraft that has no commonly available commercial variant.
"(2) The term 'service contract' means any contract entered into by the Department of Defense the principal purpose of which is to furnish services in the United States through the use of service employees.
"(3) The term 'service employees' has the meaning provided in section 8(b) of the Service Contract Act of 1965 (41 U.S.C. 357(b))."
Congressional Notification of Cancellation of Major Automated Information Systems
"(a)
"(b)
"(1) the specific justification for the proposed cancellation or change;
"(2) a description of the impact of the proposed cancellation or change on the ability of the Department to achieve the objectives of the program proposed for cancellation or change;
"(3) a description of the steps that the Department plans to take to achieve those objectives; and
"(4) other information relevant to the change in acquisition strategy.
"(c)
"(1) The term 'major automated information system' has the meaning given that term in Department of Defense directive 5000.1.
"(2) The term 'approved to be fielded' means having received Milestone C approval."
Joint Policy on Contingency Contracting
"(a)
"(1)
"(2)
"(A) the designation of a senior commissioned officer in each military department with the responsibility for administering the policy;
"(B) the assignment of a senior commissioned officer with appropriate acquisition experience and qualifications to act as head of contingency contracting during combat operations, post-conflict operations, and contingency operations, who shall report directly to the commander of the combatant command in whose area of responsibility the operations occur;
"(C) an organizational approach to contingency contracting that is designed to ensure that each military department is prepared to conduct contingency contracting during combat operations and post-conflict operations;
"(D) a requirement to provide training (including training under a program to be created by the Defense Acquisition University) to contingency contracting personnel in-
"(i) the use of law, regulations, policies, and directives related to contingency contracting operations;
"(ii) the appropriate use of rapid acquisition methods, including the use of exceptions to competition requirements under section 2304 of title 10, United States Code, sealed bidding, letter contracts, indefinite delivery indefinite quantity task orders, set asides under section 8(a) of the Small Business Act (15 U.S.C. 637(a)), undefinitized contract actions, and other tools available to expedite the delivery of goods and services during combat operations or post-conflict operations;
"(iii) the appropriate use of rapid acquisition authority, commanders' emergency response program funds, and other tools unique to contingency contracting; and
"(iv) instruction on the necessity for the prompt transition from the use of rapid acquisition authority to the use of full and open competition and other methods of contracting that maximize transparency in the acquisition process;
"(E) appropriate steps to ensure that training is maintained for such personnel even when they are not deployed in a contingency operation; and
"(F) such steps as may be needed to ensure jointness and cross-service coordination in the area of contingency contracting.
"(b)
"(1)
"(A)
"(B)
"(i) Progress in the development of the joint policy under subsection (a).
"(ii) The ability of the Armed Forces to support contingency contracting.
"(iii) The ability of commanders of combatant commands to request contingency contracting support and the ability of the military departments and the acquisition support agencies to respond to such requests and provide such support, including the availability of rapid acquisition personnel for such support.
"(iv) The ability of the current civilian and military acquisition workforce to deploy to combat theaters of operations and to conduct contracting activities during combat and during post-conflict, reconstruction, or other contingency operations.
"(v) The effect of different periods of deployment on continuity in the acquisition process.
"(2)
"(c)
"(1)
"(2)
"(3)
"(4)
Prohibition on Procurements From Communist Chinese Military Companies
"(a)
"(b)
"(1) in connection with a visit by a vessel or an aircraft of the United States Armed Forces to the People's Republic of China;
"(2) for testing purposes; or
"(3) for purposes of gathering intelligence.
"(c)
"(d)
"(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 [
"(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
"(a)
"(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)
"(1) Any manned system.
"(2) Any equipment intended to enhance personnel survivability.
"(c)
"(d)
Internal Controls for Department of Defense Procurements Through GSA Client Support Centers
"(a)
"(A) review-
"(i) the policies, procedures, and internal controls of each GSA Client Support Center; and
"(ii) the administration of those policies, procedures, and internal controls; and
"(B) for each such Center, determine in writing whether-
"(i) the Center is compliant with defense procurement requirements;
"(ii) the Center is not compliant with defense procurement requirements, but the Center made significant progress during 2004 toward becoming compliant with defense procurement requirements; or
"(iii) neither of the conclusions stated in clauses (i) and (ii) is correct.
"(2) If the Inspectors General determine under paragraph (1) that the conclusion stated in clause (ii) or (iii) of subparagraph (B) of such paragraph is correct in the case of a GSA Client Support Center, those Inspectors General shall, not later than March 15, 2006, jointly-
"(A) conduct a second review regarding that GSA Client Support Center as described in paragraph (1)(A); and
"(B) determine in writing whether that GSA Client Support Center is or is not compliant with defense procurement requirements.
"(b)
"(c)
"(2) After March 15, 2006, no official of the Department of Defense may, except as provided in subsection (d) or (e), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through any GSA Client Support Center that has not been determined under this section as being compliant with defense procurement requirements.
"(d)
"(2) A written determination with respect to a GSA Client Support Center under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary of Defense for Acquisition, Technology, and Logistics shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect.
"(e)
"(f)
Quality Control in Procurement of Aviation Critical Safety Items and Related Services
"(a)
"(b)
"(1) That the head of the design control activity for aviation critical safety items establish processes to identify and manage the procurement, modification, repair, and overhaul of aviation critical safety items.
