§4252. Major defense acquisition programs: certification required before Milestone B approval

(a) Certifications and Determination Required.-A major defense acquisition program may not receive Milestone B approval until the milestone decision authority-

(1) has received a preliminary design review and conducted a formal post-preliminary design review assessment, and certifies on the basis of such assessment that the program demonstrates a high likelihood of accomplishing its intended mission;

(2) further certifies that the technology in the program has been demonstrated in a relevant environment, as determined by the milestone decision authority on the basis of an independent review and technical risk assessment conducted under section 4272 of this title;

(3) determines in writing that-

(A) the program is affordable when considering the ability of the Department of Defense to accomplish the program's mission using alternative systems;

(B) appropriate trade-offs among cost, schedule, technical feasibility, and performance objectives have been made to ensure that the program is affordable when considering the per unit cost and the total life-cycle cost;

(C) reasonable cost and schedule estimates have been developed to execute, with the concurrence of the Director of Cost Assessment and Program Evaluation, the product development and production plan under the program;

(D) the estimated procurement unit cost for the program and the estimated date for initial operational capability for the baseline description for the program (established under section 4214 of this title) do not exceed the program cost and fielding targets established under section 4271(a) of this title, or, if such estimated cost is higher than the program cost targets or if such estimated date is later than the fielding target, the program cost targets have been increased or the fielding target has been delayed by the milestone decision authority;

(E) funding is expected to be available to execute the product development and production plan for the program, consistent with the estimates described in subparagraph (C) for the program;

(F) appropriate market research has been conducted prior to technology development to reduce duplication of existing technology and products;

(G) the Department of Defense has completed an analysis of alternatives with respect to the program;

(H) the Joint Requirements Oversight Council has accomplished its duties with respect to the program pursuant to section 181(b) of this title, including an analysis of the operational requirements for the program;

(I) life-cycle sustainment planning, including corrosion prevention and mitigation planning, has identified and evaluated relevant sustainment costs throughout development, production, operation, sustainment, and disposal of the program, and any alternatives, and that such costs are reasonable and have been accurately estimated;

(J) an estimate has been made of the requirements for core logistics capabilities and the associated sustaining workloads required to support such requirements;

(K) there is a plan to mitigate and account for any costs in connection with any anticipated de-certification of cryptographic systems and components during the production and procurement of the major defense acquisition program to be acquired;

(L) the program complies with all relevant policies, regulations, and directives of the Department of Defense;

(M) the Secretary of the military department concerned and the Chief of the armed force concerned concur in the trade-offs made in accordance with subparagraph (B);

(N) the requirements of section 4402(e) of this title are met;

(O) appropriate actions have been taken to negotiate and enter into a contract or contract options for the technical data required to support the program; and

(P) has approved the life cycle sustainment plan required under section 4324(b) of this title.¹

(4) in the case of a space system, performs a cost benefit analysis for any new or follow-on satellite system using a dedicated ground control system instead of a shared ground control system, except that no cost benefit analysis is required to be performed under this paragraph for any Milestone B approval of a space system after December 31, 2019; and

(5) in the case of a naval vessel program, certifies compliance with the requirements of section 8669b of this title.

(b) Changes to Certifications or Determination.-(1) The program manager for a major defense acquisition program that has received certifications or a determination under subsection (a) shall immediately notify the milestone decision authority of any changes to the program or a designated major subprogram of such program that-

(A) alter the substantive basis for the certifications or determination of the milestone decision authority relating to any component of such certifications or determination specified in paragraph (1), (2), or (3) of subsection (a); or

(B) otherwise cause the program or subprogram to deviate significantly from the material provided to the milestone decision authority in support of such certifications or determination.

(2) Upon receipt of information under paragraph (1), the milestone decision authority may withdraw the certifications or determination concerned or rescind Milestone B approval if the milestone decision authority determines that such certifications, determination, or approval are no longer valid.

(c) Submissions to Congress on Milestone B.-

(1) Brief summary report.-Not later than 15 days after granting Milestone B approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a brief summary report that contains the following elements:

(A) The program cost and fielding targets established under section 4271(a) of this title.

(B) The estimated cost and schedule for the program established by the military department concerned, including-

(i) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and

(ii) the planned dates for each program milestone, initial operational test and evaluation, and initial operational capability.

(C) The independent estimated cost for the program established pursuant to section 3221(b)(6) of this title, and any independent estimated schedule for the program, including-

(i) the dollar values and ranges estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and

(ii) the planned dates for each program milestone, initial operational test and evaluation, and initial operational capability.

(D) A summary of the technical and manufacturing risks associated with the program, as determined by the military department concerned, including identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.

(E) A summary of the independent technical risk assessment conducted or approved under section 4272 of this title, including identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.

(F) A statement of whether a modular open system approach is being used for the program.

