2011—Pub. L. 111–383, div. A, title VIII, §861(b), Jan. 7, 2011, 124 Stat. 4292, added item for chapter 149.
2009—Pub. L. 111–84, div. A, title X, §1073(a)(21), Oct. 28, 2009, 123 Stat. 2473, substituted “2551” for “2541” in item for chapter 152.
2006—Pub. L. 109–364, div. A, title VIII, §816(a)(2), div. B, title XXVIII, §2851(c)(1), Oct. 17, 2006, 120 Stat. 2326, 2495, added items for chapters 144A and 173.
2003—Pub. L. 108–136, div. A, title X, §1045(a)(1), Nov. 24, 2003, 117 Stat. 1612, substituted “2700” for “2701” in item for chapter 160.
2001—Pub. L. 107–107, div. A, title IX, §911(b), Dec. 28, 2001, 115 Stat. 1196, added item for chapter 135.
1997—Pub. L. 105–85, div. A, title III, §§355(c)(2), 371(a)(2), (c)(5), title X, §§1073(a)(2), 1074(d)(2), Nov. 18, 1997, 111 Stat. 1694, 1705, 1900, 1910, added item for chapter 136 and substituted “2460” for “2461” in item for chapter 146, “Commissaries and Exchanges and Other Morale, Welfare, and Recreation Activities” for “Utilities and Services” in item for chapter 147, “2500” for “2491” in item for chapter 148, and “2541” for “2540” in item for chapter 152.
1996—Pub. L. 104–201, div. A, title XI, §1123(a)(3), Sept. 23, 1996, 110 Stat. 2688, struck out item for chapter 167 “Defense Mapping Agency”.
Pub. L. 104–106, div. A, title X, §1061(b)(2), Feb. 10, 1996, 110 Stat. 442, struck out item for chapter 171 “Security and Control of Supplies”.
1994—Pub. L. 103–355, title VIII, §8101(b), Oct. 13, 1994, 108 Stat. 3389, added item for chapter 140.
1993—Pub. L. 103–160, div. A, title VIII, §828(b)(1), Nov. 30, 1993, 107 Stat. 1713, struck out item for chapter 135 “Encouragement of Aviation”.
1992—Pub. L. 102–484, div. D, title XLII, §4271(b)(1), Oct. 23, 1992, 106 Stat. 2695, added item for chapter 148 and struck out former items for chapters 148 “Defense Industrial Base”, 149 “Manufacturing Technology”, and 150 “Development of Dual-Use Critical Technologies”.
1991—Pub. L. 102–190, div. A, title VIII, §821(f), title X, §1061(a)(27)(A), Dec. 5, 1991, 105 Stat. 1432, 1474, substituted “Manufacturing” for “Maufacturing” in item for chapter 149, substituted “Development of Dual-Use Critical Technologies” for “Issue to Armed Forces” in item for chapter 150, struck out item for chapter 151 “Issue of Serviceable Material Other Than to Armed Forces”, and added item for chapter 152.
1990—Pub. L. 101–510, div. A, title VIII, §823(b)(1), title XVIII, §1801(a)(2), Nov. 5, 1990, 104 Stat. 1602, 1757, added item for chapter 149, redesignated former item for chapter 149 as item for chapter 150, and added item for chapter 172.
1989—Pub. L. 101–189, div. A, title IX, §931(e)(2), Nov. 29, 1989, 103 Stat. 1535, substituted “Cooperative Agreements” for “Acquisition and Cross-Servicing Agreements” in item for chapter 138.
1988—Pub. L. 100–456, div. A, title III, §§342(a)(2), 344(b)(2), title VIII, §821(b)(2), Sept. 29, 1988, 102 Stat. 1961, 1962, 2016, substituted “Defense Industrial Base” for “Buy American Requirements” in item for chapter 148, substituted “Property Records and Report of Theft or Loss of Certain Property” for “Property Records” in item for chapter 161, and added item for chapter 171.
Pub. L. 100–370, §§1(e)(2), 2(a)(2), 3(a)(2), July 19, 1988, 102 Stat. 845, 854, 855, added items for chapters 134, 146, and 148.
1987—Pub. L. 100–26, §7(c)(1), Apr. 21, 1987, 101 Stat. 280, substituted “Acquisition and Cross-Servicing Agreements with NATO Allies and Other Countries” for “North Atlantic Treaty Organization Acquisition and Cross-Servicing Agreements” in item for chapter 138, substituted “Major Defense Acquisition Programs” for “Oversight of Cost Growth in Major Programs” and “2430” for “2431” in item for chapter 144, and substituted “2721” for “2701” in item for chapter 161.
1986—Pub. L. 99–661, div. A, title XIII, §1343(a)(22), Nov. 14, 1986, 100 Stat. 3994, substituted “2341” for “2321” in item for chapter 138.
Pub. L. 99–499, title II, §211(a)(2), Oct. 17, 1986, 100 Stat. 1725, added item for chapter 160.
Pub. L. 99–433, title VI, §605(b), Oct. 1, 1986, 100 Stat. 1075a, added item for chapter 144.
1984—Pub. L. 98–525, title XII, §1241(a)(2), Oct. 19, 1984, 98 Stat. 2606, added item for chapter 142.
1982—Pub. L. 97–295, §1(50)(E), Oct. 12, 1982, 96 Stat. 1300, added item for chapter 167.
Pub. L. 97–214, §2(b), July 12, 1982, 96 Stat. 169, added item for chapter 169.
1980—Pub. L. 96–323, §2(b), Aug. 4, 1980, 94 Stat. 1019, added item for chapter 138.
2011—Pub. L. 111–383, div. A, title VIII, §805(a)(2), Jan. 7, 2011, 124 Stat. 4259, added item 2223a.
2008—Pub. L. 110–181, div. A, title III, §§352(b), 371(f), Jan. 28, 2008, 122 Stat. 72, 81, added items 2228 and 2229a and struck out former item 2228 “Military equipment and infrastructure: prevention and mitigation of corrosion”.
2006—Pub. L. 109–364, div. A, title III, §351(b), Oct. 17, 2006, 120 Stat. 2160, added item 2229.
2004—Pub. L. 108–375, div. A, title III, §332(a)(2), title VI, §651(f)(2), Oct. 28, 2004, 118 Stat. 1854, 1972, struck out item 2219 “Retention of morale, welfare, and recreation funds by military installations: limitation” and added item 2222.
2002—Pub. L. 107–314, div. A, title X, §§1004(h)(1), 1052(b)(2), 1067(a)(2), Dec. 2, 2002, 116 Stat. 2631, 2649, 2658, struck out item 2222 “Annual financial management improvement plan” and added items 2224a and 2228.
2001—Pub. L. 107–107, div. A, title X, §1009(b)(3)(B), Dec. 28, 2001, 115 Stat. 1209, substituted “Annual” for “Biennial” in item 2222.
2000—Pub. L. 106–398, §1 [[div. A], title VIII, §812(a)(2), title X, §§1006(a)(2), 1008(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–214, 1654A–247, 1654A–250, added items 2225, 2226, and 2227.
1999—Pub. L. 106–65, div. A, title X, §1043(b), Oct. 5, 1999, 113 Stat. 761, added item 2224.
1998—Pub. L. 105–261, div. A, title III, §331(a)(2), title IX, §§906(f)(1), 911(a)(2), title X, §1008(b), Oct. 17, 1998, 112 Stat. 1968, 2096, 2099, 2117, added item 2212, struck out items 2216a “Defense Business Operations Fund” and 2221 “Fisher House trust funds”, and added item 2223.
1997—Pub. L. 105–85, div. A, title X, §1008(a)(2), Nov. 18, 1997, 111 Stat. 1871, added item 2222.
1996—Pub. L. 104–201, div. A, title X, §1074(a)(10), Sept. 23, 1996, 110 Stat. 2659, redesignated item 2216 “Defense Business Operations Fund” as 2216a.
Pub. L. 104–106, div. A, title III, §371(a)(2), title IX, §§912(a)(2), 914(a)(2), Feb. 10, 1996, 110 Stat. 279, 410, 412, added two items 2216 and item 2221.
1994—Pub. L. 103–355, title II, §2454(c)(3)(A), title III, §3061(b), title V, §5001(a)(2), Oct. 13, 1994, 108 Stat. 3326, 3336, 3350, substituted “Regulations on procurement, production, warehousing, and supply distribution functions” for “Obligation of funds: limitation” in item 2202, struck out item 2212 “Contracted advisory and assistance services: accounting procedures”, and added item 2220.
Pub. L. 103–337, div. A, title III, §373(b), div. B, title XXVIII, §2804(b)(2), Oct. 5, 1994, 108 Stat. 2736, 3053, substituted “Reimbursements” for “Availability of reimbursements” in item 2205 and added item 2219.
1993—Pub. L. 103–160, div. A, title XI, §1106(a)(2), Nov. 30, 1993, 107 Stat. 1750, added item 2215.
1992—Pub. L. 102–484, div. A, title X, §1024(a)(2), Oct. 23, 1992, 106 Stat. 2488, added item 2218.
1991—Pub. L. 102–190, div. A, title III, §317(b), Dec. 5, 1991, 105 Stat. 1338, added item 2213.
1990—Pub. L. 101–510, div. A, title XIII, §1331(2), title XIV, §§1482(c)(2), 1484(i)(6), Nov. 5, 1990, 104 Stat. 1673, 1710, 1718, struck out item 2213 “Cooperative military airlift agreements”, added item 2214, and struck out items 2215 “Reports on unobligated balances” and 2216 “Annual report on budgeting for inflation”.
1988—Pub. L. 100–370, §1(d)(4), July 19, 1988, 102 Stat. 843, added items 2201, 2212, and 2217.
1986—Pub. L. 99–661, div. A, title XIII, §1307(a)(2), Nov. 14, 1986, 100 Stat. 3981, added items 2215 and 2216.
1982—Pub. L. 97–252, title XI, §1125(b), Sept. 8, 1982, 96 Stat. 758, added item 2213.
Pub. L. 97–214, §10(a)(1), July 12, 1982, 96 Stat. 174, struck out item 2212 “Transmission of annual military construction authorization request”.
1978—Pub. L. 95–356, title VIII, §802(a)(2), Sept. 8, 1978, 92 Stat. 585, added item 2212.
1962—Pub. L. 87–651, title II, §207(b), Sept. 7, 1962, 76 Stat. 523, added items 2203 to 2211.
1958—Pub. L. 85–599, §3(c), Aug. 6, 1958, 72 Stat. 516, struck out item 2201 “General functions of Secretary of Defense”.
Pub. L. 110–181, div. A, title IX, §904(d), (e), Jan. 28, 2008, 122 Stat. 275, provided that:
“(d)
“(1)
“(2)
“(A) performance goals and measures for improving and evaluating the overall efficiency and effectiveness of the business operations of the Department of Defense and achieving an integrated management system for business support areas within the Department of Defense;
“(B) key initiatives to be undertaken by the Department of Defense to achieve the performance goals under subparagraph (A), together with related resource needs;
“(C) procedures to monitor the progress of the Department of Defense in meeting performance goals and measures under subparagraph (A);
“(D) procedures to review and approve plans and budgets for changes in business operations, including any proposed changes to policies, procedures, processes, and systems, to ensure the compatibility of such plans and budgets with the strategic management plan of the Department of Defense; and
“(E) procedures to oversee the development of, and review and approve, all budget requests for defense business systems.
“(3)
“(e)
(a)
(b)
(c)
(d)
(Added Pub. L. 100–370, §1(d)(1)(A), July 19, 1988, 102 Stat. 841; amended Pub. L. 106–65, div. A, title X, §1032(a)(1), Oct. 5, 1999, 113 Stat. 751; Pub. L. 111–350, §5(b)(4), Jan. 4, 2011, 124 Stat. 3842.)
Section is based on Pub. L. 99–190, §101(b) [title VIII, §8009], Dec. 19, 1985, 99 Stat. 1185, 1204.
In two instances, the source law to be codified by the bill includes provisions that on their face require that the Department of Defense notify Congress of certain actions. These notification requirements were terminated by section 602 of the Goldwater-Nichols Department of Defense Reorganization Act of 1986 (Public Law 99–433), which terminated all recurring reporting requirements applicable to the Department of Defense except for those requirements that were specifically exempted in that section. The source law sections are sections 8009(c) and 8005(j) (proviso) of the FY86 defense appropriations Act (Public Law 99–190), enacted December 19, 1985, which would be codified as section 2201 of title 10 (by section 1(d) of the bill) and section 7313(a) of title 10 (by section 1(n) of the bill). In codifying the authorities provided the Department of Defense by these two provisions of law, the committee believes that it is appropriate to reinstate the congressional notification requirements that go with those authorities. These sections were recurring annual appropriation provisions for many years and were made permanent only months before the enactment of the 1986 Reorganization Act. It is the committee's belief that the failure to exempt these provisions from the general reports termination provision was inadvertent and notes that the notification provisions had in fact previously applied to the Department of Defense for many years. The action of the committee restores the status quo as it existed before the Reorganization Act.
A prior section 2201, act Aug. 10, 1956, ch. 1041, 70A Stat. 119, prescribed the general functions of the Secretary of Defense, prior to repeal by Pub. L. 85–599, §3(c), Aug. 6, 1958, 72 Stat. 516. See section 113 of this title.
2011—Subsec. (b). Pub. L. 111–350, §5(b)(4)(A), substituted “section 6301(a) and (b)(1)–(3) of title 41” for “section 3732(a) of the Revised Statutes (41 U.S.C. 11(a))”.
Subsec. (c). Pub. L. 111–350, §5(b)(4)(B), substituted “section 6301(a) and (b)(1)–(3) of title 41” for “section 3732(a) of the Revised Statutes (41 U.S.C. 11(a))”.
1999—Subsec. (d). Pub. L. 106–65 substituted “Defense” for “Defense—”, struck out par. (1) designation, substituted “this section.” for “this section; and”, and struck out par. (2) which read as follows: “shall submit monthly reports to Congress on the estimated obligations incurred pursuant to subsections (b) and (c).”
The Secretary of Defense shall prescribe regulations governing the performance within the Department of Defense of the procurement, production, warehousing, and supply distribution functions, and related functions, of the Department of Defense.
(Aug. 10, 1956, ch. 1041, 70A Stat. 120; Pub. L. 100–180, div. A, title XII, §1202, Dec. 4, 1987, 101 Stat. 1153; Pub. L. 103–355, title III, §3061(a), Oct. 13, 1994, 108 Stat. 3336.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2202 | 41:162. | July 10, 1952, ch. 630, §638, 66 Stat. 537. |
The words “an officer or agency * * * may * * * only” are substituted for the words “no officer or agency * * * shall * * * except”. The word “of”, before the words “the Department”, is substituted for the words “in or under”. The words “under regulations prescribed” are substituted for the words “in accordance with regulations issued”. The words “after the effective date of this section” and 41:162(b) are omitted as executed. The words “or equipment” are omitted as covered by the definition of “supplies” in section 101(26) of this title.
1994—Pub. L. 103–355 amended heading and text generally. Prior to amendment, text read as follows:
“(a) Notwithstanding any other provision of law, an officer or agency of the Department of Defense may obligate funds for procuring, producing, warehousing, or distributing supplies, or for related functions of supply management, only under regulations prescribed by the Secretary of Defense. The purpose of this section is to achieve the efficient, economical, and practical operation of an integrated supply system to meet the needs of the military departments without duplicate or overlapping operations or functions.
“(b) Except as otherwise provided by law, the availability for obligation of funds appropriated for any program, project, or activity of the Department of Defense expires at the end of the three-year period beginning on the date that such funds initially become available for obligation unless before the end of such period the Secretary of Defense enters into a contract for such program, project, or activity.”
1987—Pub. L. 100–180 designated existing provisions as subsec. (a) and added subsec. (b).
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
To account for, and report, the cost of performance of readily identifiable functional programs and activities, with segregation of operating and capital programs, budget estimates of the Department of Defense shall be prepared, presented, and justified, where practicable, and authorized programs shall be administered, in such form and manner as the Secretary of Defense, subject to the authority and direction of the President, may prescribe. As far as practicable, budget estimates and authorized programs of the military departments shall be uniform and in readily comparable form. The budget for the Department of Defense submitted to Congress for each fiscal year shall include data projecting the effect of the appropriations requested for materiel readiness requirements. The Secretary of Defense shall provide that the budget justification documents for such budget include information on the number of employees of contractors estimated to be working on contracts of the Department of Defense during the fiscal year for which the budget is submitted. Such information shall be set forth in terms of employee-years or such other measure as will be uniform and readily comparable with civilian personnel of the Department of Defense.
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 520; amended Pub. L. 97–295, §1(21), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 99–661, div. A, title III, §311, Nov. 14, 1986, 100 Stat. 3851.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2203 | 5:172b. | July 26, 1947, ch. 343, §403; added Aug. 10, 1949, ch. 412, §11 (5th and 6th pars.), 63 Stat. 586. |
The word “prescribe” is substituted for the word “determine”. 5 U.S.C. 172b(b) is omitted as executed.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2203 (last sentence) | 10:2203 (note). | July 30, 1977, Pub. L. 95–79, §812 (last sentence), 91 Stat. 336. |
The words “for fiscal year 1979” are omitted as executed. The words “for each fiscal year” are substituted for “subsequent fiscal years” for consistency.
1986—Pub. L. 99–661 inserted provisions that budget justification documents include information on number of employees estimated to be working during the fiscal year, such information to be set forth in terms of employee-years or other measure as is uniform and comparable with civilian personnel of the Department of Defense.
1982—Pub. L. 97–295 inserted provision requiring that the budget for the Department of Defense submitted annually to Congress include data projecting the effect of the appropriations requested for materiel readiness requirements.
Pub. L. 95–184, title II, §203, Nov. 15, 1977, 91 Stat. 1382, provided that in authorizing funds under that Act [Pub. L. 95–184], Congress was asserting its readiness to consider, in accordance with the processes set forth in the Congressional Budget and Impoundment Control Act of 1974 [2 U.S.C. 621 et seq.] and the Budget and Accounting Act, 1921 [31 U.S.C. 1101 et seq.], such modifications in the United States cruise missile programs as the President might recommend to facilitate either negotiation or agreement in arms limitation or reduction talks.
Pub. L. 95–79, title VIII, §812, July 30, 1977, 91 Stat. 336, as amended by Pub. L. 97–295, §6(b), Oct. 12, 1982, 96 Stat. 1314, directed Secretary of Defense to submit to Congress, not later than February 15, 1978, a report setting forth quantifiable and measurable material readiness requirements for the Armed Forces, including the Reserve components thereof, monthly readiness status of the Armed Forces, including the reserve components thereof, during fiscal year 1977, and any changes in such requirements and status projected for fiscal years 1978 and 1979 and in the five-year defense program, and to inform Congress of any subsequent changes in the aforementioned materiel readiness requirements and the reasons for such changes.
Pub. L. 95–79, title VIII, §813, July 30, 1977, 91 Stat. 337, provided that in authorizing procurement under section 101 of that Act and research and development under section 201 of that Act, Congress was asserting its readiness to consider, in accordance with the processes set forth in the Congressional Budget and Impoundment Control Act of 1974 [2 U.S.C. 621 et seq.] and the Budget and Accounting Act, 1921 [31 U.S.C. 1101 et seq.], such modifications in United States strategic arms programs as the President might recommend to facilitate either negotiation or agreement in the Strategic Arms Limitation Talks.
To prevent overdrafts and deficiencies in the fiscal year for which appropriations are made, appropriations made to the Department of Defense or to a military department, and reimbursements thereto, are available for obligation and expenditure only under scheduled rates of obligation, or changes thereto, that have been approved by the Secretary of Defense. This section does not prohibit the Department of Defense from incurring a deficiency that it has been authorized by law to incur.
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 520.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2204 | 5:172c. | July 26, 1947, ch. 343, §404; added Aug. 10, 1949, ch. 412, §11 (7th par.), 63 Stat. 587. |
The words “on and after the beginning of the next fiscal year following August 10, 1949,” are omitted as executed. The last sentence is substituted for the proviso in 5 U.S.C. 172c.
(a)
(b)
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 520; amended Pub. L. 96–513, title V, §511(71), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97–258, §3(b)(4), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 103–337, div. B, title XXVIII, §2804(a), (b)(1), Oct. 5, 1994, 108 Stat. 3053.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2205 | 5:172g. | July 26, 1947, ch. 343, §408; added Aug. 10, 1949, ch. 412, §11 (23d par.), 63 Stat. 590. |
5 U.S.C. 172g is restated to reflect more clearly its purpose to authorize the Department of Defense to operate as an integrated department by permitting supplies to be furnished and services to be rendered within and among agencies of the Department of Defense and provide that reimbursements therefor be credited to authorized accounts and be available for the same purpose and period as the accounts so credited. (See Senate Report No. 366, 81st Congress, pp. 23, 24.)
1994—Pub. L. 103–337 substituted “Reimbursements” for “Availability of reimbursements” as section catchline, designated existing provisions as subsec. (a) and inserted subsec. heading, and added subsec. (b).
1982—Pub. L. 97–258 substituted “sections 1535 and 1536 of title 31” for “the Act of March 4, 1915 (31 U.S.C. 686)”.
1980—Pub. L. 96–513 substituted “the Act of March 4, 1915 (31 U.S.C. 686)” for “section 686 of title 31”.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
As far as authorized by the Secretary of Defense, a disbursing official of a military department may, out of available advances, make disbursements to cover obligations in connection with any function, power, or duty of another department or agency of the Department of Defense and charge those disbursements on vouchers, to the appropriate appropriation of that department or agency. Disbursements so made shall be adjusted in settling the accounts of the disbursing official.
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 520; amended Pub. L. 97–258, §2(b)(1)(A), Sept. 13, 1982, 96 Stat. 1052.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2206 | 5:172h. 5:171n(a) (as applicable to 5:172h). |
July 26, 1947, ch. 343, §409; added Aug. 10, 1949, ch. 412, §11 (24th par.), 63 Stat. 590. |
| July 26, 1947, ch. 343, §308(a) (as applicable to §409), 61 Stat. 509. |
The word “agency” is substituted for the word “organization”. The last sentence is substituted for the proviso in 5 U.S.C. 172h.
1982—Pub. L. 97–258 substituted “official” for “officer” wherever appearing.
(a) Money appropriated to the Department of Defense may not be spent under a contract other than a contract for personal services unless that contract provides that—
(1) the United States may, by written notice to the contractor, terminate the right of the contractor to proceed under the contract if the Secretary concerned or his designee finds, after notice and hearing, that the contractor, or his agent or other representative, offered or gave any gratuity, such as entertainment or a gift, to an officer, official, or employee of the United States to obtain a contract or favorable treatment in the awarding, amending, or making of determinations concerning the performance, of a contract; and
(2) if a contract is terminated under clause (1), the United States has the same remedies against the contractor that it would have had if the contractor had breached the contract and, in addition to other damages, is entitled to exemplary damages in an amount at least three, but not more than 10, as determined by the Secretary or his designee, times the cost incurred by the contractor in giving gratuities to the officer, official, or employee concerned.
The existence of facts upon which the Secretary makes findings under clause (1) may be reviewed by any competent court.
(b) This section does not apply to a contract that is for an amount not greater than the simplified acquisition threshold (as defined in section 134 of title 41).
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 520; amended Pub. L. 104–106, div. A, title VIII, §801, Feb. 10, 1996, 110 Stat. 389; Pub. L. 111–350, §5(b)(5), Jan. 4, 2011, 124 Stat. 3842.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2207 | 5:174d. | June 30, 1954, ch. 432, §719, 68 Stat. 353. |
The following substitutions are made: “spent” for “expended”; “United States” for “Government”; “if a contract is terminated under clause (1)” for “that in the event any such contract is so terminated”; and “has . . . that it would have had if” for “shall be entitled . . . to pursue . . . as it could pursue in the event of”. The word “official” is inserted for clarity. The words “entered into after June 30, 1954” are omitted as executed.
2011—Subsec. (b). Pub. L. 111–350 substituted “section 134 of title 41” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11))”.
1996—Pub. L. 104–106 designated existing provisions as subsec. (a) and added subsec. (b).
(a) To control and account more effectively for the cost of programs and work performed in the Department of Defense, the Secretary of Defense may require the establishment of working-capital funds in the Department of Defense to—
(1) finance inventories of such supplies as he may designate; and
(2) provide working capital for such industrial-type activities, and such commercial-type activities that provide common services within or among departments and agencies of the Department of Defense, as he may designate.
(b) Upon the request of the Secretary of Defense, the Secretary of the Treasury shall establish working-capital funds established under this section on the books of the Department of the Treasury.
(c) Working-capital funds shall be charged, when appropriate, with the cost of—
(1) supplies that are procured or otherwise acquired, manufactured, repaired, issued, or used, including the cost of the procurement and qualification of technology-enhanced maintenance capabilities that improve either reliability, maintainability, sustainability, or supportability and have, at a minimum, been demonstrated to be functional in an actual system application or operational environment; and
(2) services or work performed;
including applicable administrative expenses, and be reimbursed from available appropriations or otherwise credited for those costs, including applicable administrative expenses and costs of using equipment.
(d) The Secretary of Defense may provide capital for working-capital funds by capitalizing inventories. In addition, such amounts may be appropriated for the purpose of providing capital for working-capital funds as have been specifically authorized by law.
(e) Subject to the authority and direction of the Secretary of Defense, the Secretary of each military department shall allocate responsibility for its functions, powers, and duties to accomplish the most economical and efficient organization and operation of the activities, and the most economical and efficient use of the inventories, for which working-capital funds are authorized by this section.
(f) The requisitioning agency may not incur a cost for supplies drawn from inventories, or services or work performed by industrial-type or commercial-type activities for which working-capital funds may be established under this section, that is more than the amount of appropriations or other funds available for those purposes.
(g) The appraised value of supplies returned to working-capital funds by a department, activity, or agency may be charged to that fund. The proceeds thereof shall be credited to current applicable appropriations and are available for expenditure for the same purposes that those appropriations are so available. Credits may not be made to appropriations under this subsection as the result of capitalization of inventories under subsection (d).
(h) The Secretary of Defense shall prescribe regulations governing the operation of activities and use of inventories authorized by this section. The regulations may, if the needs of the Department of Defense require it and it is otherwise authorized by law, authorize supplies to be sold to, or services to be rendered or work performed for, persons outside the Department of Defense. However, supplies available in inventories financed by working capital funds established under this section may be sold to contractors for use in performing contracts with the Department of Defense. Working-capital funds shall be reimbursed for supplies so sold, services so rendered, or work so performed by charges to applicable appropriations or payments received in cash.
(i) For provisions relating to sales outside the Department of Defense of manufactured articles and services by a working-capital funded Army industrial facility (including a Department of the Army arsenal) that manufactures large caliber cannons, gun mounts, recoil mechanisms, ammunition, munitions, or components thereof, see section 4543 of this title.
(j)(1) The Secretary of a military department may authorize a working capital funded industrial facility of that department to manufacture or remanufacture articles and sell these articles, as well as manufacturing, remanufacturing, and engineering services provided by such facilities, to persons outside the Department of Defense if—
(A) the person purchasing the article or service is fulfilling a Department of Defense contract or a subcontract under a Department of Defense contract, and the solicitation for the contract or subcontract is open to competition between Department of Defense activities and private firms; or
(B) the Secretary would advance the objectives set forth in section 2474(b)(2) of this title by authorizing the facility to do so.
(2) The Secretary of Defense may waive the conditions in paragraph (1) in the case of a particular sale if the Secretary determines that the waiver is necessary for reasons of national security and notifies Congress regarding the reasons for the waiver.
(k)(1) Subject to paragraph (2), a contract for the procurement of a capital asset financed by a working-capital fund may be awarded in advance of the availability of funds in the working-capital fund for the procurement.
(2) Paragraph (1) applies to any of the following capital assets that have a development or acquisition cost of not less than $250,000:
(A) An unspecified minor military construction project under section 2805(c)(1) of this title.
(B) Automatic data processing equipment or software.
(C) Any other equipment.
(D) Any other capital improvement.
(l)(1) An advance billing of a customer of a working-capital fund may be made if the Secretary of the military department concerned submits to Congress written notification of the advance billing within 30 days after the end of the month in which the advanced billing was made. The notification shall include the following:
(A) The reasons for the advance billing.
(B) An analysis of the effects of the advance billing on military readiness.
(C) An analysis of the effects of the advance billing on the customer.
(2) The Secretary of Defense may waive the notification requirements of paragraph (1)—
(A) during a period of war or national emergency; or
(B) to the extent that the Secretary determines necessary to support a contingency operation.
(3) The total amount of the advance billings rendered or imposed for all working-capital funds of the Department of Defense in a fiscal year may not exceed $1,000,000,000.
(4) In this subsection:
(A) The term “advance billing”, with respect to a working-capital fund, means a billing of a customer by the fund, or a requirement for a customer to reimburse or otherwise credit the fund, for the cost of goods or services provided (or for other expenses incurred) on behalf of the customer that is rendered or imposed before the customer receives the goods or before the services have been performed.
(B) The term “customer” means a requisitioning component or agency.
(m)
(n)
(o)
(A) Amounts necessary to recover the full costs of the goods and services provided for that activity.
(B) Amounts for depreciation of capital assets, set in accordance with generally accepted accounting principles.
(2) Charges for goods and services provided through a working-capital fund may not include the following:
(A) Amounts necessary to recover the costs of a military construction project (as defined in section 2801(b) of this title), other than a minor construction project financed by the fund pursuant to section 2805(c)(1) of this title.
(B) Amounts necessary to cover costs incurred in connection with the closure or realignment of a military installation.
(C) Amounts necessary to recover the costs of functions designated by the Secretary of Defense as mission critical, such as ammunition handling safety, and amounts for ancillary tasks not directly related to the mission of the function or activity managed through the fund.
(p)
(q)
(1) A detailed report that contains a statement of all receipts and disbursements of the fund (including such a statement for each subaccount of the fund) for the fiscal year ending in the year preceding the year in which the budget is submitted.
(2) A detailed proposed budget for the operation of the fund for the fiscal year for which the budget is submitted.
(3) A comparison of the amounts actually expended for the operation of the fund for the fiscal year referred to in paragraph (1) with the amount proposed for the operation of the fund for that fiscal year in the President's budget.
(4) A report on the capital asset subaccount of the fund that contains the following information:
(A) The opening balance of the subaccount as of the beginning of the fiscal year in which the report is submitted.
(B) The estimated amounts to be credited to the subaccount in the fiscal year in which the report is submitted.
(C) The estimated amounts of outlays to be paid out of the subaccount in the fiscal year in which the report is submitted.
(D) The estimated balance of the subaccount at the end of the fiscal year in which the report is submitted.
(E) A statement of how much of the estimated balance at the end of the fiscal year in which the report is submitted will be needed to pay outlays in the immediately following fiscal year that are in excess of the amount to be credited to the subaccount in the immediately following fiscal year.
(r)
(2) The amount of a transfer covered by a notification under paragraph (1) that is made in a fiscal year does not count toward any limitation on the total amount of transfers that may be made for that fiscal year under authority provided to the Secretary of Defense in a law authorizing appropriations for a fiscal year for military activities of the Department of Defense or a law making appropriations for the Department of Defense.
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 521; amended Pub. L. 97–295, §1(22), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 98–94, title XII, §1204(a), Sept. 24, 1983, 97 Stat. 683; Pub. L. 98–525, title III, §305, Oct. 19, 1984, 98 Stat. 2513; Pub. L. 100–26, §7(d)(2), Apr. 21, 1987, 101 Stat. 280; Pub. L. 101–510, div. A, title VIII, §801, title XIII, §1301(6), Nov. 5, 1990, 104 Stat. 1588, 1668; Pub. L. 102–172, title VIII, §8137, Nov. 26, 1991, 105 Stat. 1212; Pub. L. 102–484, div. A, title III, §374, Oct. 23, 1992, 106 Stat. 2385; Pub. L. 103–160, div. A, title I, §158(b), Nov. 30, 1993, 107 Stat. 1582; Pub. L. 105–85, div. A, title X, §1011(a), (b), Nov. 18, 1997, 111 Stat. 1873; Pub. L. 105–261, div. A, title X, §§1007(e)(1), 1008(a), Oct. 17, 1998, 112 Stat. 2115; Pub. L. 105–262, title VIII, §8146(d)(1), Oct. 17, 1998, 112 Stat. 2340; Pub. L. 106–65, div. A, title III, §§331(a)(1), 332, title X, §1066(a)(16), Oct. 5, 1999, 113 Stat. 566, 567, 771; Pub. L. 106–398, §1 [[div. A], title III, §341(f)], Oct. 30, 2000, 114 Stat. 1654, 1654A–64; Pub. L. 108–375, div. A, title X, §1009, Oct. 28, 2004, 118 Stat. 2037; Pub. L. 111–383, div. A, title XIV, §1403, Jan. 7, 2011, 124 Stat. 4410.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2208(a) 2208(b) 2208(c) 2208(d) |
5:172d(a). 5:172d(b). 5:172d(c) (less 2d sentence). 5:172d(d). |
July 26, 1947, ch. 343, §405; added Aug. 10, 1949, ch. 412, §11 (8th through 15th pars.), 63 Stat. 587. |
| 2208(e) | 5:172d(e) | |
| 2208(f) | 5:172d(f). | |
| 2208(g) | 5:172d(h). | |
| 2208(h) | 5:172d(g). | |
| 2208(i) | 5:172d(c) (2d sentence). |
In subsection (a)(1), (c)(1), (f), (g), and (h), the words “stores, . . . materials, and equipment” are omitted as covered by the word “supplies”, as defined in section 101(26) of title 10.
In subsection (c), the word “used” is substituted for the word “consumed”. The words “and costs of using equipment” are inserted to reflect an opinion of the Assistant General Counsel (Fiscal Matters), Department of Defense, February 2, 1960.
In subsection (d), the first sentence (less 1st 18 words) of 5 U.S.C. 172d(d) is omitted as executed.
In subsection (h), the following substitutions are made: “prescribe” for “issue”; and “persons” for “purchasers or users”. The word “shall” is substituted for the words “is authorized to” in the first sentence and for the word “may” in the last sentence to reflect the opinion of the Assistant General Counsel (Fiscal Matters), October 2, 1959, that the source law requires the action in question.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2208(h) (3d sentence) | 10:2208 (note). | Dec. 21, 1979, Pub. L. 96–154, §767, 93 Stat. 1163. |
The word “hereafter” is omitted as executed.
Provisions similar to those in subsecs. (m) to (q) of this section were contained in section 2216a of this title prior to repeal by Pub. L. 105–261, §1008(b).
2011—Subsec. (c)(1). Pub. L. 111–383, §1403(1), inserted before semicolon “, including the cost of the procurement and qualification of technology-enhanced maintenance capabilities that improve either reliability, maintainability, sustainability, or supportability and have, at a minimum, been demonstrated to be functional in an actual system application or operational environment”.
Subsec. (k)(2). Pub. L. 111–383, §1403(2), substituted “$250,000” for “$100,000” in introductory provisions.
2004—Subsec. (r). Pub. L. 108–375 added subsec. (r).
2000—Subsec. (j)(1). Pub. L. 106–398 substituted “contract, and the solicitation” for “contract; and” at end of subpar. (A) and all that follows through “(B) the solicitation”, substituted “; or” for period after “private firms”, and added a new subpar. (B).
1999—Subsec. (j). Pub. L. 106–65, §§331(a)(1), 332, designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, substituted “, remanufacturing, and engineering” for “or remanufacturing” in introductory provisions, inserted “or a subcontract under a Department of Defense contract” before the semicolon in subpar. (A), substituted “solicitation for the contract or subcontract” for “Department of Defense solicitation for such contract” in subpar. (B), and added par. (2).
Subsec. (l)(2)(A). Pub. L. 106–65, §1066(a)(16), inserted “of” after “during a period”.
1998—Subsec. (l)(3), (4). Pub. L. 105–261, §1007(e)(1), and Pub. L. 105–262 amended subsec. (l) identically, adding par. (3) and redesignating former par. (3) as (4).
Subsecs. (m) to (q). Pub. L. 105–261, §1008(a), added subsecs. (m) to (q).
1997—Subsec. (k). Pub. L. 105–85, §1011(a), added subsec. (k) and struck out former subsec. (k) which read as follows: “The Secretary of Defense shall provide that of the total amount of payments received in a fiscal year by funds established under this section for industrial-type activities, not less than 3 percent during fiscal year 1985, not less than 4 percent during fiscal year 1986, and not less than 5 percent during fiscal year 1987 shall be used for the acquisition of capital equipment for such activities.”
Subsec. (l). Pub. L. 105–85, §1011(b), added subsec. (l).
1993—Subsec. (i). Pub. L. 103–160 amended subsec. (i) generally. Prior to amendment, subsec. (i) required that regulations under subsec. (h) authorize working-capital funded Army industrial facilities to sell manufactured articles and services to persons outside the Department of Defense in specified cases.
1992—Subsec. (j). Pub. L. 102–484 substituted “The Secretary of a military department may authorize a working capital funded industrial facility of that department” for “The Secretary of the Army may authorize a working capital funded Army industrial facility”.
1991—Subsecs. (j), (k). Pub. L. 102–172 added subsec. (j) and redesignated former subsec. (j) as (k).
1990—Subsec. (i)(1). Pub. L. 101–510, §801, added par. (1), redesignated par. (3) as (2), and struck out former pars. (1) and (2) which read as follows:
“(1) Regulations under subsection (h) may authorize an article manufactured by a working-capital funded Department of the Army arsenal that manufactures large caliber cannons, gun mounts, or recoil mechanisms to be sold to a person outside the Department of Defense if—
“(A) the article is sold to a United States manufacturer, assembler, or developer (i) for use in developing new products, or (ii) for incorporation into items to be sold to, or to be used in a contract with, an agency of the United States or a friendly foreign government;
“(B) the purchaser is determined by the Department of Defense to be qualified to carry out the proposed work involving the article to be purchased;
“(C) the article is not readily available from a commercial source in the United States; and
“(D) the sale is to be made on a basis that does not interfere with performance of work by the arsenal for the Department of Defense or for a contractor of the Department of Defense.
“(2) Services related to an article sold under this subsection may also be sold to the purchaser if the services are to be performed in the United States for the purchaser.”
Subsec. (k). Pub. L. 101–510, §1301(6), struck out subsec. (k) which read as follows: “Reports annually shall be made to the President and to Congress on the condition and operation of working-capital funds established under this section.”
1987—Subsec. (i)(3). Pub. L. 100–26 inserted “(22 U.S.C. 2778)” after “Arms Export Control Act”.
1984—Subsecs. (i) to (k). Pub. L. 98–525 added subsecs. (i) and (j) and redesignated former subsec. (i) as (k).
1983—Subsec. (d). Pub. L. 98–94 substituted “In addition, such amounts may be appropriated for the purpose of providing capital for working-capital funds as have been specifically authorized by law” for “If this method does not, in the determination of the Secretary of Defense, provide adequate amounts of working capital, such amounts as may be necessary may be appropriated for that purpose”.
1982—Subsec. (h). Pub. L. 97–295 inserted provision that supplies available in inventories financed by working capital funds established under this section may be sold to contractors for use in performing contracts with the Department of Defense.
Pub. L. 105–261, div. A, title X, §1007(e)(2), Oct. 17, 1998, 112 Stat. 2115, and Pub. L. 105–262, title VIII, §8146(d)(2), Oct. 17, 1998, 112 Stat. 2340, provided that: “Section 2208(l)(3) of such title, as added by paragraph (1), applies to fiscal years after fiscal year 1999.”
Section 1204(b) of Pub. L. 98–94 provided that: “The amendment made by subsection (a) [amending this section] shall apply only with respect to appropriations for fiscal years beginning after September 30, 1984.”
Pub. L. 109–234, title I, §1206, June 15, 2006, 120 Stat. 430, provided in part that: “Notwithstanding 10 U.S.C. 2208(l), the total amount of advance billings rendered or imposed for all working capital funds of the Department of Defense in fiscal year 2006 shall not exceed $1,200,000,000”.
Pub. L. 109–13, div. A, title I, §1005, May 11, 2005, 119 Stat. 243, provided that for fiscal year 2005, the limitation under subsec. (l)(3) of this section on the total amount of advance billings rendered or imposed for all working capital funds of the Department of Defense in a fiscal year would be applied by substituting “$1,500,000,000” for “$1,000,000,000”.
Pub. L. 103–337, div. A, title III, §311(b)–(e), Oct. 5, 1994, 108 Stat. 2708, which related to purchase from other sources, limitation on inclusion of certain costs in DBOF charges, procedures for accumulation of funds, and annual reports and budget, was repealed and restated in section 2216a(d)(2)(B), (f) to (h)(3) of this title by Pub. L. 104–106, div. A, title III, §371(a)(1), (b)(1), Feb. 10, 1996, 110 Stat. 277–279.
Pub. L. 103–337, div. A, title III, §311(f), (g), Oct. 5, 1994, 108 Stat. 2709, required Secretary of Defense to submit to congressional defense committees, not later than Feb. 1, 1995, a report on progress made in implementing the Defense Business Operations Fund Improvement Plan, dated September 1993, and required Comptroller General to monitor and evaluate the Department of Defense implementation of the Plan and to report to congressional defense committees not later than Mar. 1, 1995.
Section 333(a), (b) of Pub. L. 103–160, which provided that charges for goods and services provided through Defense Business Operations Fund were to include amounts necessary to recover full costs of development, implementation, operation, and maintenance of systems supporting wholesale supply and maintenance activities of Department of Defense and use of military personnel in provision of goods and services, and were not to include amounts necessary to recover costs of military construction project other than minor construction project financed by Defense Business Operations Fund pursuant to section 2805(c)(1) of this title, and which required full cost of operation of Defense Finance Accounting Service to be financed within Defense Business Operations Fund through charges for goods and services provided through Fund, was repealed and restated in section 2216a(d)(1)(A), (C), (2)(A) of this title by Pub. L. 104–106, div. A, title III, §371(a)(1), (b)(2), Feb. 10, 1996, 110 Stat. 277–279.
