CHAPTER 223—OTHER PROVISIONS RELATING TO PLANNING AND SOLICITATION GENERALLY
Editorial Notes
Prior Provisions
A prior chapter 223 "PLANNING AND SOLICITATION RELATING TO PARTICULAR ITEMS OR SERVICES", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3251, was repealed by Pub. L. 116–283, div. A, title XVIII, §1811(b), Jan. 1, 2021, 134 Stat. 4164.
Amendments
2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(4), Dec. 27, 2021, 135 Stat. 2139, added "[Reserved]" for item 3248 and struck out former item 3248 "Matters relating to reverse auctions".
Statutory Notes and Related Subsidiaries
Pilot Program To Analyze and Monitor Certain Supply Chains
Pub. L. 118–31, div. A, title VIII, §856, Dec. 22, 2023, 137 Stat. 345, provided that:
"(a)
"(1) identify impediments to production and opportunities to expand the production of components of such a covered weapons platform;
"(2) identify potential risks to and vulnerabilities of suppliers for such covered weapons platforms and ways to mitigate such risks; and
"(3) identify critical suppliers for such covered weapons platforms.
"(b)
"(c)
"(1) a list of the vulnerabilities of the supply chains for each covered weapons platform selected under subsection (a), categorized by severity of threat or risk to deployment of such a platform;
"(2) for each vulnerability, a description of such vulnerability, whether such vulnerability has been resolved, and, if resolved, the time from identification to resolution; and
"(3) an assessment of any efficiencies achieved by addressing impediments to the supply chain.
"(d)
"(e)
Pilot Program Relating to Semiconductor Supply Chain and Cybersecurity Collaboration Center
Pub. L. 118–31, div. A, title XV, §1513, Dec. 22, 2023, 137 Stat. 543, provided that:
"(a)
"(b)
"(1) Improving the cybersecurity of processes for such design, manufacturing, assembly, packaging, and testing.
"(2) Protecting against cyber-driven intellectual property theft with respect to such design, manufacturing, assembly, packaging, and testing.
"(3) Reducing the risk of disruptions caused by cyberattacks to the supply chain for such design, manufacturing, assembly, packaging, and testing.
"(c)
"(1) directly supports the design, manufacturing, assembly, packaging, or testing of semiconductors within the United States; and
"(2) provides semiconductor components for the Department of Defense, any national security system (as such term is defined in section 3552(b) of title 44, United States Code), or the defense industrial base.
"(d)
"(1)
"(A)
"(B)
"(i) A description of the status of the implementation of the pilot program.
"(ii) An identification of key priorities for the pilot program.
"(iii) An identification of any challenges to implementing the pilot program or impediments to participation in the pilot program by eligible persons under subsection (c).
"(2)
"(A)
"(B)
"(i) Recommendations for addressing relevant policy, budgetary, security, and legislative gaps to increase the effectiveness of the pilot program, including, with respect to the first briefing under such subparagraph, an assessment of the resources necessary for successful implementation of the pilot program.
"(ii) Recommendations for increasing participation in the pilot program by eligible persons under subsection (c).
"(iii) A description of any challenges encountered in carrying out the pilot program, including any concerns expressed by manufacturers of semiconductors or suppliers of semiconductor components.
"(iv) The findings of the Secretary, in consultation with the Director of the National Security Agency, with respect to the feasibility and advisability of extending or expanding the pilot program.
"(v) Such other matters as the Secretary considers appropriate.
"(e)
"(f)
"(1) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives; and
"(2) the Committee on Armed Services and the Select Committee on Intelligence of the Senate."
Quantifiable Assurance Capability for Security of Microelectronics
Pub. L. 117–263, div. A, title II, §219, Dec. 23, 2022, 136 Stat. 2477, provided that:
"(a)
"(b)
"(1)
"(2)
"(3)
"(c)
"(1)
"(A) seek changes to the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations, and Department of Defense Instruction 5200.44 (relating to protection of mission critical functions to achieve trusted systems and networks); and
"(B) expand the use of unprogrammed custom-designed integrated circuits that are not controlled by such regulations.
"(2)
Government-Industry-Academia Working Group on Microelectronics
Pub. L. 117–263, div. A, title II, §220, Dec. 23, 2022, 136 Stat. 2478, provided that:
"(a)
"(1)
"(2)
"(b)
"(c)
"(1) Research needs.
"(2) Infrastructure needs and shortfalls.
"(3) Technical and process standards.
"(4) Training and certification needs for the workforce.
"(5) Supply chain issues.
"(6) Supply chain, manufacturing, and packaging security.
"(7) Technology transition issues and opportunities.