"(2) That the head of the contracting activity for an aviation critical safety item enter into a contract for the procurement, modification, repair, or overhaul of such item only with a source approved by the design control activity in accordance with section 2319 of title 10, United States Code.
"(3) That the aviation critical safety items delivered, and the services performed with respect to aviation critical safety items, meet all technical and quality requirements specified by the design control activity.
"(c)
Competitive Award of Contracts for Reconstruction Activities in Iraq
Demonstration Project for Contractors Employing Persons With Disabilities
"(a)
"(b)
"(c)
"(d)
"(1)
"(A) employs severely disabled individuals at a rate that averages not less than 33 percent of its total workforce over a period prescribed by the Secretary;
"(B) pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) to the employees who are severely disabled individuals; and
"(C) provides for its employees health insurance and a retirement plan comparable to those provided for employees by business entities of similar size in its industrial sector or geographic region.
"(2)
Procurement of Defense Biomedical Countermeasures
"(a)
"(A) assess current and emerging threats of use of biological, chemical, radiological, and nuclear agents; and
"(B) identify, on the basis of such assessment, those agents that present a material risk of use against the Armed Forces.
"(2) The Secretary shall on an ongoing basis-
"(A) assess the potential consequences to the health of members of the Armed Forces of use against the Armed Forces of the agents identified under paragraph (1)(B); and
"(B) identify, on the basis of such assessment, those agents for which countermeasures are necessary to protect the health of members of the Armed Forces.
"(b)
"(c)
"(2) The Secretary may not identify a specific countermeasure under paragraph (1) unless the Secretary determines that-
"(A) the countermeasure is a qualified countermeasure; and
"(B) it is reasonable to expect that producing and delivering, within 5 years, the quantity of that countermeasure required to meet the needs of the Department (as determined by the Secretary) is feasible.
"(d)
"(2) The Secretary may enter into an interagency agreement with the Secretaries of Homeland Security and Health and Human Services to provide for acquisition by the Secretary of Defense for use by the Armed Forces of biomedical countermeasures procured for the Strategic National Stockpile by the Secretary of Health and Human Services. The Secretary may transfer such funds to the Secretary of Health and Human Services as are necessary to carry out such agreements (including administrative costs of the Secretary of Health and Human Services), and the Secretary of Health and Human Services may expend any such transferred funds to procure such countermeasures for use by the Armed Forces, or to replenish the stockpile. The Secretaries are authorized to establish such terms and conditions for such agreements as the Secretaries determine to be in the public interest. The transfer authority provided under this paragraph is in addition to any other transfer authority available to the Secretary.
"(e)
"(1) The term 'qualified countermeasure' means a biomedical countermeasure-
"(A) that is approved under section 505(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) or licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or that is approved under section 515 or cleared under section 510(k) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360e and 360) for use as such a countermeasure to a biological, chemical, radiological, or nuclear agent identified as a material threat under subsection (a); or
"(B) with respect to which the Secretary of Health and Human Services makes a determination that sufficient and satisfactory clinical experience or research data (including data, if available, from preclinical and clinical trials) exists to support a reasonable conclusion that the product will qualify for such approval or licensing for use as such a countermeasure.
"(2) The term 'biomedical countermeasure' means a drug (as defined in section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)(1))), device (as defined in section 201(h) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(h))), or biological product (as defined in section 351(i) of the Public Health Service Act (42 U.S.C. 262(i))) that is-
"(A) used to treat, identify, or prevent harm from any biological, chemical, radiological, or nuclear agent that may cause a military health emergency affecting the Armed Forces; or
"(B) used to treat, identify, or prevent harm from a condition that may result in adverse health consequences or death and may be caused by administering a drug or biological product that is used as described in subparagraph (A).
"(3) The term 'Strategic National Stockpile' means the stockpile established under section 121(a) of the Public Health [Security] and Bioterrorism Preparedness and Response Act of 2002 (42 U.S.C. 300hh–12(a)).
"(f)
Encouragement of Small Businesses and Nontraditional Defense Contractors To Submit Proposals Potentially Beneficial for Combating Terrorism
Procurement of Environmentally Preferable Procurement Items
"(a)
"(b)
"(c)
"(d)
"(e)
"(1) The term 'environmentally preferable', in the case of a procurement item, means that the item has a lesser or reduced effect on human health and the environment when compared with competing products that serve the same purpose. The comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product.
"(2) The terms 'procurement item' and 'recovered material' have the meanings given such terms in section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903)."
Policy Regarding Acquisition of Information Assurance and Information Assurance-Enabled Information Technology Products
"(a)
"(b)
"(c)
Logistics Support and Services for Weapon Systems Contractors
"(a)
"(b)
"(c)
"(d)
"(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)
"(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)
"(g)
"(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
"(a)
"(2) The head of each Defense Agency that manages a major defense acquisition program with a substantial software component shall establish a program to improve the software acquisition processes of that Defense Agency.
"(3) The programs required by this subsection shall be established not later than 120 days after the date of the enactment of this Act [Dec. 2, 2002].
"(b)
"(1) A documented process for software acquisition planning, requirements development and management, project management and oversight, and risk management.
"(2) Efforts to develop appropriate metrics for performance measurement and continual process improvement.
"(3) A process to ensure that key program personnel have an appropriate level of experience or training in software acquisition.
