§2430. Major defense acquisition program defined

(a) In this chapter, the term "major defense acquisition program" means a Department of Defense acquisition program that is not a highly sensitive classified program (as determined by the Secretary of Defense) and-

(1) that is designated by the Secretary of Defense as a major defense acquisition program; or

(2) that is estimated by the Secretary of Defense to require an eventual total expenditure for research, development, test, and evaluation of more than $300,000,000 (based on fiscal year 1990 constant dollars) or an eventual total expenditure for procurement of more than $1,800,000,000 (based on fiscal year 1990 constant dollars).

(b) The Secretary of Defense may adjust the amounts (and the base fiscal year) provided in subsection (a)(2) on the basis of Department of Defense escalation rates. An adjustment under this subsection shall be effective after the Secretary transmits a written notification of the adjustment to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.

(Added Pub. L. 100–26, §7(b)(2)(A), Apr. 21, 1987, 101 Stat. 279 ; amended Pub. L. 102–484, div. A, title VIII, §817(b), Oct. 23, 1992, 106 Stat. 2455 ; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502 ; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774 .)

Amendments

1999-Subsec. (b). Pub. L. 106–65 substituted "and the Committee on Armed Services" for "and the Committee on National Security".

1996-Subsec. (b). Pub. L. 104–106 substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

1992-Pub. L. 102–484 designated existing provisions as subsec. (a), in par. (2) substituted "$300,000,000" for "$200,000,000", "1990" for "1980" in two places, and "$1,800,000,000" for "$1,000,000,000", and added subsec. (b).

Environmental Consequence Analysis of Major Defense Acquisition Programs

Pub. L. 103–337, div. A, title VIII, §815, Oct. 5, 1994, 108 Stat. 2819 , provided that:

"(a) Guidance.-Before April 1, 1995, the Secretary of Defense shall issue guidance, to apply uniformly throughout the Department of Defense, regarding-

"(1) how to achieve the purposes and intent of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) by ensuring timely compliance for major defense acquisition programs (as defined in section 2430 of title 10, United States Code) through (A) initiation of compliance efforts before development begins, (B) appropriate environmental impact analysis in support of each milestone decision, and (C) accounting for all direct, indirect, and cumulative environmental effects before proceeding toward production; and

"(2) how to analyze, as early in the process as feasible, the life-cycle environmental costs for such major defense acquisition programs, including the materials to be used, the mode of operations and maintenance, requirements for demilitarization, and methods of disposal, after consideration of all pollution prevention opportunities and in light of all environmental mitigation measures to which the department expressly commits.

"(b) Analysis.-Beginning not later than March 31, 1995, the Secretary of Defense shall analyze the environmental costs of a major defense acquisition process as an integral part of the life-cycle cost analysis of the program pursuant to the guidance issued under subsection (a).

"(c) Data Base for NEPA Documentation.-The Secretary of Defense shall establish and maintain a data base for documents prepared by the Department of Defense in complying with the National Environmental Policy Act of 1969 with respect to major defense acquisition programs. Any such document relating to a major defense acquisition program shall be maintained in the data base for 5 years after commencement of low-rate initial production of the program."

Efficient Contracting Processes

Pub. L. 103–160, div. A, title VIII, §837, Nov. 30, 1993, 107 Stat. 1718 , as amended by Pub. L. 103–355, title V, §5064(b)(2), Oct. 13, 1994, 108 Stat. 3360 , provided that: "The Secretary of Defense shall take any additional actions that the Secretary considers necessary to waive regulations not required by statute that affect the efficiency of the contracting process within the Department of Defense. Such actions shall include, in the Secretary's discretion, developing methods to streamline the procurement process, streamlining the period for entering into contracts, and defining alternative techniques to reduce reliance on military specifications and standards, in contracts for the defense acquisition programs participating in the Defense Acquisition Pilot Program."

Contract Administration: Performance Based Contract Management

Pub. L. 103–160, div. A, title VIII, §838, Nov. 30, 1993, 107 Stat. 1718 , as amended by Pub. L. 103–355, title V, §5064(b)(3), Oct. 13, 1994, 108 Stat. 3360 , provided that: "For at least one participating defense acquisition program for which a determination is made to make payments for work in progress under the authority of section 2307 of title 10, United States Code, the Secretary of Defense should define payment milestones on the basis of quantitative measures of results."