Section 342 of Pub. L. 102–484, as amended by Pub. L. 103–160, div. A, title III, §333(c), Nov. 30, 1993, 107 Stat. 1622, which provided that charges for goods and services provided through the Defense Business Operations Fund include amounts for depreciation of capital assets which were to be credited to a separate capital asset subaccount in the Fund, authorized Secretary of Defense to award contracts for capital assets of the Fund in advance of availability of funds in the subaccount, required Secretary to submit annual reports to congressional defense committees, authorized appropriations to the Fund for fiscal years 1993 and 1994, and defined terms, was repealed and restated in section 2216a(d)(1)(B), (e), (h)(4), and (i) of this title by Pub. L. 104–106, div. A, title III, §371(a)(1), (b)(3), Feb. 10, 1996, 110 Stat. 277–279.
Pub. L. 102–190, div. A, title III, §316, Dec. 5, 1991, 105 Stat. 1338, as amended by Pub. L. 102–484, div. A, title III, §341, Oct. 23, 1992, 106 Stat. 2374; Pub. L. 103–160, div. A, title III, §§331, 332, Nov. 30, 1993, 107 Stat. 1620; Pub. L. 103–337, div. A, title III, §311(a), Oct. 5, 1994, 108 Stat. 2708, which authorized Secretary of Defense to manage performance of certain working-capital funds established under this section, the Defense Finance and Accounting Service, the Defense Industrial Plan Equipment Center, the Defense Commissary Agency, the Defense Technical Information Service, the Defense Reutilization and Marketing Service, and certain activities funded through use of working-capital fund established under this section, directed Secretary to maintain separate accounting, reporting, and auditing of such funds and activities, required Secretary to submit to congressional defense committees, by not later than 30 days after Nov. 30, 1993, a comprehensive management plan and, by not later than Feb. 1, 1994, a progress report on plan's implementation, and directed Comptroller General to monitor and evaluate the plan and submit to congressional defense committees, not later than Mar. 1, 1994, a report, was repealed and restated in section 2216a(a)–(c) of this title by Pub. L. 104–106, div. A, title III, §371(a)(1), (b)(4), Feb. 10, 1996, 110 Stat. 277, 279.
Section 8121 of Pub. L. 102–172, which established on the books of the Treasury a fund entitled the “Defense Business Operations Fund” to be operated as a working capital fund under the provisions of this section and to include certain existing organizations including the Defense Finance and Accounting Service, the Defense Commissary Agency, the Defense Technical Information Center, the Defense Reutilization and Marketing Service, and the Defense Industrial Plant Equipment Service, directed transfer of assets and balances of those organizations to the Fund, provided for budgeting and accounting of charges for supplies and services provided by the Fund, and directed that capital asset charges collected be credited to a subaccount of the Fund, was repealed by Pub. L. 104–106, div. A, title III, §371(b)(5), Feb. 10, 1996, 110 Stat. 280.
Pub. L. 96–154, title VII, §767, Dec. 21, 1979, 93 Stat. 1163, which had provided that supplies available in inventories financed by working capital funds established pursuant to this section could, on and after Dec. 21, 1979, be sold to contractors for use in performing contracts with the Department of Defense, was repealed and restated in subsec. (h) of this section by Pub. L. 97–295, §§1(22), 6(b), Oct. 12, 1982, 96 Stat. 1290, 1315.
(a) To conduct economically and efficiently the operations of the Department of Defense that are financed by at least two appropriations but whose costs cannot be immediately distributed and charged to those appropriations, there is the Army Management Fund, the Navy Management Fund, and the Air Force Management Fund, each within its respective department and under the direction of the Secretary of that department. Each such fund shall consist of a corpus of $1,000,000 and such amounts as may be appropriated thereto from time to time. An account for an operation that is to be financed by such a fund may be established only with the approval of the Secretary of Defense.
(b) Under such regulations as the Secretary of Defense may prescribe, expenditures may be made from a management fund for material (other than for stock), personal services, and services under contract. However, obligation may not be incurred against that fund if it is not chargeable to funds available under an appropriation of the department concerned or funds of another department or agency of the Department of Defense. The fund shall be promptly reimbursed from those funds for expenditures made from it.
(c) Notwithstanding any other provision of law, advances, by check or warrant, or reimbursements, may be made from available appropriations to a management fund on the basis of the estimated cost of a project. As adequate data becomes available, the estimated cost shall be revised and necessary adjustments made. Final adjustment shall be made with the appropriate funds for the fiscal year in which the advances or reimbursements are made. Except as otherwise provided by law, amounts advanced to management funds are available for obligation only during the fiscal year in which they are advanced.
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 522.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2209(a) 2209(b) 2209(c) |
5:172e(a), (b). 5:172e(c) (last sentence). 5:172e(c) (less last sentence). 5:172e(d). |
July 3, 1942, ch. 484; restated Aug. 10, 1949, ch. 412, §11 (16th through 19th pars.), 63 Stat. 588. |
In subsection (a), the second sentence is substituted for the second sentence of 5 U.S.C. 172e(a) and the first sentence (less last 21 words) of 5 U.S.C. 172e(b) which are omitted as unnecessary.
In subsection (c), the 13th through 33d words of 5 U.S.C. 172e(d) are omitted as surplusage.
(a)(1) A working-capital fund established pursuant to section 2208 of this title may retain so much of the proceeds of disposals of property referred to in paragraph (2) as is necessary to recover the expenses incurred by the fund in disposing of such property. Proceeds from the sale or disposal of such property in excess of amounts necessary to recover the expenses may be credited to current applicable appropriations of the Department of Defense.
(2) Paragraph (1) applies to disposals of supplies, material, equipment, and other personal property that were not financed by stock funds established under section 2208 of this title.
(b) Obligations may, without regard to fiscal year limitations, be incurred against anticipated reimbursements to stock funds in such amounts and for such period as the Secretary of Defense, with the approval of the President, may determine to be necessary to maintain stock levels consistently with planned operations for the next fiscal year.
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 522; amended Pub. L. 96–513, title V, §511(72), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 105–261, div. A, title X, §1009, Oct. 17, 1998, 112 Stat. 2117.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2210(a) 2210(b) |
5:172d–1 (less proviso). 5:172d–1 (proviso). |
Aug. 1, 1953, ch. 305, §645, 67 Stat. 357. |
In section (a), the words “proceeds of the disposal” are substituted for the words “moneys arising from the disposition”.
1998—Subsec. (a). Pub. L. 105–261 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Current applicable appropriations of the Department of Defense may be credited with proceeds of the disposals of supplies that are not financed by stock funds established under section 2208 of this title.”
1980—Subsec. (b). Pub. L. 96–513 substituted “President” for “Director of the Bureau of the Budget”.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Amounts paid by members of the United Nations for equipment or materials furnished, or services performed, in joint military operations shall be credited to appropriate appropriations of the Department of Defense in the manner authorized by section 632(d) of the Foreign Assistance Act of 1961 (22 U.S.C. 2392(d)).
(Added Pub. L. 87–651, title II, §207(a), Sept. 7, 1962, 76 Stat. 522; amended Pub. L. 96–513, title V, §511(73), Dec. 12, 1980, 94 Stat. 2926.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2211 | 5:171m–1. | Jan. 6, 1951, ch. 1213, §703, 64 Stat. 1235. |
The reference to section 2392(d) of title 22 is substituted for the reference to section 1574(b) of that title to reflect section 542(b) of the Act of August 26, 1954, ch. 937 (68 Stat. 861) and section 642(a)(2) and (b) of the Act of September 4, 1961, Pub. L. 87–195 (75 Stat. 460).
1980—Pub. L. 96–513 substituted “section 632(d) of the Foreign Assistance Act of 1961 (22 U.S.C. 2392(d))” for “section 2392(d) of title 22”.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
(a)
(b)
(1)
(A) are closely related to the basic responsibilities and mission of the using organization; and
(B) include efforts that support or contribute to improved organization or program management, logistics management, project monitoring and reporting, data collection, budgeting, accounting, auditing, and administrative or technical support for conferences and training programs.
(2)
(3)
(c)
(d)
(e)
(A) assess the methodology used by the Secretary in obtaining the information submitted to Congress in that report; and
(B) assess the information submitted to Congress in that report.
(2) Not later than 120 days after the date on which the Secretary submits to Congress the report required under subsection (d) for any year, the Comptroller General shall submit to Congress the Comptroller General's report containing the results of the review for that year under paragraph (1).
(f)
(1) The term “contract services” means all services that are reported to the Office of Management and Budget pursuant to OMB Circular A–11 (relating to preparation and submission of budget estimates) in budget object classes that are designated in the Object Class 25 series.
(2) The term “advisory and assistance services object class” means those contract services constituting the budget object class that is denominated “Advisory and Assistance Service” and designated (as of October 17, 1998) as Object Class 25.1 (or any similar object class established after October 17, 1998, for the reporting of obligations for advisory and assistance contract services).
(3) The term “miscellaneous services object class” means those contract services constituting the budget object class that is denominated “Other Services (services not otherwise specified in the 25 series)” and designated (as of October 17, 1998) as Object Class 25.2 (or any similar object class established after October 17, 1998, for the reporting of obligations for miscellaneous or unspecified contract services).
(4) The term “authorized exemptions” means those exemptions authorized (as of October 17, 1998) under Department of Defense Directive 4205.2, captioned “Acquiring and Managing Contracted Advisory and Assistance Services (CAAS)” and issued by the Under Secretary of Defense for Acquisition and Technology on February 10, 1992, such exemptions being set forth in Enclosure 3 to that directive (captioned “CAAS Exemptions”).
(Added Pub. L. 105–261, div. A, title IX, §911(a)(1), Oct. 17, 1998, 112 Stat. 2097; amended Pub. L. 106–65, div. A, title X, §1066(a)(17), Oct. 5, 1999, 113 Stat. 771.)
A prior section 2212, added Pub. L. 100–370, §1(d)(2)(A), July 19, 1988, 102 Stat. 842, directed Secretary of Defense to maintain within each military department an accounting procedure to aid in identification and control of expenditures for contracted advisory and assistance services, prior to repeal by Pub. L. 103–355, title II, §2454(c)(1), Oct. 13, 1994, 108 Stat. 3326.
Another prior section 2212, added Pub. L. 95–356, title VIII, §802(a)(1), Sept. 8, 1978, 92 Stat. 585; amended Pub. L. 97–258, §3(b)(5), Sept. 18, 1982, 96 Stat. 1063, related to transmission of annual military construction authorization request, prior to repeal by Pub. L. 97–214, §7(1), July 12, 1982, 96 Stat. 173, eff. Oct. 1, 1982, applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date. See section 2859 of this title.
1999—Subsec. (f)(2), (3). Pub. L. 106–65 substituted “as of October 17, 1998” for “as of the date of the enactment of this section” and “after October 17, 1998,” for “after the date of the enactment of this section”.
Subsec. (f)(4). Pub. L. 106–65, §1066(a)(17)(B), substituted “as of October 17, 1998” for “as of the date of the enactment of this section”.
Reference to Under Secretary of Defense for Acquisition and Technology deemed to refer to Under Secretary of Defense for Acquisition, Technology, and Logistics, pursuant to section 911(a)(1) of Pub. L. 106–65, set out as a note under section 133 of this title.
Pub. L. 105–261, div. A, title IX, §911(b), Oct. 17, 1998, 112 Stat. 2099, provided that for the budget for fiscal year 2000, and the reporting of information to the Office of Management and Budget in connection with the preparation of that budget, this section would be applied by substituting “30 percent” in subsec. (a) for “15 percent”.
(a)
(b)
(1) that the acquisition is necessary to achieve an economical order quantity and will not result in an on-hand inventory (excluding war reserves) in excess of three years of operating stocks and that the need for the item is unlikely to decline during the period for which the acquisition is made; or
(2) that the acquisition is necessary for purposes of maintaining the industrial base or for other reasons of national security.
(Added Pub. L. 102–190, div. A, title III, §317(a), Dec. 5, 1991, 105 Stat. 1338.)
A prior section 2213 was renumbered section 2350c of this title.
(a)
(b)
(1) may not be used except to provide funds for a higher priority item, based on unforeseen military requirements, than the items for which the funds were originally appropriated; and
(2) may not be used if the item to which the funds would be transferred is an item for which Congress has denied funds.
(c)
(d)
(1) unless the funds to be transferred are to be used for a higher priority item, based on unforeseen military requirements, than the item for which the funds were originally appropriated; or
(2) if the request would be for authority to reprogram amounts to an item for which the Congress has denied funds.
(Added Pub. L. 101–510, div. A, title XIV, §1482(c)(1), Nov. 5, 1990, 104 Stat. 1709.)
Section effective Oct. 1, 1991, see section 1482(d) of Pub. L. 101–510, set out as an Effective Date of 1990 Amendment note under section 119 of this title.
Funds available for military functions of the Department of Defense may not be made available to any other department or agency of the Federal Government pursuant to a provision of law enacted after November 29, 1989, unless, not less than 30 days before such funds are made available to such other department or agency, the Secretary of Defense submits to the congressional defense committees a certification that making those funds available to such other department or agency is in the national security interest of the United States.
(Added Pub. L. 103–160, div. A, title XI, §1106(a)(1), Nov. 30, 1993, 107 Stat. 1750; amended Pub. L. 104–106, div. A, title XV, §1502(a)(14), Feb. 10, 1996, 110 Stat. 503; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–375, div. A, title X, §1084(b)(1), Oct. 28, 2004, 118 Stat. 2060.)
A prior section 2215, added Pub. L. 99–661, div. A, title XIII, §1307(a)(1), Nov. 14, 1986, 100 Stat. 3980, related to reports on unobligated balances, prior to repeal by Pub. L. 101–510, div. A, title XIII, §1301(7), Nov. 5, 1990, 104 Stat. 1668.
Provisions similar to those in this section were contained in Pub. L. 101–189, div. A, title XVI, §1604, Nov. 29, 1989, 103 Stat. 1598, which was set out as a note under section 1531 of Title 31, Money and Finance, prior to repeal by Pub. L. 103–160, §1106(b).
2004—Pub. L. 108–375 struck out subsec. (a) designation and heading before “Funds available”, substituted “congressional defense committees” for “congressional committees specified in subsection (b)”, and struck out heading and text of subsec. (b). Text of subsec. (b) read as follows: “The committees referred to in subsection (a) are—
“(1) the Committee on Armed Services and the Committee on Appropriations of the Senate; and
“(2) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.”
1999—Subsec. (b)(2). Pub. L. 106–65 substituted “Committee on Armed Services” for “Committee on National Security”.
1996—Pub. L. 104–106 designated existing provisions as subsec. (a), inserted heading, substituted “to the congressional committees specified in subsection (b)” for “to the Committees on Armed Services and the Committees on Appropriations of the Senate and House of Representatives”, and added subsec. (b).
(a)
(b)
(1) Amounts appropriated to the Defense Modernization Account for the costs of commencing projects described in subsection (d)(1), and amounts reimbursed to the Defense Modernization Account under subsection (c)(1)(B)(iii) out of savings derived from such projects.
(2) Amounts transferred to the Defense Modernization Account under subsection (c).
(c)
(B) This subsection applies to the following funds available to the Secretary concerned:
(i) Unexpired funds in appropriations accounts that are available for procurement and that, as a result of economies, efficiencies, and other savings achieved in carrying out a particular procurement, are excess to the requirements of that procurement.
(ii) Unexpired funds that are available during the final 30 days of a fiscal year for support of installations and facilities and that, as a result of economies, efficiencies, and other savings, are excess to the requirements for support of installations and facilities.
(iii) Unexpired funds in appropriations accounts that are available for procurement or operation and maintenance of a system, if and to the extent that savings are achieved for such accounts through reductions in life cycle costs of such system that result from one or more projects undertaken with respect to such systems with funds made available from the Defense Modernization Account under subsection (b)(1).
(C) Any transfer under subparagraph (A) shall be made under regulations prescribed by the Secretary of Defense.
(2) Funds referred to in paragraph (1), other than funds referred to in subparagraph (B)(iii) of such paragraph, may not be transferred to the Defense Modernization Account if—
(A) the funds are necessary for programs, projects, and activities that, as determined by the Secretary, have a higher priority than the purposes for which the funds would be available if transferred to that account; or
(B) the balance of funds in the account, after transfer of funds to the account, would exceed $1,000,000,000.
(3) Amounts credited to the Defense Modernization Account shall remain available for transfer until the end of the third fiscal year that follows the fiscal year in which the amounts are credited to the account.
(4) The period of availability of funds for expenditure provided for in sections 1551 and 1552 of title 31 may not be extended by transfer into the Defense Modernization Account.
(d)
(1) For paying the costs of commencing any project that, in accordance with criteria prescribed by the Secretary of Defense, is undertaken by the Secretary of a military department or the head of a Defense Agency or other element of the Department of Defense to reduce the life cycle cost of a new or existing system.
(2) For increasing, subject to subsection (e), the quantity of items and services procured under a procurement program in order to achieve a more efficient production or delivery rate.
(3) For research, development, test, and evaluation and for procurement necessary for modernization of an existing system or of a system being procured under an ongoing procurement program.
(e)
(A) result in procurement of a total quantity of items or services in excess of—
(i) a specific limitation provided by law on the quantity of the items or services that may be procured; or
(ii) the requirement for the items or services as approved by the Joint Requirements Oversight Council and reported to Congress by the Secretary of Defense; or
(B) result in an obligation or expenditure of funds in excess of a specific limitation provided by law on the amount that may be obligated or expended, respectively, for that procurement program.
(2) Funds in the Defense Modernization Account may not be used for a purpose or program for which Congress has not authorized appropriations.
(3) Funds may not be transferred from the Defense Modernization Account in any year for the purpose of—
(A) making an expenditure for which there is no corresponding obligation; or
(B) making an expenditure that would satisfy an unliquidated or unrecorded obligation arising in a prior fiscal year.
(f)
(2) Funds in the Defense Modernization Account may not be transferred under paragraph (1) until 30 days after the date on which the Secretary concerned notifies the congressional defense committees in writing of the amount and purpose of the proposed transfer.
(3) The total amount of transfers from the Defense Modernization Account during any fiscal year under this subsection may not exceed $500,000,000.
(g)
(h)
(2) The regulations prescribed under paragraph (1) shall, at a minimum, provide for—
(A) the submission of proposals by the Secretaries concerned or heads of Defense Agencies or other elements of the Department of Defense to the Comptroller for the use of Defense Modernization Account funds for purposes set forth in subsection (d);
(B) the use of a competitive process for the evaluation of such proposals and the selection of programs, projects, and activities to be funded out of the Defense Modernization Account from among those proposed for such funding; and
(C) the calculation of—
(i) the savings to be derived from projects described in subsection (d)(1) that are to be funded out of the Defense Modernization Account; and
(ii) the amounts to be reimbursed to the Defense Modernization Account out of such savings pursuant to subsection (c)(1)(B)(iii).
(i)
(A) The amount and source of each credit to the account during that fiscal year.
(B) The amount and purpose of each transfer from the account during that fiscal year.
(C) The balance in the account at the end of the fiscal year and, of such balance, the amount attributable to transfers to the account from each Secretary concerned.
(2) The committees referred to in paragraph (1) are the congressional defense committees and the Committee on Governmental Affairs of the Senate and the Committee on Government Reform and Oversight of the House of Representatives.
(j)
(1) The term “Secretary concerned” includes the Secretary of Defense with respect to Defense-wide appropriations accounts.
(2) The term “unexpired funds” means funds appropriated for a definite period that remain available for obligation.
(k)
(2) Three years after the termination date specified in paragraph (1), the Defense Modernization Account shall be closed and any remaining balance in the account shall be canceled and thereafter shall not be available for any purpose.
(Added Pub. L. 104–106, div. A, title IX, §912(a)(1), Feb. 10, 1996, 110 Stat. 407; amended Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–136, div. A, title X, §§1008(a)–(f)(1), 1043(b)(8), Nov. 24, 2003, 117 Stat. 1586, 1587, 1611; Pub. L. 109–364, div. A, title X, §1071(a)(16), Oct. 17, 2006, 120 Stat. 2399.)
Another section 2216 was renumbered section 2216a of this title and subsequently repealed.
A prior section 2216, added Pub. L. 99–661, div. A, title XIII, §1307(a)(1), Nov. 14, 1986, 100 Stat. 3980, related to annual reports on budgeting for inflation, prior to repeal by Pub. L. 101–510, div. A, title XIII, §1301(8), Nov. 5, 1990, 104 Stat. 1668.
2006—Subsec. (b)(1). Pub. L. 109–364 substituted “subsection (c)(1)(B)(iii)” for “subsections (c)(1)(B)(iii)”.
2003—Subsec. (b). Pub. L. 108–136, §1008(a)(3), added subsec. (b). Former subsec. (b) redesignated (c).
Subsec. (c). Pub. L. 108–136, §1008(a)(1), (2), redesignated subsec. (b) as (c) and struck out heading and text of former subsec. (c). Text read as follows: “Funds transferred to the Defense Modernization Account from funds appropriated for a military department, Defense Agency, or other element of the Department of Defense shall be available in accordance with subsections (f) and (g) only for transfer to funds available for that military department, Defense Agency, or other element.”
Subsec. (c)(1)(B)(iii). Pub. L. 108–136, §1008(c)(1), added cl. (iii).
Subsec. (c)(2). Pub. L. 108–136, §1008(c)(2), inserted “, other than funds referred to in subparagraph (B)(iii) of such paragraph,” after “Funds referred to in paragraph (1)”.
Subsec. (d). Pub. L. 108–136, §1008(b), substituted “in the Defense Modernization Account” for “available from the Defense Modernization Account pursuant to subsection (f) or (g)” in introductory provisions, added par. (1), and redesignated former pars. (1) and (2) as (2) and (3), respectively.
Subsec. (h). Pub. L. 108–136, §1008(d), designated existing provisions as par. (1) and added par. (2).
Subsec. (i). Pub. L. 108–136, §1008(e)(1), substituted “Annual Report” for “Quarterly Reports” in heading.
Subsec. (i)(1). Pub. L. 108–136, §1008(e)(1), (2), substituted “fiscal year” for “calendar quarter” in introductory provisions and “fiscal year” for “quarter” in subpars. (A) to (C).
Subsec. (j)(3). Pub. L. 108–136, §1043(b)(8), struck out par. (3) which read as follows: “The term ‘congressional defense committees’ means—
“(A) the Committee on Armed Services and the Committee on Appropriations of the Senate; and
“(B) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.”
Subsec. (k). Pub. L. 108–136, §1008(f)(1), added subsec. (k).
1999—Subsec. (j)(3)(B). Pub. L. 106–65 substituted “Committee on Armed Services” for “Committee on National Security”.
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
Section 912(b) of Pub. L. 104–106 provided that: “Section 2216 of title 10, United States Code (as added by subsection (a)), shall apply only to funds appropriated for fiscal years after fiscal year 1995.”
Pub. L. 104–106, div. A, title IX, §912(c), Feb. 10, 1996, 110 Stat. 410, as amended by Pub. L. 107–314, div. A, title VIII, §825(a)(1), Dec. 2, 2002, 116 Stat. 2615, provided that authority under section 2216(b) of this title to transfer funds into Defense Modernization Account terminated at close of Sept. 30, 2002, and the Account was to be closed three years later, prior to repeal by Pub. L. 108–136, div. A, title X, §1008(f)(2), Nov. 24, 2003, 117 Stat. 1587.
Pub. L. 104–106, div. A, title IX, §912(d), Feb. 10, 1996, 110 Stat. 410, required Comptroller General of the United States to conduct two reviews of the administration of the Defense Modernization Account, prior to repeal by Pub. L. 107–314, div. A, title VIII, §825(a)(2), Dec. 2, 2002, 116 Stat. 2615.
Section, added Pub. L. 104–106, div. A, title III, §371(a)(1), Feb. 10, 1996, 110 Stat. 277, §2216; renumbered §2216a and amended Pub. L. 104–201, div. A, title III, §§363(c), 364, title X, §1074(a)(10), Sept. 23, 1996, 110 Stat. 2493, 2494, 2659, related to Defense Business Operations Fund.
(a)
(1) specifically identify each common procurement weapon system included in the budget;
(2) take all feasible steps to minimize variations in procurement unit costs for any such system as shown in the budget requests of the different armed forces requesting procurement funds for the system; and
(3) identify and justify in the budget all such variations in procurement unit costs for common procurement weapon systems.
(b)
(c)
(1) The term “defense budget” means the budget of the Department of Defense included in the President's budget submitted to Congress under section 1105 of title 31 for a fiscal year.
(2) The term “common procurement weapon system” means a weapon system for which two or more of the Army, Navy, Air Force, and Marine Corps request procurement funds in a defense budget.
(Added Pub. L. 100–370, §1(d)(3)(A), July 19, 1988, 102 Stat. 843; amended Pub. L. 104–106, div. A, title XV, §1503(a)(20), Feb. 10, 1996, 110 Stat. 512.)
Section is based on Pub. L. 99–500, §101(c) [title X, §955], Oct. 18, 1986, 100 Stat. 1783–82, 1783–173, and Pub. L. 99–591, §101(c) [title X, §955], Oct. 30, 1986, 100 Stat. 3341–82, 3341–173; Pub. L. 99–661, div. A, title IX, formerly title IV, §955, Nov. 14, 1986, 100 Stat. 3953, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273.
1996—Subsec. (b). Pub. L. 104–106 substituted “Under Secretary of Defense (Comptroller)” for “Comptroller of the Department of Defense”.
(a)
(b)
(c)
(A) Construction (including design of vessels), purchase, alteration, and conversion of Department of Defense sealift vessels.
(B) Operation, maintenance, and lease or charter of Department of Defense vessels for national defense purposes.
(C) Installation and maintenance of defense features for national defense purposes on privately owned and operated vessels that are constructed in the United States and documented under the laws of the United States.
(D) Research and development relating to national defense sealift.
(E) Expenses for maintaining the National Defense Reserve Fleet under section 11 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1744), and for the costs of acquisition of vessels for, and alteration and conversion of vessels in (or to be placed in), the fleet, but only for vessels built in United States shipyards.
(2) Funds in the National Defense Sealift Fund may be obligated or expended only in amounts authorized by law.
(3) Funds obligated and expended for a purpose set forth in subparagraph (B) or (D) of paragraph (1) may be derived only from funds deposited in the National Defense Sealift Fund pursuant to subsection (d)(1).
(d)
(1) All funds appropriated to the Department of Defense for—
(A) construction (including design of vessels), purchase, alteration, and conversion of national defense sealift vessels;
(B) operations, maintenance, and lease or charter of national defense sealift vessels;
(C) installation and maintenance of defense features for national defense purposes on privately owned and operated vessels; and
(D) research and development relating to national defense sealift.
(2) All receipts from the disposition of national defense sealift vessels, excluding receipts from the sale, exchange, or scrapping of National Defense Reserve Fleet vessels under sections 57101–57104 and chapter 573 of title 46.
(3) All receipts from the charter of vessels under section 1424(c) of the National Defense Authorization Act for Fiscal Year 1991 (10 U.S.C. 7291 note).
(e)
(2) Any contribution of property accepted under paragraph (1) may be retained and used by the Department of Defense or disposed of in accordance with procedures prescribed by the Secretary of Defense.
(3) The Secretary of Defense shall deposit in the Fund money and receipts from the disposition of any property accepted under paragraph (1).
(f)
(2) Construction, alteration, or conversion of vessels with funds in the National Defense Sealift Fund pursuant to subsection (c)(1) shall be conducted in United States ship yards and shall be subject to section 1424(b) of Public Law 101–510 (104 Stat. 1683).
(g)
(h)
(1) the amount requested for programs, projects, and activities for construction (including design of vessels), purchase, alteration, and conversion of national defense sealift vessels;
(2) the amount requested for programs, projects, and activities for operation, maintenance, and lease or charter of national defense sealift vessels;
(3) the amount requested for programs, projects, and activities for installation and maintenance of defense features for national defense purposes on privately owned and operated vessels that are constructed in the United States and documented under the laws of the United States; and
(4) the amount requested for programs, projects, and activities for research and development relating to national defense sealift.
(i)
(j)
(2) The head of an agency may make advance payments to the contractor under a contract under paragraph (1) in a lump sum, in annual payments, or in a combination thereof for costs associated with the installation and maintenance of the defense features on a vessel covered by the contract, as follows:
(A) The costs to build, procure, and install a defense feature in the vessel.
(B) The costs to periodically maintain and test any defense feature on the vessel.
(C) Any increased costs of operation or any loss of revenue attributable to the installation or maintenance of any defense feature on the vessel.
(D) Any additional costs associated with the terms and conditions of the contract.
(E) Payments of such sums as the Government would otherwise expend, if the vessel were placed in the Ready Reserve Fleet, for maintaining the vessel in the status designated as “ROS–4 status” in the Ready Reserve Fleet for 25 years.
(3) For any contract under paragraph (1) under which the United States makes advance payments under paragraph (2) for the costs associated with installation or maintenance of any defense feature on a commercial vessel, the contractor shall provide to the United States such security interests in the vessel, by way of a preferred mortgage under section 31322 of title 46 or otherwise, as the head of the agency may prescribe in order to adequately protect the United States against loss for the total amount of those costs.
(4) Each contract entered into under this subsection shall—
(A) set forth terms and conditions under which, so long as a vessel covered by the contract is owned or controlled by the contractor, the contractor is to operate the vessel for the Department of Defense notwithstanding any other contract or commitment of that contractor; and
(B) provide that the contractor operating the vessel for the Department of Defense shall be paid for that operation at fair and reasonable rates.
(5) The head of an agency may not delegate authority under this subsection to any officer or employee in a position below the level of head of a procuring activity.
(6) The head of an agency may not enter into a contract under paragraph (1) that would provide for payments to the contractor as authorized in paragraph (2)(E) until notice of the proposed contract is submitted to the congressional defense committees and a period of 90 days has elapsed.
(k)
(1) The term “Fund” means the National Defense Sealift Fund established by subsection (a).
(2) The term “Department of Defense sealift vessel” means any ship owned, operated, controlled, or chartered by the Department of Defense that is any of the following:
(A) A fast sealift ship, including any vessel in the Fast Sealift Program established under section 1424 of Public Law 101–510 (104 Stat. 1683).
(B) Any other auxiliary vessel that was procured or chartered with specific authorization in law for the vessel, or class of vessels, to be funded in the National Defense Sealift Fund.
(3) The term “national defense sealift vessel” means—
(A) a Department of Defense sealift vessel; and
(B) a national defense reserve fleet vessel, including a vessel in the Ready Reserve Force maintained under section 11 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1744).
(4) The term “head of an agency” has the meaning given that term in section 2302(1) of this title.
(Added Pub. L. 102–484, div. A, title X, §1024(a)(1), Oct. 23, 1992, 106 Stat. 2486; amended Pub. L. 102–396, title V, Oct. 6, 1992, 106 Stat. 1896; Pub. L. 104–106, div. A, title X, §1014(a), title XV, §1502(a)(15), Feb. 10, 1996, 110 Stat. 423, 503; Pub. L. 106–65, div. A, title X, §§1014(b), 1015, 1067(1), Oct. 5, 1999, 113 Stat. 742, 743, 774; Pub. L. 106–398, §1 [[div. A], title X, §1011], Oct. 30, 2000, 114 Stat. 1654, 1654A–251; Pub. L. 107–107, div. A, title X, §1048(e)(9), Dec. 28, 2001, 115 Stat. 1228; Pub. L. 108–136, div. A, title X, §1043(b)(9), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 109–163, div. A, title X, §1018(d), Jan. 6, 2006, 119 Stat. 3426; Pub. L. 109–304, §17(a)(2), Oct. 6, 2006, 120 Stat. 1706; Pub. L. 110–417, [div. A], title XIV, §1407, Oct. 14, 2008, 122 Stat. 4647.)
Section 1424 of Public Law 101–510, referred to in subsecs. (d)(3), (f)(2), and (k)(2)(A), is section 1424 of the National Defense Authorization Act for Fiscal Year 1991, which is set out as a note under section 7291 of this title.
Pub. L. 102–396, title V, Oct. 6, 1992, 106 Stat. 1896, provided that section 1024 of the National Defense Authorization Act for Fiscal Year 1993 [H.R. 5006, Pub. L. 102–484], as it passed the Senate on Oct. 3, 1992, shall be amended in subsection 2218(c)(2) proposed for inclusion in this chapter by deleting all after “expended only” down to and including “appropriations Act” and inserting in lieu thereof “in amounts authorized by law”. It further provided that for purposes of that amendment, Pub. L. 102–396 shall be treated as having been enacted after Pub. L. 102–484, regardless of the actual dates of enactment. The date of Oct. 3, 1992, referred to as the date the Senate passed the National Defense Authorization Act for Fiscal Year 1993, apparently is based on an order adopted by the Senate on Oct. 3, 1992 [Cong. Rec., vol. 138, p. 30919] providing that when the conference report on the National Defense Authorization Act for Fiscal Year 1993 was received by the Senate from the House of Representatives it would be deemed to have been agreed to. On Oct. 5, 1992, the Senate received the conference report from the House, and it was considered adopted pursuant to that order [Cong. Rec., vol. 138, p. 31565].
2008—Subsecs. (j), (k). Pub. L. 110–417, §1407(1), redesignated subsecs. (k) and (l) as (j) and (k), respectively, and struck out heading and text of former subsec. (j). Text read as follows: “Upon a determination by the Secretary of Defense that such action serves the national defense interest and after consultation with the congressional defense committees, the Secretary may use funds available for obligation or expenditure for a purpose specified under subsection (c)(1)(A), (B), (C), and (D) for any purpose under subsection (c)(1).”
Subsec. (k)(2)(B) to (I). Pub. L. 110–417, §1407(2), added subpar. (B) and struck out former subpars. (B) to (I) which read as follows:
“(B) A maritime prepositioning ship.
“(C) An afloat prepositioning ship.
“(D) An aviation maintenance support ship.
“(E) A hospital ship.
“(F) A strategic sealift ship.
“(G) A combat logistics force ship.
“(H) A maritime prepositioned ship.
“(I) Any other auxiliary support vessel.”
Subsec. (l). Pub. L. 110–417, §1407(1), redesignated subsec. (l) as (k).
2006—Subsec. (d)(2). Pub. L. 109–304 substituted “sections 57101–57104 and chapter 573 of title 46” for “sections 508 and 510 of the Merchant Marine Act of 1936 (46 U.S.C. App. 1158, 1160), shall be deposited in the Fund”.
Subsec. (f)(1). Pub. L. 109–163 substituted “A vessel built in a foreign ship yard may not be” for “Not more than a total of five vessels built in foreign ship yards may be” and inserted “, unless specifically authorized by law” before period at end.
2003—Subsec. (l)(4), (5). Pub. L. 108–136 redesignated par. (5) as (4) and struck out former par. (4) which read as follows: “The term ‘congressional defense committees’ means—
“(A) the Committee on Armed Services and the Committee on Appropriations of the Senate; and
“(B) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.”
2001—Subsec. (d)(1). Pub. L. 107–107 struck out “for fiscal years after fiscal year 1993” after “Department of Defense” in introductory provisions.
2000—Subsec. (k)(1). Pub. L. 106–398, §1 [[div. A], title X, §1011(1)], inserted at end “As consideration for a contract with the head of an agency under this subsection, the company entering into the contract shall agree with the Secretary of Defense to make any vessel covered by the contract available to the Secretary, fully crewed and ready for sea, at any time at any port determined by the Secretary, and for whatever duration the Secretary determines necessary.”
Subsec. (k)(2)(E). Pub. L. 106–398, §1 [[div. A], title X, §1011(2)], added subpar. (E).
Subsec. (k)(6). Pub. L. 106–398, §1 [[div. A], title X, §1011(3)], added par. (6).
1999—Subsec. (k). Pub. L. 106–65, §1015(a)(2), added subsec. (k). Former subsec. (k) redesignated (l).
Subsec. (k)(2). Pub. L. 106–65, §1014(b), substituted “that is any of the following:” for “that is—” in introductory provisions, substituted “A” for “a” and a period for the semicolon in subpars. (A) and (B), “An” for “an” and a period for the semicolon in subpar. (C), “An” for “an” and a period for “; or” in subpar. (D), and “A” for “a” in subpar. (E), and added subpars. (F) to (I).
Subsec. (l). Pub. L. 106–65, §1015(a)(1), redesignated subsec. (k) as (l).
Subsec. (l)(4)(B). Pub. L. 106–65, §1067(1), substituted “Committee on Armed Services” for “Committee on National Security”.
Subsec. (l)(5). Pub. L. 106–65, §1015(b), added par. (5).
1996—Subsec. (c)(1). Pub. L. 104–106, §1014(a)(1)(A), substituted “only for the following purposes:” for “only for—”.
Subsec. (c)(1)(A). Pub. L. 104–106, §1014(a)(1)(B), (C), substituted “Construction” for “construction” and “vessels.” for “vessels;”.
Subsec. (c)(1)(B). Pub. L. 104–106, §1014(a)(1)(B), (C), substituted “Operation” for “operation” and “purposes.” for “purposes;”.
Subsec. (c)(1)(C). Pub. L. 104–106, §1014(a)(1)(B), (D), substituted “Installation” for “installation” and “States.” for “States; and”.
Subsec. (c)(1)(D). Pub. L. 104–106, §1014(a)(1)(B), substituted “Research” for “research”.
Subsec. (c)(1)(E). Pub. L. 104–106, §1014(a)(1)(E), added subpar. (E).
Subsec. (i). Pub. L. 104–106, §1014(a)(2), inserted “(other than subsection (c)(1)(E))” after “Nothing in this section”.
Subsec. (j). Pub. L. 104–106, §1502(a)(15)(A), substituted “the congressional defense committees” for “the Committees on Armed Services and on Appropriations of the Senate and the House of Representatives”.
Subsec. (k)(4). Pub. L. 104–106, §1502(a)(15)(B), added par. (4).
1992—Subsec. (c)(2). Pub. L. 102–396 substituted “in amounts authorized by law” for “for programs, projects, and activities and only in amounts authorized in, or otherwise permitted under, an Act other than an appropriations Act”. See Codification note above.
(a)
(b)
(Added Pub. L. 103–355, title V, §5001(a)(1), Oct. 13, 1994, 108 Stat. 3349; amended Pub. L. 104–106, div. A, title XV, §1503(a)(20), div. D, title XLIII, §4321(b)(1), Feb. 10, 1996, 110 Stat. 512, 671; Pub. L. 105–85, div. A, title VIII, §841(a), Nov. 18, 1997, 111 Stat. 1843; Pub. L. 107–314, div. A, title X, §1041(a)(8), Dec. 2, 2002, 116 Stat. 2645.)
2002—Subsec. (a). Pub. L. 107–314, §1041(a)(8)(B), (C), struck out par. (1) designation and redesignated par. (2) as subsec. (b).
Subsec. (b). Pub. L. 107–314, §1041(a)(8)(A), (C), redesignated subsec. (a)(2) as (b) and struck out heading and text of former subsec. (b). Text read as follows: “The Secretary of Defense shall include in the annual report submitted to Congress pursuant to section 113(c) of this title an assessment of whether major acquisition programs of the Department of Defense are achieving, on average, 90 percent of cost, performance, and schedule goals established pursuant to subsection (a) and whether the average period for converting emerging technology into operational capability has decreased by 50 percent or more from the average period required for such conversion as of October 13, 1994. The Secretary shall use data from existing management systems in making the assessment.”
Subsec. (c). Pub. L. 107–314, §1041(a)(8)(A), struck out heading and text of subsec. (c). Text read as follows: “Whenever the Secretary of Defense, in the assessment required by subsection (b), determines that major defense acquisition programs of the Department of Defense are not achieving, on average, 90 percent of cost, performance, and schedule goals established pursuant to subsection (a), the Secretary shall ensure that there is a timely review of major defense acquisition programs and other programs as appropriate. In conducting the review, the Secretary shall—
“(1) determine whether there is a continuing need for programs that are significantly behind schedule, over budget, or not in compliance with performance or capability requirements; and
“(2) identify suitable actions to be taken, including termination, with respect to such programs.”
1997—Subsec. (b). Pub. L. 105–85 substituted “whether major acquisition programs” for “whether major and nonmajor acquisition programs”.
1996—Subsec. (a)(2). Pub. L. 104–106, §1503(a)(20), substituted “Under Secretary of Defense (Comptroller)” for “Comptroller of the Department of Defense”.
Subsec. (b). Pub. L. 104–106, §4321(b)(1), substituted “October 13, 1994” for “the date of the enactment of the Federal Acquisition Streamlining Act of 1994”.
For effective date and applicability of amendment by section 4321(b)(1) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Pub. L. 105–261, div. A, title VIII, §816, Oct. 17, 1998, 112 Stat. 2088, provided that:
“(a)
“(b)
“(c)
“(1) A description of the acquisition programs designated as pilot programs under subsection (a).
“(2) For each such acquisition program, the specific management actions taken to ensure that the program manager has the responsibility for oversight of the performance of the product support functions.
“(3) Any proposed change to law, policy, regulation, or organization that the Secretary considers desirable, and determines feasible to implement, for ensuring that the program managers are fully responsible under the pilot programs for the performance of all such responsibilities.”
Pub. L. 103–355, title V, §5001(b), Oct. 13, 1994, 108 Stat. 3350, provided that: “Within one year after the date of the enactment of this Act [Oct. 13, 1994], the Secretary of Defense shall review the incentives and personnel actions available to the Secretary of Defense for encouraging excellence in the management of defense acquisition programs and provide an enhanced system of incentives to facilitate the achievement of goals approved or defined pursuant to section 2220(a) of title 10, United States Code. The enhanced system of incentives shall, to the maximum extent consistent with applicable law—
“(1) relate pay to performance (including the extent to which the performance of personnel in such programs contributes to achieving the cost goals, performance goals, and schedule goals established for acquisition programs of the Department of Defense pursuant to section 2220(a) of title 10, as added by subsection (a)); and
“(2) provide for consideration, in personnel evaluations and promotion decisions, of the extent to which the performance of personnel in such programs contributes to achieving the cost goals, performance goals, and schedule goals established for acquisition programs of the Department of Defense pursuant to section 2220(a) of title 10, United States Code, as added by subsection (a).”