(G) An assessment of the sufficiency of developmental test and evaluation plans, including the use of automated data analytics or modeling and simulation tools and methodologies.

(H) A summary of the life cycle sustainment plan required under section 4324 of this title.

(I) Any other information the milestone decision authority considers relevant.

(2) Certifications and determinations.-(A) The certifications and determination under subsection (a) with respect to a major defense acquisition program shall be submitted to the congressional defense committees with the first Selected Acquisition Report submitted under sections 4351 through 4358 of this title after completion of the certification.

(B) The milestone decision authority shall retain records of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a).

(3) Additional information.-(A) At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee an explanation of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a) with respect to a major defense acquisition program or further information or underlying documentation for the information in a brief summary report submitted under paragraph (1), including the independent cost and schedule estimates and the independent technical risk assessments referred to in that paragraph.

(B) The explanation or information shall be submitted in unclassified form, but may include a classified annex.

(d) Waiver for National Security.-(1) The milestone decision authority may, at the time of Milestone B approval or at the time that such milestone decision authority withdraws a certification or rescinds Milestone B approval pursuant to subsection (b)(2), waive the applicability to a major defense acquisition program of one or more components (as specified in paragraph (1), (2), or (3) of subsection (a)) of the certification and determination requirements if the milestone decision authority determines that, but for such a waiver, the Department would be unable to meet critical national security objectives.

(2) Whenever the milestone decision authority makes such a determination and authorizes such a waiver-

(A) the waiver, the waiver determination, and the reasons for the waiver determination shall be submitted in writing to the congressional defense committees within 30 days after the waiver is authorized; and

(B) the milestone decision authority shall review the program not less often than annually to determine the extent to which such program currently satisfies the certification and determination components specified in paragraphs (1), (2), and (3) of subsection (a) until such time as the milestone decision authority determines that the program satisfies all such certification and determination components.

(3) The requirement in paragraph (2)(B) shall not apply to a program for which a certification was required pursuant to section 4377 of this title if the milestone decision authority-

(A) determines in writing that-

(i) the program has reached a stage in the acquisition process at which it would not be practicable to meet the certification component that was waived; and

(ii) the milestone decision authority has taken appropriate alternative actions to address the underlying purposes of such certification component; and

(B) submits the written determination, and an explanation of the basis for the determination, to the congressional defense committees.

(e) Designation of Certification Status in Budget Documentation.-Any budget request, budget justification material, budget display, reprogramming request, Selected Acquisition Report, or other budget documentation or performance report submitted by the Secretary of Defense to the President regarding a major defense acquisition program receiving a waiver pursuant to subsection (d) shall prominently and clearly indicate that such program has not fully satisfied the certification requirements of this section until such time as the milestone decision authority makes the determination that such program has satisfied all such certification requirements.

(f) Nondelegation.-The milestone decision authority may not delegate the certification requirement under subsection (a) or the authority to waive any component of such requirement under subsection (d).

(g) Definitions.-In this section:

(1) The term "milestone decision authority", with respect to a major defense acquisition program, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program, including authority to approve entry of the program into the next phase of the acquisition process.

(2) The term "Milestone B approval" has the meaning provided that term in section 4172(e)(7) of this title.

(3) The term "core logistics capabilities" means the core logistics capabilities identified under section 2464(a) of this title.

(4) The term "fielding target" has the meaning given that term in section 4271(a) of this title.

(5) The term "major system component" has the meaning given that term in section 4401(b)(3) of this title.

(6) The term "congressional intelligence committees" has the meaning given that term in section 437(c) of this title.

(Added Pub. L. 109–163, div. A, title VIII, §801(a), Jan. 6, 2006, 119 Stat. 3366 , §2366a; amended Pub. L. 109–364, div. A, title VIII, §805, Oct. 17, 2006, 120 Stat. 2314 ; Pub. L. 110–181, div. A, title VIII, §812, Jan. 28, 2008, 122 Stat. 219 ; renumbered §2366b, Pub. L. 110–417, [div. A], title VIII, §813(a), (b), Oct. 14, 2008, 122 Stat. 4527 ; Pub. L. 111–23, title I, §101(d)(4), title II, §§201(f), 205(a), May 22, 2009, 123 Stat. 1710 , 1720, 1724; Pub. L. 111–383, div. A, title VIII, §§813(d)(1), 814(c), title IX, §901(j)(4), title X, §1075(k)(1), Jan. 7, 2011, 124 Stat. 4265 , 4266, 4324, 4378; Pub. L. 112–81, div. A, title VIII, §§801(b), (e)(2), 819(b), Dec. 31, 2011, 125 Stat. 1483 , 1484, 1501; Pub. L. 112–239, div. A, title III, §322(e)(2), title IX, §904(e)(2), Jan. 2, 2013, 126 Stat. 1695 , 1867; Pub. L. 113–66, div. A, title VIII, §§821(a), 822(a), title X, §1091(b)(1), Dec. 26, 2013, 127 Stat. 809 , 876; Pub. L. 114–92, div. A, title VIII, §824(a), Nov. 25, 2015, 129 Stat. 903 ; Pub. L. 114–328, div. A, title VIII, §§805(a)(3), 807(e), 808(b), 843, Dec. 23, 2016, 130 Stat. 2255 , 2262, 2263, 2290; Pub. L. 115–91, div. A, title VIII, §§835(b)(1), 838(a)(1), Dec. 12, 2017, 131 Stat. 1471 , 1474; Pub. L. 115–232, div. A, title VIII, §831(b)(3), Aug. 13, 2018, 132 Stat. 1857 ; Pub. L. 116–92, div. A, title VIII, §833, Dec. 20, 2019, 133 Stat. 1494 ; renumbered §4252 and amended Pub. L. 116–283, div. A, title VIII, §802(b), title XVIII, §§1847(d)(2), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3732 , 4255, 4294.)