Defense Acquisition Pilot Program

Pub. L. 104–201, div. A, title VIII, §803, Sept. 23, 1996, 110 Stat. 2604 , as amended by Pub. L. 105–85, div. A, title VIII, §847(b)(2), Nov. 18, 1997, 111 Stat. 1845 , provided that:

"(a) Authority.-The Secretary of Defense may waive sections 2399, 2432, and 2433 of title 10, United States Code, in accordance with this section for any defense acquisition program designated by the Secretary of Defense for participation in the defense acquisition pilot program authorized by section 809 of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 10 U.S.C. 2430 note).

"(b) Operational Test and Evaluation.-The Secretary of Defense may waive the requirements for operational test and evaluation for such a defense acquisition program as set forth in section 2399 of title 10, United States Code, if the Secretary-

"(1) determines (without delegation) that such test would be unreasonably expensive or impractical;

"(2) develops a suitable alternate operational test program for the system concerned;

"(3) describes in the test and evaluation master plan, as approved by the Director of Operational Test and Evaluation, the method of evaluation that will be used to evaluate whether the system will be effective and suitable for combat; and

"(4) submits to the congressional defense committees [Committees on Armed Services and on Appropriations of the Senate and House of Representatives] a report containing the determination that was made under paragraph (1), a justification for that determination, and a copy of the plan required by paragraph (3).

"(c) Selected Acquisition Reports.-The Secretary of Defense may waive the requirements of sections 2432 and 2433 of title 10, United States Code, for such a defense acquisition program if the Secretary provides a single annual report to Congress at the end of each fiscal year that describes the status of the program in relation to the baseline description for the program established under section 2435 of such title."

Pub. L. 103–355, title V, §5064, Oct. 13, 1994, 108 Stat. 3359 , as amended by Pub. L. 106–398, §1 [[div. A], title VIII, §801(a), (b)], Oct. 30, 2000, 114 Stat. 1654 , 1654A-202, 1654A-203, provided that:

"(a) In General.-The Secretary of Defense is authorized to designate the following defense acquisition programs for participation in the defense acquisition pilot program authorized by section 809 of the National Defense Authorization Act for Fiscal Year 1991 [Pub. L. 101–510] (10 U.S.C. 2430 note):

"(1) Fire support combined arms tactical trainer (fscatt).-The Fire Support Combined Arms Tactical Trainer program with respect to all contracts directly related to the procurement of a training simulation system (including related hardware, software, and subsystems) to perform collective training of field artillery gunnery team components, with development of software as required to generate the training exercises and component interfaces.

"(2) Joint direct attack munition (jdam i).-The Joint Direct Attack Munition program with respect to all contracts directly related to the development and procurement of a strap-on guidance kit, using an inertially guided, Global Positioning System updated guidance kit to enhance the delivery accuracy of 500-pound, 1000-pound, and 2000-pound bombs in inventory.

"(3) Joint primary aircraft training system (jpats).-The Joint Primary Aircraft Training System (JPATS) with respect to all contracts directly related to the acquisition of a new primary trainer aircraft to fulfill Air Force and Navy joint undergraduate aviation training requirements, and an associated ground-based training system consisting of air crew training devices (simulators), courseware, a Training Management System, and contractor support for the life of the system.

"(4) Commercial-derivative aircraft (cda).-

"(A) All contracts directly related to the acquisition or upgrading of commercial-derivative aircraft for use in meeting airlift and tanker requirements and the air vehicle component for airborne warning and control systems.

"(B) For purposes of this paragraph, the term 'commercial-derivative aircraft' means any of the following:

"(i) Any aircraft (including spare parts, support services, support equipment, technical manuals, and data related thereto) that is or was of a type customarily used in the course of normal business operations for other than Federal Government purposes, that has been issued a type certificate by the Administrator of the Federal Aviation Administration, and that has been sold or leased for use in the commercial marketplace or that has been offered for sale or lease for use in the commercial marketplace.

"(ii) Any aircraft that, but for modifications of a type customarily available in the commercial marketplace, or minor modifications made to meet Federal Government requirements, would satisfy or would have satisfied the criteria in subclause (I).

"(iii) For purposes of a potential complement or alternative to the C–17 program, any nondevelopmental airlift aircraft, other than the C–17 or any aircraft derived from the C–17, shall be considered a commercial-derivative aircraft.

"(5) Commercial-derivative engine (cde).-The commercial derivative engine program with respect to all contracts directly related to the acquisition of (A) commercial derivative engines (including spare engines and upgrades), logistics support equipment, technical orders, management data, and spare parts, and (B) commercially derived engines for use in supporting the purchase of commercial-derivative aircraft for use in airlift and tanker requirements (including engine replacement and upgrades) and the air vehicle component for airborne warning and control systems. For purposes of a potential complement or alternative to the C–17 program, any nondevelopmental airlift aircraft engine shall be considered a commercial-derivative engine.