"(4) A process to ensure that each military department and Defense Agency implements and adheres to established processes and requirements relating to the acquisition of software.
"(c)
"(1) prescribe uniformly applicable guidance for the administration of all of the programs established under subsection (a) and take such actions as are necessary to ensure that the military departments and Defense Agencies comply with the guidance; and
"(2) assist the Secretaries of the military departments and the heads of the Defense Agencies to carry out such programs effectively by-
"(A) ensuring that the criteria applicable to the selection of sources provides added emphasis on past performance of potential sources, as well as on the maturity of the software products offered by the potential sources; and
"(B) identifying, and serving as a clearinghouse for information regarding, best practices in software development and acquisition in both the public and private sectors.
"(d)
"(1) The term 'Defense Agency' has the meaning given the term in section 101(a)(11) of title 10, United States Code.
"(2) The term 'major defense acquisition program' has the meaning given such term in section 139(a)(2)(B) of title 10, United States Code."
Rapid Acquisition and Deployment Procedures
"(a)
"(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)
"(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)
"(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)
"(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)
"(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)
Procurement of Alternative Fueled and Hybrid Light Duty Trucks
"(a)
"(2) The Secretary, in consultation with the Administrator, may waive the policy regarding the procurement of hybrid vehicles in paragraph (1) to the extent that the Secretary determines necessary-
"(A) in the case of trucks that are exempt from the requirements of section 303 of the Energy Policy Act of 1992 for national security reasons under subsection (b)(3)(E) of such section, to meet specific requirements of the Department of Defense for capabilities of light duty trucks;
"(B) to procure vehicles consistent with the standards applicable to the procurement of fleet vehicles for the Federal Government; or
"(C) to adjust to limitations on the commercial availability of light duty trucks that are hybrid vehicles.
"(3) This subsection applies with respect to procurements of light duty trucks in fiscal year 2005 and subsequent fiscal years.
"(b)
"(A) five percent of the total number of such trucks that are procured in each of fiscal years 2005 and 2006 are alternative fueled vehicles or hybrid vehicles; and
"(B) ten percent of the total number of such trucks that are procured in each fiscal year after fiscal year 2006 are alternative fueled vehicles or hybrid vehicles.
"(2) Light duty trucks acquired for the Department of Defense that are counted to comply with section 303 of the Energy Policy Act of 1992 for a fiscal year shall be counted to determine the total number of light duty trucks procured for the Department of Defense for that fiscal year for the purposes of paragraph (1), but shall not be counted to satisfy the requirement in that paragraph.
"(c)
"(d)
"(1) The term 'hybrid vehicle' means a motor vehicle that draws propulsion energy from onboard sources of stored energy that are both-
"(A) an internal combustion or heat engine using combustible fuel; and
"(B) a rechargeable energy storage system.
"(2) The term 'alternative fueled vehicle' has the meaning given that term in section 301 of the Energy Policy Act of 1992 (42 U.S.C. 13211)."
Temporary Emergency Procurement Authority to Facilitate the Defense Against Terrorism or Biological or Chemical Attack
Improvements in Procurements of Services
"(a)
"(1) A performance-based contract or performance-based task order that contains firm fixed prices for the specific tasks to be performed.
"(2) Any other performance-based contract or performance-based task order.
"(3) Any contract or task order that is not a performance-based contract or a performance-based task order.
"[(b) Repealed.
"(c)
"(d)
"(2) The Secretary of each military department and the head of each Defense Agency shall ensure that the personnel of the department or agency, as the case may be, who are responsible for the awarding and management of contracts for services receive appropriate training that is focused specifically on contracting for services.
"(e)
"(1) The term 'performance-based', with respect to a contract, a task order, or contracting, means that the contract, task order, or contracting, respectively, includes the use of performance work statements that set forth contract requirements in clear, specific, and objective terms with measurable outcomes.
"(2) The term 'commercial item' has the meaning given the term in section 4(12) of the Office of Federal Procurement Policy Act (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
"(a)
"(b)
"(c)
"(1) Procedures through which commercial private sector entities, including small-business concerns, may submit proposals recommending cost-saving and innovative ideas to acquisition program managers.
"(2) A review process designed to make recommendations on the merit and viability of the proposals submitted under paragraph (1) at appropriate times during the acquisition cycle.
"(3) Measures to limit potential disruptions to existing contracts and programs from proposals accepted and incorporated into acquisition programs of the Department of Defense.
"(4) Measures to ensure that research and development efforts of small-business concerns are considered as early as possible in a program's acquisition planning process to accommodate potential technology insertion without disruption to existing contracts and programs.
"(e)
Year 2000 Software Conversion
Defense Facility-Wide Pilot Program
Section 822 of
"(a)
"(b)
"(2) The Secretary may designate for participation in the pilot program only those facilities that are authorized to be so designated in a law authorizing appropriations for national defense programs that is enacted after the date of the enactment of this Act [Feb. 10, 1996].
"(c)
"(1) All contracts and subcontracts for defense supplies and services that are performed at the facility.
"(2) All Department of Defense contracts and all subcontracts under Department of Defense contracts performed elsewhere that the Secretary determines are directly and substantially related to the production of defense supplies and services at the facility and are necessary for the pilot program.