"(d)
"(e)
"(f)
"(g)
Risk Management for Department of Defense Pharmaceutical Supply Chains
Pub. L. 117–263, div. A, title VIII, §860, Dec. 23, 2022, 136 Stat. 2734, provided that:
"(a)
"(1) develop and issue implementing guidance for risk management for Department of Defense supply chains for pharmaceutical materiel for the Department;
"(2) identify, in coordination with the Secretary of Health and Human Services, supply chain information gaps regarding the Department's reliance on foreign suppliers of drugs, including active pharmaceutical ingredients and final drug products; and
"(3) submit to the Committees on Armed Services of the Senate and the House of Representatives a report regarding—
"(A) existing information streams, if any, that may be used to assess the reliance by the Department of Defense on high-risk foreign suppliers of drugs;
"(B) vulnerabilities in the drug supply chains of the Department of Defense; and
"(C) any recommendations to address—
"(i) information gaps identified under paragraph (2); and
"(ii) any risks related to such reliance on foreign suppliers.
"(b)
"(1) not later than one year after the issuance of the guidance required under subsection (a)(1), develop and publish implementing guidance for risk management for the Department of Defense supply chain for pharmaceuticals; and
"(2) establish a working group—
"(A) to assess risks to the Department's pharmaceutical supply chain;
"(B) to identify the pharmaceuticals most critical to beneficiary care at military treatment facilities; and
"(C) to establish policies for allocating scarce pharmaceutical resources of the Department of Defense in case of a supply disruption."
Authority for Explosive Ordnance Disposal Units To Acquire New or Emerging Technologies and Capabilities
Pub. L. 115–91, div. A, title I, §142, Dec. 12, 2017, 131 Stat. 1320, provided that: "The Secretary of Defense, after consultation with the head of each military service, may provide to an explosive ordnance disposal unit the authority to acquire new or emerging technologies and capabilities that are not specifically provided for in the authorized equipment allowance for the unit, as such allowance is set forth in the table of equipment and table of allowance for the unit."
Annual Report on Military Working Dogs Used by the Department of Defense
Pub. L. 115–91, div. A, title III, §334, Dec. 12, 2017, 131 Stat. 1356, provided that:
"(a)
"(1) identify the number of military working dogs required to fulfill the various missions of the Department of Defense for which such dogs are used, including force protection, facility and check point security, and explosives and drug detection;
"(2) take such steps as are practicable to ensure an adequate number of military working dog teams are available to meet and sustain the mission requirements identified in paragraph (1);
"(3) ensure that the Department's needs and performance standards with respect to military working dogs are readily available to dog breeders and trainers; and
"(4) coordinate with other Federal, State, and local agencies, nonprofit organizations, universities, and private sector entities, as appropriate, to increase the training capacity for military working dog teams.
"(b)
"(c)
"(1) The number of military working dogs procured, by source, by each military department or Defense Agency.
"(2) The cost of procuring military working dogs incurred by each military department or Defense Agency.
"(3) The number of domestically-bred and sourced military working dogs procured by each military department or Defense Agency, including a list of vendors, their location, cost, and the quantity of dogs procured from each vendor.
"(4) The number of non-domestically-bred military working dogs procured from non-domestic sources by each military department or Defense Agency, including a list of vendors, their location, cost, and the quantity of dogs procured from each vendor.
"(5) The cost of procuring pre-trained and green dogs for force protection, facility and checkpoint security, and improvised explosive device, other explosives, and drug detection.
"(6) An analysis of the procurement practices of each military department or Defense Agency that limit market access for domestic canine vendors and breeders.
"(7) The total cost of procuring domestically-bred military working dogs versus the total cost of procuring dogs from non-domestic sources.
"(8) The total number of domestically-bred dogs and the number of dogs from foreign sources procured by each military department or Defense Agency and the number and percentage of those dogs that are ultimately deployed for their intended use.
"(9) An explanation for any significant difference in the cost of procuring military working dogs from different sources.
"(10) An estimate of the number of military working dogs expected to retire annually and an identification of the primary cause of the retirement of such dogs.
"(11) An identification of the final disposition of military working dogs no longer in service.
"(d)
[Similar provisions were contained in Pub. L. 110–417, [div. A], title III, §358, Oct. 14, 2008, 122 Stat. 4427, as amended by Pub. L. 111–84, div. A, title III, §341, Oct. 28, 2009, 123 Stat. 2260; Pub. L. 111–383, div. A, title X, §1075(e)(6), Jan. 7, 2011, 124 Stat. 4374; Pub. L. 112–81, div. A, title III, §349, Dec. 31, 2011, 125 Stat. 1375; Pub. L. 114–92, div. A, title X, §1073(h), Nov. 25, 2015, 129 Stat. 996.]
Strategy for Assured Access to Trusted Microelectronics
Pub. L. 114–328, div. A, title II, §231, Dec. 23, 2016, 130 Stat. 2059, as amended by Pub. L. 116–283, div. A, title II, §276, Jan. 1, 2021, 134 Stat. 3504, provided that:
"(a)
"(b)
"(1) Definitions of the various levels of trust required by classes of Department of Defense systems.
"(2) Means of classifying systems of the Department of Defense based on the level of trust such systems are required to maintain with respect to microelectronics.
"(3) Means by which trust in microelectronics can be assured.