"(b) Pilot Program Implementation.-(1) [Amended section 833 of Pub. L. 103–160, set out below.]

"(2) [Amended section 837 of Pub. L. 103–160, set out above.]

"(3) [Amended section 838 of Pub. L. 103–160, set out above.]

"(4) Not later than 45 days after the date of the enactment of the Federal Acquisition Streamlining Act of 1994 [Oct. 13, 1994], the Secretary of Defense shall identify for each defense acquisition program participating in the pilot program quantitative measures and goals for reducing acquisition management costs.

"(5) For each defense acquisition program participating in the pilot program, the Secretary of Defense shall establish a review process that provides senior acquisition officials with reports on the minimum necessary data items required to ensure the appropriate expenditure of funds appropriated for the program and that-

"(A) contain essential information on program results at appropriate intervals, including the criteria to be used in measuring the success of the program; and

"(B) reduce data requirements from the current program review reporting requirements.

"(c) Special Authority.-The authority delegated under subsection (a) may include authority for the Secretary of Defense-

"(1) to apply any amendment or repeal of a provision of law made in this Act [see Tables for classification] to the pilot programs before the effective date of such amendment or repeal [see Effective Date of 1994 Amendment note set out under section 251 of Title 41, Public Contracts]; and

"(2) to apply to a procurement of items other than commercial items under such programs-

"(A) any authority provided in this Act (or in an amendment made by a provision of this Act) to waive a provision of law in the case of commercial items, and

"(B) any exception applicable under this Act (or an amendment made by a provision of this Act) in the case of commercial items,

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

"(d) Applicability.-(1) Subsection (c) applies with respect to-

"(A) a contract that is awarded or modified during the period described in paragraph (2); and

"(B) a contract that is awarded before the beginning of such period and is to be performed (or may be performed), in whole or in part, during such period.

"(2) The period referred to in paragraph (1) is the period that begins on October 13, 1994, and ends on October 1, 2007.

"(e) Rule of Construction.-Nothing in this section shall be construed as authorizing the appropriation or obligation of funds for the programs designated for participation in the defense acquisition pilot program under the authority of subsection (a)."

Pub. L. 103–337, div. A, title VIII, §819, Oct. 5, 1994, 108 Stat. 2822 , provided that: "The Secretary of Defense is authorized to designate the following defense acquisition programs for participation, to the extent provided in the Federal Acquisition Streamlining Act of 1994 [Pub. L. 103–355, see Tables for classification], in the defense acquisition pilot program authorized by section 809 of the National Defense Authorization Act for Fiscal Year 1991 [Pub. L. 101–510] (10 U.S.C. 2430 note):

"(1) The Fire Support Combined Arms Tactical Trainer program.

"(2) The Joint Direct Attack Munition program.

"(3) The Joint Primary Aircraft Training System.

"(4) Commercial-derivative aircraft.

"(5) Commercial-derivative engine."

Pub. L. 103–160, div. A, title VIII, §833, Nov. 30, 1993, 107 Stat. 1716 , as amended by Pub. L. 103–355, title V, §5064(b)(1), Oct. 13, 1994, 108 Stat. 3360 , provided that:

"(a) Mission-Oriented Program Management.-In the exercise of the authority provided in section 809 of the National Defense Authorization Act for Fiscal Year 1991 [Pub. L. 101–510] (10 U.S.C. 2430 note), the Secretary of Defense should propose for one or more of the defense acquisition programs covered by the Defense Acquisition Pilot Program to utilize the concept of mission-oriented program management.

"(b) Policies and Procedures.-In the case of each defense acquisition program covered by the Defense Acquisition Pilot Program, the Secretary of Defense should prescribe policies and procedures for the interaction of the program manager and the commander of the operational command (or a representative) responsible for the requirement for the equipment acquired, and for the interaction with the commanders of the unified and specified combatant commands. Such policies and procedures should include provisions for enabling the user commands to participate in acceptance testing."

Pub. L. 103–160, div. A, title VIII, §835(b), Nov. 30, 1993, 107 Stat. 1717 , related to funding for Defense Acquisition Pilot Program, and authorized the Secretary of Defense to expend appropriated sums as necessary to carry out next phase of acquisition program cycle after Secretary determined that objective quantifiable performance expectations relating to execution of that phase had been identified, prior to repeal by Pub. L. 103–355, title V, §5002(b), Oct. 13, 1994, 108 Stat. 3350 .