Pub. L. 103–355, title V, §5001(c), Oct. 13, 1994, 108 Stat. 3350, directed the Secretary of Defense, not later than one year after Oct 13, 1994, to submit to Congress any recommended legislation that the Secretary considered necessary to carry out this section and otherwise to facilitate and enhance management of Department of Defense acquisition programs on the basis of performance.
Section, added Pub. L. 104–106, div. A, title IX, §914(a)(1), Feb. 10, 1996, 110 Stat. 412; amended Pub. L. 104–201, div. A, title X, §1008(a), Sept. 23, 1996, 110 Stat. 2633; Pub. L. 105–85, div. A, title X, §1006(a), Nov. 18, 1997, 111 Stat. 1869; Pub. L. 105–261, div. A, title X, §1069(b)(2), Oct. 17, 1998, 112 Stat. 2136, related to Fisher House trust funds. See section 2493 of this title.
Repeal effective 90 days after Oct. 17, 1998, see section 906(f)(3) of Pub. L. 105–261, set out as an Effective Date of 1998 Amendment note under section 1321 of Title 31, Money and Finance.
(a)
(1) the appropriate chief management officer for the defense business system modernization has determined whether or not—
(A) the defense business system modernization is in compliance with the enterprise architecture developed under subsection (c); and
(B) appropriate business process reengineering efforts have been undertaken to ensure that—
(i) the business process to be supported by the defense business system modernization will be as streamlined and efficient as practicable; and
(ii) the need to tailor commercial-off-the-shelf systems to meet unique requirements or incorporate unique interfaces has been eliminated or reduced to the maximum extent practicable;
(2) the approval authority designated for the defense business system certifies to the Defense Business Systems Management Committee established by section 186 of this title that the defense business system modernization—
(A) has been determined by the appropriate chief management officer to be in compliance with the requirements of paragraph (1);
(B) is necessary to achieve a critical national security capability or address a critical requirement in an area such as safety or security; or
(C) is necessary to prevent a significant adverse effect on a project that is needed to achieve an essential capability, taking into consideration the alternative solutions for preventing such adverse effect; and
(3) the certification by the approval authority and the determination by the chief management officer are approved by the Defense Business Systems Management Committee.
(b)
(c)
(1) an enterprise architecture to cover all defense business systems, and the functions and activities supported by defense business systems, which shall be sufficiently defined to effectively guide, constrain, and permit implementation of interoperable defense business system solutions and consistent with the policies and procedures established by the Director of the Office of Management and Budget, and
(2) a transition plan for implementing the enterprise architecture for defense business systems.
(d)
(1) An information infrastructure that, at a minimum, would enable the Department of Defense to—
(A) comply with all Federal accounting, financial management, and reporting requirements;
(B) routinely produce timely, accurate, and reliable financial information for management purposes;
(C) integrate budget, accounting, and program information and systems; and
(D) provide for the systematic measurement of performance, including the ability to produce timely, relevant, and reliable cost information.
(2) Policies, procedures, data standards, and system interface requirements that are to apply uniformly throughout the Department of Defense.
(e)
(A) The acquisition strategy for new systems that are expected to be needed to complete the defense business enterprise architecture.
(B) A listing of the defense business systems as of December 2, 2002 (known as “legacy systems”), that will not be part of the objective defense business enterprise architecture, together with the schedule for terminating those legacy systems that provides for reducing the use of those legacy systems in phases.
(C) A listing of the legacy systems (referred to in subparagraph (B)) that will be a part of the objective defense business system, together with a strategy for making the modifications to those systems that will be needed to ensure that such systems comply with the defense business enterprise architecture.
(2) Each of the strategies under paragraph (1) shall include specific time-phased milestones, performance metrics, and a statement of the financial and nonfinancial resource needs.
(f)
(A) The Under Secretary of Defense for Acquisition, Technology and Logistics shall be responsible and accountable for any defense business system the primary purpose of which is to support acquisition activities, logistics activities, or installations and environment activities of the Department of Defense.
(B) The Under Secretary of Defense (Comptroller) shall be responsible and accountable for any defense business system the primary purpose of which is to support financial management activities or strategic planning and budgeting activities of the Department of Defense.
(C) The Under Secretary of Defense for Personnel and Readiness shall be responsible and accountable for any defense business system the primary purpose of which is to support human resource management activities of the Department of Defense.
(D) The Assistant Secretary of Defense for Networks and Information Integration and the Chief Information Officer of the Department of Defense shall be responsible and accountable for any defense business system the primary purpose of which is to support information technology infrastructure or information assurance activities of the Department of Defense.
(E) The Deputy Secretary of Defense or an Under Secretary of Defense, as designated by the Secretary of Defense, shall be responsible for any defense business system the primary purpose of which is to support any activity of the Department of Defense not covered by subparagraphs (A) through (D).
(2) For purposes of subsection (a), the appropriate chief management officer for a defense business system modernization is as follows:
(A) In the case of an Army program, the Chief Management Officer of the Army.
(B) In the case of a Navy program, the Chief Management Officer of the Navy.
(C) In the case of an Air Force program, the Chief Management Officer of the Air Force.
(D) In the case of a program of a Defense Agency, the Deputy Chief Management Officer of the Department of Defense.
(E) In the case of a program that will support the business processes of more than one military department or Defense Agency, the Deputy Chief Management Officer of the Department of Defense.
(g)
(2) The review of defense business systems under the investment review process shall include the following:
(A) Review and approval by an investment review board of each defense business system as an investment before the obligation of funds on the system.
(B) Periodic review, but not less than annually, of every defense business system investment.
(C) Representation on each investment review board by appropriate officials from among the armed forces, combatant commands, the Joint Chiefs of Staff, and Defense Agencies.
(D) Use of threshold criteria to ensure an appropriate level of review within the Department of Defense of, and accountability for, defense business system investments depending on scope, complexity, and cost.
(E) Use of procedures for making certifications in accordance with the requirements of subsection (a).
(F) Use of procedures for ensuring consistency with the guidance issued by the Secretary of Defense and the Defense Business Systems Management Committee, as required by section 186(c) of this title, and incorporation of common decision criteria, including standards, requirements, and priorities that result in the integration of defense business systems.
(h)
(1) Identification of each defense business system for which funding is proposed in that budget.
(2) Identification of all funds, by appropriation, proposed in that budget for each such system, including—
(A) funds for current services (to operate and maintain the system); and
(B) funds for business systems modernization, identified for each specific appropriation.
(3) For each such system, identification of the official to whom authority for such system is delegated under subsection (f).
(4) For each such system, a description of each certification made under subsection (d) with regard to such system.
(i)
(1) describe actions taken and planned for meeting the requirements of subsection (a), including—
(A) specific milestones and actual performance against specified performance measures, and any revision of such milestones and performance measures; and
(B) specific actions on the defense business system modernizations submitted for certification under such subsection;
(2) identify the number of defense business system modernizations so certified;
(3) identify any defense business system modernization with an obligation in excess of $1,000,000 during the preceding fiscal year that was not certified under subsection (a), and the reasons for the waiver; and
(4) discuss specific improvements in business operations and cost savings resulting from successful defense business systems modernization efforts.
(j)
(1) The term “approval authority”, with respect to a defense business system, means the Department of Defense official responsible for the defense business system, as designated by subsection (f).
(2) The term “defense business system” means an information system, other than a national security system, operated by, for, or on behalf of the Department of Defense, including financial systems, mixed systems, financial data feeder systems, and information technology and information assurance infrastructure, used to support business activities, such as acquisition, financial management, logistics, strategic planning and budgeting, installations and environment, and human resource management.
(3) The term “defense business system modernization” means—
(A) the acquisition or development of a new defense business system; or
(B) any significant modification or enhancement of an existing defense business system (other than necessary to maintain current services).
(4) The term “enterprise architecture” has the meaning given that term in section 3601(4) of title 44.
(5) The terms “information system” and “information technology” have the meanings given those terms in section 11101 of title 40.
(6) The term “national security system” has the meaning given that term in section 3542(b)(2) of title 44.
(Added Pub. L. 108–375, div. A, title III, §332(a)(1), Oct. 28, 2004, 118 Stat. 1851; amended Pub. L. 109–364, div. A, title IX, §906(a), Oct. 17, 2006, 120 Stat. 2354; Pub. L. 110–417, [div. A], title III, §351, Oct. 14, 2008, 122 Stat. 4425; Pub. L. 111–84, div. A, title X, §1072(a), Oct. 28, 2009, 123 Stat. 2470; Pub. L. 111–383, div. A, title X, §1075(b)(29), Jan. 7, 2011, 124 Stat. 4370.)
A prior section 2222, added Pub. L. 105–85, div. A, title X, §1008(a)(1), Nov. 18, 1997, 111 Stat. 1870; amended Pub. L. 107–107, div. A, title X, §1009(b)(1)–(3)(A), Dec. 28, 2001, 115 Stat. 1208, 1209, required Secretary of Defense to submit to Congress an annual strategic plan for improvement of financial management within Department of Defense and specified statements and matters to be included in the plan, prior to repeal by Pub. L. 107–314, div. A, title X, §1004(h)(1), Dec. 2, 2002, 116 Stat. 2631.
2011—Subsec. (a). Pub. L. 111–383 substituted “Funds” for “Effective October 1, 2005, funds”.
2009—Subsec. (a). Pub. L. 111–84, §1072(a)(1)(A), (B), added par. (1) and redesignated former pars. (1) and (2) as (2) and (3), respectively.
Subsec. (a)(2)(A). Pub. L. 111–84, §1072(a)(1)(C), added subpar. (A) and struck out former subpar. (A), which read as follows: “is in compliance with the enterprise architecture developed under subsection (c);”.
Subsec. (a)(3). Pub. L. 111–84, §1072(a)(1)(D), substituted “the certification by the approval authority and the determination by the chief management officer are” for “the certification by the approval authority is”.
Subsec. (f). Pub. L. 111–84, §1072(a)(2), designated existing provisions as par. (1), redesignated former pars. (1) to (5) as subpars. (A) to (E), respectively, of par. (1), in subpar. (E) substituted “subparagraphs (A) through (D)” for “paragraphs (1) through (4)”, and added par. (2).
2008—Subsec. (i). Pub. L. 110–417 substituted “2013” for “2009” in introductory provisions.
2006—Subsec. (j)(6). Pub. L. 109–364 substituted “in section 3542(b)(2) of title 44” for “in section 2315 of this title”.
Pub. L. 111–383, div. A, title VIII, §882, Jan. 7, 2011, 124 Stat. 4308, provided that:
“(a)
“(1) increased reliance on individual obligation and expenditure plans for measuring program financial performance;
“(2) mechanisms to improve funding stability and to increase the predictability of the release of funding for obligation and expenditure; and
“(3) streamlined mechanisms for a program manager to submit an appeal for funding changes and to have such appeal evaluated promptly.
“(b)
“(c)
Pub. L. 111–383, div. A, title VIII, §881, Jan. 7, 2011, 124 Stat. 4306, provided that:
“(a)
“(1)
“(2)
“(A) an interim milestone for achieving audit readiness for each major element of the statement of budgetary resources, including civilian pay, military pay, supply orders, contracts, and funds balance with the Treasury; and
“(B) an interim milestone for addressing the existence and completeness of each major category of Department of Defense assets, including military equipment, real property, inventory, and operating material and supplies.
“(3)
“(b)
“(1)
“(A) examine the costs and benefits of alternative approaches to the valuation of Department of Defense assets;
“(B) select an approach to such valuation that is consistent with principles of sound financial management and the conservation of taxpayer resources; and
“(C) begin the preparation of a business case analysis supporting the selected approach.
“(2) The Under Secretary shall include information on the alternatives considered, the selected approach, and the business case analysis supporting that approach in the next semiannual report submitted pursuant to section 1003(b) of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 123 Stat. 2439; 10 U.S.C. 2222 note).
“(c)
“(1) develop a remediation plan to ensure that—
“(A) the component will meet the interim milestone no more than one year after the originally scheduled date; and
“(B) the component's failure to meet the interim milestone will not have an adverse impact on the Department's ability to carry out the plan under section 1003(a) of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 123 Stat. 2439; 10 U.S.C. 2222 note); and
“(2) include in the next semiannual report submitted pursuant to section 1003(b) of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 123 Stat. 2439; 10 U.S.C. 2222 note)—
“(A) a statement of the reasons why the Department of Defense, or component of the Department of Defense, will be unable to meet such interim milestone;
“(B) the revised completion date for meeting such interim milestone; and
“(C) a description of the actions that have been taken and are planned to be taken by the Department of Defense, or component of the Department of Defense, to meet such interim milestone.
“(d)
“(1)
“(2)
“(A) Consistent with the need to fund urgent warfighter requirements and operational needs, priority in the release of appropriated funds.
“(B) Relief from the frequency of financial reporting in cases in which such reporting is not required by law.
“(C) Relief from departmental obligation and expenditure thresholds to the extent that such thresholds establish requirements more restrictive than those required by law.
“(D) Increases in thresholds for reprogramming of funds.
“(E) Personnel management incentives for the financial and business management workforce.
“(F) Such other measures as the Under Secretary considers appropriate.
“(3)
“(A) an assessment of the extent to which the implementation of the option—
“(i) would be consistent with the efficient operation of the Department of Defense and the effective funding of essential Department of Defense programs and activities; and
“(ii) would contribute to the achievement of Department of Defense goals to prepare auditable financial statements; and
“(B) a recommendation on whether such option should be adopted, a schedule for implementing the option if adoption is recommended, or a reason for not recommending the option if adoption is not recommended.”
Pub. L. 111–84, div. A, title X, §1003, Oct. 28, 2009, 123 Stat. 2439, provided that:
“(a)
“(1)
“(2)
“(A) describe specific actions to be taken and the costs associated with—
“(i) correcting the financial management deficiencies that impair the ability of the Department of Defense to prepare timely, reliable, and complete financial management information; and
“(ii) ensuring the financial statements of the Department of Defense are validated as ready for audit by not later than September 30, 2017;
“(B) systematically tie the actions described under subparagraph (A) to process and control improvements and business systems modernization efforts described in the business enterprise architecture and transition plan required by section 2222 of title 10, United States Code;
“(C) prioritize—
“(i) improving the budgetary information of the Department of Defense, in order to achieve an unqualified audit opinion on the Department's statements of budgetary resources; and
“(ii) as a secondary goal, improving the accuracy and reliability of management information on the Department's mission-critical assets (military and general equipment, real property, inventory, and operating materials and supplies) and validating its accuracy through existence and completeness audits; and
“(D) include interim goals, including—
“(i) the objective of ensuring that the financial statement of each of the Department of the Army, the Department of the Navy, the Department of the Air Force, and the Defense Logistics Agency is validated as ready for audit: and
“(ii) a schedule setting forth milestones for elements of the military departments and financial statements of the military departments to be made ready for audit as part of the progress required to meet the objectives established pursuant to clause (i) of this subparagraph and clause (ii) of subparagraph (A) of this paragraph.
“(b)
“(1)
“(2)
“(A) an overview of the steps the Department has taken or plans to take to meet the objectives specified in subsection (a)(2)(A), including progress toward achieving the interim goals and milestone schedule established pursuant to subsection (a)(2)(D); and
“(B) a description of any impediments identified in the efforts of the Department to meet such objectives, and of the actions the Department has taken or plans to take to address such impediments.
“(3)
“(A) To develop standardized guidance for financial improvement plans by components of the Department.
“(B) To establish a baseline of financial management capabilities and weaknesses at the component level of the Department.
“(C) To provide results-oriented metrics for measuring and reporting quantifiable results toward addressing financial management deficiencies.
“(D) To define the oversight roles of the Chief Management Officer of the Department of Defense, the chief management officers of the military departments, and other appropriate elements of the Department to ensure that the requirements of the Financial Improvement and Audit Readiness Plan are carried out.
“(E) To assign accountability for carrying out specific elements of the Financial Improvement and Audit Readiness Plan to appropriate officials and organizations at the component level of the Department.
“(F) To develop mechanisms to track budgets and expenditures for the implementation of the requirements of the Financial Improvement and Audit Readiness Plan.
“(G) To develop a mechanism to conduct audits of the military intelligence programs and agencies and to submit audited financial statements for such agencies to Congress in a classified manner.
“(c)
Pub. L. 111–84, div. A, title X, §1072(b), Oct. 28, 2009, 123 Stat. 2471, provided that:
“(1)
“(A) the business process to be supported by such defense business system modernization will be as streamlined and efficient as practicable; and
“(B) the need to tailor commercial-off-the-shelf systems to meet unique requirements or incorporate unique interfaces has been eliminated or reduced to the maximum extent practicable.
“(2)
“(A) shall develop a plan to undertake business process reengineering efforts with respect to the defense business system modernization; and
“(B) may direct that the defense business system modernization be restructured or terminated, if necessary to meet the requirements of paragraph (1).
“(3)
“(A) The term ‘appropriate chief management officer’, with respect to a defense business system modernization, has the meaning given that term in paragraph (2) of subsection (f) of section 2222 of title 10, United States Code (as amended by subsection (a)(2) of this section).
“(B) The term ‘defense business system modernization’ has the meaning given that term in subsection (j)(3) of section 2222 of title 10, United States Code.”
Pub. L. 110–417, [div. A], title IX, §908, Oct. 14, 2008, 122 Stat. 4569, provided that:
“(a)
“(b)
“(1) The development of a comprehensive business transformation plan, with measurable performance goals and objectives, to achieve an integrated management system for the business operations of the military department.
“(2) The development of a well-defined enterprise-wide business systems architecture and transition plan encompassing end-to-end business processes and capable of providing accurately and timely information in support of business decisions of the military department.
“(3) The implementation of the business transformation plan developed pursuant to paragraph (1) and the business systems architecture and transition plan developed pursuant to paragraph (2).
“(c)
“(1)
“(2)
“(3)
“(4)
“(d)
“(1) Transforming the budget, finance, accounting, and human resource operations of the military department in a manner that is consistent with the business transformation plan developed pursuant to subsection (b)(1).
“(2) Eliminating or replacing financial management systems of the military department that are inconsistent with the business systems architecture and transition plan developed pursuant to subsection (b)(2).
“(3) Ensuring that the business transformation plan and the business systems architecture and transition plan are implemented in a manner that is aggressive, realistic, and accurately measured.
“(4) Such other responsibilities as the Secretary of that military department determines are appropriate.
“(e)
“(1) the requirements of the Business Enterprise Architecture and Transition Plan developed by the Secretary of Defense pursuant to section 2222 of title 10, United States Code;
“(2) the Standard Financial Information Structure of the Department of Defense;
“(3) the Federal Financial Management Improvement Act of 1996 [section 101(f) [title VIII] of title I of div. A of Pub. L. 104–208, 31 U.S.C. 3512 note] (and the amendments made by that Act); and
“(4) other applicable requirements of law and regulation.
“(f)
“(1)
“(2)
Pub. L. 110–181, div. A, title X, §1005, Jan. 28, 2008, 122 Stat. 301, provided that:
“(a)
“(1)
“(2)
“(b)
“(1) To eliminate or replace financial management systems of the Defense Agencies that are duplicative, redundant, or fail to comply with the standards set forth in subsection (d).
“(2) To transform the budget, finance, and accounting operations of the Defense Agencies to enable the Defense Agencies to achieve accurate and reliable financial information needed to support financial accountability and effective and efficient management decisions.
“(c)
“(1) the utilization of commercial, off-the-shelf technologies and web-based solutions;
“(2) a standardized technical environment and an open and accessible architecture; and
“(3) the implementation of common business processes, shared services, and common data structures.
“(d)
“(1) the requirements of the Business Enterprise Architecture and Transition Plan developed pursuant to section 2222 of title 10, United States Code;
“(2) the Standard Financial Information Structure of the Department of Defense;
“(3) the Federal Financial Management Improvement Act of 1996 [section 101(f) [title VIII] of title I of div. A of Pub. L. 104–208, 31 U.S.C. 3512 note] (and the amendments made by that Act); and
“(4) other applicable requirements of law and regulation.
“(e)
“(1) Budget formulation.
“(2) Budget to report, including general ledger and trial balance.
“(3) Procure to pay, including commitments, obligations, and accounts payable.
“(4) Order to fulfill, including billing and accounts receivable.
“(5) Cost accounting.
“(6) Acquire to retire (account management).
“(7) Time and attendance and employee entitlement.
“(8) Grants financial management.
“(f)
“(g)
“(1) a board (to be known as the ‘Configuration Control Board’) to manage scope and cost changes to the Initiative; and
“(2) a program management office (to be known as the ‘Program Management Office’) to control and enforce assumptions made in the acquisition plan, the cost estimate, and the system integration contract for the Initiative, as directed by the Configuration Control Board.
“(h)
“(1) In at least one Defense Agency by not later than eight months after the date of the enactment of this Act.
“(2) In not less than five Defense Agencies by not later than 18 months after the date of the enactment of this Act.”
Pub. L. 109–364, div. A, title III, §321, Oct. 17, 2006, 120 Stat. 2144, as amended by Pub. L. 111–383, div. A, title X, §1075(g)(1), Jan. 7, 2011, 124 Stat. 4376, provided that:
“(a)
“(1) consistent with the financial management improvement plan of the Department of Defense required by section 376(a)(1) of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163; 119 Stat. 3213); and
“(2) likely to improve internal controls or otherwise result in sustained improvements in the ability of the Department to produce timely, reliable, and complete financial management information.
“(b)
Pub. L. 109–364, div. A, title VIII, §811, Oct. 17, 2006, 120 Stat. 2316, provided that:
“(a)
“(b)
“(c)
“(d)
“(1)
“(2)
(a)
(1) review and provide recommendations to the Secretary of Defense on Department of Defense budget requests for information technology and national security systems;
(2) ensure the interoperability of information technology and national security systems throughout the Department of Defense;
(3) ensure that information technology and national security systems standards that will apply throughout the Department of Defense are prescribed;
(4) provide for the elimination of duplicate information technology and national security systems within and between the military departments and Defense Agencies; and
(5) maintain a consolidated inventory of Department of Defense mission critical and mission essential information systems, identify interfaces between those systems and other information systems, and develop and maintain contingency plans for responding to a disruption in the operation of any of those information systems.
(b)
(1) review budget requests for all information technology and national security systems;
(2) ensure that information technology and national security systems are in compliance with standards of the Government and the Department of Defense;
(3) ensure that information technology and national security systems are interoperable with other relevant information technology and national security systems of the Government and the Department of Defense; and
(4) coordinate with the Joint Staff with respect to information technology and national security systems.
(c)
(1) The term “Chief Information Officer” means the senior official designated by the Secretary of Defense or a Secretary of a military department pursuant to section 3506 of title 44.
(2) The term “information technology” has the meaning given that term by section 11101 of title 40.
(3) The term “national security system” has the meaning given that term by section 3542(b)(2) of title 44.
(Added Pub. L. 105–261, div. A, title III, §331(a)(1), Oct. 17, 1998, 112 Stat. 1967; amended Pub. L. 106–398, §1 [[div. A], title VIII, §811(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–210; Pub. L. 107–217, §3(b)(1), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 109–364, div. A, title IX, §906(b), Oct. 17, 2006, 120 Stat. 2354.)
2006—Subsec. (c)(3). Pub. L. 109–364 substituted “section 3542(b)(2) of title 44” for “section 11103 of title 40”.
2002—Subsecs. (a), (b). Pub. L. 107–217, §3(b)(1)(A), (B), substituted “section 11315 of title 40” for “section 5125 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1425)” in introductory provisions.
Subsec. (c)(2). Pub. L. 107–217, §3(b)(1)(C), substituted “section 11101 of title 40” for “section 5002 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1401)”.
Subsec. (c)(3). Pub. L. 107–217, §3(b)(1)(D), substituted “section 11103 of title 40” for “section 5142 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1452)”.
2000—Subsec. (a)(5). Pub. L. 106–398 added par. (5).
Pub. L. 105–261, div. A, title III, §331(b), Oct. 17, 1998, 112 Stat. 1968, provided that: “Section 2223 of title 10, United States Code, as added by subsection (a), shall take effect on October 1, 1998.”
Pub. L. 111–383, div. A, title IX, §931, Jan. 7, 2011, 124 Stat. 4334, provided that:
“(a)
“(1) The continuous prioritization of the policies, principles, standards, and guidelines developed under section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g–3) with agencies and offices operating or exercising control of national security systems (including the National Security Agency) based upon the evolving threat of information security incidents with respect to national security systems, the vulnerability of such systems to such incidents, and the consequences of information security incidents involving such systems.
“(2) The automation of continuous monitoring of the effectiveness of the information security policies, procedures, and practices within the information infrastructure of the Department of Defense, and the compliance of that infrastructure with such policies, procedures, and practices, including automation of—
“(A) management, operational, and technical controls of every information system identified in the inventory required under section 3505(c) of title 44, United States Code; and
“(B) management, operational, and technical controls relied on for evaluations under section 3545 of title 44, United States Code.
“(b)
“(1) The term ‘information security incident’ means an occurrence that—
“(A) actually or potentially jeopardizes the confidentiality, integrity, or availability of an information system or the information such system processes, stores, or transmits; or
“(B) constitutes a violation or imminent threat of violation of security policies, security procedures, or acceptable use policies with respect to an information system.
“(2) The term ‘information infrastructure’ means the underlying framework, equipment, and software that an information system and related assets rely on to process, transmit, receive, or store information electronically.
“(3) The term ‘national security system’ has the meaning given that term in section 3542(b)(2) of title 44, United States Code.”
(a)
(b)
(1) a documented process for information technology acquisition planning, requirements development and management, project management and oversight, earned value management, and risk management;
(2) the development of appropriate metrics that can be implemented and monitored on a real-time basis for performance measurement of—
(A) processes and development status of investments in major automated information system programs;
(B) continuous process improvement of such programs; and
(C) achievement of program and investment outcomes;
(3) a process to ensure that key program personnel have an appropriate level of experience, training, and education in the planning, acquisition, execution, management, and oversight of information technology systems;
(4) a process to ensure sufficient resources and infrastructure capacity for test and evaluation of information technology systems;
(5) a process to ensure that military departments and Defense Agencies adhere to established processes and requirements relating to the planning, acquisition, execution, management, and oversight of information technology programs and developments; and
(6) a process under which an appropriate Department of Defense official may intervene or terminate the funding of an information technology investment if the investment is at risk of not achieving major project milestones.
(Added Pub. L. 111–383, div. A, title VIII, §805(a)(1), Jan. 7, 2011, 124 Stat. 4259.)
(a)
(b)
(c)
(1) A vulnerability and threat assessment of elements of the defense and supporting nondefense information infrastructures that are essential to the operations of the Department and the armed forces.
(2) Development of essential information assurances technologies and programs.
(3) Organization of the Department, the armed forces, and supporting activities to defend against information warfare.
(4) Joint activities of the Department with other departments and agencies of the Government, State and local agencies, and elements of the national information infrastructure.
(5) The conduct of exercises, war games, simulations, experiments, and other activities designed to prepare the Department to respond to information warfare threats.
(6) Development of proposed legislation that the Secretary considers necessary for implementing the program or for otherwise responding to the information warfare threat.
(d)
[(e) Repealed. Pub. L. 108–136, div. A, title X, §1031(a)(12), Nov. 24, 2003, 117 Stat. 1597.]
(f)
(1) an integrated organization structure to plan and facilitate the conduct of simulations, war games, exercises, experiments, and other activities to prepare and inform the Department regarding information warfare threats; and
(2) organization and planning means for the conduct by the Department of the integrated or joint exercises and experiments with elements of the national information systems infrastructure and other non-Department of Defense organizations that are responsible for the oversight and management of critical information systems and infrastructures on which the Department, the armed forces, and supporting activities depend for the conduct of daily operations and operations during crisis.
(Added Pub. L. 106–65, div. A, title X, §1043(a), Oct. 5, 1999, 113 Stat. 760; amended Pub. L. 106–398, §1 [[div. A], title X, §1063], Oct. 30, 2000, 114 Stat. 1654, 1654A–274; Pub. L. 107–296, title X, §1001(c)(1)(B), Nov. 25, 2002, 116 Stat. 2267; Pub. L. 107–347, title III, §301(c)(1)(B), Dec. 17, 2002, 116 Stat. 2955; Pub. L. 108–136, div. A, title X, §1031(a)(12), Nov. 24, 2003, 117 Stat. 1597; Pub. L. 108–375, div. A, title X, §1084(d)(17), Oct. 28, 2004, 118 Stat. 2062.)
2004—Subsec. (c). Pub. L. 108–375 substituted “subchapter II” for “subtitle II” in introductory provisions.
2003—Subsec. (e). Pub. L. 108–136 struck out subsec. (e) which directed the Secretary of Defense to annually submit to Congress a report on the Defense Information Assurance Program.
2002—Subsec. (b). Pub. L. 107–296, §1001(c)(1)(B)(i), and Pub. L. 107–347, §301(c)(1)(B)(i), amended subsec. (b) identically, substituting “Objectives of the Program” for “Objectives and Minimum Requirements” in heading and striking out par. (1) designation before “The objectives”.
Subsec. (b)(2). Pub. L. 107–347, §301(c)(1)(B)(ii), struck out par. (2) which read as follows: “The program shall at a minimum meet the requirements of sections 3534 and 3535 of title 44.”
Pub. L. 107–296, §1001(c)(1)(B)(ii), which directed the striking out of “(2) the program shall at a minimum meet the requirements of section 3534 and 3535 of title 44, United States Code.” could not be executed. See above par.
Subsec. (c). Pub. L. 107–347, §301(c)(1)(B)(iii), inserted “, including through compliance with subchapter III of chapter 35 of title 44” after “infrastructure” in introductory provisions.
Pub. L. 107–296, §1001(c)(1)(B)(iii), inserted “, including through compliance with subtitle II of chapter 35 of title 44” after “infrastructure” in introductory provisions.
2000—Subsec. (b). Pub. L. 106–398, §1 [[div. A], title X, §1063(a)], substituted “
Subsec. (e)(7). Pub. L. 106–398, §1 [[div. A], title X, §1063(b)], added par. (7).
Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.
Amendment by Pub. L. 106–398 effective 30 days after Oct. 30, 2000, see section 1 [[div. A], title X, §1065] of Pub. L. 106–398, set out as an Effective Date note under section 3531 of Title 44, Public Printing and Documents.
Pub. L. 111–383, div. A, title IX, §932, Jan. 7, 2011, 124 Stat. 4335, provided that:
“(a)
“(b)
“(1) A major system, as that term is defined in section 2302(5) of title 10, United States Code.
“(2) A national security system, as that term is defined in section 3542(b)(2) of title 44, United States Code.
“(3) Any Department of Defense information system categorized as Mission Assurance Category I.
“(4) Any Department of Defense information system categorized as Mission Assurance Category II in accordance with Department of Defense Directive 8500.01E.
“(c)
“(1) Policy and regulations on the following:
“(A) Software assurance generally.
“(B) Contract requirements for software assurance for covered systems in development and production.
“(C) Inclusion of software assurance in milestone reviews and milestone approvals.
“(D) Rigorous test and evaluation of software assurance in development, acceptance, and operational tests.
“(E) Certification and accreditation requirements for software assurance for new systems and for updates for legacy systems, including mechanisms to monitor and enforce reciprocity of certification and accreditation processes among the military departments and Defense Agencies.
“(F) Remediation in legacy systems of critical software assurance deficiencies that are defined as critical in accordance with the Application Security Technical Implementation Guide of the Defense Information Systems Agency.
“(2) Allocation of adequate facilities and other resources for test and evaluation and certification and accreditation of software to meet applicable requirements for research and development, systems acquisition, and operations.
“(3) Mechanisms for protection against compromise of information systems through the supply chain or cyber attack by acquiring and improving automated tools for—
“(A) assuring the security of software and software applications during software development;
“(B) detecting vulnerabilities during testing of software; and
“(C) detecting intrusions during real-time monitoring of software applications.
“(4) Mechanisms providing the Department of Defense with the capabilities—
“(A) to monitor systems and applications in order to detect and defeat attempts to penetrate or disable such systems and applications; and
“(B) to ensure that such monitoring capabilities are integrated into the Department of Defense system of cyber defense-in-depth capabilities.
“(5) An update to Committee for National Security Systems Instruction No. 4009, entitled ‘National Information Assurance Glossary’, to include a standard definition for software security assurance.
“(6) Either—
“(A) mechanisms to ensure that vulnerable Mission Assurance Category III information systems, if penetrated, cannot be used as a foundation for penetration of protected covered systems, and means for assessing the effectiveness of such mechanisms; or
“(B) plans to address critical vulnerabilities in Mission Assurance Category III information systems to prevent their use for intrusions of Mission Assurance Category I systems and Mission Assurance Category II systems.
“(7) A funding mechanism for remediation of critical software assurance vulnerabilities in legacy systems.
“(d)
“(1) A description of the current status of the strategy required by subsection (a) and of the implementation of the strategy, including a description of the role of the strategy in the risk management by the Department regarding the supply chain and in operational planning for cyber security.
“(2) A description of the risks, if any, that the Department will accept in the strategy due to limitations on funds or other applicable constraints.”
Pub. L. 106–398, §1 [[div. A], title IX, §921], Oct. 30, 2000, 114 Stat. 1654, 1654A–233, provided that:
“(a)
“(b)
“(1) to conduct research and technology development that is relevant to foreseeable computer and network security requirements and information assurance requirements of the Department of Defense with a principal focus on areas not being carried out by other organizations in the private or public sector; and
“(2) to facilitate the exchange of information regarding cyberthreats, technology, tools, and other relevant issues.
“(c)
“(d)
“(e)
(a)
(b)
(Added Pub. L. 107–314, div. A, title X, §1052(b)(1), Dec. 2, 2002, 116 Stat. 2648.)
Provisions relating to the expiration of authority of subchapter II of chapter 35 of title 44, referred to in text, did not appear in section 3536 of title 44 subsequent to the general revision of subchapter II by Pub. L. 107–296, title X, §1001(b)(1), Nov. 25, 2002, 116 Stat. 2259.
1 See References in Text note below.
(a)
(b)
(1) The products or services purchased.
(2) Whether the products or services are categorized as commercially available off-the-shelf items, other commercial items, nondevelopmental items other than commercial items, other noncommercial items, or services.
(3) The total dollar amount of the purchase.
(4) The form of contracting action used to make the purchase.
(5) In the case of a purchase made through an agency other than the Department of Defense—
(A) the agency through which the purchase is made; and
(B) the reasons for making the purchase through that agency.
(6) The type of pricing used to make the purchase (whether fixed price or another type of pricing).
(7) The extent of competition provided in making the purchase.
(8) A statement regarding whether the purchase was made from—
(A) a small business concern;
(B) a small business concern owned and controlled by socially and economically disadvantaged individuals; or
(C) a small business concern owned and controlled by women.
(9) A statement regarding whether the purchase was made in compliance with the planning requirements under sections 11312 and 11313 of title 40.
(c)
(d)
(1) the purchase data is collected in accordance with subsection (a); or
(2)(A) in the case of a purchase by a Defense Agency, the purchase is approved by the Under Secretary of Defense for Acquisition, Technology, and Logistics; or
(B) in the case of a purchase by a military department, the purchase is approved by the senior procurement executive of the military department.
(e)
(f)
(1) The term “senior procurement executive”, with respect to a military department, means the official designated as the senior procurement executive for the military department for the purposes of section 1702(c) of title 41.
(2) The term “simplified acquisition threshold” has the meaning given the term in section 134 of title 41.
(3) The term “small business concern” means a business concern that meets the applicable size standards prescribed pursuant to section 3(a) of the Small Business Act (15 U.S.C. 632(a)).
(4) The term “small business concern owned and controlled by socially and economically disadvantaged individuals” has the meaning given that term in section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 637(d)(3)(C)).
(5) The term “small business concern owned and controlled by women” has the meaning given that term in section 8(d)(3)(D) of the Small Business Act (15 U.S.C. 637(d)(3)(D)).
(Added Pub. L. 106–398, §1 [[div. A], title VIII, §812(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–212; amended Pub. L. 108–178, §4(b)(2), Dec. 15, 2003, 117 Stat. 2640; Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 111–350, §5(b)(6), Jan. 4, 2011, 124 Stat. 3842.)
2011—Subsec. (f)(1). Pub. L. 111–350, §5(b)(6)(A), substituted “section 1702(c) of title 41” for “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))”.
Subsec. (f)(2). Pub. L. 111–350, §5(b)(6)(B), substituted “section 134 of title 41” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11))”.
2006—Subsec. (f)(1). Pub. L. 109–364 substituted “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))” for “section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))”.
2003—Subsec. (b)(9). Pub. L. 108–178 substituted “sections 11312 and 11313 of title 40” for “sections 5122 and 5123 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1422, 1423)”.
Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees.
Pub. L. 111–383, div. A, title II, §215, Jan. 7, 2011, 124 Stat. 4165, provided that:
“(a)
“(1)
“(2)
“(b)
“(1) Threat sensing and warning for information networks worldwide.
“(2) Managed security services for cybersecurity within the defense industrial base, military departments, and combatant commands.
“(3) Use of private processes and infrastructure to address threats, problems, vulnerabilities, or opportunities in cybersecurity.
“(4) Processes for securing the global supply chain.
“(5) Processes for threat sensing and security of cloud computing infrastructure.
“(c)
“(1)
“(2)
“(A) A description and assessment of any activities under the demonstration projects and pilot projects referred to in paragraph (1) during the preceding year.
“(B) For the pilot projects supported or conducted under subsection (b)(2)—
“(i) a quantitative and qualitative assessment of the extent to which managed security services covered by the pilot project could provide effective and affordable cybersecurity capabilities for components of the Department of Defense and for entities in the defense industrial base, and an assessment whether such services could be expanded rapidly to a large scale without exceeding the ability of the Federal Government to manage such expansion; and
“(ii) an assessment of whether managed security services are compatible with the cybersecurity strategy of the Department of Defense with respect to conducting an active, in-depth defense under the direction of United States Cyber Command.
“(C) For the pilot projects supported or conducted under subsection (b)(3)—
“(i) a description of any performance metrics established for purposes of the pilot project, and a description of any processes developed for purposes of accountability and governance under any partnership under the pilot project; and
“(ii) an assessment of the role a partnership such as a partnership under the pilot project would play in the acquisition of cyberspace capabilities by the Department of Defense, including a role with respect to the development and approval of requirements, approval and oversight of acquiring capabilities, test and evaluation of new capabilities, and budgeting for new capabilities.
“(D) For the pilot projects supported or conducted under subsection (b)(4)—
“(i) a framework and taxonomy for evaluating practices that secure the global supply chain, as well as practices for securely operating in an uncertain or compromised supply chain;
“(ii) an assessment of the viability of applying commercial practices for securing the global supply chain; and
“(iii) an assessment of the viability of applying commercial practices for securely operating in an uncertain or compromised supply chain.
“(E) For the pilot projects supported or conducted under subsection (b)(5)—
“(i) an assessment of the capabilities of Federal Government providers to offer secure cloud computing environments; and
“(ii) an assessment of the capabilities of commercial providers to offer secure cloud computing environments to the Federal Government.
“(3)
Pub. L. 111–84, div. A, title VIII, §804, Oct. 28, 2009, 123 Stat. 2402, provided that:
“(a)
“(1) be based on the recommendations in chapter 6 of the March 2009 report of the Defense Science Board Task Force on Department of Defense Policies and Procedures for the Acquisition of Information Technology; and
“(2) be designed to include—
“(A) early and continual involvement of the user;
“(B) multiple, rapidly executed increments or releases of capability;
“(C) early, successive prototyping to support an evolutionary approach; and
“(D) a modular, open-systems approach.
“(b)
“(1) describe the new acquisition process;
“(2) provide an explanation for any decision by the Secretary to deviate from the criteria established for such process in paragraphs (1) and (2) of subsection (a);
“(3) provide a schedule for the implementation of the new acquisition process;
“(4) identify the categories of information technology acquisitions to which such process will apply; and
“(5) include the Secretary's recommendations for any legislation that may be required to implement the new acquisition process.”
Pub. L. 110–181, div. A, title VIII, §881, Jan. 28, 2008, 122 Stat. 262, provided that:
“(a)
“(b)
“(1) Developing a process to rapidly assess and set priorities and needs for significant information technology needs of the Department of Defense that could be met by commercial technologies, including a process for—
“(A) aligning priorities and needs with the requirements of the commanders of the combatant command; and
“(B) proposing recommendations to the commanders of the combatant command of feasible technical solutions for further evaluation.
“(2) Identifying and assessing emerging commercial technologies (including commercial off-the-shelf technologies) that could support the warfighting mission of the Department of Defense, including the priorities and needs identified pursuant to paragraph (1).
“(3) Disseminating information about commercial technologies identified pursuant to paragraph (2) to commanders of combatant commands and other potential users of such technologies.
“(4) Identifying gaps in commercial technologies and working to stimulate investment in research and development in the public and private sectors to address those gaps.
“(5) Enhancing internal data and communications systems of the Department of Defense for sharing and retaining information regarding commercial technology priorities and needs, technologies available to meet such priorities and needs, and ongoing research and development directed toward gaps in such technologies.
“(6) Developing mechanisms, including web-based mechanisms, to facilitate communications with industry regarding the priorities and needs of the Department of Defense identified pursuant to paragraph (1) and commercial technologies available to address such priorities and needs.
“(7) Assisting in the development of guides to help small information technology companies with promising technologies to understand and navigate the funding and acquisition processes of the Department of Defense.
“(8) Developing methods to measure how well processes developed by the clearinghouse are being utilized and to collect data on an ongoing basis to assess the benefits of commercial technologies that are procured on the recommendation of the clearinghouse.
“(c)
“(d)
Pub. L. 106–398, §1 [[div. A], title VIII, §812(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–214, provided that:
“(1) The Secretary of Defense shall collect data as required under section 2225 of title 10, United States Code (as added by subsection (a)) for all contractual actions covered by such section entered into on or after the date that is one year after the date of the enactment of this Act [Oct. 30, 2000].
“(2) Subsection (d) of such section shall apply with respect to purchases described in that subsection for which solicitations of offers are issued on or after the date that is one year after the date of the enactment of this Act.”