"(d)
"(1) The number of existing and anticipated contracts and subcontracts performed at the facility-
"(A) for which contractors are required to provide certified cost or pricing data pursuant to section 2306a of title 10, United States Code; and
"(B) which are administered with the application of cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act (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)
"(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)
"(1) is within the scope of the pilot program (as described in subsection (c)); and
"(2) is fairly and reasonably priced based on information other than certified cost and pricing data.
"(g)
"(1) to apply any amendment or repeal of a provision of law made in this Act [see Tables for classification] to the pilot program before the effective date of such amendment or repeal; and
"(2) to apply to a procurement of items other than commercial items under such program-
"(A) the authority provided in section 34 of the Office of Federal Procurement Policy Act (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 (
before the effective date of such provision (or amendment) to the extent that the Secretary determines necessary to test the application of such waiver or exception to procurements of items other than commercial items.
"(h)
"(A) A contract that is awarded or modified during the period described in paragraph (2).
"(B) A contract that is awarded before the beginning of such period, that is to be performed (or may be performed), in whole or in part, during such period, and that may be modified as appropriate at no cost to the Government.
"(2) The period referred to in paragraph (1), with respect to a facility designated under subsection (b), is the period that-
"(A) begins 45 days after the date of the enactment of the Act authorizing the designation of that facility in accordance with paragraph (2) of such subsection; and
"(B) ends on September 30, 2000.
"(i)
"(1) Substitution of commercial oversight and inspection procedures for Government audit and access to records.
"(2) Incorporation of commercial oversight, inspection, and acceptance procedures.
"(3) Use of alternative dispute resolution techniques (including arbitration).
"(4) Elimination of contract provisions authorizing the Government to make unilateral changes to contracts."
Elimination of Use of Class I Ozone-Depleting Substances in Certain Military Procurement Contracts
Section 326 of
"(a)
"(2)(A)(i) Not later than 60 days after the completion of the first modification, amendment, or extension after June 1, 1993, of a contract referred to in clause (ii), the senior acquisition official (or the designee of that official) shall carry out an evaluation of the contract in order to determine-
"(I) whether the contract includes a specification or standard that requires the use of a class I ozone-depleting substance or can be met only through the use of such a substance; and
"(II) in the event of a determination that the contract includes such a specification or standard, whether the contract can be carried out through the use of an economically feasible substitute for the ozone-depleting substance or through the use of an economically feasible alternative technology for a technology involving the use of the ozone-depleting substance.
"(ii) A contract referred to in clause (i) is any contract in an amount in excess of $10,000,000 that-
"(I) was awarded before June 1, 1993; and
"(II) as a result of the modification, amendment, or extension described in clause (i), will expire more than 1 year after the effective date of the modification, amendment, or extension.
"(iii) A contract under evaluation under clause (i) may not be further modified, amended, or extended until the evaluation described in that clause is complete.
"(B) If the acquisition official (or designee) determines that an economically feasible substitute substance or alternative technology is available for use in a contract under evaluation, the appropriate contracting officer shall enter into negotiations to modify the contract to require the use of the substitute substance or alternative technology.
"(C) A determination that a substitute substance or technology is not available for use in a contract under evaluation shall be made in writing by the senior acquisition official (or designee).
"(D) The Secretary of Defense may, consistent with the Federal Acquisition Regulation, adjust the price of a contract modified under subparagraph (B) to take into account the use by the contractor of a substitute substance or alternative technology in the modified contract.
"(3) The senior acquisition official authorized to grant an approval under paragraph (1) and the senior acquisition official and designees authorized to carry out an evaluation and make a determination under paragraph (2) shall be determined under regulations prescribed by the Secretary of Defense. A senior acquisition official may not delegate the authority provided in paragraph (1).
"(4) Each official who grants an approval authorized under paragraph (1) or makes a determination under paragraph (2)(B) shall submit to the Secretary of Defense a report on that approval or determination, as the case may be, as follows:
"(A) Beginning on October 1, 1993, and continuing for 8 calendar quarters thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding quarter not later than 30 days after the end of such quarter.
"(B) Beginning on January 1, 1997, and continuing for 4 years thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding year not later than 30 days after the end of such year.
"(5) The Secretary shall promptly transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives each report submitted to the Secretary under paragraph (4). The Secretary shall transmit the report in classified and unclassified forms.
"(b)
"(c)
"(1) The term 'class I ozone-depleting substance' means any substance listed under section 602(a) of the Clean Air Act (42 U.S.C. 7671a(a)).
"(2) The term 'Federal Acquisition Regulation' means the single Government-wide procurement regulation issued under section 25(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c))."
Payment Protections for Subcontractors and Suppliers
"(a)
"(1)
"(i) Whether requests for progress payments or other payments have been submitted by the contractor to the Department of Defense in connection with that contract.
"(ii) Whether final payment to the contractor has been made by the Department of Defense in connection with that contract.
"(B) This paragraph shall apply with respect to any Department of Defense contract that is in effect on the date which is 270 days after the date of enactment of this Act [Dec. 5, 1991] or that is awarded after such date.
"(2)
"(i) The name and address of the surety or sureties on the payment bond.
"(ii) The penal amount of the payment bond.
"(iii) A copy of the payment bond.