Pub. L. 103–160, div. A, title VIII, §839, Nov. 30, 1993, 107 Stat. 1718 , provided that:

"(a) Collection and Analysis of Performance Information.-The Secretary of Defense shall collect and analyze information on contractor performance under the Defense Acquisition Pilot Program.

"(b) Information To Be Included.-Information collected under subsection (a) shall include the history of the performance of each contractor under the Defense Acquisition Pilot Program contracts and, for each such contract performed by the contractor, a technical evaluation of the contractor's performance prepared by the program manager responsible for the contract."

Pub. L. 101–510, div. A, title VIII, §809, Nov. 5, 1990, 104 Stat. 1593 , as amended by Pub. L. 102–484, div. A, title VIII, §811, Oct. 23, 1992, 106 Stat. 2450 ; Pub. L. 103–160, div. A, title VIII, §832, Nov. 30, 1993, 107 Stat. 1715 , provided that:

"(a) Authority To Conduct Pilot Program.-The Secretary of Defense may conduct a pilot program for the purpose of determining the potential for increasing the efficiency and effectiveness of the acquisition process in defense acquisition programs.

"(b) Designation of Participating Programs.-(1) Subject to paragraph (2), the Secretary may designate defense acquisition programs for participation in the pilot program.

"(2) The Secretary may designate for participation in the pilot program only those defense acquisition programs specifically authorized to be so designated in a law authorizing appropriations for such program enacted after the date of the enactment of this Act [Nov. 5, 1990].

"(c) Conduct of Pilot Program.-(1) In the case of each defense acquisition program designated for participation in the pilot program, the Secretary-

"(A) shall conduct the program in accordance with standard commercial, industrial practices; and

"(B) may waive or limit the applicability of any provision of law that is specifically authorized to be waived in the law authorizing appropriations referred to in subsection (b)(2) and that prescribes-

"(i) procedures for the procurement of supplies or services;

"(ii) a preference or requirement for acquisition from any source or class of sources;

"(iii) any requirement related to contractor performance;

"(iv) any cost allowability, cost accounting, or auditing requirements; or

"(v) any requirement for the management of, testing to be performed under, evaluation of, or reporting on a defense acquisition program.

"(2) The waiver authority provided in paragraph (1)(B) does not apply to a provision of law if, as determined by the Secretary-

"(A) a purpose of the provision is to ensure the financial integrity of the conduct of a Federal Government program; or

"(B) the provision relates to the authority of the Inspector General of the Department of Defense.

"(d) Publication of Policies and Guidelines.-The Secretary shall publish in the Federal Register a proposed memorandum setting forth policies and guidelines for implementation of the pilot program under this section and provide an opportunity for public comment on the proposed memorandum for a period of 60 days after the date of publication. The Secretary shall publish in the Federal Register any subsequent proposed change to the memorandum and provide an opportunity for public comment on each such proposed change for a period of 60 days after the date of publication.

"(e) Notification and Implementation.-(1) The Secretary shall transmit to the congressional defense committees a written notification of each defense acquisition program proposed to be designated by the Secretary for participation in the pilot program.

"(2) If the Secretary proposes to waive or limit the applicability of any provision of law to a defense acquisition program under the pilot program in accordance with this section, the Secretary shall include in the notification regarding that acquisition program-

"(A) the provision of law proposed to be waived or limited;

"(B) the effects of such provision of law on the acquisition, including specific examples;

"(C) the actions taken to ensure that the waiver or limitation will not reduce the efficiency, integrity, and effectiveness of the acquisition process used for the defense acquisition program; and

"(D) a discussion of the efficiencies or savings, if any, that will result from the waiver or limitation.

"(f) Limitation on Waiver Authority.-The applicability of the following requirements of law may not be waived or limited under subsection (c)(1)(B) with respect to a defense acquisition program:

"(1) The requirements of this section.

"(2) The requirements contained in any law enacted on or after the date of the enactment of this Act [Nov. 5, 1990] if that law designates such defense acquisition program as a participant in the pilot program, except to the extent that a waiver of such requirement is specifically authorized for such defense acquisition program in a law enacted on or after such date.

"(g) Termination of Authority.-The authority to waive or limit the applicability of any law under this section may not be exercised after September 30, 1995."

Section Referred to in Other Sections

This section is referred to in sections 139, 1621, 1733, 1737, 2433 of this title.