"(4) Means to increase the supplier base for assured microelectronics to ensure multiple supply pathways.
"(5) An assessment of the microelectronics needs of the Department of Defense in future years, including the need for trusted, radiation-hardened microelectronics.
"(6) An assessment of the microelectronic needs of the Department of Defense that may not be fulfilled by entities outside the Department of Defense.
"(7) The resources required to assure access to trusted microelectronics, including infrastructure, workforce, and investments in science and technology.
"(8) A research and development strategy to ensure that the Department of Defense can, to the maximum extent practicable, use state of the art commercial microelectronics capabilities or their equivalent, while satisfying the needs for trust.
"(9) Recommendations for changes in authorities, regulations, and practices, including acquisition policies, financial management, public-private partnership policies, or in any other relevant areas, that would support the achievement of the goals of the strategy.
"(10) An approach to ensuring the continuing production of cutting-edge microelectronics for national security needs, including access to state-of-the-art node sizes through commercial manufacturing, heterogeneous integration, advantaged sensor manufacturing, boutique chip designs, and variable volume production capabilities.
"(11) An assessment of current microelectronics supply chain management best practices, including—
"(A) intellectual property controls;
"(B) international standards;
"(C) guidelines of the National Institute of Standards and Technology;
"(D) product traceability and provenance; and
"(E) location of design, manufacturing, and packaging facilities.
"(12) An assessment of existing risks to the current microelectronics supply chain.
"(13) A description of actions that may be carried out by the defense industrial base to implement best practices described in paragraph (11) and mitigate risks described in paragraph (12).
"(14) A plan for increasing commercialization of intellectual property developed by the Department of Defense for commercial microelectronics research and development.
"(15) An assessment of the feasibility, usefulness, efficacy, and cost of—
"(A) developing a national laboratory exclusively focused on the research and development of microelectronics to serve as a center for Federal Government expertise in high-performing, trusted microelectronics and as a hub for Federal Government research into breakthrough microelectronics-related technologies; and
"(B) incorporating into such national laboratory a commercial incubator to provide early-stage microelectronics startups, which face difficulties scaling due to the high costs of microelectronics design and fabrication, with access to funding resources, fabrication facilities, design tools, and shared intellectual property.
"(16) The development of multiple models of public-private partnerships to execute the strategy, including in-depth analysis of establishing a semiconductor manufacturing corporation to leverage private sector technical, managerial, and investment expertise, and private capital, that would have the authority and funds to provide grants or approve investment tax credits, or both, to implement the strategy.
"(17) Processes and criteria for competitive selection of commercial companies, including companies headquartered in countries that are allies or partners with the United States, to provide design, foundry and assembly, and packaging services and to build and operate the industrial capabilities associated with such services.
"(18) The role that other Federal agencies should play in organizing and supporting the strategy, including any required direct or indirect funding support, or legislative and regulatory actions, including restricting procurement to domestic sources, and providing antitrust and export control relief.
"(19) All potential funding sources and mechanisms for initial and sustaining investments in microelectronics.
"(20) Such other matters as the Secretary of Defense determines to be relevant.
"(c)
"(2) Not later than two years after submitting the strategy under paragraph (1) and not less frequently than once every two years thereafter until September 30, 2024, the Secretary shall update the strategy as the Secretary considers appropriate to support Department of Defense missions.
"(d)
"(e)
"(1) a report on—
"(A) the status of the implementation of the strategy developed under subsection (a);
"(B) the actions being taken to achieve full implementation of such strategy, and a timeline for such implementation; and
"(C) the status of the implementation of the directive required by subsection (d); and
"(2) a certification of whether the Department of Defense has an assured means for accessing a sufficient supply of trusted microelectronics, as required by the strategy developed under subsection (a).
"(f)
"(g)
"(1) The term 'assured' refers, with respect to microelectronics, to the ability of the Department of Defense to guarantee availability of microelectronics parts at the necessary volumes and with the performance characteristics required to meet the needs of the Department of Defense.
"(2) The terms 'trust' and 'trusted' refer, with respect to microelectronics, to the ability of the Department of Defense to have confidence that the microelectronics function as intended and are free of exploitable vulnerabilities, either intentionally or unintentionally designed or inserted as part of the system at any time during its life cycle."
Use Of Lowest Price Technically Acceptable Source Selection Process
Pub. L. 114–328, div. A, title VIII, §813, Dec. 23, 2016, 130 Stat. 2270, as amended by Pub. L. 115–91, div. A, title VIII, §822(a), (b)(1), Dec. 12, 2017, 131 Stat. 1465; Pub. L. 116–92, div. A, title VIII, §806(a)(1), Dec. 20, 2019, 133 Stat. 1485, provided that:
"(a)
"(b)
"(1) the Department of Defense is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;
"(2) the Department of Defense would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;
"(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;
"(4) the source selection authority has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the Department;
"(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file;
"(6) the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support;
"(7) the Department of Defense would realize no, or minimal, additional innovation or future technological advantage by using a different methodology; and
"(8) with respect to a contract for procurement of goods, the goods procured are predominantly expendable in nature, nontechnical, or have a short life expectancy or short shelf life.