"(B) Subparagraph (A) applies to-
"(i) a subcontractor or supplier having a subcontract, purchase order, or other agreement to furnish labor or material for the performance of a Department of Defense contract with respect to which a payment bond has been furnished to the United States pursuant to the Miller Act; and
"(ii) a prospective subcontractor or supplier offering to furnish labor or material for the performance of such a Department of Defense contract.
"(C) With respect to the information referred to in subparagraphs (A)(i) and (A)(ii), the regulations shall include authority for such information to be provided verbally to the subcontractor or supplier.
"(D) With respect to the information referred to in subparagraph (A)(iii), the regulations may impose reasonable fees to cover the cost of copying and providing requested bonds.
"(E) This paragraph shall apply with respect to any Department of Defense contract covered by the Miller Act that is in effect on the date which is 270 days after the date of enactment of this Act [Dec. 5, 1991] or that is awarded after such date.
"(3)
"(B) This paragraph shall apply with respect to any Department of Defense contract covered by the Miller Act for which a solicitation is issued after the expiration of the 60-day period beginning on the effective date of the regulations promulgated under this subsection.
"(4)
"(i) With respect to a construction contract, whether the contractor has made progress payments to the subcontractor or supplier in compliance with chapter 39 of title 31, United States Code.
"(ii) With respect to a contract other than a construction contract, whether the contractor has made progress or other payments to the subcontractor or supplier in compliance with the terms of the subcontract, purchase order, or other agreement with the prime contractor.
"(iii) With respect to either a construction contract or a contract other than a construction contract, whether the contractor has made final payment to the subcontractor or supplier in compliance with the terms of the subcontract, purchase order, or other agreement with the prime contractor.
"(iv) With respect to either a construction contract or a contract other than a construction contract, whether any certification of payment of the subcontractor or supplier accompanying the contractor's payment request to the Government is accurate.
"(B) If the contracting officer determines that the prime contractor is not in compliance with any matter referred to in clause (i), (ii), or (iii) of subparagraph (A), the contracting officer may, under procedures established in the regulations-
"(i) encourage the prime contractor to make timely payment to the subcontractor or supplier; or
"(ii) reduce or suspend progress payments with respect to amounts due to the prime contractor.
"(C) If the contracting officer determines that a certification referred to in clause (iv) of subparagraph (A) is inaccurate in any material respect, the contracting officer shall, under procedures established in the regulations, initiate appropriate administrative or other remedial action.
"(D) This paragraph shall apply with respect to any Department of Defense contract that is in effect on the date of promulgation of the regulations under this subsection or that is awarded after such date.
"(b)
"(c)
"(d)
"(e)
"(2) In addition to such other related matters as the Comptroller General considers appropriate, the matters to be assessed pursuant to paragraph (1) are the following:
"(A) Timely payment of progress or other periodic payments to subcontractors and suppliers by prime contractors on Federal contracts by-
"(i) identifying all existing statutory and regulatory provisions, categorized by types of contracts covered by such provisions;
"(ii) evaluating the feasibility and desirability of requiring that a prime contractor (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) be required to-
"(I) include in its subcontracts a payment term requiring payment within 7 days (or some other fixed term) after receiving payment from the Government; and
"(II) submit with its payment request to the Government a certification that it has timely paid its subcontractors in accordance with their subcontracts from funds previously received as progress payments and will timely make required payments to such subcontractors from the proceeds of the progress payment covered by the certification;
"(iii) evaluating the feasibility and desirability of requiring that all prime contractors (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) furnish with its payment request to the Government proof of payment of the amounts included in such payment request for payments made to subcontractors and suppliers;
"(iv) evaluating the feasibility and desirability of requiring a prime contractor to establish an escrow account at a federally insured financial institution and requiring direct disbursements to subcontractors and suppliers of amounts certified by the prime contractor in its payment request to the Government as being payable to such subcontractors and suppliers in accordance with their subcontracts; and
"(v) evaluating the feasibility and desirability of requiring direct disbursement of amounts certified by a prime contractor as being payable to its subcontractors and suppliers in accordance with their subcontracts (using techniques such as joint payee checks, escrow accounts, or direct payment by the Government), if the contracting officer has determined that the prime contractor is failing to make timely payments to its subcontractors and suppliers.
"(B) Payment protection of subcontractors and suppliers through the use of payment bonds or alternatives methods by-
"(i) evaluating the effectiveness of the modifications to part 28.2 of the Federal Acquisition Regulation Part 28.2 (48 C.F.R. 28.200) relating to the use of individual sureties, which became effective February 26, 1990;
"(ii) evaluating the effectiveness of requiring payment bonds pursuant to the Miller Act as a means of affording protection to construction subcontractors and suppliers relating to receiving-
"(I) timely payment of progress payments due in accordance with their subcontracts; and
"(II) ultimate payment of such amounts due;
"(iii) evaluating the feasibility and desirability of increasing the payment bond amounts required under the Miller Act from the current maximum amounts to an amount equal to 100 percent of the amount of the contract;
"(iv) evaluating the feasibility and desirability of requiring payment bonds for supply and services contracts (other than construction), and, if feasible and desirable, the amounts of such bonds; and
"(v) evaluating the feasibility and desirability of using letters of credit issued by federally insured financial institutions (or other alternatives) as substitutes for payment bonds in providing payment protection to subcontractors and suppliers on construction contracts (and other contracts).