Pub. L. 106–398, §1 [[div. A], title VIII, §812(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–214, directed the Comptroller General to submit to committees of Congress a report on the collection of data under this section not later than 15 months after Oct. 30, 2000.
(a)
(b)
(Added Pub. L. 106–398, §1 [[div. A], title X, §1006(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–247; amended Pub. L. 111–350, §5(b)(7), Jan. 4, 2011, 124 Stat. 3842.)
2011—Subsec. (b). Pub. L. 111–350 substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”.
Pub. L. 106–398, §1 [[div. A], title X, §1006(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–248, provided that: “Section 2226 of title 10, United States Code (as added by subsection (a)), shall take effect on December 1, 2000.”
Pub. L. 106–398, §1 [[div. A], title X, §1006(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–248, provided that:
“(1) If for any month of the noncompliance reporting period the requirement in section 2226 of title 10, United States Code (as added by subsection (a)), is not met, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the magnitude of the unpaid contract vouchers. The report for a month shall be submitted not later than 30 days after the end of that month.
“(2) A report for a month under paragraph (1) shall include information current as of the last day of the month as follows:
“(A) The number of the vouchers received by the Defense Finance and Accounting Service by means of the mechanization of contract administration services system during each month.
“(B) The number of the vouchers so received, whenever received by the Defense Finance and Accounting Service, that remain unpaid for each of the following periods:
“(i) Over 30 days and not more than 60 days.
“(ii) Over 60 days and not more than 90 days.
“(iii) More than 90 days.
“(C) The number of the vouchers so received that remain unpaid for the major categories of procurements, as defined by the Secretary of Defense.
“(D) The corrective actions that are necessary, and those that are being taken, to ensure compliance with the requirement in subsection (a).
“(3) For purposes of this subsection:
“(A) The term ‘noncompliance reporting period’ means the period beginning on December 1, 2000, and ending on November 30, 2004.
“(B) The term ‘contract voucher’ has the meaning given that term in section 2226(b) of title 10, United States Code (as added by subsection (a)).”
(a)
(b)
(c)
(d)
(1) Policies, requirements, and procedures for using electronic means for the submission of claims for payment to the Department of Defense and for the transmission, between Department of Defense officials, of claims for payment received in electronic form, together with supporting documentation (such as receiving reports, contracts and contract modifications, and required certifications).
(2) The format in which information can be accepted by the corporate database of the Defense Finance and Accounting Service.
(3) The requirements to be included in contracts regarding the electronic submission of claims for payment by contractors.
(e)
(Added Pub. L. 106–398, §1 [[div. A], title X, §1008(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–249.)
Pub. L. 106–398, §1 [[div. A], title X, §1008(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–250, provided that:
“(1) Subject to paragraph (2), the Secretary of Defense shall apply section 2227 of title 10, United States Code (as added by subsection (a)), with respect to contracts for which solicitations of offers are issued after June 30, 2001.
“(2)(A) The Secretary may delay the implementation of section 2227 to a date after June 30, 2001, upon a finding that it is impracticable to implement that section until that later date. In no event, however, may the implementation be delayed to a date after October 1, 2002.
“(B) Upon determining to delay the implementation of such section 2227 to a later date under subparagraph (A), the Secretary shall promptly publish a notice of the delay in the Federal Register. The notice shall include a specification of the later date on which the implementation of that section is to begin. Not later than 30 days before the later implementation date, the Secretary shall publish in the Federal Register another notice that such section is being implemented beginning on that date.”
[Notice by Department of Defense of delay in the implementation of this section from June 30, 2001, until Oct. 1, 2002, was published on Aug. 21, 2001, at 66 F.R. 43841.]
Pub. L. 106–398, §1 [[div. A], title X, §1008(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–250, directed the Secretary of Defense, not later than Mar. 30, 2001, to submit to committees of Congress a plan for the implementation of the requirements imposed under this section.
(a)
(2) The Office shall be headed by a Director of Corrosion Policy and Oversight, who shall be assigned to such position by the Under Secretary from among civilian employees of the Department of Defense with the qualifications described in paragraph (3). The Director is responsible in the Department of Defense to the Secretary of Defense (after the Under Secretary of Defense for Acquisition, Technology, and Logistics) for the prevention and mitigation of corrosion of the military equipment and infrastructure of the Department of Defense. The Director shall report directly to the Under Secretary.
(3) In order to qualify to be assigned to the position of Director, an individual shall—
(A) have management expertise in, and professional experience with, corrosion project and policy implementation, including an understanding of the effects of corrosion policies on infrastructure; research, development, test, and evaluation; and maintenance; and
(B) have an understanding of Department of Defense budget formulation and execution, policy formulation, and planning and program requirements.
(4) The Secretary of Defense shall designate the position of Director as a critical acquisition position under section 1733(b)(1)(C) of this title.
(b)
(2) The Director shall develop and recommend any policy guidance on the prevention and mitigation of corrosion to be issued by the Secretary of Defense.
(3) The Director shall review the programs and funding levels proposed by the Secretary of each military department during the annual internal Department of Defense budget review process as those programs and funding proposals relate to programs and funding for the prevention and mitigation of corrosion and shall submit to the Secretary of Defense recommendations regarding those programs and proposed funding levels.
(4) The Director shall provide oversight and coordination of the efforts within the Department of Defense to prevent or mitigate corrosion during—
(A) the design, acquisition, and maintenance of military equipment; and
(B) the design, construction, and maintenance of infrastructure.
(5) The Director shall monitor acquisition practices within the Department of Defense—
(A) to ensure that the use of corrosion prevention technologies and the application of corrosion prevention treatments are fully considered during research and development in the acquisition process; and
(B) to ensure that, to the extent determined appropriate for each acquisition program, such technologies and treatments are incorporated into that program, particularly during the engineering and design phases of the acquisition process.
(c)
(1) develop, update, and coordinate corrosion training with the Defense Acquisition University;
(2) participate in the process within the Department of Defense for the development of relevant directives and instructions; and
(3) interact directly with the corrosion prevention industry, trade associations, other government corrosion prevention agencies, academic research and educational institutions, and scientific organizations engaged in corrosion prevention, including the National Academy of Sciences.
(d)
(2) The strategy under paragraph (1) shall include the following:
(A) Expansion of the emphasis on corrosion prevention and mitigation within the Department of Defense to include coverage of infrastructure.
(B) Application uniformly throughout the Department of Defense of requirements and criteria for the testing and certification of new corrosion-prevention technologies for equipment and infrastructure with similar characteristics, similar missions, or similar operating environments.
(C) Implementation of programs, including supporting databases, to ensure that a focused and coordinated approach is taken throughout the Department of Defense to collect, review, validate, and distribute information on proven methods and products that are relevant to the prevention of corrosion of military equipment and infrastructure.
(D) Establishment of a coordinated research and development program for the prevention and mitigation of corrosion for new and existing military equipment and infrastructure that includes a plan to transition new corrosion prevention technologies into operational systems, including through the establishment of memoranda of agreement, joint funding agreements, public-private partnerships, university research and education centers, and other cooperative research agreements.
(3) The strategy shall include, for the matters specified in paragraph (2), the following:
(A) Policy guidance.
(B) Performance measures and milestones.
(C) An assessment of the necessary personnel and funding necessary to accomplish the long-term strategy.
(e)
(A) Funding requirements for the long-term strategy developed under subsection (d).
(B) The return on investment that would be achieved by implementing the strategy.
(C) For the fiscal year covered by the report and the preceding fiscal year, the funds requested in the budget compared to the funding requirements.
(D) An explanation if the funding requirements are not fully funded in the budget.
(E) For the fiscal year covered by the report and the preceding fiscal year, the amount of funds requested in the budget for each project or activity described in subsection (d) compared to the funding requirements for the project or activity.
(2) Within 60 days after submission of the budget for a fiscal year, the Comptroller General shall provide to the congressional defense committees—
(A) an analysis of the budget submission for corrosion control and prevention by the Department of Defense; and
(B) an analysis of the report required under paragraph (1), including the annex to the report described in paragraph (3).
(3) Each report under this section shall include, in an annex to the report, a copy of the annual corrosion report most recently submitted by the corrosion control and prevention executive of each military department under section 903(b)(5) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417; 122 Stat. 4567; 10 U.S.C. 2228 note).
(f)
(1) The term “corrosion” means the deterioration of a material or its properties due to a reaction of that material with its chemical environment.
(2) The term “military equipment” includes all weapon systems, weapon platforms, vehicles, and munitions of the Department of Defense, and the components of such items.
(3) The term “infrastructure” includes all buildings, structures, airfields, port facilities, surface and subterranean utility systems, heating and cooling systems, fuel tanks, pavements, and bridges.
(4) The term “budget”, with respect to a fiscal year, means the budget for that fiscal year that is submitted to Congress by the President under section 1105(a) of title 31.
(5) The term “defense budget materials”, with respect to a fiscal year, means the materials submitted to Congress by the Secretary of Defense in support of the budget for that fiscal year.
(Added Pub. L. 107–314, div. A, title X, §1067(a)(1), Dec. 2, 2002, 116 Stat. 2657; amended Pub. L. 110–181, div. A, title III, §371(a)–(e), Jan. 28, 2008, 122 Stat. 79–81; Pub. L. 110–417, [div. A], title X, §1061(b)(1), Oct. 14, 2008, 122 Stat. 4612; Pub. L. 111–383, div. A, title III, §331, Jan. 7, 2011, 124 Stat. 4185.)
2011—Subsec. (e)(1)(C). Pub. L. 111–383, §331(1)(A), substituted “For the fiscal year covered by the report and the preceding fiscal year, the” for “The”.
Subsec. (e)(1)(E). Pub. L. 111–383, §331(1)(B), added subpar. (E).
Subsec. (e)(2)(B). Pub. L. 111–383, §331(2), inserted before period at end “, including the annex to the report described in paragraph (3)”.
Subsec. (e)(3). Pub. L. 111–383, §331(3), added par. (3).
2008—Pub. L. 110–181, §371(a)(1), substituted “Office of Corrosion Policy and Oversight” for “Military equipment and infrastructure: prevention and mitigation of corrosion” in section catchline.
Subsec. (a). Pub. L. 110–181, §371(a)(1), added subsec. (a) and struck out heading and text of former subsec. (a). Former text read as follows: “The Secretary of Defense shall designate an officer or employee of the Department of Defense, or a standing board or committee of the Department of Defense, as the senior official or organization responsible in the Department to the Secretary of Defense (after the Under Secretary of Defense for Acquisition, Technology, and Logistics) for the prevention and mitigation of corrosion of the military equipment and infrastructure of the Department.”
Subsec. (b)(1). Pub. L. 110–181, §371(a)(2)(A), substituted “Director of Corrosion Policy and Oversight (in this section referred to as the ‘Director’)” for “official or organization designated under subsection (a)”.
Subsec. (b)(2) to (5). Pub. L. 110–181, §371(a)(2)(B), substituted “Director” for “designated official or organization”.
Subsecs. (c), (d). Pub. L. 110–181, §371(b), added subsec. (c) and redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (f).
Subsec. (d)(2)(D). Pub. L. 110–181, §371(c), as amended by Pub. L. 110–417, inserted “, including through the establishment of memoranda of agreement, joint funding agreements, public-private partnerships, university research and education centers, and other cooperative research agreements” after “operational systems”.
Subsec. (e). Pub. L. 110–181, §371(d), added subsec. (e).
Subsec. (f). Pub. L. 110–181, §371(b), redesignated subsec. (d) as (f).
Subsec. (f)(4), (5). Pub. L. 110–181, §371(e), added pars. (4) and (5).
Amendment by Pub. L. 110–417 effective Jan. 28, 2008, and as if included in Pub. L. 110–181 as enacted, see section 1061(b) of Pub. L. 110–417, set out as a note under section 6382 of Title 5, Government Organization and Employees.
Pub. L. 110–417, [div. A], title IX, §903, Oct. 14, 2008, 122 Stat. 4566, provided that:
“(a)
“(b)
“(A) System acquisition and production, including design and maintenance.
“(B) Research, development, test, and evaluation programs and activities.
“(C) Equipment standardization programs, including international standardization agreements.
“(D) Logistics research and development initiatives.
“(E) Logistics support analysis as it relates to integrated logistic support in the materiel acquisition process.
“(F) Military infrastructure design, construction, and maintenance.
“(2) The corrosion control and prevention executive of a military department shall be responsible for identifying the funding levels necessary to accomplish the items listed in subparagraphs (A) through (F) of paragraph (1).
“(3) The corrosion control and prevention executive of a military department shall, in cooperation with the appropriate staff of the department, develop, support, and provide the rationale for resources—
“(A) to initiate and sustain an effective corrosion control and prevention program in the department;
“(B) to evaluate the program's effectiveness; and
“(C) to ensure that corrosion control and prevention requirements for materiel are reflected in budgeting and policies of the department for the formulation, management, and evaluation of personnel and programs for the entire department, including its reserve components.
“(4) The corrosion control and prevention executive of a military department shall be the principal point of contact of the department to the Director of Corrosion Policy and Oversight (as assigned under section 2228 of title 10, United States Code).
“(5) The corrosion control and prevention executive of a military department shall submit an annual report, not later than December 31 of each year, to the Secretary of Defense containing recommendations pertaining to the corrosion control and prevention program of the military department, including corrosion-related funding levels to carry out all of the duties of the executive under this section.”
Pub. L. 107–314, div. A, title X, §1067(b)–(e), Dec. 2, 2002, 116 Stat. 2658, 2659, directed the Secretary of Defense to designate a responsible official or organization under subsec. (a) of this section not later than 90 days after Dec. 2, 2002, directed the Secretary to submit to Congress a report setting forth the long-term strategy required under subsec. (c) of this section not later than one year after Dec. 2, 2002, and required the Comptroller General to monitor the implementation of such long-term strategy and, not later than 18 months after Dec. 2, 2002, to submit to Congress an assessment of the extent to which that strategy had been implemented.
(a)
(b)
(1) in accordance with a change made by the Secretary of Defense to the policy maintained under subsection (a); or
(2) for the purpose of directly supporting a contingency operation or providing humanitarian assistance under chapter 20 of this title.
(c)
(Added Pub. L. 109–364, div. A, title III, §351(a), Oct. 17, 2006, 120 Stat. 2160.)
Pub. L. 109–364, div. A, title III, §351(c), Oct. 17, 2006, 120 Stat. 2160, provided that:
“(1)
“(2)
Pub. L. 109–364, div. A, title III, §359, Oct. 17, 2006, 120 Stat. 2164, provided that:
“(a)
“(b)
“(c)
“(d)
“(e)
(a)
(1) The level of fill for major end items of equipment and spare parts in each prepositioned set as of the end of the fiscal year covered by the report.
(2) The material condition of equipment in the prepositioned stocks as of the end of such fiscal year, grouped by category or major end item.
(3) A list of major end items of equipment drawn from the prepositioned stocks during such fiscal year and a description of how that equipment was used and whether it was returned to the stocks after being used.
(4) A timeline for completely reconstituting any shortfall in the prepositioned stocks.
(5) An estimate of the amount of funds required to completely reconstitute any shortfall in the prepositioned stocks and a description of the Secretary's plan for carrying out such complete reconstitution.
(6) A list of any operations plan affected by any shortfall in the prepositioned stocks and a description of any action taken to mitigate any risk that such a shortfall may create.
(b)
(2) The Secretary of Defense shall ensure the full cooperation of the Department of Defense with the Comptroller General for purposes of the conduct of the review required by this subsection, both before and after each report is submitted under subsection (a). The Secretary shall conduct periodic briefings for the Comptroller General on the information covered by each report required under subsection (a) and provide to the Comptroller General access to the data and preliminary results to be used by the Secretary in preparing each such report before the Secretary submits the report to enable the Comptroller General to conduct each review required under paragraph (1) in a timely manner.
(3) The requirement to conduct a review under this subsection shall terminate on September 30, 2015.
(Added Pub. L. 110–181, div. A, title III, §352(a), Jan. 28, 2008, 122 Stat. 71.)
A prior chapter 133 was transferred to end of part V of subtitle E of this title and renumbered chapter 1803.
Provisions of law relating to facilities for reserve components are set forth in chapter 1803 of this title (beginning with section 18231).
(Added Pub. L. 103–337, div. A, title XVI, §1664(b)(11), Oct. 5, 1994, 108 Stat. 3011.)
Prior sections 2231 to 2239 were renumbered sections 18231 to 18239 of this title, respectively.
Section effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as a note under section 10001 of this title.
2011—Pub. L. 111–383, div. A, title X, §1075(b)(30), Jan. 7, 2011, 124 Stat. 4370, transferred item 2241a “Prohibition on use of funds for publicity or propaganda purposes within the United States” to appear after item 2241.
2009—Pub. L. 111–84, div. A, title X, §1031(a)(2), Oct. 28, 2009, 123 Stat. 2448, added item 2241a at the end.
2008—Pub. L. 110–417, [div. A], title XII, §1205(a)(2), Oct. 14, 2008, 122 Stat. 4624, added item 2249d.
2006—Pub. L. 109–364, div. A, title XII, §1204(d)(3), Oct. 17, 2006, 120 Stat. 2416, substituted “Regional Defense Combating Terrorism Fellowship Program: authority to use appropriated funds for costs associated with education and training of foreign officials” for “Authority to use appropriated funds for costs of attendance of foreign visitors under Regional Defense Counterterrorism Fellowship Program” in item 2249c.
Pub. L. 109–163, div. A, title III, §§372(b), 373(b), Jan. 6, 2006, 119 Stat. 3210, 3211, added items 2244a and 2245a.
2004—Pub. L. 108–375, div. A, title VI, §651(f)(3), Oct. 28, 2004, 118 Stat. 1972, struck out items 2246 “Department of Defense golf courses: limitation on use of appropriated funds” and 2247 “Use of appropriated funds for operation of Armed Forces Recreation Center, Europe: limitation”.
2003—Pub. L. 108–136, div. A, title X, §1045(a)(5)(B), title XII, §1221(a)(2), Nov. 24, 2003, 117 Stat. 1612, 1651, struck out item 2248 “Purchase of surety bonds: prohibition” and added item 2249c.
1996—Pub. L. 104–201, div. A, title X, §1071(b), Sept. 23, 1996, 110 Stat. 2657, added item 2249b.
Pub. L. 104–106, div. A, title XIII, §1341(b), div. D, title XLIII, §4321(b)(2)(B), Feb. 10, 1996, 110 Stat. 485, 672, redesignated item 2247, relating to prohibition on use of funds for documenting economic or employment impact of certain acquisition programs, as 2249 and added item 2249a.
1994—Pub. L. 103–355, title VII, §7202(a)(2), Oct. 13, 1994, 108 Stat. 3379, added item 2247 relating to prohibition on use of funds for documenting economic or employment impact of certain acquisition programs.
Pub. L. 103–337, div. A, title III, §372(b), title X, §1063(b), Oct. 5, 1994, 108 Stat. 2736, 2848, added item 2247 relating to use of appropriated funds for operation of Armed Forces Recreation Center, Europe: limitation and item 2248.
1993—Pub. L. 103–160, div. A, title III, §312(b), Nov. 30, 1993, 107 Stat. 1618, added item 2246.
1991—Pub. L. 102–190, div. A, title X, §1062(a)(3), Dec. 5, 1991, 105 Stat. 1475, made technical correction to directory language of Pub. L. 101–510, div. A, title XIV, §1481(e)(2), Nov. 5, 1990, 104 Stat. 1706. See 1990 amendment note below.
1990—Pub. L. 101–510, div. A, title XIV, §1481(e)(2), Nov. 5, 1990, 104 Stat. 1706, as amended by Pub. L. 102–190, div. A, title X, §1062(a)(3), Dec. 5, 1991, 105 Stat. 1475, added item 2245.
Pub. L. 101–510, div. A, title IX, §904(b), Nov. 5, 1990, 104 Stat. 1621, added item 2244.
1989—Pub. L. 101–189, div. A, title III, §326(b), Nov. 29, 1989, 103 Stat. 1416, added item 2243.
(a)
(1) Morale, welfare, and recreation.
(2) Modification of personal property.
(3) Design of vessels.
(4) Industrial mobilization.
(5) Military communications facilities on merchant vessels.
(6) Acquisition of services, special clothing, supplies, and equipment.
(7) Expenses for the Reserve Officers’ Training Corps and other units at educational institutions.
(b)
(c)
(Added Pub. L. 100–370, §1(e)(1), July 19, 1988, 102 Stat. 844; amended Pub. L. 108–136, div. A, title V, §518, Nov. 24, 2003, 117 Stat. 1462.)
Subsection (a) of this section and sections 2253(b) and 2661(a) of this title are based on Pub. L. 98–212, title VII, §735, Dec. 8, 1983, 97 Stat. 1444, as amended by Pub. L. 98–525, title XIV, §§1403(a)(2), 1404, Oct. 19, 1984, 98 Stat. 2621.
In two instances, the source section for provisions to be codified provides that defense appropriations may be used for “welfare and recreation” or “welfare and recreational” purposes. (Section 735 of Public Law 98–212 and section 8006(b) of Public Law 99–190, to be codified as 10 U.S.C. 2241(a)(1) and 2490(2), respectively). The committee added the term “morale” in both of these two instances to conform to the usual “MWR” usage for morale, welfare, and recreation activities.
Subsection (b) of this section and sections 2242(1), (4) and 2253(a)(1) of this title are based on Pub. L. 98–212, title VII, §705, Dec. 8, 1983, 97 Stat. 1437.
Section 705 of Public Law 98–212, to be codified as 10 U.S.C. 2241(b), provides that defense appropriations may be used in connection with certain services and supplies “as may be necessary to carry out the purposes of this Act”. The reference to “this Act” means Public Law 98–212, the FY84 Defense Appropriations Act. Language similar to section 705 had been enacted as part of the annual defense appropriation Act for many years. In the FY84 Act, section 705 was enacted as a permanent provision. The quoted phrase above was not, however, revised from the traditional annual wording as the provision had appeared in annual appropriations Acts in order to give it effect beyond the fiscal year concerned. Since the general purpose of a defense appropriations Act is to provide funds for national defense purposes, the committee, in codifying this provision, revised the quoted phrase so as to read “that may be necessary for the national defense”. No change in meaning is intended.
2003—Subsec. (c). Pub. L. 108–136 added subsec. (c).
Pub. L. 110–417, [div. A], title II, §216, Oct. 14, 2008, 122 Stat. 4387, provided that:
“(a)
“(b)
“(1) support equipment;
“(2) initial spares;
“(3) training simulators;
“(4) systems engineering and management; and
“(5) post-production modifications.”
Pub. L. 110–417, [div. A], title X, §1056, Oct. 14, 2008, 122 Stat. 4610, provided that:
“(a)
“(b)
“(c)
“(d)
Pub. L. 110–329, div. C, title VIII, §8058, Sept. 30, 2008, 122 Stat. 3634, provided that: “Notwithstanding any other provision of law, funds available to the Department of Defense in this Act [div. C of Pub. L. 110–329, see Tables for classification], and hereafter, shall be made available to provide transportation of medical supplies and equipment, on a nonreimbursable basis, to American Samoa, and funds available to the Department of Defense shall be made available to provide transportation of medical supplies and equipment, on a nonreimbursable basis, to the Indian Health Service when it is in conjunction with a civil-military project.”
Pub. L. 108–287, title VIII, §8070, Aug. 5, 2004, 118 Stat. 987, provided that: “Hereafter, funds appropriated for Operation and maintenance and for the Defense Health Program in this Act [see Tables for classification], and in future appropriations acts for the Department of Defense, for supervision and administration costs for facilities maintenance and repair, minor construction, or design projects, or any planning studies, environmental assessments, or similar activities related to installation support functions, may be obligated at the time the reimbursable order is accepted by the performing activity: Provided, That for the purpose of this section, supervision and administration costs includes all in-house Government cost.”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 108–87, title VIII, §8071, Sept. 30, 2003, 117 Stat. 1088.
Pub. L. 107–248, title VIII, §8072, Oct. 23, 2002, 116 Stat. 1553.
Pub. L. 107–117, div. A, title VIII, §8080, Jan. 10, 2002, 115 Stat. 2265.
Pub. L. 106–259, title VIII, §8079, Aug. 9, 2000, 114 Stat. 691.
Pub. L. 106–79, title VIII, §8084, Oct. 25, 1999, 113 Stat. 1251.
Pub. L. 105–262, title VIII, §8085, Oct. 17, 1998, 112 Stat. 2318.
Pub. L. 105–56, title VIII, §8093, Oct. 8, 1997, 111 Stat. 1241.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8119], Sept. 30, 1996, 110 Stat. 3009–71, 3009–114.
Pub. L. 108–136, div. A, title X, §1007, Nov. 24, 2003, 117 Stat. 1585, provided that:
“(a)
“(b)
Pub. L. 108–7, div. M, §111, Feb. 20, 2003, 117 Stat. 534, provided that:
“(a)
“(1) the report described in subsection (b) is submitted to Congress not later than 90 days after the date of the enactment of this Act; or
“(2) the President certifies to Congress in writing, that—
“(A) the submittal of the report to Congress within 90 days after the date of the enactment of this Act is not practicable; and
“(B) the cessation of research and development on the Total Information Awareness program would endanger the national security of the United States.
“(b)
“(1) contains—
“(A) a detailed explanation of the actual and intended use of funds for each project and activity of the Total Information Awareness program, including an expenditure plan for the use of such funds;
“(B) the schedule for proposed research and development on each project and activity of the Total Information Awareness program; and
“(C) target dates for the deployment of each project and activity of the Total Information Awareness program;
“(2) assesses the likely efficacy of systems such as the Total Information Awareness program in providing practically valuable predictive assessments of the plans, intentions, or capabilities of terrorists or terrorist groups;
“(3) assesses the likely impact of the implementation of a system such as the Total Information Awareness program on privacy and civil liberties;
“(4) sets forth a list of the laws and regulations that govern the information to be collected by the Total Information Awareness program, and a description of any modifications of such laws that will be required to use the information in the manner proposed under such program; and
“(5) includes recommendations, endorsed by the Attorney General, for practices, procedures, regulations, or legislation on the deployment, implementation, or use of the Total Information Awareness program to eliminate or minimize adverse effects of such program on privacy and other civil liberties.
“(c)
“(A) notifies Congress of that development, including a specific and detailed description of—
“(i) each element of such program or component intended to be deployed or implemented; and
“(ii) the method and scope of the intended deployment or implementation of such program or component (including the data or information to be accessed or used); and
“(B) has received specific authorization by law from Congress for the deployment or implementation of such program or component, including—
“(i) a specific authorization by law for the deployment or implementation of such program or component; and
“(ii) a specific appropriation by law of funds for the deployment or implementation of such program or component.
“(2) The limitation in paragraph (1) shall not apply with respect to the deployment or implementation of the Total Information Awareness program, or a component of such program, in support of the following:
“(A) Lawful military operations of the United States conducted outside the United States.
“(B) Lawful foreign intelligence activities conducted wholly against non-United States persons.
“(d)
“(1) the Total Information Awareness program should not be used to develop technologies for use in conducting intelligence activities or law enforcement activities against United States persons without appropriate consultation with Congress or without clear adherence to principles to protect civil liberties and privacy; and
“(2) the primary purpose of the Defense Advanced Research Projects Agency is to support the lawful activities of the Department of Defense and the national security programs conducted pursuant to the laws assembled for codification purposes in title 50, United States Code.
“(e)
“(1)
“(A) means the computer hardware and software components of the program known as Total Information Awareness, any related information awareness program, or any successor program under the Defense Advanced Research Projects Agency or another element of the Department of Defense; and
“(B) includes a program referred to in subparagraph (1), or a component of such program, that has been transferred from the Defense Advanced Research Projects Agency or another element of the Department of Defense to any other department, agency, or element of the Federal Government.
“(2)
“(3)
[Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director's capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director's capacity as the head of the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 401 of Title 50, War and National Defense.]
Pub. L. 105–262, title VIII, §8118, Oct. 17, 1998, 112 Stat. 2331, provided that: “During the current fiscal year and hereafter, no funds appropriated or otherwise available to the Department of Defense may be used to award a contract to, extend a contract with, or approve the award of a subcontract to any person who within the preceding 15 years has been convicted under section 704 of title 18, United States Code, of the unlawful manufacture or sale of the Congressional Medal of Honor.”
Pub. L. 105–56, title VIII, §8053, Oct. 8, 1997, 111 Stat. 1232, which provided that none of the funds provided in the Act and hereafter would be available for use by a military department to modify an aircraft, weapon, ship or other item of equipment, that the military department concerned planned to retire or otherwise dispose of within 5 years after completion of the modification, was repealed and restated in section 2244a of this title by Pub. L. 109–163, div. A, title III, §372(a), (c), 119 Stat. 3209, 3210.
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8055], Sept. 30, 1996, 110 Stat. 3009–71, 3009–99.
Pub. L. 104–61, title VIII, §8068, Dec. 1, 1995, 109 Stat. 664.
Pub. L. 103–335, title VIII, §8079, Sept. 30, 1994, 108 Stat. 2636.
Pub. L. 103–139, title VIII, §8098, Nov. 11, 1993, 107 Stat. 1462.
Pub. L. 102–396, title IX, §9034, Oct. 6, 1992, 106 Stat. 1908.
Pub. L. 102–172, title VIII, §8034, Nov. 26, 1991, 105 Stat. 1178.
Pub. L. 101–511, title VIII, §8035, Nov. 5, 1990, 104 Stat. 1882.
Pub. L. 104–106, div. A, title III, §335, Feb. 10, 1996, 110 Stat. 262, directed the Secretary of Defense to conduct a demonstration project to evaluate the feasibility of using only nonappropriated funds to support morale, welfare, and recreation programs at military installations in order to facilitate the procurement of property and services for those programs and the management of employees used to carry out those programs, directed the Secretary to submit to Congress a final report on the results of the project not later than Dec. 31, 1998, and provided that the project would terminate not later than Sept. 30, 1998.
Pub. L. 103–335, title VIII, §8119, Sept. 30, 1994, 108 Stat. 2649, provided that: “During the current fiscal year and hereafter, the Department of State and the Department of Defense are authorized to provide interagency courier service on a non-reimbursable basis.”
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8109], Sept. 30, 1996, 110 Stat. 3009–71, 3009–111, provided for application of section 9005 of Public Law 102–396 (formerly set out below), prior to repeal by Pub. L. 107–107, div. A, title VIII, §832(b)(2), Dec. 28, 2001, 115 Stat. 1190.
Pub. L. 102–396, title IX, §9005, Oct. 6, 1992, 106 Stat. 1900, as amended by Pub. L. 103–139, title VIII, §8005, Nov. 11, 1993, 107 Stat. 1438; Pub. L. 103–355, title IV, §4401(e), Oct. 13, 1994, 108 Stat. 3348, provided for restrictions on procurements from outside of the United States, prior to repeal by Pub. L. 107–107, div. A, title VIII, §832(b)(1), Dec. 28, 2001, 115 Stat. 1190.
Pub. L. 101–511, title VIII, §8019, Nov. 5, 1990, 104 Stat. 1879, provided that: “None of the funds appropriated by this Act [see Tables for classification] or hereafter shall be used to purchase dogs or cats or otherwise fund the use of dogs or cats for the purpose of training Department of Defense students or other personnel in surgical or other medical treatment of wounds produced by any type of weapon: Provided, That the standards of such training with respect to the treatment of animals shall adhere to the Federal Animal Welfare Law and to those prevailing in the civilian medical community.”
Pub. L. 101–511, title VIII, §8080, Nov. 5, 1990, 104 Stat. 1893, provided that:
“(a) Upon the date of enactment of this Act [Nov. 5, 1990], the balances of any unobligated amount of an appropriation of the Department of Defense which has been withdrawn under the provisions of section 1552(a)(2) of title 31, United States Code, the obligated balance of which has not been transferred pursuant to the provisions of section 1552(a)(1) of title 31, United States Code, shall be restored to that appropriation. Thirty days following enactment of this Act all balances of unobligated funds withdrawn from any account of the Department of Defense under the provisions of section 1552(a)(2) of title 31, United States Code, prior to the enactment of this Act, (other than those restored pursuant to the provisions of this subsection) are cancelled.
“(b) During the current fiscal year and thereafter—
“(1) on the 3rd September 30th after enactment of this section [Nov. 5, 1990], all obligated balances transferred under section 1552(a)(1) of title 31, United States Code;
“(2) on September 30th of the 5th fiscal year after the period of availability of an appropriation account of the Department of Defense available for obligation for a definite period ends or has ended, with respect to those accounts which, upon the date of enactment of this section have expired for obligation but whose obligated balances have not been transferred pursuant to the provisions of section 1552(a)(1) of title 31, United States Code; and
“(3) with respect to any appropriation account made available to the Department of Defense for an indefinite period against which no obligations have been made for two consecutive years and upon a determination by the Secretary of Defense or the President that the purposes of such indefinite appropriation have been carried out,
any remaining obligated or unobligated balance of such accounts are closed and thereafter shall not be available for obligation or expenditure for any purpose: Provided, That collections authorized to be credited to an account which were not credited to the account before it was closed shall be deposited in the Treasury as miscellaneous receipts: Provided further, That, without prior action by the Comptroller General but without relieving the Comptroller General of the duty to make decisions under any law or to settle claims and accounts, when an account is closed (including accounts covered by subsection (a) of this section) and currently applicable appropriations of the Department of Defense are not chargeable, obligations and adjustments to obligations that would have been chargeable to an account prior to closing, may be chargeable to currently applicable appropriations of the Department of Defense available for the same purpose in amounts equal to one percent of the total appropriation for the current account or the amount of the original appropriation, whichever is less: Provided further, That after the end of the period of availability of an appropriation account available for a definite period and before closing of that account under this section such account shall be available for recording, adjusting, and liquidating obligations properly chargeable to such account in amounts not to exceed the unobligated expired balances of such appropriation: Provided further, That with respect to a change to a contract under which the contractor is required to perform additional work, other than adjustments to pay claims or increases under an escalation clause (hereinafter referred to as a contract change), if such a charge for such a contract change with respect to a program, project or activity would cause the total amount of such obligations to exceed $4,000,000 in any single fiscal year for a program, project, or activity, the obligation may only be made if the obligation is approved by the Secretary of Defense or, if such a change would cause the total amount of such obligations to exceed $25,000,000 in any single fiscal year for a program, project or activity, the obligation may be made only after 30 days have elapsed after the Secretary of Defense submits to the Committees on Appropriations and Armed Services of the Senate and the House of Representatives a notice of the intention to obligate such funds, together with the legal basis and the policy reasons for making such an obligation.
“(c) The provisions of this section shall apply to any appropriation account now or hereafter made unless the appropriation Act for that account specifically provides for an extension of the availability of such account and provides an exception to the five year period of availability for recording, adjusting and liquidating obligations properly chargeable to that account.”
The following general provisions, that had been repeated as fiscal year provisions in prior appropriation acts, were enacted as permanent law in the Department of Defense Appropriations Act, 1990, Pub. L. 101–165, title IX, §§9002, 9006, 9020, 9025, 9030, 9079, Nov. 21, 1989, 103 Stat. 1129, 1130, 1133–1135, 1147:
“
“
“
“
“
The following general provision, that had been repeated as fiscal year provision in prior appropriation acts, was enacted as permanent law in the Department of Defense Appropriations Act, 1989, Pub. L. 100–463, title VIII, §8098, Oct. 1, 1988, 102 Stat. 2270–35, which provided that appropriations available to the Department of Defense for operation and maintenance could be used to pay claims authorized by law to be paid by the Department (except for civil functions), was repealed and restated in section 2732 of this title by Pub. L. 101–510, div. A, title XIV, §1481(j)(1), (3), Nov. 5, 1990, 104 Stat. 1708, 1709.
Funds available to the Department of Defense may not be obligated or expended for publicity or propaganda purposes within the United States not otherwise specifically authorized by law.
(Added Pub. L. 111–84, div. A, title X, §1031(a)(1), Oct. 28, 2009, 123 Stat. 2448.)
Pub. L. 111–84, div. A, title X, §1031(b), Oct. 28, 2009, 123 Stat. 2448, provided that: “Section 2241a of title 10, United States Code, as added by subsection (a), shall take effect on October 1, 2009, or the date of the enactment of this Act [Oct. 28, 2009], whichever is later.”
The Secretary of Defense and the Secretary of each military department may—
(1) pay in advance for the expenses of conducting investigations in foreign countries incident to matters relating to the Department of Defense, to the extent such expenses are determined by the investigating officer to be necessary and in accord with local custom;
(2) pay expenses incurred in connection with the administration of occupied areas;
(3) pay expenses of military courts, boards, and commissions; and
(4) reimburse the Administrator of General Services for security guard services furnished by the Administrator to the Department of Defense for the protection of confidential files.
(Added Pub. L. 100–370, §1(e)(1), July 19, 1988, 102 Stat. 844.)
Paragraphs (1) and (4) of this section and sections 2241(b) and 2253(a)(1) of this title are based on Pub. L. 98–212, title VII, §705, Dec. 8, 1983, 97 Stat. 1437.
Paragraphs (2) and (3) are based on Pub. L. 99–190, §101(b) [title VIII, §§8005(a), 8006(a)], Dec. 19, 1985, 99 Stat. 1185, 1202, 1203.
(a)
(b)
(c)
(d)
(Added Pub. L. 101–189, div. A, title III, §326(a), Nov. 29, 1989, 103 Stat. 1415; amended Pub. L. 106–78, title VII, §752(b)(7), Oct. 22, 1999, 113 Stat. 1169.)
1999—Subsec. (b). Pub. L. 106–78 substituted “Richard B. Russell National School Lunch Act” for “National School Lunch Act”.
(a) Funds appropriated to the Department of Defense may not be used for the conduct of an investigation by the Department of Defense, or by any other Federal department or agency, for purposes of determining whether to grant a security clearance to an individual or a facility unless the Secretary of Defense determines both of the following:
(1) That a current, complete investigation file is not available from any other department or agency of the Federal Government with respect to that individual or facility.
(2) That no other department or agency of the Federal Government is conducting an investigation with respect to that individual or facility that could be used as the basis for determining whether to grant the security clearance.
(b) For purposes of subsection (a)(1), a current investigation file is a file on an investigation that has been conducted within the past five years.
(Added Pub. L. 101–510, div. A, title IX, §904(a), Nov. 5, 1990, 104 Stat. 1621; amended Pub. L. 102–190, div. A, title X, §1061(a)(11), Dec. 5, 1991, 105 Stat. 1473.)
1991—Subsec. (a)(1), (2). Pub. L. 102–190 substituted “Government” for “government”.
(a)
(b)
(1)
(2)
(A) the reusable items of value, as determined by the Secretary, installed on the item of equipment as part of such modification will, upon the retirement or disposal of the item to be modified, be removed from such item of equipment, refurbished, and installed on another item of equipment; and
(B) the cost of such modification (including the cost of the removal and refurbishment of reusable items of value under subparagraph (A)) is less than $1,000,000.
(3)
(c)
(Added Pub. L. 109–163, div. A, title III, §372(a), Jan. 6, 2006, 119 Stat. 3209.)
Provisions similar to those in this section were contained in Pub. L. 105–56, title VIII, §8053, Oct. 8, 1997, 111 Stat. 1232, which was set out as a note under section 2241 of this title, prior to repeal by Pub. L. 109–163, div. A, title III, §372(c), 119 Stat. 3210.
(a) An aircraft under the jurisdiction of a military department may not be used by a member of the armed forces for the purpose of proficiency flying except in accordance with regulations prescribed by the Secretary of Defense.
(b) Such regulations—
(1) may not require proficiency flying by a member except to the extent required for the member to maintain flying proficiency in anticipation of the member's assignment to combat operations; and
(2) may not permit proficiency flying in the case of a member who is assigned to a course of instruction of 90 days or more.
(c) In this section, the term “proficiency flying” means flying performed under competent orders by a rated or designated member of the armed forces while serving in a non-aviation assignment or in an assignment in which skills would normally not be maintained in the performance of assigned duties.
(Added Pub. L. 101–510, div. A, title XIV, §1481(e)(1), Nov. 5, 1990, 104 Stat. 1706; amended Pub. L. 110–181, div. A, title X, §1077, Jan. 28, 2008, 122 Stat. 333.)
Provisions similar to those in this section were contained in Pub. L. 101–165, title IX, §9006, Nov. 21, 1989, 103 Stat. 1130, which was set out as a note under section 2241 of this title, prior to repeal by Pub. L. 101–510, §1481(e)(3).
2008—Subsec. (c). Pub. L. 110–181 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “In this section, the term ‘proficiency flying’ has the meaning given that term in Department of Defense Directive 1340.4.”
Funds appropriated to the Department of Defense for operation and maintenance may not be used to purchase any item (including any item to be acquired as a replacement for an item) that has an investment item unit cost that is greater than $250,000.
(Added Pub. L. 109–163, div. A, title III, §373(a), Jan. 6, 2006, 119 Stat. 3210.)
Another section 2247 was renumbered section 2249 of this title.
Section, added Pub. L. 103–337, div. A, title X, §1063(a), Oct. 5, 1994, 108 Stat. 2848, related to prohibition on purchase of surety bonds.
No funds appropriated by the Congress may be obligated or expended to assist any contractor of the Department of Defense in preparing any material, report, lists, or analysis with respect to the actual or projected economic or employment impact in a particular State or congressional district of an acquisition program for which all research, development, testing, and evaluation has not been completed.
(Added Pub. L. 103–355, title VII, §7202(a)(1), Oct. 13, 1994, 108 Stat. 3379, §2247; renumbered §2249, Pub. L. 104–106, div. D, title XLIII, §4321(b)(2)(A), Feb. 10, 1996, 110 Stat. 672.)
1996—Pub. L. 104–106 renumbered section 2247 of this title as this section.
For effective date and applicability of section, see section 10001 of Pub. L. 103–355 set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
(a)
(1) any country with respect to which the Secretary of State has made a determination under section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A));
(2) any country identified in the latest report submitted to Congress under section 140 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. 2656f), as providing significant support for international terrorism; or
(3) any other country that, as determined by the President—
(A) grants sanctuary from prosecution to any individual or group that has committed an act of international terrorism; or
(B) otherwise supports international terrorism.