"(c)
"(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services;
"(2) personal protective equipment; or
"(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq."
[Pub. L. 115–91, div. A, title VIII, §822(b)(2), Dec. 12, 2017, 131 Stat. 1465, provided that: "The amendment made by this subsection [amending section 813 of Pub. L. 114–328, set out above] shall apply with respect to the second, third, and fourth reports submitted under [former] subsection (d) of section 813 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat 2271; 10 U.S.C. 2305 note)."]
Use of Commercial or Non-Government Standards in Lieu of Military Specifications and Standards
Pub. L. 114–328, div. A, title VIII, §875, Dec. 23, 2016, 130 Stat. 2310, as amended by Pub. L. 116–92, div. A, title IX, §902(45), Dec. 20, 2019, 133 Stat. 1548, provided that:
"(a)
"(b)
"(1)
"(2)
"(c)
"(d)
"(e)
"(f)
Requirement and Review Relating to Use of Brand Names or Brand-Name or Equivalent Descriptions in Solicitations
Pub. L. 114–328, div. A, title VIII, §888, Dec. 23, 2016, 130 Stat. 2322, as amended by Pub. L. 116–92, div. A, title IX, §902(46), Dec. 20, 2019, 133 Stat. 1548, provided that:
"(a)
"(b)
"(1)
"(2)
"(3)
Matters Relating to Reverse Auctions
Pub. L. 113–291, div. A, title VIII, §824, Dec. 19, 2014, 128 Stat. 3436, provided that:
"(a)
"(1) single bid contracts may not be entered into resulting from reverse auctions unless compliant with existing Federal regulations and Department of Defense memoranda providing guidance on single bid offers;
"(2) all reverse auctions provide offerors with the ability to submit revised bids throughout the course of the auction;
"(3) if a reverse auction is conducted by a third party—
"(A) inherently governmental functions are not performed by private contractors, including by the third party; and
"(B) past performance or financial responsibility information created by the third party is made available to offerors; and
"(4) reverse auctions resulting in design-build military construction contracts specifically authorized in law are prohibited.
"(b)
"(c)
Consideration of Corrosion Control in Preliminary Design Review
Pub. L. 113–291, div. A, title VIII, §852, Dec. 19, 2014, 128 Stat. 3458, as amended by Pub. L. 116–92, div. A, title IX, §902(34), Dec. 20, 2019, 133 Stat. 1546, provided that: "The Under Secretary of Defense for Acquisition and Sustainment shall ensure that Department of Defense Instruction 5000.02 and other applicable guidance require full consideration, during preliminary design review for a product, of metals, materials, and technologies that effectively prevent or control corrosion over the life cycle of the product."
Detection and Avoidance of Counterfeit Electronic Parts
Pub. L. 112–81, div. A, title VIII, §818(a)–(g), Dec. 31, 2011, 125 Stat. 1493–1496, as amended by Pub. L. 112–239, div. A, title VIII, §833, Jan. 2, 2013, 126 Stat. 1844; Pub. L. 113–291, div. A, title VIII, §817, Dec. 19, 2014, 128 Stat. 3432; Pub. L. 114–92, div. A, title VIII, §885, Nov. 25, 2015, 129 Stat. 948; Pub. L. 114–328, div. A, title VIII, §815, Dec. 23, 2016, 130 Stat. 2271; Pub. L. 115–232, div. A, title VIII, §812(b)(5), Aug. 13, 2018, 132 Stat. 1848, provided that:
"(a)
"(b)
"(1) establish Department-wide definitions of the terms 'counterfeit electronic part' and 'suspect counterfeit electronic part', which definitions shall include previously used parts represented as new;
"(2) issue or revise guidance applicable to Department components engaged in the purchase of electronic parts to implement a risk-based approach to minimize the impact of counterfeit electronic parts or suspect counterfeit electronic parts on the Department, which guidance shall address requirements for training personnel, making sourcing decisions, ensuring traceability of parts, inspecting and testing parts, reporting and quarantining counterfeit electronic parts and suspect counterfeit electronic parts, and taking corrective actions (including actions to recover costs as described in subsection (c)(2));
"(3) issue or revise guidance applicable to the Department on remedial actions to be taken in the case of a supplier who has repeatedly failed to detect and avoid counterfeit electronic parts or otherwise failed to exercise due diligence in the detection and avoidance of such parts, including consideration of whether to suspend or debar a supplier until such time as the supplier has effectively addressed the issues that led to such failures;
"(4) establish processes for ensuring that Department personnel who become aware of, or have reason to suspect, that any end item, component, part, or material contained in supplies purchased by or for the Department contains counterfeit electronic parts or suspect counterfeit electronic parts provide a report in writing within 60 days to appropriate Government authorities and to the Government-Industry Data Exchange Program (or a similar program designated by the Secretary); and
"(5) establish a process for analyzing, assessing, and acting on reports of counterfeit electronic parts and suspect counterfeit electronic parts that are submitted in accordance with the processes under paragraph (4).