"(C) Any evaluation of feasibility and desirability carried out pursuant to subparagraph (A) or (B) shall include the appropriateness of-
"(i) any differential treatment of, or impact on, small business concerns as opposed to concerns other than small business concerns;
"(ii) any differential treatment of subcontracts relating to commercial products entered into by the contractor in furtherance of its non-Government business, especially those subcontracts entered into prior to the award of a contract by the Government; and
"(iii) extending the protections regarding payment to all tiers of subcontractors or restricting them to first-tier subcontractors and direct suppliers.
"(3) The report required by paragraph (1) shall include a description of the results of the assessment carried out pursuant to paragraph (2) and may include recommendations pertaining to any of the following:
"(A) Statutory and regulatory changes providing payment protections for subcontractors and suppliers (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) that the Comptroller General believes to be desirable and feasible.
"(B) Proposals to assess the desirability and utility of a specific payment protection on a test basis.
"(C) Such other recommendations as the Comptroller General considers appropriate in light of the matters assessed pursuant to paragraph (2).
"(4) The report required by paragraph (1) shall be submitted not later than by February 1, 1993, to the Committees on Armed Services and on Small Business [now the Committee on Small Business and Entrepreneurship of the Senate] of the Senate and House of Representatives.
"(f)
"(2) The report required by paragraph (1) shall be submitted to the Secretary of Defense not later than March 1, 1993. The report may include recommendations by the Inspector General on ways to improve the effectiveness of existing methods of preventing false statements.
"(g)
Advisory Panel on Streamlining and Codifying Acquisition Laws
Mentor-Protege Pilot Program
"(a)
"(b)
"(c)
"(2) A disadvantaged small business concern eligible for the award of Federal contracts may obtain assistance from a mentor firm upon entering into an agreement with the mentor firm as provided in subsection (e). A disadvantaged small business concern may not be a party to more than one agreement to receive such assistance at any time. A disadvantaged small business concern receiving such assistance shall be known, for the purposes of the program, as a 'protege firm'.
"(3) In entering into an agreement pursuant to subsection (e), a mentor firm may rely in good faith on a written representation of a business concern that such business concern is a disadvantaged small business concern. The Small Business Administration shall determine the status of such business concern as a disadvantaged small business concern in the event of a protest regarding the status of such business concern. If at any time the business concern is determined by the Small Business Administration not to be a disadvantaged small business concern, assistance furnished such business concern by the mentor firm after the date of the determination may not be considered assistance furnished under the program.
"(d)
"(1) during the fiscal year preceding the fiscal year in which the mentor firm enters into the agreement, the total amount of the Department of Defense contracts awarded such mentor firm and the subcontracts awarded such mentor firm under Department of Defense contracts was equal to or greater than $100,000,000; or
"(2) the mentor firm demonstrates the capability to assist in the development of protege firms, and is approved by the Secretary of Defense pursuant to criteria specified in the regulations prescribed pursuant to subsection (k).
"(e)
"(1) A developmental program for the protege firm, in such detail as may be reasonable, including (A) factors to assess the protege firm's developmental progress under the program, and (B) the anticipated number and type of subcontracts to be awarded the protege firm.
"(2) A program participation term for any period of not more than three years, except that the term may be a period of up to five years if the Secretary of Defense determines in writing that unusual circumstances justify a program participation term in excess of three years.
"(3) Procedures for the protege firm to terminate the agreement voluntarily and for the mentor firm to terminate the agreement for cause.
"(f)
"(1) Assistance, by using mentor firm personnel, in-
"(A) general business management, including organizational management, financial management, and personnel management, marketing, business development, and overall business planning;
"(B) engineering and technical matters such as production, inventory control, and quality assurance; and
"(C) any other assistance designed to develop the capabilities of the protege firm under the developmental program referred to in subsection (e).
"(2) Award of subcontracts on a noncompetitive basis to the protege firm under the Department of Defense or other contracts.
"(3) Payment of progress payments for performance of the protege firm under such a subcontract in amounts as provided for in the subcontract, but in no event may any such progress payment exceed 100 percent of the costs incurred by the protege firm for the performance.
"(4) Advance payments under such subcontracts.
"(5) Loans.
"(6) Cash in exchange for an ownership interest in the protege firm, not to exceed 10 percent of the total ownership interest.
"(7) Assistance obtained by the mentor firm for the protege firm from one or more of the following-
"(A) small business development centers established pursuant to section 21 of the Small Business Act (15 U.S.C. 648);
"(B) entities providing procurement technical assistance pursuant to chapter 142 of title 10, United States Code; or
"(C) a historically Black college or university or a minority institution of higher education.
"(g)
"(2)(A) The Secretary of Defense may provide to a mentor firm reimbursement for the costs of the assistance furnished to a protege firm pursuant to paragraphs (1) and (7) of subsection (f) as provided for in a line item in a Department of Defense contract under which the mentor firm is furnishing products or services to the Department, subject to a maximum amount of reimbursement specified in such contract, except that this sentence does not apply in a case in which the Secretary of Defense determines in writing that unusual circumstances justify reimbursement using a separate contract.
"(B) The determinations made in annual performance reviews of a mentor firm's mentor-protege agreement under subsection (l)(2) shall be a major factor in the determinations of amounts of reimbursement, if any, that the mentor firm is eligible to receive in the remaining years of the program participation term under the agreement.