(b)
(A) that it is in the national security interests of the United States to do so; or
(B) that the waiver should be granted for humanitarian reasons.
(2) The President shall—
(A) notify the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on Armed Services and the Committee on International Relations of the House of Representatives at least 15 days before the waiver takes effect; and
(B) publish a notice of the waiver in the Federal Register.
(c)
(Added Pub. L. 104–106, div. A, title XIII, §1341(a), Feb. 10, 1996, 110 Stat. 485; amended Pub. L. 105–85, div. A, title X, §1073(a)(40), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774.)
1999—Subsec. (b)(2)(A). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1997—Subsec. (a)(1). Pub. L. 105–85 substituted “50 U.S.C. App. 2405(j)(1)(A)” for “50 App. 2405(j)”.
Committee on International Relations of House of Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
(a)
(b)
(Added Pub. L. 104–201, div. A, title X, §1071(a), Sept. 23, 1996, 110 Stat. 2656; amended Pub. L. 105–225, §4(a)(1), Aug. 12, 1998, 112 Stat. 1498.)
1998—Subsec. (b). Pub. L. 105–225 substituted “section 7 of title 4 and any modification of section 7 under section 10 of title 4” for “the provisions of section 3 of the Joint Resolution of June 22, 1942 (56 Stat. 378, chapter 435; 36 U.S.C. 175), and any modification of such provisions under section 8 of that Joint Resolution (36 U.S.C. 178)”.
(a)
(b)
(c)
(1) A complete accounting of the expenditure of appropriated funds for purposes authorized under subsection (a), including—
(A) the countries of the foreign officers and officials for whom costs were paid; and
(B) for each such country, the total amount of the costs paid.
(2) The training courses attended by the foreign officers and officials, including a specification of which, if any, courses were conducted in foreign countries.
(3) An assessment of the effectiveness of the program referred to in subsection (a) in increasing the cooperation of the governments of foreign countries with the United States in the global war on terrorism.
(4) A discussion of any actions being taken to improve the program.
(Added Pub. L. 108–136, div. A, title XII, §1221(a)(1), Nov. 24, 2003, 117 Stat. 1651; amended Pub. L. 109–364, div. A, title XII, §1204(a)–(d)(2), Oct. 17, 2006, 120 Stat. 2415; Pub. L. 110–417, [div. A], title XII, §1209(a), Oct. 14, 2008, 122 Stat. 4627.)
2008—Subsec. (b). Pub. L. 110–417 substituted “$35,000,000” for “$25,000,000”.
2006—Pub. L. 109–364, §1204(d)(2), substituted “Regional Defense Combating Terrorism Fellowship Program: authority to use appropriated funds for costs associated with education and training of foreign officials” for “Authority to use appropriated funds for costs of attendance of foreign visitors under Regional Defense Counterterrorism Fellowship Program” in section catchline.
Subsec. (a). Pub. L. 109–364, §1204(a), substituted “the education and training of foreign military officers, ministry of defense officials, or security officials at military or civilian educational institutions, regional centers, conferences, seminars, or other training programs conducted under the Regional Defense Combating Terrorism Fellowship Program” for “the attendance of foreign military officers, ministry of defense officials, or security officials at United States military educational institutions, regional centers, conferences, seminars, or other training programs conducted under the Regional Defense Counterterrorism Fellowship Program, including costs of transportation and travel and subsistence costs” and inserted at end “Costs for which payment may be made under this section include the costs of transportation and travel and subsistence costs.”
Subsec. (b). Pub. L. 109–364, §1204(b), (c), substituted “$25,000,000” for “$20,000,000” and inserted at end “Amounts available under the authority in subsection (a) for a fiscal year may be used for programs that begin in such fiscal year but end in the next fiscal year.”
Subsec. (c)(3). Pub. L. 109–364, §1204(d)(1), substituted “program referred to in subsection (a)” for “Regional Defense Counterterrorism Fellowship Program”.
Pub. L. 110–417, [div. A], title XII, §1209(b), Oct. 14, 2008, 122 Stat. 4627, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on October 1, 2008, and shall apply with respect to fiscal years beginning on or after that date.”
Pub. L. 108–136, div. A, title XII, §1221(b), Nov. 24, 2003, 117 Stat. 1651, provided that: “Not later than December 1, 2003, the Secretary of Defense shall—
“(1) prescribe the final regulations for carrying out section 2249c of title 10, United States Code, as added by subsection (a); and
“(2) notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and House of Representatives] of the prescription of such regulations.”
(a)
(1) provide to personnel referred to in subsection (b) electronically-distributed learning content for the education and training of such personnel for the development or enhancement of allied and friendly military and civilian capabilities for multinational operations, including joint exercises and coalition operations; and
(2) provide information technology, including computer software developed for such purpose, but only to the extent necessary to support the use of such learning content for the education and training of such personnel.
(b)
(c)
(1) Internet-based education and training.
(2) Advanced distributed learning and similar Internet learning tools, as well as distributed training and computer-assisted exercises.
(d)
(e)
(1)
(2)
(f)
(1)
(2)
(A) A statement of the recipients of learning content and information technology provided under this section.
(B) A description of the type, quantity, and value of the learning content and information technology provided under this section.
(g)
(1) the Committee on Armed Services and the Committee on Foreign Relations of the Senate; and
(2) the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives.
(Added Pub. L. 110–417, [div. A], title XII, §1205(a)(1), Oct. 14, 2008, 122 Stat. 4623.)
The Arms Export Control Act, referred to in subsec. (d), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, which is classified principally to chapter 39 (§2751 et seq.) of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of Title 22 and Tables.
Pub. L. 110–417, [div. A], title XII, §1205(d), Oct. 14, 2008, 122 Stat. 4625, provided that: “This section [enacting this section and provisions set out as notes under this section] and the amendments made by this section shall take effect on October 1, 2008.”
Pub. L. 110–417, [div. A], title XII, §1205(b), Oct. 14, 2008, 122 Stat. 4624, provided that:
“(1)
“(2)
2008—Pub. L. 110–417, [div. A], title X, §1004(a)(2), Oct. 14, 2008, 122 Stat. 4583, added item 2263.
2006—Pub. L. 109–364, div. A, title X, §1051(b), Oct. 17, 2006, 120 Stat. 2396, added item 2262.
Pub. L. 109–163, div. A, title V, §589(a)(2), Jan. 6, 2006, 119 Stat. 3279, added item 2261.
2004—Pub. L. 108–375, div. A, title X, §1004(b), Oct. 28, 2004, 118 Stat. 2036, added item 2260.
2000—Pub. L. 106–398, §1 [[div. A], title X, §1082(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–285, added item 2259.
1999—Pub. L. 106–65, div. A, title V, §574(b), Oct. 5, 1999, 113 Stat. 624, added item 2257.
1996—Pub. L. 104–201, div. A, title IX, §911(a)(2), Sept. 23, 1996, 110 Stat. 2622, added item 2255.
1992—Pub. L. 102–484, div. A, title X, §1071(a)(2), Oct. 23, 1992, 106 Stat. 2508, added item 2254.
(a)
(1) purchase household furnishings and automobiles from members of the armed forces and civilian employees of the Department of Defense on duty outside the United States or in Hawaii for resale at cost to incoming personnel; and
(2) provide household furnishings, without charge, in other than public quarters occupied by members of the armed forces or civilian employees of the Department of Defense who are on duty outside the United States or in Alaska or Hawaii.
(b)
(Added Pub. L. 100–370, §1(e)(1), July 19, 1988, 102 Stat. 845.)
Section is based on Pub. L. 98–212, title VII, §723, Dec. 8, 1983, 97 Stat. 1443.
The Secretary of Defense and the Secretary of each military department may pay a reward of not more than $500 in any case for information leading to the discovery of missing property under the jurisdiction of that Secretary or leading to the recovery of such property.
(Added Pub. L. 100–370, §1(e)(1), July 19, 1988, 102 Stat. 845.)
Section is based on Pub. L. 99–190, §101(b) [title VIII, §8005(b)], Dec. 19, 1985, 99 Stat. 1185, 1202.
Provisions similar to those in this section were contained in section 7209 of this title prior to repeal by Pub. L. 100–370, §1(e)(3)(A).
(a)
(1) provide for insurance of official motor vehicles in a foreign country when the laws of such country require such insurance; and
(2) purchase right-hand drive vehicles at a cost of not more than $30,000 each.
(b)
(Added Pub. L. 100–370, §1(e)(1), July 19, 1988, 102 Stat. 845; amended Pub. L. 105–85, div. A, title VIII, §805, Nov. 18, 1997, 111 Stat. 1834.)
Subsection (a)(1) of this section and sections 2241(b) and 2242(1), (4) of this title are based on Pub. L. 98–212, title VII, §705, Dec. 8, 1983, 97 Stat. 1437.
Subsection (a)(2) is based on Pub. L. 99–190, §101(b) [title VIII, §8005(i)], Dec. 19, 1985, 99 Stat. 1185, 1202.
Subsection (b) of this section and sections 2241(a) and 2661(a) of this title are based on Pub. L. 98–212, title VII, §735, Dec. 8, 1983, 97 Stat. 1444, as amended by Pub. L. 98–525, title XIV, §§1403(a)(2), 1404, Oct. 19, 1984, 98 Stat. 2621.
1997—Subsec. (a)(2). Pub. L. 105–85 substituted “$30,000” for “$12,000”.
(a)
(2) For purposes of this section, an accident investigation is any form of investigation of an aircraft accident other than an investigation (known as a “safety investigation”) that is conducted solely to determine the cause of the accident and to obtain information that may prevent the occurrence of similar accidents.
(b)
(A) that such tapes, reports, or other information would be included within and releasable with the final accident investigation report; and
(B) that release of such tapes, reports, or other information—
(i) would not undermine the ability of accident or safety investigators to continue to conduct the investigation; and
(ii) would not compromise national security.
(2) A disclosure under paragraph (1) may not be made by or through officials with responsibility for, or who are conducting, a safety investigation with respect to the accident.
(c)
(1) if the evidence surrounding the accident is sufficient for the investigators who conduct the accident investigation to come to an opinion (or opinions) as to the cause or causes of the accident, the final report of the accident investigation shall set forth the opinion (or opinions) of the investigators as to the cause or causes of the accident; and
(2) if the evidence surrounding the accident is not sufficient for those investigators to come to an opinion as to the cause or causes of the accident, the final report of the accident investigation shall include a description of those factors, if any, that, in the opinion of the investigators, substantially contributed to or caused the accident.
(d)
(e)
(Added Pub. L. 102–484, div. A, title X, §1071(a)(1), Oct. 23, 1992, 106 Stat. 2507.)
Section 1071(c) of Pub. L. 102–484 provided that: “Section 2254 of title 10, United States Code, as added by subsection (a), shall apply with respect to accidents occurring on or after the date on which regulations are first prescribed under that section.”
Pub. L. 105–261, div. A, title X, §1065(c), Oct. 17, 1998, 112 Stat. 2134, provided that: “The Secretary of Defense shall prescribe regulations, which shall be applied uniformly across the Department of Defense, establishing procedures by which the military departments shall provide to the family members of any person involved in a military aviation accident periodic update reports on the conduct and progress of investigations into the accident.”
Section 1071(b) of Pub. L. 102–484 provided that: “Regulations under section 2254 of title 10, United States Code, as added by subsection (a), shall be prescribed not later than 180 days after the date of the enactment of this Act [Oct. 23, 1992].”
(a)
(1) a majority of the members (or in the case of a board consisting of a single member, the member) is selected from units other than the mishap unit or a unit subordinate to the mishap unit; and
(2) in the case of a board consisting of more than one member, at least one member of the board is a member of the armed forces or an officer or an employee of the Department of Defense who possesses knowledge and expertise relevant to aircraft accident investigations.
(b)
(1) it is not practicable to meet the requirement because of—
(A) the remote location of the aircraft accident;
(B) an urgent need to promptly begin the investigation; or
(C) a lack of available persons outside of the mishap unit who have adequate knowledge and expertise regarding the type of aircraft involved in the accident; and
(2) the objectivity and independence of the aircraft accident investigation board will not be compromised.
(c)
(d)
(e)
(1) The term “Class A accident” means an accident involving an aircraft that results in—
(A) the loss of life or permanent disability;
(B) damages to the aircraft, other property, or a combination of both, in an amount in excess of the amount specified by the Secretary of Defense for purposes of determining Class A accidents; or
(C) the destruction of the aircraft.
(2) The term “mishap unit”, with respect to an aircraft accident investigation, means the unit of the armed forces (at the squadron or battalion level or equivalent) to which was assigned the flight crew of the aircraft that sustained the accident that is the subject of the investigation.
(Added Pub. L. 104–201, div. A, title IX, §911(a)(1), Sept. 23, 1996, 110 Stat. 2621; amended Pub. L. 108–136, div. A, title X, §1031(a)(13), Nov. 24, 2003, 117 Stat. 1597.)
2003—Subsec. (b). Pub. L. 108–136 struck out par. (1) designation before “The Secretary”, redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and (2), respectively, redesignated cls. (i) to (iii) of former subpar. (A) as subpars. (A) to (C), respectively, of par. (1), and struck out par. (2) which read as follows: “The Secretary shall notify Congress of a waiver exercised under this subsection and the reasons therefor.”
Section 911(b) of Pub. L. 104–201 provided that: “Section 2255 of title 10, United States Code, as added by subsection (a), shall apply with respect to any aircraft accident investigation board convened by the Secretary of a military department after the end of the six-month period beginning on the date of the enactment of this Act [Sept. 23, 1996].”
The Secretary of Defense may use for public relations purposes of the Department of Defense any advertising materials developed for use for recruitment and retention of personnel for the armed forces. Any such use shall be under such conditions and subject to such restrictions as the Secretary of Defense shall prescribe.
(Added Pub. L. 106–65, div. A, title V, §574(a), Oct. 5, 1999, 113 Stat. 624.)
(a)
(b)
(1) that is subject to the national ambient air quality standards promulgated by the Administrator of the Environmental Protection Agency under section 109 of the Clean Air Act (42 U.S.C. 7409); and
(2) that, as determined by the Administrator of the Environmental Protection Agency, is a nonattainment area with respect to any of those standards.
(Added Pub. L. 106–398, §1 [[div. A], title X, §1082(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–285.)
Pub. L. 106–398, §1 [[div. A], title X, §1082(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–285, provided that: “The Secretary of Defense shall prescribe the effective date for the transit pass program required under section 2259 of title 10, United States Code, as added by subsection (a). The effective date so prescribed may not be later than the first day of the first month that begins on or after the date that is 180 days after the date of the enactment of this Act [Oct. 30, 2000].”
(a)
(b)
(c)
(2) For purposes of paragraph (1), a qualifying company is any United States company that—
(A) is a toy or hobby manufacturer; and
(B) is determined by the Secretary concerned to be qualified in accordance with such criteria as determined appropriate by the Secretary of Defense.
(3) The fee for a license under this subsection shall not exceed by more than a nominal amount the amount needed to recover all costs of the Department of Defense in processing the request for the license and supplying the license.
(4) A license to a qualifying company under this subsection shall provide that the license may not be transferred, sold, or relicensed by the qualifying company.
(5) A license under this subsection shall not be an exclusive license.
(d)
(1) For payment of the following costs incurred by the Secretary:
(A) Costs of securing trademark registrations.
(B) Costs of operating the licensing program under this section.
(2) For morale, welfare, and recreation activities under the jurisdiction of the Secretary, to the extent (if any) that the total amount of the licensing fees available under this section for a fiscal year exceed the total amount needed for such fiscal year under paragraph (1).
(e)
(f)
(1) The terms “trademark”, “service mark”, “certification mark”, and “collective mark” have the meanings given such terms in section 45 of the Act of July 5, 1946 (commonly referred to as the Trademark Act of 1946; 15 U.S.C. 1127).
(2) The term “Secretary concerned” has the meaning provided in section 101(a)(9) of this title and also includes—
(A) the Secretary of Defense, with respect to matters concerning the Defense Agencies and Department of Defense Field Activities; and
(B) the Secretary of Homeland Security, with respect to matters concerning the Coast Guard when it is not operating as a service in the Department of the Navy.
(Added Pub. L. 108–375, div. A, title X, §1004(a), Oct. 28, 2004, 118 Stat. 2035; amended Pub. L. 110–181, div. A, title VIII, §882(a), Jan. 28, 2008, 122 Stat. 263; Pub. L. 110–417, [div. A], title VIII, §881, Oct. 14, 2008, 122 Stat. 4559.)
2008—Subsec. (a). Pub. L. 110–417, §881(1), inserted “or the Secretary of Homeland Security” after “Secretary of Defense”.
Subsecs. (c) to (e). Pub. L. 110–181, §882(a), added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively. Former subsec. (e) redesignated (f).
Subsec. (f). Pub. L. 110–417, §881(2), substituted “this section:” for “this section,” and “(1) The” for “the” and added par. (2).
Pub. L. 110–181, §882(a)(1), redesignated subsec. (e) as (f).
Pub. L. 110–181, div. A, title VIII, §882(b), Jan. 28, 2008, 122 Stat. 264, provided that: “The Secretary of Defense shall prescribe regulations to implement the amendment made by this section [amending this section] not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008].”
(a)
(1) to procure recognition items of nominal or modest value for recruitment or retention purposes; and
(2) to present such items—
(A) to members of the armed forces; and
(B) to members of the families of members of the armed forces, and other individuals, recognized as providing support that substantially facilitates service in the armed forces.
(b)
(c)
(Added Pub. L. 109–163, div. A, title V, §589(a)(1), Jan. 6, 2006, 119 Stat. 3279; amended Pub. L. 109–364, div. A, title V, §594, Oct. 17, 2006, 120 Stat. 2235.)
2006—Subsec. (d). Pub. L. 109–364 struck out heading and text of subsec. (d). Text read as follows: “The authority under this section shall expire December 31, 2007.”
(a)
(2) The Secretary may provide for the collection of fees under this section directly or by contract. The fees may be collected in advance of a conference.
(b)
(c)
(d)
(2) Each report shall include the following:
(A) A list of all conferences conducted during the preceding two calendar years for which fees were collected under this section.
(B) For each conference included on the list under subparagraph (A):
(i) The estimated costs of the Department for the conference.
(ii) The actual costs of the Department for the conference, including a separate statement of the amount of any conference coordinator fees associated with the conference.
(iii) The amount of fees collected under this section for the conference.
(C) An estimate of the number of conferences to be conducted during the calendar year in which the report is submitted for which the Department will collect fees under this section.
(Added Pub. L. 109–364, div. A, title X, §1051(a), Oct. 17, 2006, 120 Stat. 2395.)
(a)
(b)
(2) Each report under paragraph (1) shall include, for the fiscal year covered by such report, the following:
(A) The amounts contributed by the Secretary to each of the separate budgets and programs of the North Atlantic Treaty Organization under the common-funded budgets of NATO.
(B) For each budget and program to which the Secretary made such a contribution, the percentage of such budget or program during the fiscal year that such contribution represented.
(c)
(1)
(2)
(Added Pub. L. 110–417, [div. A], title X, §1004(a)(1), Oct. 14, 2008, 122 Stat. 4582.)
The resolution of ratification of the Protocols to the North Atlantic Treaty of 1949 on the Accession of Poland, Hungary, and the Czech Republic approved by the Senate on April 30, 1998, referred to in subsec. (c)(2), was adopted in the 105th Congress and is not classified to the Code. See Cong. Rec., vol. 144, pt. 5, p. 7555, Apr. 30, 1998.
Pub. L. 110–417, [div. A], title X, §1004(b), Oct. 14, 2008, 122 Stat. 4583, provided that: “The amendments made by this section [enacting this section] shall take effect on October 1, 2008, and shall apply to fiscal years that begin on or after that date.”
2009—Pub. L. 111–84, div. A, title IX, §912(b), Oct. 28, 2009, 123 Stat. 2431, added item 2274 and struck out former item 2274 “Space surveillance network: pilot program for provision of satellite tracking support to entities outside United States Government”.
2006—Pub. L. 109–364, div. A, title IX, §913(b)(2), Oct. 17, 2006, 120 Stat. 2357, substituted “Operationally Responsive Space Program Office” for “Operationally responsive national security payloads and buses: separate program element required” in item 2273a.
2004—Pub. L. 108–375, div. A, title IX, §913(a)(2), Oct. 28, 2004, 118 Stat. 2028, added item 2273a.
2003—Pub. L. 108–136, div. A, title IX, §§911(a)(2), 912(b), 913(b), Nov. 24, 2003, 117 Stat. 1564, 1565, 1567, added items 2272 to 2274.
(a)
(b)
(A) Army, Navy, and Marine Corps officers, as well as Air Force officers, are assigned to the space development and acquisition programs of the Department of Defense; and
(B) Army, Navy, and Marine Corps officers, as well as Air Force officers, are eligible, on the basis of qualification, to hold leadership positions within the joint program offices referred to in subsection (a).
(2) The Secretary of Defense shall designate those positions in the Office of the National Security Space Architect of the Department of Defense (or any successor office) that qualify as joint duty assignment positions for purposes of chapter 38 of this title.
(Added Pub. L. 107–107, div. A, title IX, §911(a), Dec. 28, 2001, 115 Stat. 1195.)
A prior section 2271, act Aug. 10, 1956, ch. 1041, 70A Stat. 123, related to competitions for designs of aircraft, aircraft parts, and aeronautical accessories, prior to repeal by Pub. L. 103–160, div. A, title VIII, §821(a)(1), Nov. 30, 1993, 107 Stat. 1704.
Pub. L. 111–383, div. A, title IX, §911, Jan. 7, 2011, 124 Stat. 4328, provided that: “The Secretary of Defense and the Director of National Intelligence shall develop an integrated process for national security space architecture planning, development, coordination, and analysis that—
“(1) encompasses defense and intelligence space plans, programs, budgets, and organizations;
“(2) provides mid-term to long-term recommendations to guide space-related defense and intelligence acquisitions, requirements, and investment decisions;
“(3) is independent of, but coordinated with, the space architecture planning, development, coordination, and analysis activities of each military department and each element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))); and
“(4) makes use of, to the maximum extent practicable, joint duty assignment (as defined in section 668 of title 10, United States Code) positions.”
Pub. L. 110–181, div. A, title IX, §911(a)–(f), Jan. 28, 2008, 122 Stat. 279, 280, provided that:
“(a)
“(b)
“(c)
“(1) An identification of the threats to, and the vulnerabilities of, the national security space systems of the United States.
“(2) A description of the capabilities currently contained in the program of record of the Department of Defense and the intelligence community that ensure freedom of action in space.
“(3) For each period covered by the strategy, a description of the capabilities that are needed for the period, including—
“(A) the hardware, software, and other materials or services to be developed or procured;
“(B) the management and organizational changes to be achieved; and
“(C) concepts of operations, tactics, techniques, and procedures to be employed.
“(4) For each period covered by the strategy, an assessment of the gaps and shortfalls between the capabilities that are needed for the period and the capabilities currently contained in the program of record.
“(5) For each period covered by the strategy, a comprehensive plan for investment in capabilities that identifies specific program and technology investments to be made in that period.
“(6) A description of the current processes by which the systems protection requirements of the Department of Defense and the intelligence community are addressed in space acquisition programs and during key milestone decisions, an assessment of the adequacy of those processes, and an identification of the actions of the Department and the intelligence community for addressing any inadequacies in those processes.
“(7) A description of the current processes by which the Department of Defense and the intelligence community program and budget for capabilities (including capabilities that are incorporated into single programs and capabilities that span multiple programs), an assessment of the adequacy of those processes, and an identification of the actions of the Department and the intelligence community for addressing any inadequacies in those processes.
“(8) A description of the organizational and management structure of the Department of Defense and the intelligence community for addressing policy, planning, acquisition, and operations with respect to capabilities, a description of the roles and responsibilities of each organization, and an identification of the actions of the Department and the intelligence community for addressing any inadequacies in that structure.
“(d)
“(1) Fiscal years 2008 through 2013.
“(2) Fiscal years 2014 through 2019.
“(3) Fiscal years 2020 through 2025.
“(e)
“(1) the term ‘capabilities’ means space, airborne, and ground systems and capabilities for space situational awareness and for space systems protection; and
“(2) the term ‘intelligence community’ has the meaning given such term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
“(f)
“(1)
“(2)
“(3)
Pub. L. 110–181, div. A, title X, §1065, Jan. 28, 2008, 122 Stat. 324, provided that: “The Secretary of Defense shall maintain the capability for space-based nuclear detection at a level that meets or exceeds the level of capability as of the date of the enactment of this Act [Jan. 28, 2008].”
Pub. L. 109–163, div. A, title IX, §911, Jan. 6, 2006, 119 Stat. 3405, required the Secretary of Defense to develop a “Space Situational Awareness Strategy” for ensuring freedom to operate United States space assets affecting national security, and to provide for a review and assessment of the requirements of the Department of Defense for the space control mission, prior to repeal by Pub. L. 110–181, div. A, title IX, §911(g), Jan. 28, 2008, 122 Stat. 280.
Pub. L. 108–136, div. A, title V, §547, Nov. 24, 2003, 117 Stat. 1480, as amended by Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814, provided that:
“(a)
“(1) promote the development of space personnel career fields within each of the military departments; and
“(2) ensure that the space personnel career fields developed by the military departments are integrated with each other to the maximum extent practicable.
“(b)
“(1) A statement of the strategy developed under subsection (a), together with an explanation of that strategy.
“(2) An assessment of the measures required for the Department of Defense and the military departments to integrate the space personnel career fields of the military departments.
“(3) A comprehensive assessment of the adequacy of the actions of the Secretary of Air Force pursuant to section 8084 of title 10, United States Code, to establish for Air Force officers a career field for space.
“(c)
“(2) The Comptroller General shall submit to the committees referred to in subsection (b) two reports on the review under paragraph (1), as follows:
“(A) Not later than June 15, 2004, the Comptroller General shall submit a report that assesses how effective that Department of Defense strategy and the efforts by the military departments, when implemented, are likely to be for developing the personnel required by each of the military departments who are expert in development of space doctrine and concepts of space operations, the development of space systems, and operation of space systems.
“(B) Not later than March 15, 2005, the Comptroller General shall submit a report that assesses, as of the date of the report—
“(i) the effectiveness of that Department of Defense strategy and the efforts by the military departments in developing the personnel required by each of the military departments who are expert in development of space doctrine and concepts of space operations, the development of space systems, and in operation of space systems; and
“(ii) progress made in integrating the space career fields of the military departments.”
Pub. L. 107–107, div. A, title IX, §914, Dec. 28, 2001, 115 Stat. 1197, directed the Comptroller General to carry out an assessment through Feb. 15, 2003, of the actions taken by the Secretary of Defense in implementing the recommendations in the report of the Space Commission submitted to Congress pursuant to Pub. L. 106–65, §1623, formerly set out as a note under section 111 of this title, that were applicable to the Department of Defense, and to submit reports to committees of Congress, not later than Feb. 15, 2002, and Feb. 15, 2003, setting forth the results of the assessment.
(a)
(2) The strategy under paragraph (1) shall, at a minimum, address the following issues:
(A) Short-term and long-term goals of the space science and technology programs of the Department of Defense.
(B) The process for achieving the goals identified under subparagraph (A), including an implementation plan for achieving those goals.
(C) The process for assessing progress made toward achieving those goals.
(D) The process for transitioning space science and technology programs to new or existing space acquisition programs.
(3) The strategy under paragraph (1) shall be included as part of the annual National Security Space Plan developed pursuant to Department of Defense regulations and shall be provided to Department of Defense components and science and technology entities of the Department of Defense to support the planning, programming, and budgeting processes of the Department.
(4) The strategy under paragraph (1) shall be developed in consultation with the directors of research laboratories of the Department of Defense, the directors of the other Department of Defense research components, and the heads of other organizations of the Department of Defense as identified by the Assistant Secretary of Defense for Research and Engineering and the Department of Defense Executive Agent for Space.
(5) The Secretary of Defense and the Director of National Intelligence shall biennially submit the strategy developed under paragraph (1) to the congressional defense committees every other year on the date on which the President submits to Congress the budget for the next fiscal year under section 1105 of title 31.
(b)
(1) identify research projects in support of that strategy that contribute directly and uniquely to the development of space technology; and
(2) inform the Assistant Secretary of Defense for Research and Engineering and the Department of Defense Executive Agent for Space of the planned budget and planned schedule for executing those projects.
(c)
(1) The term “research laboratory of the Department of Defense” means any of the following:
(A) The Air Force Research Laboratory.
(B) The Naval Research Laboratory.
(C) The Office of Naval Research.
(D) The Army Research Laboratory.
(2) The term “other Department of Defense research component” means either of the following:
(A) The Defense Advanced Research Projects Agency.
(B) The National Reconnaissance Office.
(Added Pub. L. 108–136, div. A, title IX, §911(a)(1), Nov. 24, 2003, 117 Stat. 1563; amended Pub. L. 111–84, div. A, title IX, §911(a)(1)–(3), Oct. 28, 2009, 123 Stat. 2428, 2429; Pub. L. 111–383, div. A, title IX, §901(j)(2), Jan. 7, 2011, 124 Stat. 4324.)
A prior section 2272, act Aug. 10, 1956, ch. 1041, 70A Stat. 124, related to contracts to obtain designs submitted in design competitions, prior to repeal by Pub. L. 103–160, div. A, title VIII, §821(a)(1), Nov. 30, 1993, 107 Stat. 1704.
2011—Subsecs. (a), (b). Pub. L. 111–383 substituted “Assistant Secretary of Defense for Research and Engineering” for “Director of Defense Research and Engineering” wherever appearing.
2009—Subsec. (a)(1). Pub. L. 111–84, §911(a)(1), substituted “The Secretary of Defense and the Director of National Intelligence shall jointly develop” for “The Secretary of Defense shall develop”.
Subsec. (a)(2)(D). Pub. L. 111–84, §911(a)(2), added subpar. (D).
Subsec. (a)(5). Pub. L. 111–84, §911(a)(3), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “The strategy shall be available for review by the congressional defense committees.”
Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.
Pub. L. 111–84, div. A, title IX, §911(a)(4), Oct. 28, 2009, 123 Stat. 2429, provided that: “The first space science and technology strategy required to be submitted under paragraph (5) of section 2272(a) of title 10, United States Code, as amended by paragraph (3) of this subsection, shall be submitted on the date on which the President submits to Congress the budget for fiscal year 2012 under section 1105 of title 31, United States Code.”
(a)
(b)
(1) the availability of at least two space launch vehicles (or families of space launch vehicles) capable of delivering into space any payload designated by the Secretary of Defense or the Director of National Intelligence as a national security payload; and
(2) a robust space launch infrastructure and industrial base.
(c)
(Added Pub. L. 108–136, div. A, title IX, §912(a)(1), Nov. 24, 2003, 117 Stat. 1565; Pub. L. 110–181, div. A, title IX, §931(a)(12), Jan. 28, 2008, 122 Stat. 285; Pub. L. 110–417, [div. A], title IX, §932(a)(11), Oct. 14, 2008, 122 Stat. 4576; Pub. L. 111–84, div. A, title X, §1073(c)(10), Oct. 28, 2009, 123 Stat. 2475.)
A prior section 2273, acts Aug. 10, 1956, ch. 1041, 70A Stat. 125; Apr. 2, 1982, Pub. L. 97–164, title I, §160(a)(4), 96 Stat. 48; Oct. 29, 1992, Pub. L. 102–572, title IX, §902(b)(1), 106 Stat. 4516, related to right of United States to designs, rights of designers to patents, and rights to sue United States, prior to repeal by Pub. L. 103–160, div. A, title VIII, §821(a)(1), Nov. 30, 1993, 107 Stat. 1704.
2009—Subsec. (b)(1). Pub. L. 111–84 repealed Pub. L. 110–417, §932(a)(11). See 2008 Amendment note below.
2008—Subsec. (b)(1). Pub. L. 110–181 and Pub. L. 110–417, §932(a)(11), amended par. (1) identically, substituting “Director of National Intelligence” for “Director of Central Intelligence”. Pub. L. 110–417, §932(a)(11), was repealed by Pub. L. 111–84.
Pub. L. 111–84, div. A, title X, §1073(c), Oct. 28, 2009, 123 Stat. 2474, provided that the amendment made by section 1073(c)(10) is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 as enacted.
(a)
(b)
(1) the Department of Defense Executive Agent for Space; or
(2) the designee of the Secretary of Defense, who shall report to the Department of Defense Executive Agent for Space.
(c)
(1) to contribute to the development of low-cost, rapid reaction payloads, busses, spacelift, and launch control capabilities in order to fulfill joint military operational requirements for on-demand space support and reconstitution; and
(2) to coordinate and execute operationally responsive space efforts across the Department of Defense with respect to planning, acquisition, and operations.
(d)
(1) A science and technology element that shall pursue innovative approaches to the development of capabilities for operationally responsive space through basic and applied research focused on (but not limited to) payloads, bus, and launch equipment.
(2) An acquisition element that shall undertake the acquisition of systems necessary to integrate, sustain, and launch assets for operationally responsive space.
(3) An operations element that shall—
(A) sustain and maintain assets for operationally responsive space prior to launch;
(B) integrate and launch such assets; and
(C) operate such assets in orbit.
(4) A combatant command support element that shall serve as the primary intermediary between the military departments and the combatant commands in order to—
(A) ascertain the needs of the commanders of the combatant commands; and
(B) integrate operationally responsive space capabilities into—
(i) operations plans of the combatant commands;
(ii) techniques, tactics, and procedures of the military departments; and
(iii) military exercises, demonstrations, and war games.
(5) Such other elements as the Secretary of Defense may consider necessary.
(e)
(1) The Department of Defense Executive Agent for Space shall be the senior acquisition executive of the Office.
(2) The Joint Capabilities Integration and Development System process shall not apply to acquisitions by the Office for operational experimentation.
(3) The commander of the United States Strategic Command, or the designee of the commander, shall—
(A) validate all system requirements for systems to be acquired by the Office; and
(B) participate in the approval of any acquisition program initiated by the Office.
(4) To the maximum extent practicable, the procurement unit cost of a launch vehicle procured by the Office for launch to low earth orbit should not exceed $20,000,000 (in constant dollars).
(5) To the maximum extent practicable, the procurement unit cost of an integrated satellite procured by the Office should not exceed $40,000,000 (in constant dollars).
(f)
(A) there is a separate, dedicated program element for operationally responsive space;
(B) to the extent applicable, relevant program elements should be consolidated into the program element required by subparagraph (A); and
(C) the Office executes its responsibilities through this program element.
(2) The Office shall manage the program element required by paragraph (1)(A).
(Added Pub. L. 108–375, div. A, title IX, §913(a)(1), Oct. 28, 2004, 118 Stat. 2028; amended Pub. L. 109–364, div. A, title IX, §913(b)(1), Oct. 17, 2006, 120 Stat. 2355.)
2006—Pub. L. 109–364 amended section catchline and text generally, substituting provisions relating to establishment, control, mission, elements, and authority of the Operationally Responsive Space Program Office within the Department of Defense for provisions relating to requirement for a separate, dedicated program element for operationally responsive national security payloads and buses within budget program elements for space programs of the Department of Defense.
Pub. L. 108–375, div. A, title IX, §913(b), Oct. 28, 2004, 118 Stat. 2028, provided that: “Subsection (a) of section 2273a of title 10, United States Code, as added by subsection (a), shall apply with respect to fiscal years after fiscal year 2005.”
Pub. L. 109–364, div. A, title IX, §913(a), Oct. 17, 2006, 120 Stat. 2355, provided that: “It is the policy of the United States to demonstrate, acquire, and deploy an effective capability for operationally responsive space to support military users and operations from space, which shall consist of—
“(1) responsive satellite payloads and busses built to common technical standards;
“(2) low-cost space launch vehicles and supporting range operations that facilitate the timely launch and on-orbit operations of satellites;
“(3) responsive command and control capabilities; and
“(4) concepts of operations, tactics, techniques, and procedures that permit the use of responsive space assets for combat and military operations other than war.”
Pub. L. 109–163, div. A, title IX, §913(a), Jan. 6, 2006, 119 Stat. 3408, which directed the Secretary of Defense to establish or designate an organization in the Department of Defense to coordinate joint operationally responsive space payload technology, was repealed by Pub. L. 109–364, div. A, title IX, §913(d), Oct. 17, 2006, 120 Stat. 2358.
(a)
(b)
(1) A State.
(2) A political subdivision of a State.
(3) A United States commercial entity.
(4) The government of a foreign country.
(5) A foreign commercial entity.
(c)
(1) agrees to pay an amount that may be charged by the Secretary under subsection (d);
(2) agrees not to transfer any data or technical information received under the agreement, including the analysis of data, to any other entity without the express approval of the Secretary; and
(3) agrees to any other terms and conditions considered necessary by the Secretary.
(d)
(2) The Secretary may not require the government of a State, or of a political subdivision of a State, to pay any amount under paragraph (1).
(e)
(A) The appropriation, fund, or account used in incurring the obligation.
(B) An appropriate appropriation, fund, or account currently available for the purposes for which the expenditures were made.
(2) Funds credited under paragraph (1) shall be merged with, and remain available for obligation with, the funds in the appropriation, fund, or account to which credited.
(f)
(g)
(h)
(Added Pub. L. 108–136, div. A, title IX, §913(a), Nov. 24, 2003, 117 Stat. 1565; amended Pub. L. 109–364, div. A, title IX, §912, Oct. 17, 2006, 120 Stat. 2355; Pub. L. 110–417, [div. A], title IX, §911, Oct. 14, 2008, 122 Stat. 4571; Pub. L. 111–84, div. A, title IX, §912(a), Oct. 28, 2009, 123 Stat. 2429.)
Prior sections 2274 to 2279 were repealed by Pub. L. 103–160, div. A, title VIII, §821(a)(1), Nov. 30, 1993, 107 Stat. 1704.
Section 2274, act Aug. 10, 1956, ch. 1041, 70A Stat. 126, related to procurement for experimental purposes.
Section 2275, act Aug. 10, 1956, ch. 1041, 70A Stat. 126, related to award of contracts and review of decisions.
Section 2276, acts Aug. 10, 1956, ch. 1041, 70A Stat. 126; Sept. 7, 1962, Pub. L. 87–651, title I, §131, 76 Stat. 514, related to inspection and audit of plants and books of contractors and provided criminal penalties for violations.
Section 2277, act Aug. 10, 1956, ch. 1041, 70A Stat. 127, related to availability of appropriations.
Section 2278, act Aug. 10, 1956, ch. 1041, 70A Stat. 127, related to purchases of sample aircraft.
Section 2279, act Aug. 10, 1956, ch. 1041, 70A Stat. 127, related to restrictions on alien employees of contractors as to access to plans and specifications.
2009—Pub. L. 111–84 amended section generally. Prior to amendment, section related to space surveillance network: pilot program for provision of satellite tracking support to entities outside United States Government.
2008—Subsec. (i). Pub. L. 110–417 substituted “September 30, 2010” for “September 30, 2009”.
2006—Subsec. (i). Pub. L. 109–364 substituted “may be conducted through September 30, 2009” for “shall be conducted during the three-year period beginning on a date specified by the Secretary of Defense, which date shall be not later than 180 days after the date of the enactment of this section”.
Pub. L. 111–84, div. A, title IX, §912(c), Oct. 28, 2009, 123 Stat. 2431, provided that: “The amendments made by this section [amending this section] shall take effect on October 1, 2009, or the date of the enactment of this Act [Oct. 28, 2009], whichever is later.”
2000—Pub. L. 106–398, §1 [[div. A], title I, §131(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–29, added item 2282.
(a)
(1) develop appropriate measures for preventing hostile use of the GPS so as to make it unnecessary for the Secretary to use the selective availability feature of the system continuously while not hindering the use of the GPS by the United States and its allies for military purposes; and
(2) ensure that United States armed forces have the capability to use the GPS effectively despite hostile attempts to prevent the use of the system by such forces.
(b)
(1) shall provide for the sustainment and operation of the GPS Standard Positioning Service in order to meet the performance requirements of the Federal Radionavigation Plan prepared jointly by the Secretary of Defense and the Secretary of Transportation pursuant to subsection (c);
(2) shall coordinate with the Secretary of Transportation regarding the development and implementation by the Government of augmentations to the basic GPS that achieve or enhance uses of the system in support of transportation;
(3) shall coordinate with the Secretary of Commerce, the United States Trade Representative, and other appropriate officials to facilitate the development of new and expanded civil and commercial uses for the GPS;
(4) shall develop measures for preventing hostile use of the GPS in a particular area without hindering peaceful civil use of the system elsewhere; and
(5) may not agree to any restriction on the Global Positioning System proposed by the head of a department or agency of the United States outside the Department of Defense in the exercise of that official's regulatory authority that would adversely affect the military potential of the Global Positioning System.
(c)
(d)
(A) The operational status of the system.
(B) The capability of the system to satisfy effectively (i) the military requirements for the system that are current as of the date of the report, and (ii) the validated performance requirements of the Federal Radionavigation Plan in accordance with Office of Management and Budget Circular A–109.
(C) The status of cooperative activities undertaken by the United States with the governments of other countries concerning the capability of the system or any augmentation of the system to satisfy civil, commercial, scientific, and military requirements, including a discussion of the status and results of activities undertaken under any regional international agreement.
(D) Progress and challenges in establishing GPS as an international standard for consistency of navigational service.
(E) Progress and challenges in protecting GPS from jamming, disruption, and interference.
(F) Progress and challenges in developing the enhanced Global Positioning System required by section 218(b) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105–261; 112 Stat. 1951; 10 U.S.C. 2281 note).
(G) The effects of use of the system on national security, regional security, and the economic competitiveness of United States industry, including the Global Positioning System equipment and service industry and user industries.
(2) In preparing each report required under paragraph (1), the Deputy Secretary of Defense and the Deputy Secretary of Transportation, in their capacity as co-chairs of the National Executive Committee for Space-Based Positioning, Navigation, and Timing, shall consult with the Secretary of Defense, the Secretary of State, the Secretary of Transportation, and the Secretary of Homeland Security.