Amendments

2021-Pub. L. 116–283, §1847(d)(2)(A), renumbered section 2366b of this title as this section.

Subsec. (a)(2). Pub. L. 116–283, §1847(d)(2)(B)(i), substituted "section 4272" for "section 2448b".

Subsec. (a)(3)(D). Pub. L. 116–283, §1847(d)(2)(B)(ii)(I), substituted "section 4214 of this title" for "section 2435" and "section 4271(a)" for "section 2448a(a)".

Subsec. (a)(3)(N). Pub. L. 116–283, §1847(d)(2)(B)(ii)(II), substituted "section 4402(e)" for "section 2446b(e)".

Pub. L. 116–283, §802(b)(1)(A), struck out "and" after "met;".

Subsec. (a)(3)(O). Pub. L. 116–283, §802(b)(1)(B), which directed amendment of subpar. (O) by substituting "; and" for period at the end, was executed by making the substitution for semicolon at end to reflect the probable intent of Congress.

Subsec. (a)(3)(P). Pub. L. 116–283, §1883(b)(2), substituted "section 4324(b)" for "section 2337(b)".

Pub. L. 116–283, §802(b)(1)(C), added subpar. (P).

Subsec. (c)(1)(A). Pub. L. 116–283, §1847(d)(2)(C)(i)(I), substituted "section 4271(a)" for "section 2448a(a)".

Subsec. (c)(1)(C). Pub. L. 116–283, §1847(d)(2)(C)(i)(II), substituted "section 3221(b)(6)" for "section 2334(a)(6)" in introductory provisions.

Subsec. (c)(1)(E). Pub. L. 116–283, §1847(d)(2)(C)(i)(III), substituted "section 4272" for "section 2448b".

Subsec. (c)(1)(H). Pub. L. 116–283, §1883(b)(2), substituted "section 4324" for "section 2337".Pub. L. 116–283, §802(b)(2), added subpar. (H) and redesignated former subpar. (H) as (I).

Subsec. (c)(1)(I). Pub. L. 116–283, §802(b)(2)(A), redesignated subpar. (H) as (I).

Subsec. (c)(2)(A). Pub. L. 116–283, §1847(d)(2)(C)(ii), substituted "sections 4351 through 4358" for "section 2432".

Subsec. (d)(3). Pub. L. 116–283, §1847(d)(2)(D), substituted "section 4377" for "section 2433a(c)" in introductory provisions.

Subsec. (g)(1). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated par. (3) as (1) and struck out former par. (1) which defined "major defense acquisition program".

Subsec. (g)(2). Pub. L. 116–283, §1847(d)(2)(E)(i), (ii), redesignated par. (4) as (2), substituted "section 4172(e)(7)" for "section 2366(e)(7)", and struck out former par. (2) which defined "designated major subprogram".

Subsec. (g)(3). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated par. (5) as (3). Former par. (3) redesignated (1).

Subsec. (g)(4). Pub. L. 116–283, §1847(d)(2)(E)(i), (iii), redesignated par. (6) as (4) and substituted "section 4271(a)" for "section 2448a(a)". Former par. (4) redesignated (2).

Subsec. (g)(5). Pub. L. 116–283, §1847(d)(2)(E)(i), (iv), redesignated par. (7) as (5) and substituted "section 4401(b)(3)" for "section 2446a(b)(3)". Former par. (5) redesignated (3).

Subsec. (g)(6) to (8). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated pars. (6) to (8) as (4) to (6), respectively.

Effective Date of 2021 Amendment

Amendment by section 1847(d)(2) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

¹ So in original. Does not fit with par. (3) introductory provisions and period at end probably should be a semicolon.