"(C) The total amount reimbursed under this paragraph to a mentor firm for costs of assistance furnished in a fiscal year to a protege firm may not exceed $1,000,000, except in a case in which the Secretary of Defense determines in writing that unusual circumstances justify a reimbursement of a higher amount.
"(3)(A) Costs incurred by a mentor firm in providing assistance to a protege firm that are not reimbursed pursuant to paragraph (2) shall be recognized as credit in lieu of subcontract awards for purposes of determining whether the mentor firm attains a subcontracting participation goal applicable to such mentor firm under a Department of Defense contract, under a contract with another executive agency, or under a divisional or company-wide subcontracting plan negotiated with the Department of Defense or another executive agency.
"(B) The amount of the credit given a mentor firm for any such unreimbursed costs shall be equal to-
"(i) four times the total amount of such costs attributable to assistance provided by entities described in subsection (f)(7);
"(ii) three times the total amount of such costs attributable to assistance furnished by the mentor firm's employees; and
"(iii) two times the total amount of any other such costs.
"(C) Under regulations prescribed pursuant to subsection (k), the Secretary of Defense shall adjust the amount of credit given a mentor firm pursuant to subparagraphs (A) and (B) if the Secretary determines that the firm's performance regarding the award of subcontracts to disadvantaged small business concerns has declined without justifiable cause.
"(4) A mentor firm shall receive credit toward the attainment of a subcontracting participation goal applicable to such mentor firm for each subcontract for a product or service awarded under such contract by a mentor firm to a business concern that, except for its size, would be a small business concern owned and controlled by socially and economically disadvantaged individuals, but only if-
"(A) the size of such business concern is not more than two times the maximum size specified by the Administrator of the Small Business Administration for purposes of determining whether a business concern furnishing such product or service is a small business concern; and
"(B) the business concern formerly had a mentor-protege agreement with such mentor firm that was not terminated for cause.
"(h)
"(2) Notwithstanding section 8 of the Small Business Act (15 U.S.C. 637), the Small Business Administration may not determine a disadvantaged small business concern to be ineligible to receive any assistance authorized under the Small Business Act on the basis that such business concern has participated in the Mentor-Protege Program or has received assistance pursuant to any developmental assistance agreement authorized under such program.
"(3) The Small Business Administration may not require a firm that is entering into, or has entered into, an agreement under subsection (e) as a protege firm to submit the agreement, or any other document required by the Secretary of Defense in the administration of the Mentor-Protege Program, to the Small Business Administration for review, approval, or any other purpose.
"(i)
"(j)
"(2) No reimbursement may be paid, and no credit toward the attainment of a subcontracting goal may be granted, under subsection (g) for any cost incurred after September 30, 2013.
"(k)
"(l)
"(2)(A) The Secretary shall conduct an annual performance review of each mentor-protege agreement that provides for reimbursement of costs. The Secretary shall determine on the basis of the review whether-
"(i) all costs reimbursed to the mentor firm under the agreement were reasonably incurred to furnish assistance to the protege firm in accordance with the requirements of this section and applicable regulations; and
"(ii) the mentor firm and protege firm accurately reported progress made by the protege firm in employment, revenues, and participation in Department of Defense contracts during the program participation term covered by the mentor-protege agreement and the two fiscal years following the expiration of the program participation term.
"(B) The Secretary shall act through the Commander of the Defense Contract Management Command in carrying out the reviews and making the determinations under subparagraph (A).
"(3) Not later than 6 months after the end of each of fiscal years 2000 through 2010, the Secretary of Defense shall submit to Congress an annual report on the Mentor-Protege Program for that fiscal year.
"(4) The annual report for a fiscal year shall include, at a minimum, the following:
"(A) The number of mentor-protege agreements that were entered into during the fiscal year.
"(B) The number of mentor-protege agreements that were in effect during the fiscal year.
"(C) The total amount reimbursed to mentor firms pursuant to subsection (g) during the fiscal year.
"(D) Each mentor-protege agreement, if any, that was approved during the fiscal year in accordance with subsection (e)(2) to provide a program participation term in excess of 3 years, together with the justification for the approval.
"(E) Each reimbursement of a mentor firm in excess of the limitation in subsection (g)(2)(C) that was made during the fiscal year pursuant to an approval granted in accordance with that subsection, together with the justification for the approval.
"(F) Trends in the progress made in employment, revenues, and participation in Department of Defense contracts by the protege firms participating in the program during the fiscal year and the protege firms that completed or otherwise terminated participation in the program during the preceding two fiscal years.
"(m)
"(1) The term 'small business concern' means a business concern that meets the requirements of section 3(a) of the Small Business Act (15 U.S.C. 632(a)) and the regulations promulgated pursuant thereto.
"(2) The term 'disadvantaged small business concern' means:
"(A) a small business concern owned and controlled by socially and economically disadvantaged individuals;
"(B) a business entity owned and controlled by an Indian tribe as defined by section 8(a)(13) of the Small Business Act (15 U.S.C. 637(a)(13));
"(C) a business entity owned and controlled by a Native Hawaiian Organization as defined by section 8(a)(15) of the Small Business Act (15 U.S.C. 637(a)(15));
"(D) a qualified organization employing the severely disabled;
"(E) a small business concern owned and controlled by women, as defined in section 8(d)(3)(D) of the Small Business Act (15 U.S.C. 637(d)(3)(D));
"(F) a small business concern owned and controlled by service–disabled veterans (as defined in section 8(d)(3) of the Small Business Act [15 U.S.C. 637(d)(3)]); and
"(G) a qualified HUBZone small business concern (as defined in section 3(p) of the Small Business Act [15 U.S.C. 632(p)]).