"(c)
"(1)
"(2)
"(A) covered contractors who supply electronic parts or products that include electronic parts are responsible for detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit electronic parts in such products and for any rework or corrective action that may be required to remedy the use or inclusion of such parts; and
"(B) the cost of counterfeit electronic parts and suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts are not allowable costs under Department contracts, unless—
"(i) the covered contractor has an operational system to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts that has been reviewed and approved by the Department of Defense pursuant to subsection (e)(2)(B);
"(ii) the counterfeit electronic parts or suspect counterfeit electronic parts were provided to the covered contractor as Government property in accordance with part 45 of the Federal Acquisition Regulation or were obtained by the covered contractor in accordance with regulations described in paragraph (3); and
"(iii) the covered contractor discovers the counterfeit electronic parts or suspect counterfeit electronic parts and provides timely notice to the Government pursuant to paragraph (4).
"(3)
"(A) require that the Department and Department contractors and subcontractors at all tiers—
"(i) obtain electronic parts that are in production or currently available in stock from the original manufacturers of the parts or their authorized dealers, or from suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations issued pursuant to subparagraph (C) or (D) and that obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers;
"(ii) obtain electronic parts that are not in production or currently available in stock from suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations issued pursuant to subparagraph (C) or (D); and
"(iii) obtain electronic parts from alternate suppliers if such parts are not available from original manufacturers, their authorized dealers, or suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations prescribed pursuant to subparagraph (C) or (D);
"(B) establish requirements for notification of the Department, and for inspection, testing, and authentication of electronic parts that the Department or a Department contractor or subcontractor obtains from any source other than a source described in clause (i) or (ii) of subparagraph (A), if obtaining the electronic parts in accordance with such clauses is not possible;
"(C) establish qualification requirements, consistent with the requirements of section 2319 of title 10, United States Code [now 10 U.S.C. 3243], pursuant to which the Department may identify suppliers that have appropriate policies and procedures in place to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts; and
"(D) authorize Department contractors and subcontractors to identify and use additional suppliers that meet anticounterfeiting requirements, provided that—
"(i) the standards and processes for identifying such suppliers comply with established industry standards;
"(ii) the contractor or subcontractor assumes responsibility for the authenticity of parts provided by such suppliers as provided in paragraph (2); and
"(iii) the selection of such suppliers is subject to review, audit, and approval by appropriate Department officials.
"(4)
"(5)
"(d)
"(e)
"(1)
"(2)
"(A) require covered contractors that supply electronic parts or systems that contain electronic parts to establish policies and procedures to eliminate counterfeit electronic parts from the defense supply chain, which policies and procedures shall address—
"(i) the training of personnel;
"(ii) the inspection and testing of electronic parts;
"(iii) processes to abolish counterfeit parts proliferation;
"(iv) mechanisms to enable traceability of parts;
"(v) the use of suppliers that meet applicable anticounterfeiting requirements;
"(vi) the reporting and quarantining of counterfeit electronic parts and suspect counterfeit electronic parts;
"(vii) methodologies to identify suspect counterfeit parts and to rapidly determine if a suspect counterfeit part is, in fact, counterfeit;
"(viii) the design, operation, and maintenance of systems to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts; and
"(ix) the flow down of counterfeit avoidance and detection requirements to subcontractors; and
"(B) establish processes for the review and approval of contractor systems for the detection and avoidance of counterfeit electronic parts and suspect counterfeit electronic parts, which processes shall be comparable to the processes established for contractor business systems under section 893 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat. 4311; 10 U.S.C. 2302 note [now 10 U.S.C. 3841 note prec.]).
"(f)
"(1) The term 'covered contractor' has the meaning given that term in section 893(f)(2) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011.
"(2) The term 'electronic part' means an integrated circuit, a discrete electronic component (including, but not limited to, a transistor, capacitor, resistor, or diode), or a circuit assembly."
[(g) Repealed. Pub. L. 115–232, div. A, title VIII, §812(b)(5), Aug. 13, 2018, 132 Stat. 1848.]
Contracts for Commercial Imaging Satellite Capacities
Pub. L. 111–383, div. A, title I, §127, Jan. 7, 2011, 124 Stat. 4161, provided that:
"(a)
"(b)
"(1) the Secretary submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] written certification that the waiver is in the national security interests of the United States; and
"(2) a period of 30 days has elapsed following the date on which the certification under paragraph (1) is submitted.