(e)
(1) The term “basic GPS services” means the following components of the Global Positioning System that are operated and maintained by the Department of Defense:
(A) The constellation of satellites.
(B) The navigation payloads that produce the Global Positioning System signals.
(C) The ground stations, data links, and associated command and control facilities.
(2) The term “GPS Standard Positioning Service” means the civil and commercial service provided by the basic Global Positioning System as defined in the 1996 Federal Radionavigation Plan (published jointly by the Secretary of Defense and the Secretary of Transportation in July 1997).
(Added Pub. L. 105–85, div. A, title X, §1074(d)(1), Nov. 18, 1997, 111 Stat. 1909; amended Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–136, div. A, title IX, §914, Nov. 24, 2003, 117 Stat. 1567; Pub. L. 111–84, div. A, title X, §1032, Oct. 28, 2009, 123 Stat. 2448.)
Section 507 of the International Maritime Satellite Telecommunications Act, referred to in subsec. (c), is section 507 of Pub. L. 87–624 which was classified to section 756 of Title 47, Telegraphs, Telephones, and Radiotelegraphs, prior to repeal by Pub. L. 103–414, title III, §304(b)(5), Oct. 25, 1994, 108 Stat. 4298.
2009—Subsec. (d)(1). Pub. L. 111–84, §1032(a)(1), in introductory provisions, substituted “the Deputy Secretary of Defense and the Deputy Secretary of Transportation, in their capacity as co-chairs of the National Executive Committee for Space-Based Positioning, Navigation, and Timing,” for “the Secretary of Defense” and “the Committees on Armed Services and Commerce, Science, and Transportation of the Senate and the Committees on Armed Services, Energy and Commerce, and Transportation and Infrastructure of the House of Representatives” for “the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives”.
Subsec. (d)(1)(B)(ii). Pub. L. 111–84, §1032(b), inserted “validated” before “performance requirements” and “in accordance with Office of Management and Budget Circular A–109” after “Plan”.
Subsec. (d)(2). Pub. L. 111–84, §1032(a)(2), added par. (2) and struck out former par. (2), which read as follows: “In preparing the parts of each such report required under subparagraphs (C), (D), (E), (F), and (G) of paragraph (1), the Secretary of Defense shall consult with the Secretary of State, the Secretary of Commerce, and the Secretary of Transportation.”
2003—Subsec. (d)(1)(C). Pub. L. 108–136, §914(a)(1), (2), redesignated subpar. (D) as (C) and struck out former subpar. (C) which read as follows: “The most recent determination by the President regarding continued use of the selective availability feature of the system and the expected date of any change or elimination of the use of that feature.”
Subsec. (d)(1)(D). Pub. L. 108–136, §914(a)(3), redesignated subpar. (E) as (D) and substituted “Progress and challenges in” for “Any progress made toward”. Former subpar. (D) redesignated (C).
Subsec. (d)(1)(E). Pub. L. 108–136, §914(a)(4), added subpar. (E). Former subpar. (E) redesignated (D).
Subsec. (d)(1)(F). Pub. L. 108–136, §914(a)(4), added subpar. (F) and struck out former subpar. (F) which read as follows: “Any progress made toward protecting GPS from disruption and interference.”
Subsec. (d)(2). Pub. L. 108–136, §914(b), inserted “(C),” after “under subparagraphs”.
1999—Subsec. (d)(1). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security” in introductory provisions.
Pub. L. 111–383, div. A, title IX, §913, Jan. 7, 2011, 124 Stat. 4328, provided that:
“(a)
“(b)
“(c)
“(1) suitable user equipment capable of receiving the military code from the Global Positioning System is not available; or
“(2) with respect to a purchase of user equipment, the Department of Defense does not require that user equipment to be capable of receiving the military code from the Global Positioning System.”
Pub. L. 106–405, §8, Nov. 1, 2000, 114 Stat. 1753, as amended by Pub. L. 109–364, div. A, title IX, §911, Oct. 17, 2006, 120 Stat. 2354, provided that: “The use of multi-agency funding and other forms of support is hereby authorized for the functions and activities of the following organizations established pursuant to the United States Space-Based Position, Navigation, and Timing Policy issued December 8, 2004 (and any successor organization, to the extent the successor organization performs the functions of the specified organization):
“(1) The interagency committee known as the National Space-Based Positioning, Navigation, and Timing Executive Committee.
“(2) The support office for the committee specified in paragraph (1) known as the National Space-Based Positioning, Navigation, and Timing Coordination Office.
“(3) The Federal advisory committee known as the National Space-Based Positioning, Navigation, and Timing Advisory Board.”
Pub. L. 105–261, div. A, title II, §218, Oct. 17, 1998, 112 Stat. 1951, provided that:
“(a)
“(b)
“(1) An evolved satellite system that includes increased signal power and other improvements such as regional-level directional signal enhancements.
“(2) Enhanced receivers and user equipment that are capable of providing military users with direct access to encrypted Global Positioning System signals.
“(3) To the extent funded by the Secretary of Transportation, additional civil frequencies and other enhancements for civil users.
“(c)
“(1) the Secretary of Defense should ensure that the future-years defense program provides for sufficient funding to develop and deploy an enhanced Global Positioning System in accordance with the priority declared in subsection (a); and
“(2) the Secretary of Transportation should provide sufficient funding to support additional civil frequencies for the Global Positioning System and other enhancements of the system for civil users.
“(d)
“(e)
“(f)
Section 1074(a), (b) of Pub. L. 105–85 provided that:
“(a)
“(1) The Global Positioning System (consisting of a constellation of satellites and associated facilities capable of providing users on earth with a highly precise statement of their location on earth) makes significant contributions to the attainment of the national security and foreign policy goals of the United States, the safety and efficiency of international transportation, and the economic growth, trade, and productivity of the United States.
“(2) The infrastructure for the Global Positioning System (including both space and ground segments of the infrastructure) is vital to the effectiveness of United States and allied military forces and to the protection of the national security interests of the United States.
“(3) In addition to having military uses, the Global Positioning System has essential civil, commercial, and scientific uses.
“(4) As a result of the increasing demand of civil, commercial, and scientific users of the Global Positioning System—
“(A) there has emerged in the United States a new commercial industry to provide Global Positioning System equipment and related services to the many and varied users of the system; and
“(B) there have been rapid technical advancements in Global Positioning System equipment and services that have contributed significantly to reductions in the cost of the Global Positioning System and increases in the technical capabilities and availability of the system for military uses.
“(5) It is in the national interest of the United States for the United States—
“(A) to support continuation of the multiple-use character of the Global Positioning System;
“(B) to promote broader acceptance and use of the Global Positioning System and the technological standards that facilitate expanded use of the system for civil purposes;
“(C) to coordinate with other countries to ensure (i) efficient management of the electromagnetic spectrum used by the Global Positioning System, and (ii) protection of that spectrum in order to prevent disruption of signals from the system and interference with that portion of the electromagnetic spectrum used by the system; and
“(D) to encourage open access in all international markets to the Global Positioning System and supporting equipment, services, and techniques.
“(b)
“(1) Undertaking a coordinated effort within the executive branch to seek to establish the Global Positioning System, and augmentations to the system, as a worldwide resource.
“(2) Seeking to enter into international agreements to establish signal and service standards that protect the Global Positioning System from disruption and interference.
“(3) Undertaking efforts to eliminate any barriers to, and other restrictions of foreign governments on, peaceful uses of the Global Positioning System.
“(4) Requiring that any proposed international agreement involving nonmilitary use of the Global Positioning System or any augmentation to the system not be agreed to by the United States unless the proposed agreement has been reviewed by the Secretary of State, the Secretary of Defense, the Secretary of Transportation, and the Secretary of Commerce (acting as the Interagency Global Positioning System Executive Board established by Presidential Decision Directive NSTC–6, dated March 28, 1996).”
Pub. L. 104–106, div. A, title II, §279, Feb. 10, 1996, 110 Stat. 243, provided that:
“(a)
“(b)
“(1) development and acquisition of effective capabilities to deny hostile military forces the ability to use the Global Positioning System without hindering the ability of United States military forces and civil users to have access to and use of the system, together with a specific date by which those capabilities could be operational; and
“(2) development and acquisition of receivers for the Global Positioning System and other techniques for weapons and weapon systems that provide substantially improved resistance to jamming and other forms of electronic interference or disruption, together with a specific date by which those receivers and other techniques could be operational with United States military forces.”
Pub. L. 103–160, div. A, title I, §152(b), Nov. 30, 1993, 107 Stat. 1578, as amended by Pub. L. 105–261, div. A, title II, §218(e), Oct. 17, 1998, 112 Stat. 1952; Pub. L. 109–163, div. A, title II, §260(a), Jan. 6, 2006, 119 Stat. 3185, provided that: “After September 30, 2007, funds may not be obligated to modify or procure any Department of Defense aircraft, ship, armored vehicle, or indirect-fire weapon system that is not equipped with a Global Positioning System receiver.”
[Pub. L. 109–163, div. A, title II, §260(b), Jan. 6, 2006, 119 Stat. 3186, provided that: “The amendment made by subsection (a) [amending section 152(b) of Pub. L. 103–160, set out above] shall be deemed to have taken effect at the close of September 30, 2005, and any obligation or expenditure of funds by the Department of Defense during the period beginning on October 1, 2005, and ending on the date of the enactment of this Act [Jan. 6, 2006] to modify or procure a Department of Defense aircraft, ship, armored vehicle, or indirect-fire weapon system that is not equipped with a Global Positioning System receiver is hereby ratified with respect to the provision of law specified in subsection (a).”]
1 See References in Text note below.
Not later than March 1 of each year through 2008, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the B–2 bomber aircraft. Each such report shall include the following:
(1) Identification of the average full-mission capable rate of B–2 aircraft for the preceding fiscal year and the Secretary's overall assessment of the implications of that full-mission capable rate on mission accomplishment for the B–2 aircraft, together with the Secretary's determination as to whether that rate is adequate for the accomplishment of each of the missions assigned to the B–2 aircraft as of the date of the assessment.
(2) An assessment of the technical capabilities of the B–2 aircraft and whether these capabilities are adequate to accomplish each of the missions assigned to that aircraft as of the date of the assessment.
(3) Identification of all ongoing and planned development of technologies to enhance the capabilities of that aircraft.
(4) Identification and assessment of additional technologies that would make that aircraft more capable or survivable against known and evolving threats.
(5) A fiscally phased program for each technology identified in paragraphs (3) and (4) for the budget year and the future-years defense program, based on the following three funding situations:
(A) The President's current budget.
(B) The President's current budget and the current Department of Defense unfunded priority list.
(C) The maximum executable funding for the B–2 aircraft given the requirement to maintain enough operationally ready aircraft to accomplish missions assigned to the B–2 aircraft.
(Added Pub. L. 106–398, §1 [[div. A], title I, §131(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–28; amended Pub. L. 108–136, div. A, title X, §1031(a)(14), Nov. 24, 2003, 117 Stat. 1597.)
2003—Pub. L. 108–136 inserted “through 2008” after “March 1 of each year” in introductory provisions.
2009—Pub. L. 111–23, title I, §101(b)(2), May 22, 2009, 123 Stat. 1709, added item 2334.
2008—Pub. L. 110–181, div. A, title X, §1063(a)(10), Jan. 28, 2008, 122 Stat. 322, added item 2333 and struck out former item 2333 “Joint policies on requirements definition, contingency contracting, and program management”.
2006—Pub. L. 109–364, div. A, title VIII, §854(a)(2), Oct. 17, 2006, 120 Stat. 2346, added item 2333.
Pub. L. 109–163, div. A, title VIII, §812(a)(2), Jan. 6, 2006, 119 Stat. 3378, substituted “Procurement of contract services: management structure” for “Procurement of services: management structure” in item 2330.
2002—Pub. L. 107–347, title II, §210(a)(2), Dec. 17, 2002, 116 Stat. 2934, added item 2332.
Pub. L. 107–314, div. A, title VIII, §801(a)(2), Dec. 2, 2002, 116 Stat. 2602, added item 2308.
2001—Pub. L. 107–107, div. A, title VIII, §801(g)(2), Dec. 28, 2001, 115 Stat. 1178, added items 2330, 2330a, and 2331 and struck out former item 2331 “Contracts for professional and technical services”.
2000—Pub. L. 106–398, §1 [[div. A], title VIII, §802(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–205, added item 2306c.
1998—Pub. L. 105–261, div. A, title X, §1069(a)(3), Oct. 17, 1998, 112 Stat. 2135, substituted “electronic commerce capability” for “FACNET capability” in item 2302c.
1997—Pub. L. 105–85, div. A, title VIII, §804(a)(2), title X, §1073(a)(48)(B), Nov. 18, 1997, 111 Stat. 1833, 1903, substituted “contracts: acquisition of property” for “contracts” in item 2306b and added item 2325.
1996—Pub. L. 104–201, div. A, title VIII, §805(b), Sept. 23, 1996, 110 Stat. 2606, added item 2302d.
Pub. L. 104–106, div. D, title XLI, §4105(a)(2), title XLIII, §4321(b)(6)(B), Feb. 10, 1996, 110 Stat. 647, 672, redesignated item 2304a, relating to contracts: prohibition on competition between Department of Defense and small businesses and certain other entities, as 2304e and added item 2305a.
1994—Pub. L. 103–355, title I, §§1004(a)(2), 1022(a)(2), 1501(b), 1503(a)(2), (b)(2), 1506(b), title II, §§2001(i), 2201(a)(2), title IV, §§4002(b), 4203(a)(2), title VIII, §8104(b)(2), title IX, §9002(b), Oct. 13, 1994, 108 Stat. 3253, 3260, 3296–3298, 3303, 3318, 3338, 3346, 3391, 3402, struck out items 2301 “Congressional defense procurement policy”, 2308 “Assignment and delegation of procurement functions and responsibilities”, 2325 “Preference for nondevelopmental items”, and 2329 “Production special tooling and production special test equipment: contract terms and conditions”, added items 2302a to 2302c, 2304a relating to task and delivery order contracts: general authority, 2304b to 2304d, and 2306b, and substituted “Contract financing” for “Advance payments” in item 2307, “Assignment and delegation of procurement functions and responsibilities” for “Delegation” in item 2311, and “Examination of records of contractor” for “Examination of books and records of contractor” in item 2313.
1993—Pub. L. 103–160, div. A, title VIII, §§828(a)(1), 848(a)(2), Nov. 30, 1993, 107 Stat. 1713, 1725, added item 2304a and struck out item 2317 “Encouragement of competition and cost savings”.
1992—Pub. L. 102–484, div. A, title VIII, §801(a)(2), (g)(2), title X, §1052(25)(B), div. D, title XLII, §4271(b)(2), Oct. 23, 1992, 106 Stat. 2442, 2445, 2500, 2695, struck out items 2322 “Limitation on small business set-asides” and 2330 “Integrated financing policy” and added items 2323 and 2323a.
1990—Pub. L. 101–510, div. A, title VIII, §§804(b), 834(a)(2), Nov. 5, 1990, 104 Stat. 1591, 1614, struck out item 2323 “Commercial pricing for spare or repair parts” and added item 2331.
1988—Pub. L. 100–456, div. A, title VIII, §801(a)(2), Sept. 29, 1988, 102 Stat. 2007, added item 2330.
1987—Pub. L. 100–180, div. A, title VIII, §810(a)(2), Dec. 4, 1987, 101 Stat. 1132, added item 2329.
Pub. L. 100–26, §7(a)(7)(B)(ii), (b)(9)(B), Apr. 21, 1987, 101 Stat. 278, 280, transferred item 2305a “Major programs: competitive alternative sources”, to chapter 144 as item 2438 and substituted “Release of technical data under Freedom of Information Act: recovery of costs” for “Release of technical data” in item 2328.
Pub. L. 100–26, §5(4), (6), made technical amendments to directory language of sections 926(a)(2) and 954(a)(2), respectively, of Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661. See 1986 Amendment note below.
1986—Pub. L. 99–661, div. A, title XIII, §1343(a)(12), Nov. 14, 1986, 100 Stat. 3993, substituted “competitors” for “competition” in item 2319.
Pub. L. 99–500, §101(c) [title X, §§907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–138, 1783–141, 1783–155, 1783–165, 1783–169, 1783–173, and Pub. L. 99–591, §101(c) [title X, §§907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–138, 3341–141, 3341–155, 3341–165, 3341–169, 3341–173; Pub. L. 99–661, div. A, title IX, formerly title IV, §§907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2), Nov. 14, 1986, 100 Stat. 3917, 3921, 3935, 3945, 3949, 3953, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; as amended by Pub. L. 100–26, §5(4), (6), Apr. 21, 1987, 101 Stat. 274, amended chapter analysis identically striking out “: cost or pricing data: truth in negotiations” after “contracts” in item 2306, substituting “spare or repair parts” for “supplies” in item 2323, and adding items 2306a and 2325 to 2328.
1985—Pub. L. 99–145, title IX, §§911(a)(2), 912(a)(2), Nov. 8, 1985, 99 Stat. 685, 686, added items 2305a and 2324.
1984—Pub. L. 98–577, title III, §302(c)(2), Oct. 30, 1984, 98 Stat. 3077, struck out item 2303a “Publication of proposed regulations”.
Pub. L. 98–525, title XII, §1217, Oct. 19, 1984, 98 Stat. 2599, added items 2303a and 2317 to 2323.
Pub. L. 98–369, div. B, title VII, §2727(a), July 18, 1984, 98 Stat. 1194, substituted “Congressional defense procurement policy” for “Declaration of policy” in item 2301, “Contracts: competition requirements” for “Purchases and contracts: formal advertising; exceptions” in item 2304, “Contracts: planning, solicitation, evaluation, and award procedures” for “Formal advertisements for bids; time; opening; award; rejection” in item 2305, and “Kinds of contracts; cost or pricing data: truth in negotiation” for “Kinds of contracts” in item 2306.
1982—Pub. L. 97–295, §1(26)(B), Oct. 12, 1982, 96 Stat. 1291, added item 2316.
1981—Pub. L. 97–86, title IX, §908(a)(2), Dec. 1, 1981, 95 Stat. 1118, added item 2315.
1980—Pub. L. 96–513, title V, §511(75), Dec. 12, 1980, 94 Stat. 2926, inserted “formal” before “advertising” in item 2304.
Section, acts Aug. 10, 1956, ch. 1041, 70A Stat. 127; Dec. 1, 1981, Pub. L. 97–86, title IX, §909(a), 95 Stat. 1118; July 18, 1984, Pub. L. 98–369, div. B, title VII, §2721, 98 Stat. 1185; Oct. 18, 1986, Pub. L. 99–500, §101(c) [title X, §925(a)], 100 Stat. 1783–82, 1783–153, and Oct. 30, 1986, Pub. L. 99–591, §101(c) [title X, §925(a)], 100 Stat. 3341–82, 3341–153; Nov. 14, 1986, Pub. L. 99–661, div. A, title IX, formerly title IV, §925(a), 100 Stat. 3933, renumbered title IX, Apr. 21, 1987, Pub. L. 100–26, §3(5), 101 Stat. 273; Oct. 23, 1992, Pub. L. 102–484, div. A, title VIII, §808(a), 106 Stat. 2449, related to Congressional defense procurement policy.
For effective date and applicability of repeal, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title 41.
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 chapter 1 of title 41:
(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 1303(a)(1) of title 41.
(7) The term “simplified acquisition threshold” has the meaning provided that term in section 134 of title 41, 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 1 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.
(9) The term “nontraditional defense contractor”, with respect to a procurement or with respect to a transaction authorized under section 2371(a) of this title, means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any of the following for the Department of Defense:
(A) Any contract or subcontract that is subject to full coverage under the cost accounting standards prescribed pursuant to section 26 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 422) and the regulations implementing such section.1
(B) Any other contract in excess of $500,000 under which the contractor is required to submit certified cost or pricing data under section 2306a of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 127; Pub. L. 85–568, title III, §301(b), July 29, 1958, 72 Stat. 432; Pub. L. 85–861, §1(43A), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 96–513, title V, §511(74), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 98–369, div. B, title VII, §2722(a), July 18, 1984, 98 Stat. 1186; Pub. L. 98–525, title XII, §1211, Oct. 19, 1984, 98 Stat. 2589; Pub. L. 98–577, title V, §504(b)(3), Oct. 30, 1984, 98 Stat. 3087; Pub. L. 99–661, div. A, title XIII, §1343(a)(13), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 101–189, div. A, title VIII, §853(b)(1), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 102–25, title VII, §701(d)(1), Apr. 6, 1991, 105 Stat. 113; Pub. L. 102–190, div. A, title VIII, §805, Dec. 5, 1991, 105 Stat. 1417; Pub. L. 103–355, title I, §1502, Oct. 13, 1994, 108 Stat. 3296; Pub. L. 104–106, div. D, title XLIII, §4321(b)(3), Feb. 10, 1996, 110 Stat. 672; Pub. L. 104–201, div. A, title VIII, §§805(a)(1), 807(a), Sept. 23, 1996, 110 Stat. 2605, 2606; Pub. L. 105–85, div. A, title VIII, §803(b), Nov. 18, 1997, 111 Stat. 1832; Pub. L. 107–217, §3(b)(2), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 111–350, §5(b)(8), Jan. 4, 2011, 124 Stat. 3842; Pub. L. 111–383, div. A, title VIII, §866(g)(1), Jan. 7, 2011, 124 Stat. 4298.)
| 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)), 62 Stat. 24. |
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, 64 Stat. 1280. Under that plan the Secretary of the Treasury was authorized to delegate any of those functions to the agencies and employees of the Department of the Treasury.
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].
Section 4 of such Act, referred to in par. (7), means section 4 of Pub. L. 93–400, which was classified to section 403 of former Title 41, Public Contracts, and was repealed and the provisions thereof restated in sections 102, 103, 105, 107 to 116, 131 to 134, and 1301 of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
Section 26 of the Office of Federal Procurement Policy Act and such section, referred to in par. (9)(A), means section 26 of Pub. L. 93–400, which was classified to section 422 of former Title 41, Public Contracts, and was repealed and restated as chapter 15 (§1501 et seq.) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
2011—Par. (3). Pub. L. 111–350, §5(b)(8)(A), substituted “chapter 1 of title 41” for “section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)” in introductory provisions.
Par. (6). Pub. L. 111–350, §5(b)(8)(B), substituted “section 1303(a)(1) of title 41” for “section 25(c)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c)(1))”.
Par. (7). Pub. L. 111–350, §5(b)(8)(C), substituted “section 134 of title 41” for “section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)”.
Par. (9). Pub. L. 111–383 added par. (9).
2002—Par. (1). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
Par. (2)(A). Pub. L. 107–217 substituted “chapter 11 of title 40” for “title IX of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 541 et seq.)”.
1997—Pars. (7), (8). Pub. L. 105–85 struck out “(A)” before “The term ‘simplified” in par. (7), redesignated par. (7)(B) as par. (8), and substituted “The” for “In subparagraph (A), the” in that par.
1996—Par. (3)(K). Pub. L. 104–106 inserted period at end.
Par. (5). Pub. L. 104–201, §805(a)(1), substituted “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.” for “A system shall be considered a major system if (A) the Department of Defense is responsible for the system and the total expenditures for research, development, test, and evaluation for the system are estimated to be more than $75,000,000 (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement of more than $300,000,000 (based on fiscal year 1980 constant dollars); (B) a civilian agency is responsible for the system and total expenditures for the system are estimated to exceed $750,000 (based on fiscal year 1980 constant dollars) or the dollar threshold for a ‘major system’ established by the agency pursuant to Office of Management and Budget (OMB) Circular A–109, entitled ‘Major Systems Acquisitions’, whichever is greater; or (C) the system is designated a ‘major system’ by the head of the agency responsible for the system.”
Par. (7). Pub. L. 104–201, §807(a), designated existing provisions as subpar. (A), inserted “or a humanitarian or peacekeeping operation” after “contingency operation”, and added subpar. (B).
1994—Par. (3). Pub. L. 103–355, §1502(1), added par. (3) and struck out former par. (3) which read as follows: “The terms ‘full and open competition’ and ‘responsible source’ have the same meanings provided such terms in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403).”
Par. (7). Pub. L. 103–355, §1502(2), added par. (7) and struck out former par. (7) which read as follows: “The term ‘small purchase threshold’ has the meaning given that term in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)), 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, the term means $100,000.”
1991—Par. (7). Pub. L. 102–190 inserted before period “, 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, the term means $100,000”.
Pub. L. 102–25 added par. (7).
1989—Par. (6). Pub. L. 101–189 added par. (6).
1987—Pub. L. 100–26, §7(k)(2)(A), inserted “The term” after each par. designation except par. (3) and struck out uppercase letter of first word after first quotation marks in each par. and substituted lowercase letter.
1986—Par. (2)(A). Pub. L. 99–661 substituted “(40 U.S.C.” for “(41 U.S.C.”.
1984—Pub. L. 98–369 amended section generally, substituting in cl. (1) “the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force” for “the Secretary, the Under Secretary, or any Assistant Secretary, of the Army, Navy, or Air Force”, in cl. (2) definition of “competitive procedures” for a definition of “negotiate”, and in cl. (3) definition of the terms “full and open competition” and “responsible source” for a definition of “formal advertising”.
Cl. (2)(D), (E). Pub. L. 98–577 added subpars. (D) and (E).
Cls. (4), (5). Pub. L. 98–525 added cls. (4) and (5).
1980—Cl. (1). Pub. L. 96–513 substituted “Secretary of Transportation” for “Secretary of the Treasury”.
1958—Cl. (1). Pub. L. 85–568 substituted “Administrator of the National Aeronautics and Space Administration” for “Executive Secretary of the National Advisory Committee for Aeronautics”, in cl. (1).
Cl. (3). Pub. L. 85–861 substituted “section 2305 of this title” for “section 2305(a) and (b) of this title”.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Pub. L. 104–106, div. D, title XLIV, §4401, Feb. 10, 1996, 110 Stat. 678, provided that:
“(a)
“(b)
“(1)
“(2)
“(A) a contract that is in effect on the date described in paragraph (3);
“(B) an offer under consideration on the date described in paragraph (3); or
“(C) any other proceeding or action that is ongoing on the date described in paragraph (3).
“(3)
Pub. L. 103–355, title X, §10001, Oct. 13, 1994, 108 Stat. 3404, provided that:
“(a)
“(b)
“(2) An amendment made by this Act shall also apply, to the extent and in the manner prescribed in the final regulations promulgated pursuant to section 10002 to implement such amendment, with respect to any matter related to—
“(A) a contract that is in effect on the date described in paragraph (3);
“(B) an offer under consideration on the date described in paragraph (3); or
“(C) any other proceeding or action that is ongoing on the date described in paragraph (3).
“(3) The date referred to in paragraphs (1) and (2) is the date specified in such final regulations [Oct. 1, 1995, see 60 F.R. 48231, Sept. 18, 1995]. The date so specified shall be October 1, 1995, or any earlier date that is not within 30 days after the date on which such final regulations are published.
“(c)
Pub. L. 98–369, div. B, title VII, §2751, July 18, 1984, 98 Stat. 1203, provided that:
“(a) Except as provided in subsection (b), the amendments made by this title [see Tables for classification] shall apply with respect to any solicitation for bids or proposals issued after March 31, 1985.
“(b) The amendments made by section 2713 [amending section 759 of former Title 40, Public Buildings, Property, and Works, and enacting provisions set out as a note under section 759 of former Title 40] and subtitle D [enacting sections 3551 to 3556 of Title 31, Money and Finance] shall apply with respect to any protest filed after January 14, 1985.”
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Section 301(e) of Pub. L. 85–568 provided that: “This section [amending this section, section 2303 of this title, section 22–1 of former Title 5, and sections 511 to 513 and 515 of Title 50, War and National Defense, and enacting provisions set out as a note under section 2472 of Title 42, The Public Health and Welfare] shall take effect ninety days after the date of the enactment of this Act [July 29, 1958], or on any earlier date on which the Administrator [of the National Aeronautics and Space Administration] shall determine, and announce by proclamation published in the Federal Register, that the Administration has been organized and is prepared to discharge the duties and exercise the powers conferred upon it by this Act.”
Section 101(c) [title X, §900] of Pub. L. 99–500 and Pub. L. 99–591, and section 900 of title IX of division A of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “This title [enacting sections 133a, 2306a, 2325–2328, 2365–2367, 2397b, 2397c, 2408, 2409, 2416, and 2435–2437 of this title, amending sections 133, 134, 135, 138, 171, 1622, 2301, 2304, 2305, 2306, 2320, 2321, 2323, 2384, 2406, 2411, 2413, 2432, and 2433 of this title, sections 5314 and 5315 of Title 5, Government Organization and Employees, sections 632, 637, and 644 of Title 15, Commerce and Trade, and section 416 of Title 41, Public Contracts, renumbering section 2416 as 2417 of this title, enacting provisions set out as notes under sections 113, 1621, 2304, 2305, 2306a, 2320, 2323, 2325–2328, 2365–2367, 2384, 2397b, 2406, 2408, 2409, 2416, 2432, 2435–2437 of this title and section 632 of Title 15, amending provisions set out as a note under this section, and repealing provisions set out as notes under section 2304 and 2397a of this title] may be cited as the ‘Defense Acquisition Improvement Act of 1986’.”
Pub. L. 99–145, title IX, §901, Nov. 8, 1985, 99 Stat. 682, provided that: “This title [enacting sections 1621 to 1624, 2305a, 2324, 2397a, and 2406 of this title, amending sections 2304, 2313, 2320, 2323, 2397, and 2411 to 2415 of this title, section 759 of former Title 40, Public Buildings, Property, and Works, sections 253 and 418a of Title 41, Public Contracts, and section 2168 of Title 50, Appendix, War and National Defense, enacting provisions set out as notes under this section and sections 139, 139c, 1622 to 1624, 2304, 2305a, 2307, 2324, 2397a, and 2411 of this title, section 287 of Title 18, Crimes and Criminal Procedure, section 3729 of Title 31, Money and Finance, and section 2168 of Title 50, Appendix, and amending provisions set out as a note under section 418a of Title 41] may be cited as the ‘Defense Procurement Improvement Act of 1985’.”
Section 1201 of title XII of Pub. L. 98–525 provided that: “This title [enacting sections 2303a, 2317 to 2323, 2384a, 2402 to 2405, and 2411 to 2416 of this title, amending sections 139a, 139b, 2302, 2305, 2311, 2384, and 2401 of this title, enacting provisions set out as notes under this section and sections 139, 139a, 2303a, 2305, 2318, 2319, 2322, 2323, 2384, 2384a, 2392, and 2402 of this title, amending provisions set out as notes under sections 2392, 2401, and 2452 of this title, and repealing provisions set out as notes under section 2304 of this title] may be cited as the ‘Defense Procurement Reform Act of 1984’.”
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)
Pub. L. 111–383, div. A, title VIII, §804, Jan. 7, 2011, 124 Stat. 4256, provided that:
“(a)
“(1)
“(2)
“(A) the Department's review of the improvement;
“(B) if the improvement is being implemented by the Department, a schedule for implementing the improvement; and
“(C) if the improvement is not being implemented by the Department, an explanation of why the improvement is not being implemented.
“(3)
“(A) Providing a streamlined, expedited, and tightly integrated iterative approach to—
“(i) the identification and validation of urgent operational needs;
“(ii) the analysis of alternatives and identification of preferred solutions;
“(iii) the development and approval of appropriate requirements and acquisition documents;
“(iv) the identification and minimization of development, integration, and manufacturing risks;
“(v) the consideration of operation and sustainment costs;
“(vi) the allocation of appropriate funding; and
“(vii) the rapid production and delivery of required capabilities.
“(B) Clearly defining the roles and responsibilities of the Office of the Secretary of Defense, the Joint Chiefs of Staff, the military departments, and other components of the Department of Defense for carrying out all phases of the process.
“(C) Designating a senior official within the Office of the Secretary of Defense with primary responsibility for making recommendations to the Secretary on the use of the authority provided by subsections (c) and (d) of section 806 of the Bob Stump National Defense Authorization Act for Fiscal Year 2003 [Pub. L. 107–314] (10 U.S.C. 2302 note), as amended by section 803 of this Act, in appropriate circumstances.
“(D) Establishing a target date for the fielding of a capability pursuant to each validated urgent operational need.
“(E) Implementing a system for—
“(i) documenting key process milestones, such as funding, acquisition, fielding, and assessment decisions and actions; and
“(ii) tracking the cost, schedule, and performance of acquisitions conducted pursuant to the process.
“(F) Establishing a formal feedback mechanism for the commanders of the combatant commands to provide information to the Joint Chiefs of Staff and senior acquisition officials on how well fielded solutions are meeting urgent operational needs.
“(G) Establishing a dedicated source of funding for the rapid fielding of capabilities in response to urgent operational needs.
“(H) Issuing guidance to provide for the appropriate transition of capabilities acquired through rapid fielding into the traditional budget, requirements, and acquisition process for purposes of contracts for follow-on production, sustainment, and logistics support.
“(I) Such other improvements as the Secretary considers appropriate.
“(b)
“(1)
“(2)
“(A) apply to the rapid fielding of capabilities in response to joint urgent operational need statements and to other urgent operational needs statements generated by the military departments and the combatant commands;
“(B) identify officials responsible for making determinations described in paragraph (1);
“(C) establish appropriate time periods for making such determinations;
“(D) set forth standards and criteria for making such determinations based on considerations of urgency, risk, and life-cycle management;
“(E) establish appropriate thresholds for the applicability of the review process, or of elements of the review process; and
“(F) authorize appropriate officials to make exceptions from standards and criteria established under subparagraph (D) in exceptional circumstances.
“(3)
“(A) can be fielded within a period of two to 24 months;
“(B) do not require substantial development effort;
“(C) are based on technologies that are proven and available; and
“(D) can appropriately be acquired under fixed price contracts.
“(4)
Pub. L. 111–383, div. A, title VIII, §833, Jan. 7, 2011, 124 Stat. 4276, provided that:
“(a)
“(1) determine whether the private sector has developed—
“(A) operational and business practice standards applicable to private security contractors; and
“(B) third-party certification processes for determining whether private security contractors adhere to standards described in subparagraph (A); and
“(2) review any standards and processes identified pursuant to paragraph (1) to determine whether the application of such standards and processes will make a substantial contribution to the successful performance of private security functions in areas of combat operations or other significant military operations.
“(b)
“(1) establish criteria for defining standard practices for the performance of private security functions, which shall reflect input from industry representatives as well as the Inspector General of the Department of Defense; and
“(2) establish criteria for weapons training programs for contractors performing private security functions, including minimum requirements for weapons training programs of instruction and minimum qualifications for instructors for such programs.
“(c)
“(1)
“(2)
“(d)
“(1)
“(A) a contract of the Department of Defense for the performance of services;
“(B) a subcontract at any tier under such a contract; or
“(C) a task order or delivery order issued under such a contract or subcontract.
“(2)
“(3)
“(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.
“(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.
“(e)
Pub. L. 111–383, div. A, title VIII, §866(a)–(f), Jan. 7, 2011, 124 Stat. 4296–4298, 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 awarded using competitive procedures in accordance with chapter 137 of title 10, United States Code;
“(2) shall be in an amount not in excess of $50,000,000, 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 section 2306a of title 10, United States Code, and the cost accounting standards under section 26 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422) [now 41 U.S.C. 1501 et seq.]; 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 2306a(d) of title 10, United States Code.
“(c)
“(d)
“(1)
“(A) The contractor.
“(B) The item or items to be acquired.
“(C) The military purpose to be served by such item or items.
“(D) The amount of the contract.
“(E) The actions taken by the Department of Defense to ensure that the price paid for such item or items is fair and reasonable.
“(2)
“(A) enabled the Department to acquire items that otherwise might not have been available to the Department;
“(B) assisted the Department in the rapid acquisition and fielding of capabilities needed to meet urgent operational needs; and
“(C) 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 4(13) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(13)) [see 41 U.S.C. 110]; 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 2302(9) 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)
Pub. L. 111–383, div. A, title VIII, §893, Jan. 7, 2011, 124 Stat. 4311, provided that:
“(a)
“(b)
“(1) include system requirements for each type of contractor business system covered by the program;
“(2) establish a process for reviewing contractor business systems and identifying significant deficiencies in such systems;
“(3) identify officials of the Department of Defense who are responsible for the approval or disapproval of contractor business systems;
“(4) provide for the approval of any contractor business system that does not have a significant deficiency; and
“(5) provide for—
“(A) the disapproval of any contractor business system that has a significant deficiency; and
“(B) reduced reliance on, and enhanced scrutiny of, data provided by a contractor business system that has been disapproved.
“(c)
“(1) In the event a contractor business system is disapproved pursuant to subsection (b)(5), appropriate officials of the Department of Defense will be available to work with the contractor to develop a corrective action plan defining specific actions to be taken to address the significant deficiencies identified in the system and a schedule for the implementation of such actions.
“(2) An appropriate official of the Department of Defense may withhold up to 10 percent of progress payments, performance-based payments, and interim payments under covered contracts from a covered contractor, as needed to protect the interests of the Department and ensure compliance, if one or more of the contractor business systems of the contractor has been disapproved pursuant to subsection (b)(5) and has not subsequently received approval.
“(3) The amount of funds to be withheld under paragraph (2) shall be reduced if a contractor adopts an effective corrective action plan pursuant to paragraph (1) and is effectively implementing such plan.
“(d)
“(e)
“(f)
“(1) The term ‘contractor business system’ means an accounting system, estimating system, purchasing system, earned value management system, material management and accounting system, or property management system of a contractor.
“(2) The term ‘covered contractor’ means a contractor that is subject to the cost accounting standards under section 26 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422) [now 41 U.S.C. 1501 et seq.].
“(3) The term ‘covered contract’ means a cost-reimbursement contract, incentive-type contract, time-and-materials contract, or labor-hour contract that could be affected if the data produced by a contractor business system has a significant deficiency.
“(4) The term ‘significant deficiency’, in the case of a contractor business system, means a shortcoming in the system that materially affects the ability of officials of the Department of Defense and the contractor to rely upon information produced by the system that is needed for management purposes.
“(g)
“(1)
“(A) the Defense Contract Audit Agency has sufficient legal resources and expertise to conduct its work in compliance with applicable Department of Defense policies and procedures; and
“(B) such resources and expertise are provided in a manner that is consistent with the audit independence of the Defense Contract Audit Agency.
“(2)
Pub. L. 111–84, div. A, title VIII, §805, Oct. 28, 2009, 123 Stat. 2403, provided that:
“(a)
“(1) maximize competition and make the best possible use of available Department of Defense and industry resources at the system, subsystem, and component levels; and
“(2) maximize value to the Department of Defense by providing the best possible product support outcomes at the lowest operations and support cost.
“(b)
“(1)
“(2)
“(A) develop and implement a comprehensive product support strategy for the weapon system;
“(B) conduct appropriate cost analyses to validate the product support strategy, including cost-benefit analyses as outlined in Office of Management and Budget Circular A–94;
“(C) assure achievement of desired product support outcomes through development and implementation of appropriate product support arrangements;
“(D) adjust performance requirements and resource allocations across product support integrators and product support providers as necessary to optimize implementation of the product support strategy;
“(E) periodically review product support arrangements between the product support integrators and product support providers to ensure the arrangements are consistent with the overall product support strategy; and
“(F) prior to each change in the product support strategy or every five years, whichever occurs first, revalidate any business-case analysis performed in support of the product support strategy.
“(c)
“(d)
“(1) The term ‘product support’ means the package of support functions required to field and maintain the readiness and operational capability of major weapon systems, subsystems, and components, including all functions related to weapon system readiness.
“(2) The term ‘product support arrangement’ means a contract, task order, or any type of other contractual arrangement, or any type of agreement or non-contractual arrangement within the Federal Government, for the performance of sustainment or logistics support required for major weapon systems, subsystems, or components. The term includes arrangements for any of the following:
“(A) Performance-based logistics.
“(B) Sustainment support.
“(C) Contractor logistics support.
“(D) Life-cycle product support.
“(E) Weapon systems product support.
“(3) The term ‘product support integrator’ means an entity within the Federal Government or outside the Federal Government charged with integrating all sources of product support, both private and public, defined within the scope of a product support arrangement.
“(4) The term ‘product support provider’ means an entity that provides product support functions. The term includes an entity within the Department of Defense, an entity within the private sector, or a partnership between such entities.
“(5) The term ‘major weapon system’ has the meaning given that term in section 2302d of title 10, United States Code.”
Pub. L. 111–84, div. A, title VIII, §819, Oct. 28, 2009, 123 Stat. 2409, provided that:
“(a)
“(1) the provision of advanced component development or prototype of technology developed under the contract; or
“(2) the delivery of initial or additional prototype items if the item or a prototype thereof is created as the result of work performed under the contract.
“(b)
“(1)
“(2)
“(3)
“(A) The amount that is three times the dollar value of the work previously performed under the contract.
“(B) $20,000,000.
“(4)
“(c)
“(1) the number of times a contract line item or contract option was exercised under such authority, the dollar amount of each such line item or option, and the scope of each such line item or option;
“(2) the circumstances that rendered the military department or defense agency unable to solicit and award a follow-on development or production contract in a timely fashion, but for the use of such authority;
“(3) the extent to which such authority affected competition and technology transition; and
“(4) such recommendations as the Secretary considers appropriate, including any recommendations regarding the modification or extension of such authority.”
Pub. L. 111–84, div. A, title X, §1062, Oct. 28, 2009, 123 Stat. 2468, provided that:
“(a)
“(1)
“(2)
“(A) An identification of each covered earmark that has been included in a national defense authorization Act for three or more consecutive fiscal years as of the date of the enactment of this Act.
“(B) A description of the extent to which competitive or merit-based procedures were used to award funding, or to enter into a contract, grant, or other agreement, pursuant to each covered earmark.
“(C) An identification of the specific contracting vehicle used for each covered earmark.
“(D) In the case of any covered earmark for which competitive or merit-based procedures were not used to award funding, or to enter into the contract, grant, or other agreement, a statement of the reasons competitive or merit-based procedures were not used.