"(3) The term 'small business concern owned and controlled by socially and economically disadvantaged individuals' has the meaning given such term in section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 637(d)(3)(C)).
"(4) The term 'historically Black college and university' means any of the historically Black colleges and universities referred to in section 2323 of title 10, United States Code.
"(5) The term 'minority institution of higher education' means an institution of higher education with a student body that reflects the composition specified in section 312(b)(3), (4), and (5) of the Higher Education Act of 1965 (20 U.S.C. 1058(b)(3), (4), and (5)).
"(6) The term 'subcontracting participation goal', with respect to a Department of Defense contract, means a goal for the extent of the participation by disadvantaged small business concerns in the subcontracts awarded under such contract, as established pursuant to section 2323 of title 10, United States Code, and section 8(d) of the Small Business Act (15 U.S.C. 637(d)).
"(7) The term 'qualified organization employing the severely disabled' means a business entity operated on a for-profit or nonprofit basis that-
"(A) uses rehabilitative engineering to provide employment opportunities for severely disabled individuals and integrates severely disabled individuals into its workforce;
"(B) employs severely disabled individuals at a rate that averages not less than 20 percent of its total workforce;
"(C) employs each severely disabled individual in its workforce generally on the basis of 40 hours per week; and
"(D) pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act (29 U.S.C. 206) to those employees who are severely disabled individuals.
"(8) The term 'severely disabled individual' means an individual who has a physical or mental disability which constitutes a substantial handicap to employment and which, in accordance with criteria prescribed by the Committee for the Purchase From the Blind and Other Severely Handicapped established by the first section of the Act of June 25, 1938 (41 U.S.C. 46; popularly known as the 'Wagner-O'Day Act') [now known as the "Javits-Wagner-O'Day Act"], is of such a nature that the individual is otherwise prevented from engaging in normal competitive employment."
[
["(1) The amendments made by this section [amending section 831 of
["(2) Section 831 of the National Defense Authorization Act for Fiscal Year 1991, as in effect on September 30, 1999, shall continue to apply with respect to mentor-protege agreements entered into before October 1, 1999."]
[Section 807(b)(2) of
Credit for Indian Contracting in Meeting Certain Minority Subcontracting Goals
Equitable Participation of American Small and Minority-Owned Business in Furnishing of Commodities and Services
Requirement for Substantial Progress on Minority and Small Business Contract Awards
Definitions; Rule of Construction for Duplicate Authorization and Appropriation Provisions of Public Laws 99–500 , 99–591 , and 99–661
"SEC. 2. REFERENCES TO 99TH CONGRESS LAWS
"For purposes of this Act [
"(1) The term 'Defense Authorization Act' means the Department of Defense Authorization Act, 1987 (division A of
"(2) The term 'Defense Appropriations Act' means the Department of Defense Appropriations Act, 1987 (as contained in identical form in section 101(c) of
"(3) The term 'Defense Acquisition Improvement Act' means title X of the Defense Appropriations Act [
"SEC. 6. CONSTRUCTION OF DUPLICATE AUTHORIZATION AND APPROPRIATION PROVISIONS
"(a)
"(A) the identical provisions of those public laws referred to in such paragraph shall be treated as having been enacted only once, and
"(B) in executing to the United States Code and other statutes of the United States the amendments made by such identical provisions, such amendments shall be executed so as to appear only once in the law as amended.
"(2) Paragraph (1) applies with respect to the provisions of the Defense Appropriations Act and the Defense Authorization Act (as amended by sections 3, 4, 5, and 10(a)) referred to across from each other in the following table:
| "Section 101(c) of | Section 101(c) of | Division A of
|
|---|---|---|
| "Title X | Title X | Title IX |
| "Sec. 9122 | Sec. 9122 | Sec. 522 |
| "Sec. 9036(b) | Sec. 9036(b) | Sec. 1203 |
| "Sec. 9115 | Sec. 9115 | Sec. 1311 |
"(b)
"(2) Any reference in a provision of law referred to in paragraph (1) to 'the date of the enactment of this Act' shall be treated as a reference to October 18, 1986."
[For classification of provisions listed in the table, see Tables.]
Contract Goal for Minorities
Section 1207 of
Minimum Percentage of Competitive Procurements
"(a)
"(b)
Defense Procurement Reform: Congressional Findings and Policy
Section 1202 of
"(1) direct that officials in the Department of Defense refuse to enter into contracts unless the proposed prices are fair and reasonable;
"(2) continue and accelerate ongoing efforts to improve defense contracting procedures in order to encourage effective competition and assure fair and reasonable prices;
"(3) direct that replenishment parts be acquired in economic order quantities and on a multiyear basis whenever feasible, practicable, and cost effective;
"(4) direct that standard or commercial parts be used whenever such use is technically acceptable and cost effective; and
"(5) vigorously continue reexamination of policies relating to acquisition, pricing, and management of replenishment parts and of technical data related to such parts."
Modification of Regulations and Directives To Accommodate a Policy of Multiyear Procurement
Section 909(d) of
Procurement Requirements for Goods Which Are Not American Goods