"(c)
Pilot Program on Acquisition of Military Purpose Nondevelopmental Items
Pub. L. 111–383, div. A, title VIII, §866(a)–(f), Jan. 7, 2011, 124 Stat. 4296–4298, as amended by Pub. L. 113–66, div. A, title VIII, §814, Dec. 26, 2013, 127 Stat. 808; Pub. L. 113–291, div. A, title X, §1071(b)(1)(B), Dec. 19, 2014, 128 Stat. 3505; Pub. L. 114–92, div. A, title VIII, §892, Nov. 25, 2015, 129 Stat. 952; Pub. L. 115–91, div. A, title X, §1051(p)(3), Dec. 12, 2017, 131 Stat. 1564; Pub. L. 116–283, div. A, title XVIII, §§1806(e)(3)(E), 1831(j)(2), Jan. 1, 2021, 134 Stat. 4156, 4216, provided that:
"(a)
"(1)
"(2)
"(b)
"(1) shall be a firm, fixed price contract, or a firm, fixed price contract with an economic price adjustment clause;
"(2) shall be in an amount not in excess of $100,000,000, including all options;
"(3) shall provide—
"(A) for the delivery of an initial lot of production quantities of completed items not later than nine months after the date of the award of such contract; and
"(B) that failure to make delivery as provided for under subparagraph (A) may result in the termination of such contract for default; and
"(4) shall be—
"(A) exempt from the requirement to submit certified cost or pricing data under chapter 271 of title 10, United States Code, and the cost accounting standards under chapter 15 of title 41, United States Code; and
"(B) subject to the requirement to provide data other than certified cost or pricing data for the purpose of price reasonableness determinations, as provided in section 3705 of title 10, United States Code.
"(c)
"(d)
"(1) enabled the Department to acquire items that otherwise might not have been available to the Department;
"(2) assisted the Department in the rapid acquisition and fielding of capabilities needed to meet urgent operational needs; and
"(3) protected the interests of the United States in paying fair and reasonable prices for the item or items acquired.
"(e)
"(1) The term 'military purpose nondevelopmental item' means a nondevelopmental item that meets a validated military requirement, as determined in writing by the responsible program manager, and has been developed exclusively at private expense. For purposes of this paragraph, an item shall not be considered to be developed exclusively at private expense if development of the item was paid for in whole or in part through—
"(A) independent research and development costs or bid and proposal costs that have been reimbursed directly or indirectly by a Federal agency or have been submitted to a Federal agency for reimbursement; or
"(B) foreign government funding.
"(2) The term 'nondevelopmental item'—
"(A) has the meaning given that term in section 110 of title 41, United States Code; and
"(B) also includes previously developed items of supply that require modifications other than those customarily available in the commercial marketplace if such modifications are consistent with the requirement in subsection (b)(3)(A).
"(3) The term 'nontraditional defense contractor' has the meaning given that term in section 3014 of title 10, United States Code (as added by subsection (g)).
"(4) The terms 'independent research and developments costs' and 'bid and proposal costs' have the meaning given such terms in section 31.205–18 of the Federal Acquisition Regulation.
"(f)
"(1)
"(2)
Publication of Notification of Bundling of Contracts of the Department of Defense
Pub. L. 111–84, div. A, title VIII, §820, Oct. 28, 2009, 123 Stat. 2410, provided that:
"(a)
"(b)
"(1) funded entirely using funds of the Department of Defense; and
"(2) covered by subpart 7.107 of the Federal Acquisition Regulation (relating to acquisitions involving bundling).
"(c)
"(1)
"(2)
"(3)
Small Arms Acquisition Strategy and Requirements Review
Pub. L. 110–417, [div. A], title I, §143, Oct. 14, 2008, 122 Stat. 4381, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(1), Jan. 7, 2011, 124 Stat. 4374, provided that:
"(a)
"(1) An assessment of Department of Defense-wide small arms requirements in terms of capabilities and quantities, based on an analysis of the small arms capability assessments of each military department.
"(2) An assessment of plans for small arms research, development, and acquisition programs to meet the requirements identified under paragraph (1).
"(3) An assessment of capabilities, capacities, and risks in the small arms industrial base of the United States to meet the requirements of the Department of Defense for pistols, carbines, rifles, and light, medium, and heavy machine guns during the 20 years following the date of the report.
"(4) An assessment of the costs, benefits, and risks of full and open competition for the procurement of non-developmental pistols and carbines that are not technically compatible with the M9 pistol or M4 carbine to meet the requirements identified under paragraph (1).
"(b)
"(1)
"(2)
"(A) is open to all developmental item solutions and non-developmental item solutions; and
"(B) provides for the award of a contract based on selection criteria that reflect the key performance parameters and attributes identified in a service requirements document approved by the Army.
"(c)
"(1) means man-portable or vehicle-mounted light weapons, designed primarily for use by individual military personnel for anti-personnel use; and
"(2) includes pistols, carbines, rifles, and light, medium, and heavy machine guns."