“(b)
“(c)
“(1) The term ‘congressional earmark’ means any congressionally directed spending item (Senate) or congressional earmark (House of Representatives) on a list published in compliance with rule XLIV of the Standing Rules of the Senate or rule XXI of the Rules of the House of Representatives.
“(2) The term ‘covered earmark’ means any congressional earmark identified in the joint explanatory statement to accompany the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417) that was printed in the Congressional Record on September 23, 2008.
“(3) The term ‘national defense authorization Act’ means an Act authorizing funds for a fiscal year for the military activities of the Department of Defense, and for other purposes.”
Pub. L. 111–23, title II, §201(a), May 22, 2009, 123 Stat. 1719, provided that:
“(1)
“(2)
“(A) Department of Defense officials responsible for acquisition, budget, and cost estimating functions are provided an appropriate opportunity to develop estimates and raise cost and schedule matters before performance objectives are established for capabilities for which the Chairman of the Joint Requirements Oversight Council is the validation authority; and
“(B) the process for developing requirements is structured to enable incremental, evolutionary, or spiral acquisition approaches, including the deferral of technologies that are not yet mature and capabilities that are likely to significantly increase costs or delay production until later increments or spirals.”
Pub. L. 111–23, title III, §301, May 22, 2009, 123 Stat. 1730, provided that:
“(a)
“(b)
“(1) Procedures for the nomination by the personnel of the military departments and the Defense Agencies of individuals and teams of members of the Armed Forces and civilian personnel of the Department of Defense for eligibility for recognition under the program.
“(2) Procedures for the evaluation of nominations for recognition under the program by one or more panels of individuals from the Government, academia, and the private sector who have such expertise, and are appointed in such manner, as the Secretary shall establish for purposes of the program.
“(c)
Pub. L. 110–417, [div. A], title II, §254, Oct. 14, 2008, 122 Stat. 4402, 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 2302(5) 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.”
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, 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, or local agencies, nonprofit organizations, universities, or 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) An explanation for any significant difference in the cost of procuring military working dogs from different sources.
“(d)
Pub. L. 110–417, [div. A], title VIII, §852, Oct. 14, 2008, 122 Stat. 4543, provided that:
“(a)
“(1) Department of Defense contracts, subcontracts, and task and delivery orders for—
“(A) depot overhaul and maintenance of equipment for the military in Iraq and Afghanistan; and
“(B) spare parts for military equipment used in Iraq and Afghanistan; and
“(2) Department of Defense in-house overhaul and maintenance of military equipment used in Iraq and Afghanistan.
“(b)
“(1)
“(2)
“(c)
“(d)
“(e)
Pub. L. 110–417, [div. A], title VIII, §884, Oct. 14, 2008, 122 Stat. 4560, provided that:
“(a)
“(b)
“(c)
“(d)
Pub. L. 110–181, div. A, title VIII, §815(b), Jan. 28, 2008, 122 Stat. 223, provided that: “Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall modify the regulations of the Department of Defense on the procurement of commercial items in order to clarify that the terms ‘general public’ and ‘nongovernmental entities’ in such regulations do not include the Federal Government or a State, local, or foreign government.”
Pub. L. 110–181, div. A, title VIII, §842, Jan. 28, 2008, 122 Stat. 234, provided that:
“(a)
“(1) Department of Defense contracts, subcontracts, and task and delivery orders for the logistical support of coalition forces in Iraq and Afghanistan; and
“(2) Federal agency contracts, subcontracts, and task and delivery orders for the performance of security and reconstruction functions in Iraq and Afghanistan.
“(b)
“(1) The Department of Defense Inspector General shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(1), consistent with the requirements of subsection (g), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
“(2) The Special Inspector General for Iraq Reconstruction shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(2) relating to Iraq, consistent with the requirements of subsection (h), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
“(3) The Special Inspector General for Afghanistan Reconstruction shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(2) relating to Afghanistan, consistent with the requirements of subsection (h), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
“(c)
“(d)
“(e)
“(f)
“(g)
“(1) The manner in which contract requirements were developed.
“(2) The procedures under which contracts or task or delivery orders were awarded.
“(3) The terms and conditions of contracts or task or delivery orders.
“(4) The staffing and method of performance of contractors, including cost controls.
“(5) The efficacy of Department of Defense management and oversight, including the adequacy of staffing and training of officials responsible for such management and oversight.
“(6) The flow of information from contractors to officials responsible for contract management and oversight.
“(h)
“(1) The manner in which contract requirements were developed and contracts or task and delivery orders were awarded.
“(2) The manner in which the Federal agency exercised control over the performance of contractors.
“(3) The extent to which operational field commanders were able to coordinate or direct the performance of contractors in an area of combat operations.
“(4) The degree to which contractor employees were properly screened, selected, trained, and equipped for the functions to be performed.
“(5) The nature and extent of any incidents of misconduct or unlawful activity by contractor employees.
“(6) The nature and extent of any activity by contractor employees that was inconsistent with the objectives of operational field commanders.
“(7) The extent to which any incidents of misconduct or unlawful activity were reported, documented, investigated, and (where appropriate) prosecuted.
“(i)
Pub. L. 111–383, div. A, title VIII, §831(b), Jan. 7, 2011, 124 Stat. 4274, provided that:
“(1)
“(2)
“(A) Any contract that is awarded on or after the date that is 120 days after the date of the enactment of this Act.
“(B) Any task or delivery order that is issued on or after the date that is 120 days after the date of the enactment of this Act pursuant to a contract that is awarded before, on, or after the date that is 120 days after the date of the enactment of this Act.
“(3)
“(A) Any contract described in paragraph (2)(A).
“(B) Any task or delivery order described in paragraph (2)(B).”
Pub. L. 111–383, div. A, title VIII, §832(b), Jan. 7, 2011, 124 Stat. 4275, provided that:
“(1)
“(A) The Horn of Africa region.
“(B) Yemen.
“(C) The Philippines.
“(2)
Pub. L. 110–417, [div. A], title VIII, §854(b), Oct. 14, 2008, 122 Stat. 4545, provided that:
“(1)
“(2)
Pub. L. 110–417, [div. A], title VIII, §854(c), Oct. 14, 2008, 122 Stat. 4545, provided that: “Beginning not later than 270 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall make publicly available a numerical accounting of alleged offenses described in section 861(b)(6) of Public Law 110–181 [set out below] that have been reported under that section that occurred after the date of the enactment of this Act. The information shall be updated no less frequently than semi-annually.”
Pub. L. 110–181, div. A, title VIII, subtitle F, Jan. 28, 2008, 122 Stat. 253, as amended by Pub. L. 110–417, [div. A], title VIII, §§853, 854(a), (d), Oct. 14, 2008, 122 Stat. 4544, 4545; Pub. L. 111–84, div. A, title VIII, §813(a)–(c), Oct. 28, 2009, 123 Stat. 2406, 2407; Pub. L. 111–383, div. A, title VIII, §§831(a), 832(a), (c), 835, title X, §1075(d)(9), Jan. 7, 2011, 124 Stat. 4273, 4275, 4276, 4279, 4373, provided that:
“(a)
“(b)
“(1) Identification of the major categories of contracts in Iraq or Afghanistan being awarded by the Department of Defense, the Department of State, or the United States Agency for International Development.
“(2) Identification of the roles and responsibilities of each department or agency for matters relating to contracting for contracts in Iraq or Afghanistan.
“(3) Responsibility for establishing procedures for, and the coordination of, movement of contractor personnel in Iraq or Afghanistan.
“(4) Identification of common databases that will serve as repositories of information on contracts in Iraq or Afghanistan and contractor personnel in Iraq or Afghanistan, including agreement on the elements to be included in the databases, including, at a minimum—
“(A) with respect to each contract—
“(i) a brief description of the contract (to the extent consistent with security considerations);
“(ii) the total value of the contract; and
“(iii) whether the contract was awarded competitively; and
“(B) with respect to contractor personnel—
“(i) the total number of personnel employed on contracts in Iraq or Afghanistan;
“(ii) the total number of personnel performing security functions under contracts in Iraq or Afghanistan; and
“(iii) the total number of personnel working under contracts in Iraq or Afghanistan who have been killed or wounded.
“(5) Responsibility for maintaining and updating information in the common databases identified under paragraph (4).
“(6) Responsibility for the collection and referral to the appropriate Government agency of any information relating to offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) or chapter 212 of title 18, United States Code (commonly referred to as the Military Extraterritorial Jurisdiction Act), including a clarification of responsibilities under section 802(a)(10) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), as amended by section 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364).
“(7) Mechanisms for ensuring that contractors are required to report offenses described in paragraph (6) that are alleged to have been committed by or against contractor personnel to appropriate investigative authorities.
“(8) Responsibility for providing victim and witness protection and assistance to contractor personnel in connection with alleged offenses described in paragraph (6).
“(9) Development of a requirement that a contractor shall provide to all contractor personnel who will perform work on a contract in Iraq or Afghanistan, before beginning such work, information on the following:
“(A) How and where to report an alleged offense described in paragraph (6).
“(B) Where to seek the assistance required by paragraph (8).
“(c)
“(d)
“(1)
“(2)
“(3)
“(4)
“(a)
“(1)
“(2)
“(A) a process for registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations or other significant military operations;
“(B) a process for authorizing and accounting for weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations or other significant military operations;
“(C) a process for the registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors performing private security functions in an area of combat operations or other significant military operations;
“(D) a process under which contractors are required to report all incidents, and persons other than contractors are permitted to report incidents, in which—
“(i) a weapon is discharged by personnel performing private security functions in an area of combat operations or other significant military operations;
“(ii) personnel performing private security functions in an area of combat operations or other significant military operations are killed or injured;
“(iii) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;
“(iv) a weapon is discharged against personnel performing private security functions in an area of combat operations or other significant military operations or personnel performing such functions believe a weapon was so discharged; or
“(v) active, non-lethal countermeasures (other than the discharge of a weapon) are employed by the personnel performing private security functions in an area of combat operations or other significant military operations in response to a perceived immediate threat to such personnel;
“(E) a process for the independent review and, if practicable, investigation of—
“(i) incidents reported pursuant to subparagraph (D); and
“(ii) incidents of alleged misconduct by personnel performing private security functions in an area of combat operations or other significant military operations;
“(F) requirements for qualification, training, screening (including, if practicable, through background checks), and security for personnel performing private security functions in an area of combat operations or other significant military operations;
“(G) guidance to the commanders of the combatant commands on the issuance of—
“(i) orders, directives, and instructions to contractors performing private security functions relating to equipment, force protection, security, health, safety, or relations and interaction with locals;
“(ii) predeployment training requirements for personnel performing private security functions in an area of combat operations or other significant military operations, addressing the requirements of this section, resources and assistance available to contractor personnel, country information and cultural training, and guidance on working with host country nationals and military; and
“(iii) rules on the use of force for personnel performing private security functions in an area of combat operations or other significant military operations;
“(H) a process by which a commander of a combatant command may request an action described in subsection (b)(3); and
“(I) a process by which the training requirements referred to in subparagraph (G)(ii) shall be implemented.
“(3)
“(b)
“(1)
“(2)
“(A) ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with regulations prescribed under subsection (a), including any revisions or updates to such regulations, and follow the procedures established in such regulations for—
“(i) registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations or other significant military operations;
“(ii) authorizing and accounting of weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations or other significant military operations;
“(iii) registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors and subcontractors performing private security functions in an area of combat operations or other significant military operations; and
“(iv) the reporting of incidents in which—
“(I) a weapon is discharged by personnel performing private security functions in an area of combat operations or other significant military operations;
“(II) personnel performing private security functions in an area of combat operations or other significant military operations are killed or injured; or
“(III) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;
“(B) ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with—
“(i) qualification, training, screening (including, if practicable, through background checks), and security requirements established by the Secretary of Defense for personnel performing private security functions in an area of combat operations or other significant military operations;
“(ii) applicable laws and regulations of the United States and the host country, and applicable treaties and international agreements, regarding the performance of the functions of the contractor;
“(iii) orders, directives, and instructions issued by the applicable commander of a combatant command relating to equipment, force protection, security, health, safety, or relations and interaction with locals; and
“(iv) rules on the use of force issued by the applicable commander of a combatant command for personnel performing private security functions in an area of combat operations or other significant military operations;
“(C) cooperate with any investigation conducted by the Department of Defense pursuant to subsection (a)(2)(E) by providing access to employees of the contractor and relevant information in the possession of the contractor regarding the incident concerned; and
“(D) ensure that the contract clause is included in subcontracts awarded to any subcontractor at any tier who is responsible for performing private security functions under the contract.
“(3)
“(4)
“(5)
“(A) an assessment of the feasibility and advisability of carrying out the pilot program; and
“(B) if the Inspector General determines that carrying out the pilot program is feasible and advisable—
“(i) recommendations on the range of contracts and subcontracts to which the pilot program should apply; and
“(ii) a schedule of fines to be imposed under the pilot program for various types of personnel actions or failures.
“(c)
“(1) ensure that the contractor responsible for performing private security functions under such contract comply with the regulatory requirements prescribed pursuant to subsection (a) and the contract requirements established pursuant to subsection (b); and
“(2) make the determinations required by subsection (d).
“(d)
“(1) shall be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of the past performance of the contractor for the purpose of a contract award decision, as provided in section 6(j) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 405(j) [now 41 U.S.C. 1126]);
“(2) in the case of an award fee contract—
“(A) shall be considered in any evaluation of contract performance by the contractor for the relevant award fee period; and
“(B) may be a basis for reducing or denying award fees for such period, or for recovering all or part of award fees previously paid for such period; and
“(3) in the case of a failure to comply that is severe, prolonged, or repeated—
“(A) shall be referred to the suspension or debarment official for the appropriate agency; and
“(B) may be a basis for suspension or debarment of the contractor.
“(e)
“(f)
“(1)
“(2)
“(3)
“(4)
“(5)
“(g)
“(h)
“(1)
“(2)
“(a)
“(1)
“(2)
“(A) Total number of contracts awarded.
“(B) Total number of active contracts.
“(C) Total value of all contracts awarded.
“(D) Total value of active contracts.
“(E) The extent to which such contracts have used competitive procedures.
“(F) Total number of contractor personnel working on contracts at the end of each quarter of the reporting period.
“(G) Total number of contractor personnel who are performing security functions at the end of each quarter of the reporting period.
“(H) Total number of contractor personnel killed or wounded.
“(3)
“(A) The sources of information and data used to compile the information required under paragraph (2).
“(B) A description of any known limitations of the data reported under paragraph (2), including known limitations of the methodology and data sources used to compile the report.
“(C) Any plans for strengthening collection, coordination, and sharing of information on contracts in Iraq and Afghanistan through improvements to the common databases identified under section 861(b)(4).
“(4)
“(5)
“(6)
“(7)
“(b)
“(1)
“(2)
“(A) assess the data and data sources used in developing the joint report;
“(B) review how the Department of Defense, the Department of State, and the United States Agency for International Development are using the data and the data sources used to develop the joint report in managing, overseeing, and coordinating contracting in Iraq and Afghanistan;
“(C) assess the plans of the departments and agency for strengthening or improving the common databases identified under section 861(b)(4); and
“(D) review and make recommendations on any specific contract or class of contracts that the Comptroller General determines raises issues of significant concern.
“(3)
“(a)
“(1)
“(2)
“(3)
“(A) a contract of a Federal agency for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862;
“(B) a subcontract at any tier under such a contract;
“(C) a task order or delivery order issued under such a contract or subcontract;
“(D) a grant for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862; or
“(E) a cooperative agreement for the performance of services in such an area of combat operations.
“(4)
“(A) in the case of a covered contract that is a contract, subcontract, task order, or delivery order, the contractor or subcontractor carrying out the covered contract;
“(B) in the case of a covered contract that is a grant, the grantee; and
“(C) in the case of a covered contract that is a cooperative agreement, the recipient.
“(5)
“(6)
“(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.
“(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.
“(7)
“(A) The Committees on Armed Services of the Senate and the House of Representatives.
“(B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives.
“(C) The Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.
“(D) For purposes of contracts relating to the National Foreign Intelligence Program, the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
“(b)
Pub. L. 110–181, div. A, title VIII, §886, Jan. 28, 2008, 122 Stat. 266, provided that:
“(a)
“(1) competition is limited to products or services that are from Iraq or Afghanistan;
“(2) procedures other than competitive procedures are used to award a contract to a particular source or sources from Iraq or Afghanistan; or
“(3) a preference is provided for products or services that are from Iraq or Afghanistan.
“(b)
“(1) the product or service concerned is to be used only by the military forces, police, or other security personnel of Iraq or 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 Iraq or Afghanistan; and
“(B) such limitation, procedure, or preference will not adversely affect—
“(i) military operations or stability operations in Iraq or Afghanistan; or
“(ii) the United States industrial base.
“(c)
“(1) A product is from Iraq or Afghanistan if it is mined, produced, or manufactured in Iraq or Afghanistan.
“(2) A service is from Iraq or Afghanistan if it is performed in Iraq or Afghanistan by citizens or permanent resident aliens of Iraq or Afghanistan.
“(3) A source is from Iraq or Afghanistan if it—
“(A) is located in Iraq or Afghanistan; and
“(B) offers products or services that are from Iraq or Afghanistan.”
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)
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 (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)
Pub. L. 109–364, div. A, title VIII, §812, Oct. 17, 2006, 120 Stat. 2317, as amended by Pub. L. 110–417, [div. A], title VIII, §813(d)(3), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–84, div. A, title X, §1073(c)(5), Oct. 28, 2009, 123 Stat. 2474, provided that:
“(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 2366b 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)
[Pub. L. 111–84, div. A, title X, §1073(c), Oct. 28, 2009, 123 Stat. 2474, provided that the amendment made by section 1073(c)(5) to section 813(d)(3) of Pub. L. 110–417, set out above, is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 as enacted.]
Pub. L. 111–84, div. A, title VIII, §823, Oct. 28, 2009, 123 Stat. 2412, as amended by Pub. L. 111–383, div. A, title VIII, §834(a)–(c), Jan. 7, 2011, 124 Stat. 4278, 4279, provided that:
“(a)
“(1) provide for the consideration of any incident described in subsection (b) in evaluations of contractor performance for the relevant award fee period; and
“(2) authorize the Secretary to reduce or deny award fees for the relevant award fee period, or to recover all or part of award fees previously paid for such period, on the basis of the negative impact of such incident on contractor performance.
“(b)
“(1) has been determined, through a criminal, civil, or administrative proceeding that results in a disposition listed in subsection (c), in the performance of a covered contract to have caused serious bodily injury or death to any civilian or military personnel of the Government through gross negligence or with reckless disregard for the safety of such personnel; or
“(2) has been determined, through a criminal, civil, or administrative proceeding that results in a disposition listed in subsection (c), to be liable for actions of a subcontractor of the contractor that caused serious bodily injury or death to any civilian or military personnel of the Government, through gross negligence or with reckless disregard for the safety of such personnel.
“(c)
“(1) In a criminal proceeding, a conviction.
“(2) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.
“(3) In an administrative proceeding, a finding of fault and liability that results in—
“(A) the payment of a monetary fine or penalty of $5,000 or more; or
“(B) the payment of a reimbursement, restitution, or damages in excess of $100,000.
“(4) To the maximum extent practicable and consistent with applicable laws and regulations, in a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the person if the proceeding could have led to any of the outcomes specified in paragraph (1), (2), or (3).
“(5) In an administrative proceeding, a final determination of contractor fault by the Secretary of Defense pursuant to subsection (d).
“(d)
“(1)
“(A) provide for an expeditious independent investigation of the causes of the serious bodily injury or death alleged to have been caused by the contractor as described in that paragraph; and
“(B) make a final determination, pursuant to procedures established by the Secretary for purposes of this subsection, whether the contractor, in the performance of a covered contract, caused such serious bodily injury or death through gross negligence or with reckless disregard for the safety of civilian or military personnel of the Government.
“(2)
“(A) a contractor, in the performance of a covered contract, may have caused the serious bodily injury or death of any civilian or military personnel of the Government; and
“(B) such contractor is not subject to the jurisdiction of United States courts.
“(3)
“(e)
“(1) The term ‘contractor’ means a company awarded a covered contract and a subcontractor at any tier under such contract.
“(2) The term ‘covered contract’ means a contract awarded by the Department of Defense for the procurement of goods or services.
“(3) The term ‘serious bodily injury’ means a grievous physical harm that results in a permanent disability.
“(f)
[Pub. L. 111–383, div. A, title VIII, §834(e), Jan. 7, 2011, 124 Stat. 4279, provided that: “The requirements of section 823 of the National Defense Authorization Act for Fiscal Year 2010 [Pub. L. 111–84, set out above], as amended by subsections (a) through (c), shall apply with respect to the following:
[“(1) Any contract entered into on or after the date of the enactment of this Act [Jan. 7, 2011].
[“(2) Any task order or delivery order issued on or after the date of the enactment of this Act under a contract entered into before, on, or after that date.”]
Pub. L. 110–329, div. C, title VIII, §8105, Sept. 30, 2008, 122 Stat. 3644, provided that: “During the current fiscal year and hereafter, none of the funds appropriated or otherwise available to the Department of Defense may be obligated or expended to provide award fees to any defense contractor contrary to the provisions of section 814 of the National Defense Authorization Act, Fiscal Year 2007 (Public Law 109–364) [set out below].”
Pub. L. 109–364, div. A, title VIII, §814, Oct. 17, 2006, 120 Stat. 2321, provided that:
“(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)
Pub. L. 109–364, div. A, title VIII, §832, Oct. 17, 2006, 120 Stat. 2331, as amended by Pub. L. 110–181, div. A, title VIII, §883, Jan. 28, 2008, 122 Stat. 264; Pub. L. 110–417, [div. A], title X, §1061(b)(5), Oct. 14, 2008, 122 Stat. 4613, provided that:
“(a)
“(b)
“(1) determines that a waiver is in the national interest; 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 ([former] 41 U.S.C. 357(b)) [now 41 U.S.C. 6701(3)].
“(e)
“(1) the contract was in effect as of October 17, 2006;
“(2) the number of flight simulators to be acquired under the contract (or renewal, extension, or follow-on) will not result in the total number of flight simulators acquired by the military department concerned through service contracts to exceed the total number of flight simulators to be acquired under all service contracts of such department for such simulators in effect as of October 17, 2006; and
“(3) in the case of a renewal or extension of, or follow-on contract to, the contract, the Secretary of the military department concerned provides to the congressional defense committees a written notice of the decision to exercise an option to renew or extend the contract, or to issue a solicitation for bids or proposals using competitive procedures for a follow-on contract, and an economic analysis as described in subsection (c) supporting the decision, at least 30 days before carrying out such decision.”
Pub. L. 109–163, div. A, title VIII, §806, Jan. 6, 2006, 119 Stat. 3373, provided that:
“(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.”
Pub. L. 109–163, div. A, title VIII, §817, Jan. 6, 2006, 119 Stat. 3382, provided that:
“(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)
Pub. L. 109–163, div. A, title XII, §1211, Jan. 6, 2006, 119 Stat. 3461, provided that:
“(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 [Pub. L. 105–261] (50 U.S.C. 1701 note).
“(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.”
Pub. L. 108–375, div. A, title I, §141, Oct. 28, 2004, 118 Stat. 1829, provided that:
“(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)
Pub. L. 108–375, div. A, title VIII, §802, Oct. 28, 2004, 118 Stat. 2004, as amended by Pub. L. 109–313, §2(c)(2), Oct. 6, 2006, 120 Stat. 1735, provided that:
“(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)
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.
“(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)
Pub. L. 108–136, div. A, title VIII, §805(a), Nov. 24, 2003, 117 Stat. 1542, provided that: “The Department of Defense shall fully comply with chapter 137 of title 10, United States Code, and other applicable procurement laws and regulations for any contract awarded for reconstruction activities in Iraq, and shall conduct a full and open competition for performing work needed for the reconstruction of the Iraqi oil industry.”
Pub. L. 108–136, div. A, title VIII, §853, Nov. 24, 2003, 117 Stat. 1557, as amended by Pub. L. 108–199, div. H, §110, Jan. 23, 2004, 118 Stat. 438, provided that:
“(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)
Pub. L. 108–136, div. A, title XVI, §1602, Nov. 24, 2003, 117 Stat. 1682, as amended by Pub. L. 110–181, div. A, title X, §1063(g)(3), Jan. 28, 2008, 122 Stat. 324, provided that:
“(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)
Pub. L. 107–314, div. A, title II, §244, Dec. 2, 2002, 116 Stat. 2498, provided that during fiscal years 2003, 2004, and 2005, the Secretary of Defense, acting through the Under Secretary of Defense for Acquisition, Technology, and Logistics, was to carry out a program of outreach to small businesses and nontraditional defense contractors with the purpose of providing a process for reviewing and evaluating research activities of, and new technologies being developed by, small businesses and nontraditional defense contractors that had the potential for meeting a defense requirement or technology development goal of the Department of Defense that related to the mission of the Department of Defense to combat terrorism.
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).”
Pub. L. 107–314, div. A, title III, §352, Dec. 2, 2002, 116 Stat. 2518, provided that:
“(a)
“(b)
“(c)
Pub. L. 107–314, div. A, title III, §365, Dec. 2, 2002, 116 Stat. 2520, as amended by Pub. L. 109–163, div. A, title III, §331, Jan. 6, 2006, 119 Stat. 3195, authorized the Secretary of Defense to make certain logistics support and services available to weapon systems contractors and provided for the expiration of such authority on Sept. 30, 2010.
Pub. L. 107–314, div. A, title VIII, §804, Dec. 2, 2002, 116 Stat. 2604, provided that:
“(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.”
Pub. L. 107–314, div. A, title VIII, §806, Dec. 2, 2002, 116 Stat. 2607, as amended by Pub. L. 108–136, div. A, title VIII, §845, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108–375, div. A, title VIII, §811, Oct. 28, 2004, 118 Stat. 2012; Pub. L. 109–364, div. A, title X, §1071(h), Oct. 17, 2006, 120 Stat. 2403; Pub. L. 111–383, div. A, title VIII, §803, Jan. 7, 2011, 124 Stat. 4255, provided that:
“(a)
“(1)(A) currently under development by the Department of Defense or available from the commercial sector; or
“(B) require only minor modifications to supplies described in subparagraph (A);
“(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 supplies that meet the needs communicated by the combatant commands and the Joint Chiefs of Staff.
“(2) Procedures for demonstrating, rapidly acquiring, and deploying supplies proposed pursuant to paragraph (1)(B), including—
“(A) a process for demonstrating performance and evaluating for current operational purposes the existing capability of the supplies;
“(B) a process for developing an acquisition and funding strategy for the deployment of the supplies; and
“(C) a process for making deployment and utilization 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 supplies are urgently needed to eliminate a deficiency that has resulted in combat casualties, or is likely to result in combat casualties, the Secretary shall designate a senior official of the Department of Defense to ensure that the needed supplies are acquired and deployed as quickly as possible, with a goal of awarding a contract for the acquisition of the supplies 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 supplies. In a case in which the needed supplies 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 deficiency and combat casualties.
“(3) In any fiscal year in which the Secretary makes a determination described in paragraph (1), the Secretary may use any funds available to the Department of Defense for that fiscal year for acquisitions of supplies under this section if the determination includes a written finding that the use of such funds is necessary to address the combat capability deficiency in a timely manner. The authority of this section may not be used to acquire supplies in an amount aggregating more than $200,000,000 during any such fiscal year.
“(4) The Secretary of Defense shall, in consultation with the Director of the Office of Management and Budget, 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). For each such determination, the notice under the preceding sentence shall identify—
“(A) the supplies 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 the supplies concerned.
“(d)
“(A) the establishment of the requirement for the supplies;
“(B) the research, development, test, and evaluation of the supplies; or
“(C) the solicitation and selection of sources, and the award of the contract, for procurement of the supplies.
“(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 supplies in meeting the original requirements for the supplies (as stated in a statement of the urgent operational need or similar document) to the deployment decisionmaking authority.
“(2) The process may not include a requirement for any deficiency of supplies to be the determining factor in deciding whether to deploy the supplies.
“(3) If supplies 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 supplies, the Director of Operational Test and Evaluation shall have access to operational records and data relevant to such supplies in accordance with section 139(e)(3) of title 10, United States Code, for the purpose of completing operational test and evaluation of the supplies. 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)
Pub. L. 107–107, div. A, title III, §318, Dec. 28, 2001, 115 Stat. 1055, provided that:
“(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).”
Pub. L. 107–107, div. A, title VIII, §836, Dec. 28, 2001, 115 Stat. 1192, provided special authorities relating to increased flexibility for use of streamlined procedures and commercial item treatment for procurements of biotechnology to facilitate the defense against terrorism or biological or chemical attack which would be applicable to procurements for which funds had been obligated during fiscal years 2002 and 2003, directed the Secretary of Defense to submit to committees of Congress, not later than Mar. 1, 2002, a report containing the Secretary's recommendations for additional emergency procurement authority that the Secretary had determined necessary to support operations carried out to combat terrorism, and provided that no contract could be entered into pursuant to such authority after Sept. 30, 2003.
Pub. L. 106–398, §1 [[div. A], title VIII, §821], Oct. 30, 2000, 114 Stat. 1654, 1654A–217, as amended by Pub. L. 108–136, div. A, title XIV, §1431(c), Nov. 24, 2003, 117 Stat. 1672, provided that:
“(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. Pub. L. 108–136, div. A, title XIV, §1431(c), Nov. 24, 2003, 117 Stat. 1672.]
“(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 ([former] 41 U.S.C. 403(12)) [see 41 U.S.C. 103].
“(3) The term ‘Defense Agency’ has the meaning given the term in section 101(a)(11) of title 10, United States Code.”
Pub. L. 106–65, div. A, title VIII, §812(a)–(c), (e), Oct. 5, 1999, 113 Stat. 709, 710, provided that:
“(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)
Pub. L. 104–201, div. A, title VIII, §831, Sept. 23, 1996, 110 Stat. 2615, directed the Secretary of Defense to ensure that all information technology acquired by the Department of Defense pursuant to contracts entered into after Sept. 30, 1996, would have the capabilities to process date and date-related data in 2000, and directed the Secretary to assess all information technology within the Department to determine the extent to which such technology would have the capabilities to operate effectively, and to submit to Congress a detailed plan for eliminating any deficiencies not later than Jan. 1, 1997.
Pub. L. 104–106, div. A, title VIII, §822, Feb. 10, 1996, 110 Stat. 396, as amended by Pub. L. 106–65, div. A, title X, §1067(6), Oct. 5, 1999, 113 Stat. 774, provided that:
“(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 ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)].
“(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 ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)].
“(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 ([former] 41 U.S.C. 430) [now 41 U.S.C. 1906] 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 (Public Law 103–355) [see Tables for classification] (or an amendment made by a provision of either 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.
“(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.”
Pub. L. 102–484, div. A, title III, §326, Oct. 23, 1992, 106 Stat. 2368, as amended by Pub. L. 104–106, div. A, title XV, §§1502(c)(2)(A), 1504(c)(1), Feb. 10, 1996, 110 Stat. 506, 514; Pub. L. 106–65, div. A, title X, §1067(8), Oct. 5, 1999, 113 Stat. 774, provided that:
“(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 ([former] 41 U.S.C. 421(c)) [now 41 U.S.C. 1303(a)].”
Pub. L. 102–190, div. A, title VIII, §806, Dec. 5, 1991, 105 Stat. 1417, as amended by Pub. L. 102–484, div. A, title X, §1053(5), Oct. 23, 1992, 106 Stat. 2502; Pub. L. 103–355, title II, §2091, title VIII, §8105(k), Oct. 13, 1994, 108 Stat. 3306, 3393, provided that:
“(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)
Pub. L. 101–510, div. A, title VIII, §800, Nov. 5, 1990, 104 Stat. 1587, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729, directed Under Secretary of Defense for Acquisition and Technology, not later than Jan. 15, 1991, to establish under sponsorship of Defense Systems Management College an advisory panel on streamlining and codifying acquisition laws, to review the acquisition laws applicable to Department of Defense with a view toward streamlining the defense acquisition process, to make any recommendations for repeal or amendment of such laws that the panel considers necessary, as a result of such review, and to prepare a proposed code of relevant acquisition laws, directed the advisory panel, not later than Dec. 15, 1992, to transmit a final report on the actions of the panel to the Under Secretary of Defense for Acquisition and Technology, and directed the Secretary of Defense, not later than Jan. 15, 1993, to transmit the final report, together with such comments as he deems appropriate, to Congress.
Pub. L. 106–65, div. A, title VIII, §811(d)(2), (3), Oct. 5, 1999, 113 Stat. 708, 709, as amended by Pub. L. 107–107, div. A, title X, §1048(g)(5), Dec. 28, 2001, 115 Stat. 1228, directed the Secretary of Defense to conduct a review of the Mentor-Protege Program established in Pub. L. 101–510, §831, set out below, to assess the feasibility of transitioning such program to operation without a specific appropriation or authority to provide reimbursement to a mentor firm and to assess additional incentives that could be extended to mentor firms to ensure adequate support and participation in the Program, directed the Secretary to submit to committees of Congress a report on the results of the review and recommendations not later than Sept. 30, 2000, and directed the Comptroller General to conduct a study on the implementation of the Program and the extent to which the Program was achieving its purposes in a cost-effective manner and to submit to committees of Congress a report on the results of the study not later than Jan. 1, 2002.
Pub. L. 102–484, div. A, title VIII, §807(a), Oct. 23, 1992, 106 Stat. 2448, directed the Secretary of Defense, within 15 days after Oct. 23, 1992, to publish in the Department of Defense Supplement to the Federal Acquisition Regulation the Department of Defense policy for the pilot Mentor-Protege Program and the regulations, directives, and administrative guidance pertaining to such program as such policy, regulations, directives, and administrative guidance had existed on Dec. 6, 1991, and directed that proposed modifications to that policy and any amendments proposed in order to implement any of the amendments made by this section, amending Pub. L. 101–510, §831, set out below, were to be published in final form within 120 days after Oct. 23, 1992.
Pub. L. 101–510, div. A, title VIII, §831, Nov. 5, 1990, 104 Stat. 1607, as amended by Pub. L. 102–25, title VII, §704(c), Apr. 6, 1991, 105 Stat. 119; Pub. L. 102–172, title VIII, §8064A, Nov. 26, 1991, 105 Stat. 1186; Pub. L. 102–190, div. A, title VIII, §814(b), Dec. 5, 1991, 105 Stat. 1425; Pub. L. 102–484, div. A, title VIII, §§801(h)(4), 807(b)(1), title X, §1054(d), Oct. 23, 1992, 106 Stat. 2445, 2448, 2503; Pub. L. 103–160, div. A, title VIII, §813(b)(1), (c), Nov. 30, 1993, 107 Stat. 1703; Pub. L. 104–106, div. A, title VIII, §824, Feb. 10, 1996, 110 Stat. 399; Pub. L. 104–201, div. A, title VIII, §802, Sept. 23, 1996, 110 Stat. 2604; Pub. L. 105–85, div. A, title VIII, §821(a), title X, §1073(c)(6), Nov. 18, 1997, 111 Stat. 1840, 1904; Pub. L. 106–65, div. A, title VIII, §811(a)–(d)(1), (e), Oct. 5, 1999, 113 Stat. 706, 707, 709; Pub. L. 106–398, §1 [[div. A], title VIII, §807], Oct. 30, 2000, 114 Stat. 1654, 1654A–208; Pub. L. 107–107, div. A, title VIII, §812, Dec. 28, 2001, 115 Stat. 1181; Pub. L. 108–375, div. A, title VIII, §§841(a), (b), 842, Oct. 28, 2004, 118 Stat. 2018, 2019, provided that:
“(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 ([former] 41 U.S.C. 46 [now 41 U.S.C. 8502]; popularly known as the ‘Wagner-O'Day Act’) [now known as the “Javits-Wagner-O'Day Act”; now 41 U.S.C. 8501 et seq.], is of such a nature that the individual is otherwise prevented from engaging in normal competitive employment.”
[Pub. L. 106–65, div. A, title VIII, §811(f), Oct. 5, 1999, 113 Stat. 709, provided that:
[“(1) The amendments made by this section [amending section 831 of Pub. L. 101–510, set out above] shall take effect on October 1, 1999, and shall apply with respect to mentor-protege agreements that are entered into under section 831(e) of the National Defense Authorization Act for Fiscal Year 1991 [Pub. L. 101–510, set out above] on or after that date.
[“(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 Pub. L. 102–484 provided that: “The amendment made by this subsection [amending section 831 of Pub. L. 101–510, set out above] shall take effect as of November 5, 1990.”]
Pub. L. 101–189, div. A, title VIII, §832, Nov. 29, 1989, 103 Stat. 1508, which provided credit for Indian contracting in meeting certain minority contracting goals, was repealed and restated in section 2323a of this title by Pub. L. 102–484, §801(g)(1)(B), (h)(5).
Pub. L. 101–165, title IX, §9004, Nov. 21, 1989, 103 Stat. 1129, provided that: “During the current fiscal year and hereafter, the Secretary of Defense and each purchasing and contracting agency of the Department of Defense shall assist American small and minority-owned business to participate equitably in the furnishing of commodities and services financed with funds appropriated under this Act [see Tables for classification] by increasing, to an optimum level, the resources and number of personnel jointly assigned to promoting both small and minority business involvement in purchases financed with funds appropriated herein, and by making available or causing to be made available to such businesses, information, as far in advance as possible, with respect to purchases proposed to be financed with funds appropriated under this Act, and by assisting small and minority business concerns to participate equitably as subcontractors on contracts financed with funds appropriated herein, and by otherwise advocating and providing small and minority business opportunities to participate in the furnishing of commodities and services financed with funds appropriated by this Act.”
Pub. L. 100–180, div. A, title VIII, §806(a)–(c), Dec. 4, 1987, 101 Stat. 1126, 1127, directed Secretary of Defense to issue regulations to ensure that substantial progress was made in increasing awards of Department of Defense contracts to small business concerns, historically Black colleges and universities, and minority institutions described in section 1207(a) of Pub. L. 99–661 [formerly set out below], prior to repeal by Pub. L. 102–484, div. A, title VIII, §801(h)(7), Oct. 23, 1992, 106 Stat. 2446.
Pub. L. 100–26, §§2, 6, Apr. 21, 1987, 101 Stat. 273, 274, provided that:
“For purposes of this Act [Pub. L. 100–26, see Short Title of 1987 Amendment note set out under section 101 of this title]:
“(1) The term ‘Defense Authorization Act’ means the Department of Defense Authorization Act, 1987 (division A of Public Law 99–661; 100 Stat. 3816 et seq.).
“(2) The term ‘Defense Appropriations Act’ means the Department of Defense Appropriations Act, 1987 (as contained in identical form in section 101(c) of Public Law 99–500 (100 Stat. 1783–82 et seq.) and section 101(c) of Public Law 99–591 (100 Stat. 3341–82 et seq.)).
“(3) The term ‘Defense Acquisition Improvement Act’ means title X of the Defense Appropriations Act [100 Stat. 1783–130, 3341–130] and title IX of the Defense Authorization Act [100 Stat. 3910] (as designated by the amendment made by section 3(5) [section 3(5) of Pub. L. 100–26]). Any reference in this Act to the Defense Acquisition Improvement Act shall be considered to be a reference to each such title.”
“(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 Public Law 99–500 | Section 101(c) of Public Law 99–591 | Division A of Public Law 99–661 |
|---|---|---|
| “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.]
Section 1207 of Pub. L. 99–661, as amended by Pub. L. 100–180, div. A, title VIII, §806(d), 101 Stat. 1127; Pub. L. 100–456, div. A, title VIII, §844, Sept. 29, 1988, 102 Stat. 2027; Pub. L. 101–189, div. A, title VIII, §831, Nov. 29, 1989, 103 Stat. 1507; Pub. L. 101–510, div. A, title VIII, §§811, 832, title XIII, §§1302(d), 1312(b), Nov. 5, 1990, 104 Stat. 1596, 1612, 1669, 1670; Pub. L. 102–25, title VII, §§704(a)(6), 705(e), Apr. 6, 1991, 105 Stat. 118, 120, which set contract goals for small disadvantaged businesses and certain institutions of higher education, was repealed and restated in section 2323 of this title by Pub. L. 102–484, §801(a)(1)(B), (h)(1).
Pub. L. 99–145, title IX, §913, Nov. 8, 1985, 99 Stat. 687, as amended by Pub. L. 101–510, div. A, title XIII, §1322(d)(1), Nov. 5, 1990, 104 Stat. 1672, provided that:
“(a)
“(b)
Section 1202 of Pub. L. 98–525, as amended by Pub. L. 99–500, §101(c) [title X, §953(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–172, and Pub. L. 99–591, §101(c) [title X, §953(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–172; Pub. L. 99–661, div. A, title IX, formerly title IV, §953(c), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “The Congress finds that recent disclosures of excessive payments by the Department of Defense for replenishment parts have undermined confidence by the public and Congress in the defense procurement system. The Secretary of Defense should make every effort to reform procurement practices relating to replenishment parts. Such efforts should, among other matters, be directed to the elimination of excessive pricing of replenishment spare parts and the recovery of unjustified payments. Specifically, the Secretary should—
“(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.”
Section 909(d) of Pub. L. 97–86 directed Secretary of Defense, not later than the end of the 90-day period beginning Dec. 1, 1981, to issue such modifications to existing regulations governing defense acquisitions as might be necessary to implement the amendments made by subsections (a), (b), and (c) [amending sections 139, 2301, and 2306 of this title] and directed Director of the Office of Management and Budget to issue such modifications to existing Office of Management and Budget directives as might be necessary to take into account the amendments made by subsections (a) and (b) [amending sections 2301 and 2306 of this title].
Pub. L. 93–365, title VII, §707, Aug. 5, 1974, 88 Stat. 406, which prohibited contracts by the Department of Defense for other than American goods after Aug. 5, 1974, unless adequate consideration was first given to bids of firms in labor surplus areas of the United States, of small business firms, and of all other United States firms which had offered to furnish American goods, balance of payments, cost of shipping other than American goods, and any duty, tariff, or surcharge on such goods, was repealed and restated in section 2501 of this title by Pub. L. 100–370, §3(a), (c). Section 2501 of this title was renumbered section 2506 by Pub. L. 100–456, §821(b)(1)(A). Section 2506 of this title was renumbered section 2533 by Pub. L. 102–484, §4202(a).