Trusted Defense Systems
Pub. L. 110–417, [div. A], title II, §254, Oct. 14, 2008, 122 Stat. 4402, as amended by Pub. L. 116–92, div. A, title IX, §902(37), Dec. 20, 2019, 133 Stat. 1547; Pub. L. 116–283, div. A, title XVIII, §1806(e)(2)(C), Jan. 1, 2021, 134 Stat. 4155, provided that:
"(a)
"(1) identify vulnerabilities at multiple levels of the electronics and information processing systems of the selected programs, including microcircuits, software, and firmware;
"(2) prioritize the potential vulnerabilities and effects of the various elements and stages of the system supply chain to identify the most effective balance of investments to minimize the effects of compromise;
"(3) provide recommendations regarding ways of managing supply chain risk for covered acquisition programs; and
"(4) identify the appropriate lead person, and supporting elements, within the Department of Defense for the development of an integrated strategy for managing risk in the supply chain for covered acquisition programs.
"(b)
"(1) An identification of various methods of verifying the trust of semiconductors, including methods under development at the Defense Agencies, government laboratories, institutions of higher education, and in the private sector.
"(2) A determination of the methods identified under paragraph (1) that are most suitable for the Department of Defense.
"(3) An assessment of the additional research and technology development needed to develop methods of verifying the trust of semiconductors that meet the needs of the Department of Defense.
"(4) Any other matters that the Under Secretary considers appropriate.
"(c)
"(1)
"(A) for managing risk—
"(i) in the supply chain of electronics and information processing systems for covered acquisition programs; and
"(ii) in the procurement of semiconductors; and
"(B) that ensures dependable, continuous, long-term access and trust for all mission-critical semiconductors procured from both foreign and domestic sources.
"(2)
"(A) address the vulnerabilities identified by the assessment under subsection (a);
"(B) reflect the priorities identified by such assessment;
"(C) provide guidance for the planning, programming, budgeting, and execution process in order to ensure that covered acquisition programs have the necessary resources to implement all appropriate elements of the strategy;
"(D) promote the use of verification tools, as appropriate, for ensuring trust of commercially acquired systems;
"(E) increase use of trusted foundry services, as appropriate; and
"(F) ensure sufficient oversight in implementation of the plan.
"(d)
"(1) develop policy requiring that trust assurance be a high priority for covered acquisition programs in all phases of the electronic component supply chain and integrated circuit development and production process, including design and design tools, fabrication of the semiconductors, packaging, final assembly, and test;
"(2) develop policy requiring that programs whose electronics and information systems are determined to be vital to operational readiness or mission effectiveness are to employ trusted foundry services to fabricate their custom designed integrated circuits, unless the Secretary specifically authorizes otherwise;
"(3) incorporate the strategies and policies of the Department of Defense regarding development and use of trusted integrated circuits into all relevant Department directives and instructions related to the acquisition of integrated circuits and programs that use such circuits; and
"(4) take actions to promote the use and development of tools that verify the trust in all phases of the integrated circuit development and production process of mission-critical parts acquired from non-trusted sources.
"(e)
"(1) the assessments required by subsections (a) and (b);
"(2) the strategy required by subsection (c); and
"(3) a description of the policies developed and actions taken under subsection (d).
"(f)
"(1) The term 'covered acquisition programs' means an acquisition program of the Department of Defense that is a major system for purposes of section 3041 of title 10, United States Code.
"(2) The terms 'trust' and 'trusted' refer, with respect to electronic and information processing systems, to the ability of the Department of Defense to have confidence that the systems function as intended and are free of exploitable vulnerabilities, either intentionally or unintentionally designed or inserted as part of the system at any time during its life cycle.
"(3) The term 'trusted foundry services' means the program of the National Security Agency and the Department of Defense, or any similar program approved by the Secretary of Defense, for the development and manufacture of integrated circuits for critical defense systems in secure industrial environments."
Enhanced Authority To Acquire Products and Services Produced in Afghanistan
Pub. L. 110–181, div. A, title VIII, §886, Jan. 28, 2008, 122 Stat. 266, as amended by Pub. L. 112–239, div. A, title VIII, §842, Jan. 2, 2013, 126 Stat. 1845; Pub. L. 114–92, div. A, title VIII, §886(a), Nov. 25, 2015, 129 Stat. 949, provided that:
"(a)
"(1) competition is limited to products or services that are from Afghanistan;
"(2) procedures other than competitive procedures are used to award a contract to a particular source or sources from Afghanistan; or
"(3) a preference is provided for products or services that are from Afghanistan.
"(b)
"(1) the product or service concerned is to be used only by the military forces, police, or other security personnel of Afghanistan; or
"(2) it is in the national security interest of the United States to limit competition, use procedures other than competitive procedures, or provide a preference as described in subsection (a) because—
"(A) such limitation, procedure, or preference is necessary to provide a stable source of jobs in Afghanistan; and
"(B) such limitation, procedure, or preference will not adversely affect—
"(i) military operations or stability operations in Afghanistan; or
"(ii) the United States industrial base.
"(c)
"(1) A product is from Afghanistan if it is mined, produced, or manufactured in Afghanistan.
"(2) A service is from Afghanistan if it is performed in Afghanistan by citizens or permanent resident aliens of Afghanistan.
"(3) A source is from Afghanistan if it—
"(A) is located in Afghanistan; and
"(B) offers products or services that are from Afghanistan.
"(d)
[Pub. L. 112–239, div. A, title VIII, §842(1), Jan. 2, 2013, 126 Stat. 1845, which directed amendment of section 886 of Pub. L. 110–181, set out above, by striking "Iraq or" in section heading, was executed by striking "Iraq and", to reflect the probable intent of Congress.]
Prevention of Export Control Violations
Pub. L. 110–181, div. A, title VIII, §890, Jan. 28, 2008, 122 Stat. 269, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(6), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 111–383, div. A, title X, §1075(f)(6), Jan. 7, 2011, 124 Stat. 4376, provided that:
"(a)
"(b)
"(c)
"(1) requiring defense contractors (or subcontractors at any tier) to periodically report on measures taken to ensure compliance with the International Traffic in Arms Regulations and the Export Administration Regulations;
"(2) requiring periodic audits of defense contractors (or subcontractors at any tier) to ensure compliance with all provisions of the International Traffic in Arms Regulations and the Export Administration Regulations;
"(3) requiring defense contractors to maintain a corporate training plan to disseminate information to appropriate contractor personnel regarding the applicability of the Arms Export Control Act and the Export Administration Act of 1979; and
"(4) requiring a designated corporate liaison, available for training provided by the United States Government, whose primary responsibility would be contractor compliance with the Arms Export Control Act and the Export Administration Act of 1979.
"(d)
"(1)
"(2)
Quality Control in Procurement of Ship Critical Safety Items and Related Services
Pub. L. 109–364, div. A, title I, §130(a)–(c), Oct. 17, 2006, 120 Stat. 2110, provided that:
"(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 [now 10 U.S.C. 3243] (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)
Review and Demonstration Project Relating to Contractor Employees
Pub. L. 108–375, div. A, title VIII, §851, Oct. 28, 2004, 118 Stat. 2019, provided that:
"(a)
"(2) In conducting the review, the Secretary shall—
"(A) identify potential weaknesses and areas for improvement in existing policies, procedures, practices, and penalties;
"(B) develop and implement reforms to strengthen, upgrade, and improve policies, procedures, practices, and penalties of the Department of Defense and its contractors; and
"(C) review and analyze reforms developed pursuant to this paragraph to identify for purposes of national implementation those which are most efficient and effective.
"(3) The review under this subsection shall be completed not later than 180 days after the date of the enactment of this Act [Oct. 28, 2004].
"(b)
"(c)
"(1) reliable, effective workforce programs offered by prospective contractors that provide background checks and other measures to ensure the contractor is in compliance with the Immigration and Nationality Act; and
"(2) reliable, effective project staffing plans offered by prospective contractors that specify for all contract employees (including management employees, professionals, and craft labor personnel) the skills, training, and qualifications of such persons and the labor supply sources and hiring plans or procedures used for employing such persons.
"(d)
"(e)
"(f)
Quality Control in Procurement of Aviation Critical Safety Items and Related Services
Pub. L. 108–136, div. A, title VIII, §802(a)–(c), Nov. 24, 2003, 117 Stat. 1540, provided that:
"(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 [now 10 U.S.C. 3243].
"(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)
Procurement of Environmentally Preferable Procurement Items
Pub. L. 107–314, div. A, title III, §314, Dec. 2, 2002, 116 Stat. 2508, as amended by Pub. L. 109–163, div. A, title X, §1056(e)(1), Jan. 6, 2006, 119 Stat. 3440, provided that:
"(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)."
Requirement To Disregard Certain Agreements in Awarding Contracts for Purchase of Firearms or Ammunition
Pub. L. 106–398, §1 [[div. A], title VIII, §826], Oct. 30, 2000, 114 Stat. 1654, 1654A–220, provided that: "In accordance with the requirements contained in the amendments enacted in the Competition in Contracting Act of 1984 (title VII of division B of Public Law 98–369; 98 Stat. 1175) [see Tables for classification], the Secretary of Defense may not, in awarding a contract for the purchase of firearms or ammunition, take into account whether a manufacturer or vendor of firearms or ammunition is a party to an agreement under which the manufacturer or vendor agrees to adopt limitations with respect to importing, manufacturing, or dealing in firearms or ammunition in the commercial market."
Procurement of Conventional Ammunition
Pub. L. 105–261, div. A, title VIII, §806, Oct. 17, 1998, 112 Stat. 2084, provided that:
"(a)
"(b)
"(c)
Fighter Aircraft Engine Warranty
Pub. L. 97–377, title I, §101(c) [title VII, §797], Dec. 21, 1982, 96 Stat. 1865, provided that: "None of the funds made available in the Act or any subsequent Act shall be available for the purchase of the alternate or new model fighter aircraft engine that does not have a written warranty or guarantee attesting that it will perform not less than 3,000 tactical cycles. The warranty will provide that the manufacturer must perform the necessary improvements or replace any parts to achieve the required performance at no cost to the Government."