1 See References in Text note below.
(a)
(b)
(Added and amended Pub. L. 103–355, title IV, §§4002(a), 4102(a), Oct. 13, 1994, 108 Stat. 3338, 3340; Pub. L. 111–350, §5(b)(9), Jan. 4, 2011, 124 Stat. 3843.)
2011—Subsec. (a). Pub. L. 111–350, §5(b)(9)(A), substituted “section 134 of title 41” for “section 4(11) of the Office of Federal Procurement Policy Act”.
Subsec. (b). Pub. L. 111–350, §5(b)(9)(B), substituted “section 1905 of title 41” for “section 33 of the Office of Federal Procurement Policy Act”.
1994—Subsec. (b). Pub. L. 103–355, §4102(a), added subsec. (b).
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
The simplified acquisition procedures contained in the Federal Acquisition Regulation pursuant to section 1901 of title 41 shall apply as provided in such section to the agencies named in section 2303(a) of this title.
(Added Pub. L. 103–355, title IV, §4203(a)(1), Oct. 13, 1994, 108 Stat. 3345; amended Pub. L. 111–350, §5(b)(10), Jan. 4, 2011, 124 Stat. 3843.)
2011—Pub. L. 111–350 substituted “section 1901 of title 41” for “section 31 of the Office of Federal Procurement Policy Act”.
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
(a)
(2) The Secretary of Defense shall act through the Under Secretary of Defense for Acquisition, Technology, and Logistics to implement the capability within the Department of Defense.
(3) In implementing the electronic commerce capability pursuant to paragraph (1), the head of an agency referred to in paragraph (1) shall consult with the Administrator for Federal Procurement Policy.
(b)
(Added Pub. L. 103–355, title IX, §9002(a), Oct. 13, 1994, 108 Stat. 3402; amended Pub. L. 105–85, div. A, title VIII, §850(f)(3)(A), Nov. 18, 1997, 111 Stat. 1850; Pub. L. 105–129, §1(a)(1), Dec. 1, 1997, 111 Stat. 2551; Pub. L. 106–65, div. A, title X, §1066(a)(18), Oct. 5, 1999, 113 Stat. 771; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 111–350, §5(b)(11), Jan. 4, 2011, 124 Stat. 3843.)
2011—Subsec. (a)(1). Pub. L. 111–350, §5(b)(11)(A), substituted “section 2301 of title 41” for “section 30 of the Office of Federal Procurement Policy Act (41 U.S.C. 426)”.
Subsec. (b). Pub. L. 111–350, §5(b)(11)(B), substituted “section 1702(c) of title 41” for “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))”.
2006—Subsec. (b). Pub. L. 109–364 substituted “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))” for “section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))”.
2001—Subsec. (a)(2). Pub. L. 107–107 substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
1999—Subsec. (b). Pub. L. 106–65 substituted “section 2303(a)” for “section 2303”.
1997—Pub. L. 105–85 substituted “electronic commerce” for “FACNET” in section catchline and amended text generally. Prior to amendment, text read as follows:
“(a)
“(2) In implementing the FACNET capability pursuant to paragraph (1), the head of an agency shall consult with the Administrator for Federal Procurement Policy.
“(b)
Subsec. (a)(1). Pub. L. 105–129 inserted “of section 2303(a) of this title” after “paragraphs (1), (5), and (6)”.
Section 1(a)(2) of Pub. L. 105–129 provided that: “The amendment made by paragraph (1) [amending this section] shall take effect as if included in the amendment to section 2302c of title 10, United States Code, made by section 850(f)(3)(A) of the National Defense Authorization Act for Fiscal Year 1998 [Pub. L. 105–85] to which the amendment made by paragraph (1) relates.”
Section 850(g) of Pub. L. 105–85 provided that:
“(1) Except as provided in paragraph (2), the amendments made by this section [amending this section, section 2304 of this title, section 637 of Title 15, Commerce and Trade, section 1501 of former Title 40, Public Buildings, Property, and Works, and sections 252c, 253, 416, 426, and 427 of Title 41, Public Contracts, repealing section 426a of Title 41, amending provisions set out as a note under section 413 of Title 41, and repealing provisions set out as a note under section 426a of Title 41] shall take effect 180 days after the date of the enactment of this Act [Nov. 18, 1997].
“(2) The repeal made by subsection (c) of this section [repealing provisions set out as a note under section 426a of Title 41] shall take effect on the date of the enactment of this Act.”
Pub. L. 103–355, title IX, §9002(c), Oct. 13, 1994, 108 Stat. 3402, provided that: “A FACNET capability may be implemented and used in an agency before the promulgation of regulations implementing this section (as provided in section 10002) [108 Stat. 3404, formerly set out as a Regulations note under section 251 of former Title 41, Public Contracts]. If such implementation and use occurs, the period for submission of bids or proposals under section 18(a)(3)(B) of the Office of Federal Procurement Policy Act [now 41 U.S.C. 1708(e)(1)(B)], in the case of a solicitation through FACNET, may be less than the period otherwise applicable under that section, but shall be at least 10 days. The preceding sentence shall not be in effect after September 30, 1995.”
(a)
(1) the total expenditures for research, development, test, and evaluation for the system are estimated to be more than $115,000,000 (based on fiscal year 1990 constant dollars); or
(2) the eventual total expenditure for procurement for the system is estimated to be more than $540,000,000 (based on fiscal year 1990 constant dollars).
(b)
(1) $750,000 (based on fiscal year 1980 constant dollars); or
(2) the dollar threshold for a “major system” established by the agency pursuant to Office of Management and Budget (OMB) Circular A–109, entitled “Major Systems Acquisitions”.
(c)
(2) An amount, as adjusted under paragraph (1), that is not evenly divisible by $5,000,000 shall be rounded to the nearest multiple of $5,000,000. In the case of an amount that is evenly divisible by $2,500,000 but not evenly divisible by $5,000,000, the amount shall be rounded to the next higher multiple of $5,000,000.
(3) An adjustment under this subsection shall be effective after the Secretary transmits to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of the adjustment.
(Added Pub. L. 104–201, div. A, title VIII, §805(a)(2), Sept. 23, 1996, 110 Stat. 2605; amended Pub. L. 105–85, div. A, title X, §1073(a)(41), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774.)
1999—Subsec. (c)(3). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1997—Subsec. (a)(2). Pub. L. 105–85 substituted “procurement for the system is estimated to be” for “procurement of”.
(a) This chapter applies to the procurement by any of the following agencies, for its use or otherwise, of all property (other than land) and all services for which payment is to be made from appropriated funds:
(1) The Department of Defense.
(2) The Department of the Army.
(3) The Department of the Navy.
(4) The Department of the Air Force.
(5) The Coast Guard.
(6) The National Aeronautics and Space Administration.
(b) The provisions of this chapter that apply to the procurement of property apply also to contracts for its installation or alteration.
(Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85–568, title III, §301(b), July 29, 1958, 72 Stat. 432; Pub. L. 98–369, div. B, title VII, §2722(b), July 18, 1984, 98 Stat. 1187.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2303(a) 2303(b) |
41:151(a). 41:158 (clause (b), less last 5 words). |
Feb. 19, 1948, ch. 65, §§2(a), 9 (clause (b)), 62 Stat. 21, 24. |
| 2303(c) | 41:158 (last 5 words of clause (b)). |
In subsection (a), the words “all property named in subsection (b), and all services” are substituted for the words “for supplies or services”. The words “(each being hereinafter called the agency)”, are omitted, since the revised sections of this chapter make specific reference to the agencies named in this revised section. The words “United States” before the words “Coast Guard” are omitted, since they are not a part of the official name of the Coast Guard under section 1 of title 14.
In subsection (b), the introductory clause is substituted for the word “supplies”. Throughout the revised chapter reference is made to “property or services covered by this chapter”, instead of “supplies”, since the word “supplies” is defined in section 101(26) of this title in its usual and narrower sense, rather than the sense of the source statute for this revised chapter. It is desirable to avoid a usage which conflicts with the definition in section 101(26) of this title. The word “ships” and the words “of every character, type, and description”, after the word “vessels”, are omitted as covered by the definition of “vessel” in section 1 of title 1.
1984—Subsec. (a). Pub. L. 98–369, §2722(b)(1)(A), (B), substituted in provisions preceding cl. (1) “procurement” for “purchase, and contract to purchase,” and “(other than land) and all services” for “named in subsection (b), and all services,”.
Subsec. (a)(1) to (6). Pub. L. 98–369, §2722(b)(1)(C), (D), added cl. (1) and redesignated existing cls. (1) to (5) as (2) to (6), respectively.
Subsecs. (b), (c). Pub. L. 98–369, §2722(b)(2), (3), redesignated subsec. (c) as (b). Former subsec. (b), which had provided that this chapter did not cover land but did cover public works, buildings, facilities, vessels, floating equipment, aircraft, parts, accessories, equipment, and machine tools, was struck out.
1958—Subsec. (a)(5). Pub. L. 85–568 substituted “The National Aeronautics and Space Administration” for “The National Advisory Committee for Aeronautics”.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Amendment by Pub. L. 85–568 effective 90 days after July 29, 1958, or on any earlier date on which the Administrator of the National Aeronautics and Space Administration determines, and announces by proclamation, that the Administration has been organized and is prepared to discharge the duties and exercise the powers conferred upon it, see note set out under section 2302 of this title.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 90–500, title IV, §404, Sept. 20, 1968, 82 Stat. 851, which provided that no funds for the armed forces were to be used to buy or lease buses other than those manufactured in the United States, except as regulation from the Secretary of Defense might authorize solely to avoid uneconomical procurement or one contrary to the national interest, was repealed and restated as section 2400 of this title by Pub. L. 97–295, §§1(29)(A), 6(b), Oct. 12, 1982, 96 Stat. 1294, 1314.
Section, Pub. L. 98–525, title XII, §1212(a), Oct. 19, 1984, 98 Stat. 2590, related to publication of proposed regulations.
Section, pursuant to section 1212(b) of Pub. L. 98–525, was to have taken effect with respect to procurement policies, regulations, procedures, or forms first proposed to be issued by an agency on or after the date which was 30 days after the date of enactment of Pub. L. 98–525. Pub. L. 98–525 was approved Oct. 19, 1984. However, before that effective date, the section was repealed by Pub. L. 98–577.
(a)(1) Except as provided in subsections (b), (c), and (g) and except in the case of procurement procedures otherwise expressly authorized by statute, the head of an agency in conducting a procurement for property or services—
(A) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this chapter and the Federal Acquisition Regulation; and
(B) shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.
(2) In determining the competitive procedure appropriate under the circumstances, the head of an agency—
(A) shall solicit sealed bids if—
(i) time permits the solicitation, submission, and evaluation of sealed bids;
(ii) the award will be made on the basis of price and other price-related factors;
(iii) it is not necessary to conduct discussions with the responding sources about their bids; and
(iv) there is a reasonable expectation of receiving more than one sealed bid; and
(B) shall request competitive proposals if sealed bids are not appropriate under clause (A).
(b)(1) The head of an agency may provide for the procurement of property or services covered by this chapter using competitive procedures but excluding a particular source in order to establish or maintain an alternative source or sources of supply for that property or service if the head of the agency determines that to do so—
(A) would increase or maintain competition and would likely result in reduced overall costs for such procurement, or for any anticipated procurement, of property or services;
(B) would be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in case of a national emergency or industrial mobilization;
(C) would be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center;
(D) would ensure the continuous availability of a reliable source of supply of such property or service;
(E) would satisfy projected needs for such property or service determined on the basis of a history of high demand for the property or service; or
(F) in the case of medical supplies, safety supplies, or emergency supplies, would satisfy a critical need for such supplies.
(2) The head of an agency may provide for the procurement of property or services covered by this section using competitive procedures, but excluding concerns other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638, 644) and concerns other than small business concerns, historically Black colleges and universities, and minority institutions in furtherance of section 2323 of this title.
(3) A contract awarded pursuant to the competitive procedures referred to in paragraphs (1) and (2) shall not be subject to the justification and approval required by subsection (f)(1).
(4) A determination under paragraph (1) may not be made for a class of purchases or contracts.
(c) The head of an agency may use procedures other than competitive procedures only when—
(1) the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency;
(2) the agency's need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals;
(3) it is necessary to award the contract to a particular source or sources in order (A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization, (B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center, or (C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify;
(4) the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of procedures other than competitive procedures;
(5) subject to subsection (k), a statute expressly authorizes or requires that the procurement be made through another agency or from a specified source, or the agency's need is for a brand-name commercial item for authorized resale;
(6) the disclosure of the agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or
(7) the head of the agency—
(A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned, and
(B) notifies the Congress in writing of such determination not less than 30 days before the award of the contract.
(d)(1) For the purposes of applying subsection (c)(1)—
(A) in the case of a contract for property or services to be awarded on the basis of acceptance of an unsolicited research proposal, the property or services shall be considered to be available from only one source if the source has submitted an unsolicited research proposal that demonstrates a concept—
(i) that is unique and innovative or, in the case of a service, for which the source demonstrates a unique capability of the source to provide the service; and
(ii) the substance of which is not otherwise available to the United States, and does not resemble the substance of a pending competitive procurement; and
(B) in the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in—
(i) substantial duplication of cost to the United States which is not expected to be recovered through competition; or
(ii) unacceptable delays in fulfilling the agency's needs.
(2) The authority of the head of an agency under subsection (c)(7) may not be delegated.
(3)(A) The contract period of a contract described in subparagraph (B) that is entered into by an agency pursuant to the authority provided under subsection (c)(2)—
(i) may not exceed the time necessary—
(I) to meet the unusual and compelling requirements of the work to be performed under the contract; and
(II) for the agency to enter into another contract for the required goods or services through the use of competitive procedures; and
(ii) may not exceed one year unless the head of the agency entering into such contract determines that exceptional circumstances apply.
(B) This paragraph applies to any contract in an amount greater than the simplified acquisition threshold.
(e) The head of an agency using procedures other than competitive procedures to procure property or services by reason of the application of subsection (c)(2) or (c)(6) shall request offers from as many potential sources as is practicable under the circumstances.
(f)(1) Except as provided in paragraph (2), the head of an agency may not award a contract using procedures other than competitive procedures unless—
(A) the contracting officer for the contract justifies the use of such procedures in writing and certifies the accuracy and completeness of the justification;
(B) the justification is approved—
(i) in the case of a contract for an amount exceeding $500,000 (but equal to or less than $10,000,000), by the competition advocate for the procuring activity (without further delegation) or by an official referred to in clause (ii) or (iii);
(ii) in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $75,000,000), by the head of the procuring activity (or the head of the procuring activity's delegate designated pursuant to paragraph (6)(A)); or
(iii) in the case of a contract for an amount exceeding $75,000,000, by the senior procurement executive of the agency designated pursuant to section 1702(c) of title 41 (without further delegation) or in the case of the Under Secretary of Defense for Acquisition, Technology, and Logistics, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(B); and
(C) any required notice has been published with respect to such contract pursuant to section 1708 of title 41 and all bids or proposals received in response to that notice have been considered by the head of the agency.
(2) In the case of a procurement permitted by subsection (c)(2), the justification and approval required by paragraph (1) may be made after the contract is awarded. The justification and approval required by paragraph (1) is not required—
(A) when a statute expressly requires that the procurement be made from a specified source;
(B) when the agency's need is for a brand-name commercial item for authorized resale;
(C) in the case of a procurement permitted by subsection (c)(7);
(D) in the case of a procurement conducted under (i) chapter 85 of title 41, or (ii) section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or
(E) in the case of a procurement permitted by subsection (c)(4), but only if the head of the contracting activity prepares a document in connection with such procurement that describes the terms of an agreement or treaty, or the written directions, referred to in that subsection that have the effect of requiring the use of procedures other than competitive procedures.
(3) The justification required by paragraph (1)(A) shall include—
(A) a description of the agency's needs;
(B) an identification of the statutory exception from the requirement to use competitive procedures and a demonstration, based on the proposed contractor's qualifications or the nature of the procurement, of the reasons for using that exception;
(C) a determination that the anticipated cost will be fair and reasonable;
(D) a description of the market survey conducted or a statement of the reasons a market survey was not conducted;
(E) a listing of the sources, if any, that expressed in writing an interest in the procurement; and
(F) a statement of the actions, if any, the agency may take to remove or overcome any barrier to competition before a subsequent procurement for such needs.
(4) In no case may the head of an agency—
(A) enter into a contract for property or services using procedures other than competitive procedures on the basis of the lack of advance planning or concerns related to the amount of funds available to the agency for procurement functions; or
(B) procure property or services from another agency unless such other agency complies fully with the requirements of this chapter in its procurement of such property or services.
The restriction contained in clause (B) is in addition to, and not in lieu of, any other restriction provided by law.
(5)(A) The authority of the head of a procuring activity under paragraph (1)(B)(ii) may be delegated only to an officer or employee who—
(i) if a member of the armed forces, is a general or flag officer; or
(ii) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of brigadier general or rear admiral (lower half).
(B) The authority of the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (1)(B)(iii) may be delegated only to—
(i) an Assistant Secretary of Defense; or
(ii) with respect to the element of the Department of Defense (as specified in section 111(b) of this title), other than a military department, carrying out the procurement action concerned, an officer or employee serving in or assigned or detailed to that element who—
(I) if a member of the armed forces, is serving in a grade above brigadier general or rear admiral (lower half); or
(II) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of major general or rear admiral.
(g)(1) In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for—
(A) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and
(B) special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial items.
(2) A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures required by paragraph (1).
(3) In using simplified procedures, the head of an agency shall promote competition to the maximum extent practicable.
(4) The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 1901(e) of title 41.
(h) For the purposes of the following, purchases or contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed-bid procedures:
(1) Chapter 65 of title 41.
(2) Sections 3141–3144, 3146, and 3147 of title 40.
(i)(1) The Secretary of Defense shall prescribe by regulation the manner in which the Department of Defense negotiates prices for supplies to be obtained through the use of procedures other than competitive procedures, as defined in section 2302(2) of this title.
(2) The regulations required by paragraph (1) shall—
(A) specify the incurred overhead a contractor may appropriately allocate to supplies referred to in that paragraph; and
(B) require the contractor to identify those supplies which it did not manufacture or to which it did not contribute significant value.
(3) Such regulations shall not apply to an item of supply included in a contract or subcontract for which the price is based on established catalog or market prices of commercial items sold in substantial quantities to the general public.
(j) The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government's requirements.
(k)(1) It is the policy of Congress that an agency named in section 2303(a) of this title should not be required by legislation to award a new contract to a specific non-Federal Government entity. It is further the policy of Congress that any program, project, or technology identified in legislation be procured through merit-based selection procedures.
(2) A provision of law may not be construed as requiring a new contract to be awarded to a specified non-Federal Government entity unless that provision of law—
(A) specifically refers to this subsection;
(B) specifically identifies the particular non-Federal Government entity involved; and
(C) specifically states that the award to that entity is required by such provision of law in contravention of the policy set forth in paragraph (1).
(3) For purposes of this subsection, a contract is a new contract unless the work provided for in the contract is a continuation of the work performed by the specified entity under a preceding contract.
(4) This subsection shall not apply with respect to any contract that calls upon the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an agency named in section 2303(a) of this title and to report on such matters to the Congress or any agency of the Federal Government.
(l)(1)(A) Except as provided in subparagraph (B), in the case of a procurement permitted by subsection (c), the head of an agency shall make publicly available, within 14 days after the award of the contract, the documents containing the justification and approval required by subsection (f)(1) with respect to the procurement.
(B) In the case of a procurement permitted by subsection (c)(2), subparagraph (A) shall be applied by substituting “30 days” for “14 days”.
(2) The documents shall be made available on the website of the agency and through a government-wide website selected by the Administrator for Federal Procurement Policy.
(3) This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5.
(Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85–800, §8, Aug. 28, 1958, 72 Stat. 967; Pub. L. 85–861, §33(a)(12), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 87–653, §1(a)–(c), Sept. 10, 1962, 76 Stat. 528; Pub. L. 90–268, §5, Mar. 16, 1968, 82 Stat. 50; Pub. L. 90–500, title IV, §405, Sept. 20, 1968, 82 Stat. 851; Pub. L. 93–356, §4, July 25, 1974, 88 Stat. 390; Pub. L. 96–513, title V, §511(76), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97–86, title IX, §907(a), Dec. 1, 1981, 95 Stat. 1117; Pub. L. 97–295, §1(24), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 97–375, title I, §114, Dec. 21, 1982, 96 Stat. 1821; Pub. L. 98–369, div. B, title VII, §§2723(a), 2727(b), July 18, 1984, 98 Stat. 1187, 1194; Pub. L. 98–577, title V, §504(b)(1), (2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99–145, title IX, §961(a)(1), title XIII, §1303(a)(13), Nov. 8, 1985, 99 Stat. 703, 739; Pub. L. 99–500, §101(c) [title X, §§923(a)–(c), 927(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–152, 1783–155, and Pub. L. 99–591, §101(c) [title X, §§923(a)–(c), 927(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–152, 3341–155; Pub. L. 99–661, div. A, title IX, formerly title IV, §§923(a)–(c), 927(a), title XIII, §1343(a)(14), Nov. 14, 1986, 100 Stat. 3932, 3935, 3993, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §7(d)(3), Apr. 21, 1987, 101 Stat. 281; Pub. L. 100–456, div. A, title VIII, §803, Sept. 29, 1988, 102 Stat. 2008; Pub. L. 101–189, div. A, title VIII, §§812, 817, 818, 853(d), Nov. 29, 1989, 103 Stat. 1493, 1501, 1502, 1519; Pub. L. 101–510, div. A, title VIII, §806(b), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 102–25, title VII, §701(d)(2), Apr. 6, 1991, 105 Stat. 114; Pub. L. 102–484, div. A, title VIII, §§801(h)(2), 816, title X, §1052(23), Oct. 23, 1992, 106 Stat. 2445, 2454, 2500; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–355, title I, §§1001–1003, 1004(b), 1005, title IV, §4401(a), title VII, §7203(a)(1), Oct. 13, 1994, 108 Stat. 3249, 3253, 3254, 3347, 3379; Pub. L. 104–106, div. D, title XLI, §§4101(a), 4102(a), title XLII, §4202(a)(1), title XLIII, §4321(b)(4), (5), Feb. 10, 1996, 110 Stat. 642, 643, 652, 672; Pub. L. 104–320, §§7(a)(1), 11(c)(1), Oct. 19, 1996, 110 Stat. 3871, 3873; Pub. L. 105–85, div. A, title VIII, §§841(b), 850(f)(3)(B), title X, §1073(a)(42), (43), Nov. 18, 1997, 111 Stat. 1843, 1850, 1902; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 107–217, §3(b)(3), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–375, div. A, title VIII, §815, Oct. 28, 2004, 118 Stat. 2015; Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 110–181, div. A, title VIII, §844(b), Jan. 28, 2008, 122 Stat. 239; Pub. L. 110–417, [div. A], title VIII, §862(b), Oct. 14, 2008, 122 Stat. 4546; Pub. L. 111–350, §5(b)(12), Jan. 4, 2011, 124 Stat. 3843.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2304(a) 2304(b) |
41:151(c) (less proviso of clause (11) and proviso of clause (16)). 41:156(d). |
Feb. 19, 1948, ch. 65, §§2(b) (less 1st sentence), (c), (e), 7(d), 8, 62 Stat. 21, 22, 24. |
| 2304(c) | 41:151(e). | |
| 2304(d) | 41:151(b) (less 1st sentence). | |
| 2304(e) | 41:151(c) (proviso of clause (11) and proviso of clause (16)). | |
| 2304(f) | 41:157. |
In subsection (a)(1), the words “the period of” are omitted as surplusage.
In subsections (a)(4)–(10), and (12)–(15), the words “the purchase or contract is” are inserted for clarity.
In subsection (a)(5), the words “to be rendered” are omitted as surplusage.
In subsection (a)(6), the words “its Territories” are inserted for clarity. The words “the limits of” are omitted as surplusage.
In subsection (a)(14), the words “and for which” are substituted for the word “when”.
In subsection (a)(15), the words “and for which” are substituted for 41:151(c)(15) (1st 22 words of proviso).
In subsection (a)(16), the words “to have” are substituted for the words “be made or kept”.
In subsection (a)(17), the first 7 words are inserted for clarity.
In subsection (b), the words “shall be kept” are substituted for the words “shall be preserved in the files”. The words “six years after the date” are substituted for the words “a period of six years following”.
In subsection (c), the words “but such authorization shall be required in the same manner as heretofore” and “continental”, in 41:151(e), are omitted as surplusage.
In subsection (d), the words “before making” are substituted for the words “Whenever it is proposed to make”.
In subsection (e), the words “beginning six months after the effective date of this chapter” are omitted as executed. The words “on May 19 and November 19 of each year” are substituted for the words “and at the end of each six-month period thereafter”, since the effective date of the source statute was May 19, 1948, and the first report was made on November 19, 1948. The words “property and services covered by each contract” are substituted for the words “work required to be performed thereunder”.
The change is necessary to reflect the present Commonwealth status of Puerto Rico.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2304(a) (1st sentence) | 10:2304 (note). | Mar. 16, 1967, Pub. L. 90–5, §304, 81 Stat. 6. |
| 2304(f)(1) | 10:2304(f)(1). | |
| 2304(i) | 10:2304 (note). | Sept. 21, 1977, Pub. L. 95–111, §836, 91 Stat. 906. |
In subsection (a), the words “The Secretary of Defense is hereby directed that insofar as practicable all contracts shall be formally advertised” are omitted as unnecessary because of 10:2304(a) (1st sentence).
Subsection (f)(1) is amended to correct a mistake in spelling.
In subsection (i)(1)(B), the words “or States” are omitted because of 1:1.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
2011—Subsec. (f)(1)(B)(iii). Pub. L. 111–350, §5(b)(12)(A), substituted “section 1702(c) of title 41” for “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))”.
Subsec. (f)(1)(C). Pub. L. 111–350, §5(b)(12)(B), substituted “section 1708 of title 41” for “section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)”.
Subsec. (f)(2)(D)(i). Pub. L. 111–350, §5(b)(12)(C), substituted “chapter 85 of title 41” for “the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.)”.
Subsec. (g)(4). Pub. L. 111–350, §5(b)(12)(D), substituted “section 1901(e) of title 41” for “section 31(f) of the Office of Federal Procurement Policy Act (41 U.S.C. 427)”.
Subsec. (h)(1). Pub. L. 111–350, §5(b)(12)(E), substituted “Chapter 65 of title 41” for “The Walsh-Healey Act (41 U.S.C. 35 et seq.)”.
2008—Subsec. (d)(3). Pub. L. 110–417 added par. (3).
Subsec. (f)(4) to (6). Pub. L. 110–181, §844(b)(2), redesignated pars. (5) and (6) as (4) and (5), respectively, and struck out former par. (4) which read as follows: “The justification required by paragraph (1)(A) and any related information, and any document prepared pursuant to paragraph (2)(E), shall be made available for inspection by the public consistent with the provisions of section 552 of title 5.”
Subsec. (l). Pub. L. 110–181, §844(b)(1), added subsec. (l).
2006—Subsec. (f)(1)(B)(iii). Pub. L. 109–364 substituted “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))” for “section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))”.
2004—Subsec. (f)(1)(B)(ii), (iii). Pub. L. 108–375 substituted “$75,000,000” for “$50,000,000”.
2002—Subsec. (h). Pub. L. 107–217, §3(b)(3)(A), struck out “laws” after “following” in introductory provisions.
Subsec. (h)(2). Pub. L. 107–217, §3(b)(3)(B), substituted “Sections 3141–3144, 3146, and 3147 of title 40” for “The Act entitled ‘An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes’, approved March 3, 1931 (commonly referred to as the ‘Davis-Bacon Act’) (40 U.S.C. 276a—276a–5)”.
2001—Subsec. (f)(1)(B)(iii), (6)(B). Pub. L. 107–107 substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
1997—Subsec. (c)(5). Pub. L. 105–85, §1073(a)(42), substituted “subsection (k)” for “subsection (j)”.
Subsec. (f)(1)(B)(iii). Pub. L. 105–85, §1073(a)(43)(A), substituted “(6)(B)” for “(6)(C)”.
Subsec. (f)(2)(E). Pub. L. 105–85, §841(b), struck out “and such document is approved by the competition advocate for the procuring activity” after “requiring the use of procedures other than competitive procedures”.
Subsec. (f)(6)(B), (C). Pub. L. 105–85, §1073(a)(43)(B), redesignated subpar. (C) as (B), substituted “paragraph (1)(B)(iii)” for “paragraph (1)(B)(iv)” in introductory provisions, and struck out former subpar. (B), which read as follows: “The authority of the senior procurement executive under paragraph (1)(B)(iii) may be delegated only to an officer or employee within the senior procurement executive's organization who—
“(i) if a member of the armed forces, is a general or flag officer; or
“(ii) if a civilian, is serving in a position in grade GS–16 or above (or in a comparable or higher position under any other schedule for civilian officers or employees).”
Subsec. (g)(4). Pub. L. 105–85, §850(f)(3)(B), substituted “31(f)” for “31(g)”.
1996—Subsec. (c)(3)(C). Pub. L. 104–320 substituted “agency, or to procure the services of an expert or neutral for use” for “agency, or” and inserted “or negotiated rulemaking” after “alternative dispute resolution”.
Subsec. (f)(1)(B)(i). Pub. L. 104–106, §4102(a)(1), substituted “$500,000 (but equal to or less than $10,000,000)” for “$100,000 (but equal to or less than $1,000,000)” and “(ii) or (iii)” for “(ii), (iii), or (iv)”.
Subsec. (f)(1)(B)(ii). Pub. L. 104–106, §4102(a)(2), substituted “$10,000,000 (but equal to or less than $50,000,000)” for “$1,000,000 (but equal to or less than $10,000,000)” and inserted “or” at end.
Subsec. (f)(1)(B)(iii), (iv). Pub. L. 104–106, §4102(a)(3), (4), redesignated cl. (iv) as (iii) and struck out former cl. (iii) which read as follows: “in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $50,000,000), by the senior procurement executive of the agency designated pursuant to section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3)) or the senior procurement executive's delegate designated pursuant to paragraph (6)(B), or in the case of the Under Secretary of Defense for Acquisition and Technology, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(C); or”.
Subsec. (f)(2)(D). Pub. L. 104–106, §4321(b)(4), substituted “the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.),” for “the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the Wagner-O'Day Act,”.
Subsec. (g)(1). Pub. L. 104–106, §4202(a)(1)(A), substituted “shall provide for—” and subpars. (A) and (B) for “shall provide for special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold.”
Subsec. (g)(4). Pub. L. 104–106, §4202(a)(1)(B), added par. (4).
Subsec. (h)(1). Pub. L. 104–106, §4321(b)(5), added par. (1) and struck out former par. (1) which read as follows: “The Act entitled ‘An Act to provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes’, approved June 30, 1936 (commonly referred to as the ‘Walsh-Healey Act’) (41 U.S.C. 35–45).”
Subsecs. (j), (k). Pub. L. 104–106, §4101(a), added subsec. (j) and redesignated former subsec. (j) as (k).
1994—Subsec. (a)(1)(A). Pub. L. 103–355, §1001(1), substituted “Federal Acquisition Regulation” for “modifications to regulations promulgated pursuant to section 2752 of the Competition in Contracting Act of 1984 (41 U.S.C. 403 note)”.
Subsec. (b)(1)(D) to (F). Pub. L. 103–355, §1002(a), added subpars. (D) to (F).
Subsec. (b)(4). Pub. L. 103–355, §1002(b), added par. (4).
Subsec. (c)(3)(C). Pub. L. 103–355, §1005, added subpar. (C).
Subsec. (c)(5). Pub. L. 103–355, §7203(a)(1)(A), inserted “subject to subsection (j),” after “(5)”.
Subsec. (f)(1)(B)(i). Pub. L. 103–355, §1003, inserted before semicolon at end “or by an official referred to in clause (ii), (iii), or (iv)”.
Subsec. (g)(1). Pub. L. 103–355, §§1001(2), 4401(a)(1), substituted “Federal Acquisition Regulation” for “regulations modified in accordance with section 2752 of the Competition in Contracting Act of 1984 (41 U.S.C. 403 note)” and “purchases of property and services for amounts not greater than the simplified acquisition threshold” for “small purchases of property and services”.
Subsec. (g)(2). Pub. L. 103–355, §4401(a)(4), substituted “simplified acquisition threshold” for “small purchase threshold” and “simplified procedures” for “small purchase procedures”.
Pub. L. 103–355, §4401(a)(2), (3), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “For the purposes of this subsection, a small purchase is a purchase or contract for an amount which does not exceed the small purchase threshold.”
Subsec. (g)(3). Pub. L. 103–355, §4401(a)(5), substituted “simplified procedures” for “small purchase procedures”.
Pub. L. 103–355, §4401(a)(3), redesignated par. (4) as (3). Former par. (3) redesignated (2).
Subsec. (g)(4). Pub. L. 103–355, §4401(a)(3), redesignated par. (4) as (3).
Subsec. (j). Pub. L. 103–355, §7203(a)(1)(B), added subsec. (j).
Pub. L. 103–355, §1004(b), struck out subsec. (j) which related to authority of Secretary of Defense to enter into master agreements for advisory and assistance services.
1993—Subsec. (f)(1)(B)(iii), (iv), (6)(C). Pub. L. 103–160 substituted “Under Secretary of Defense for Acquisition and Technology” for “Under Secretary of Defense for Acquisition”.
1992—Subsec. (b)(2). Pub. L. 102–484, §801(h)(2), substituted “section 2323 of this title” for “section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)”.
Subsec. (j)(3)(A). Pub. L. 102–484, §1052(23), substituted “section 8(d) of the Small Business Act (15 U.S.C. 637(d))” for “section 8(e) of the Small Business Act (15 U.S.C. 637(e))”.
Subsec. (j)(5). Pub. L. 102–484, §816, substituted “on September 30, 1994.” for “at the end of the three-year period beginning on the date on which final regulations prescribed to carry out this subsection take effect.”
1991—Subsec. (g)(2). Pub. L. 102–25, §701(d)(2)(A)(i), substituted “subsection” for “chapter”.
Subsec. (g)(5). Pub. L. 102–25, §701(d)(2)(A)(ii), struck out par. (5) which provided that in this subsection, the term “small purchase threshold” has the meaning given such term in section 403(11) of title 41. See section 2302(7) of this title.
Subsec. (j)(3)(A). Pub. L. 102–25, §701(d)(2)(B), substituted “the small purchase threshold” for “$25,000”.
1990—Subsec. (g). Pub. L. 101–510 substituted “the small purchase threshold” for “$25,000” in pars. (2) and (3) and added par. (5).
1989—Subsec. (b)(2). Pub. L. 101–189, §853(d), substituted “The head of an agency” for “An executive agency” and “concerns other than” for “other than” and inserted before period at end “and concerns other than small business concerns, historically Black colleges and universities, and minority institutions in furtherance of section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)”.
Subsec. (f)(1)(B)(iii). Pub. L. 101–189, §818(a)(1), (3), added cl. (iii). Former cl. (iii) redesignated (iv).
Subsec. (f)(1)(B)(iv). Pub. L. 101–189, §818(a)(2), (c)(1), redesignated cl. (iii) as (iv) and substituted “$50,000,000” for “$10,000,000” and “paragraph (6)(C)” for “paragraph (6)(B)”.
Subsec. (f)(2)(E). Pub. L. 101–189, §817(a), added subpar. (E).
Subsec. (f)(4). Pub. L. 101–189, §817(b), inserted “, and any document prepared pursuant to paragraph (2)(E),” after “any related information”.
Subsec. (f)(6)(B). Pub. L. 101–189, §818(b)(2), added subpar. (B). Former subpar. (B) redesignated (C).
Subsec. (f)(6)(C). Pub. L. 101–189, §818(b)(1), (c)(2), redesignated subpar. (B) as (C) and substituted “paragraph (1)(B)(iv)” for “paragraph (1)(B)(iii)”.
Subsec. (j). Pub. L. 101–189, §812, added subsec. (j).
1988—Subsec. (f)(1)(B)(ii). Pub. L. 100–456, §803(1), substituted “(or the head of the procuring activity's delegate designated pursuant to paragraph (6)(A));” for “or a delegate who, if a member of the armed forces, is a general or flag officer or, if a civilian, is serving in a position in grade GS–16 or above under the General Schedule (or in a comparable or higher position under another schedule);”.
Subsec. (f)(1)(B)(iii). Pub. L. 100–456, §803(2), inserted “or in the case of the Under Secretary of Defense for Acquisition, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (6)(B)” before semicolon at end.
Subsec. (f)(6). Pub. L. 100–456, §803(3), added par. (6).
1987—Subsec. (a)(1)(A). Pub. L. 100–26, §7(d)(3)(A), inserted “(41 U.S.C. 403 note)” after “Competition in Contracting Act of 1984”.
Subsec. (f)(1)(C). Pub. L. 100–26, §7(d)(3)(B), inserted “(41 U.S.C. 416)” after “Policy Act”.
Subsec. (g)(1). Pub. L. 100–26, §7(d)(3)(A), inserted “(41 U.S.C. 403 note)” after “Act of 1984”.
1986—Subsec. (b)(2). Pub. L. 99–661, §1343(a)(14), substituted “15 U.S.C. 638,” for “15 U.S.C. 639;”.
Subsec. (c)(1). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§923(a)], Pub. L. 99–661, §923(a), amended par. (1) identically, inserting “or only from a limited number of responsible sources”.
Subsec. (d)(1)(A). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§923(b)], Pub. L. 99–661, §923(b), amended subpar. (A) identically, substituting “a concept—” for “a unique and innovative concept”, adding cl. (i), and designating provision relating to nonavailability to the United States and nonresemblance to a pending competitive procurement as cl. (ii).
Subsec. (d)(1)(B). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§923(c)], Pub. L. 99–661, §923(c), amended subpar. (B) identically, inserting “, or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures” after “highly specialized equipment”, inserted a one-em dash after “would result in”, paragraphed cls. (i) and (ii), in cl. (i) substituted “competition;” for “competition,”, and in cl. (ii) struck out “, such property may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures” after “agency's needs”.
Subsec. (i). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§927(a)], Pub. L. 99–661, §927(a), amended section identically, adding subsec. (i).
1985—Subsec. (a)(1)(B). Pub. L. 99–145, §1303(a)(13), substituted “procedures” for “krocedures”.
Subsec. (f)(2). Pub. L. 99–145, §961(a)(1), amended second sentence generally. Prior to amendment, second sentence read as follows: “The justification and approval required by paragraph (1) is not required in the case of a procurement permitted by subsection (c)(7) or in the case of a procurement conducted under—
“(A) the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the Wagner-O'Day Act; or
“(B) the authority of section 8(a) of the Small Business Act (15 U.S.C. 637).”
1984—Pub. L. 98–369, §2723(a), substituted “Contracts: competition requirements” for “Purchases and contracts: formal advertising; exceptions” in section catchline and struck out subsecs. (a) to (e) and (g) to (i), redesignated subsec. (f) as (h), and added new subsecs. (a) through (g), thereby removing the prior statutory preference for formal advertising and installing instead more competitive procurement procedures, including dual sourcing, but with provision for the use of other than competitive procedures in specified situations.
Subsec. (b)(2). Pub. L. 98–577, §504(b)(1), substituted provisions to the effect that executive agencies may provide for procurement of property or services covered by this section using competitive procedures but excluding other than small business concerns for provisions which provided that executive agencies shall use competitive procedures but may restrict a solicitation to allow only small business concerns to compete.
Subsec. (b)(3). Pub. L. 98–577, §504(b)(1), added par. (3).
Subsec. (f)(2). Pub. L. 98–577, §504(b)(2), designated existing provisions as subpar. (A) and added subpar. (B).
Subsec. (h). Pub. L. 98–369, §2727(b), substituted “contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed bid procedures” for “contracts negotiated under this section shall be treated as if they were made with formal advertising”.
Pub. L. 98–369, §2723(a)(1)(B), redesignated subsec. (f) as (h).
1982—Subsec. (a). Pub. L. 97–295, §1(24)(A), inserted “, and shall be awarded on a competitive bid basis to the lowest responsible bidder,” after “formal advertising”.
Subsec. (e). Pub. L. 97–375 repealed subsec. (e) which directed that a report be made on May and November 19 of each year of purchases and contracts under cls. (11) and (16) of subsec. (a) since the last report, and that the report name each contractor, state the amount of each contract, and describe, with consideration of the national security, the property and services covered by each contract.
Subsec. (f)(1). Pub. L. 97–295, §1(24)(B), substituted “Healey” for “Healy” after “Walsh–”.
Subsec. (i). Pub. L. 97–295, §1(24)(C), added subsec. (i).
1981—Subsecs. (a)(3), (g). Pub. L. 97–86 substituted “$25,000” for “$10,000”.
1980—Subsec. (f). Pub. L. 96–513 substituted “(1) The Act entitled ‘An Act to provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes’, approved June 30, 1936 (commonly referred to as the ‘Walsh-Healy Act’) (41 U.S.C. 35–45).”, for “(1) Sections 35–45 of title 41.”, and “(2) The Act entitled ‘An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes’, approved March 3, 1931 (commonly referred to as the ‘Davis-Bacon Act’) (40 U.S.C. 276a—276a–5).” for “(2) Sections 276a—276a–5 of title 40.”, and struck out “(3) Sections 324 and 325a of title 40”.
1974—Subsec. (a)(3). Pub. L. 93–356, §4(a), substituted “$10,000” for “$2,500”.
Subsec. (g). Pub. L. 93–356, §4(b), substituted “$10,000” for “$2,500”.
1968—Subsec. (g). Pub. L. 90–500 required that the proposals solicited from the maximum number of qualified sources, consistent with the nature and requirements of the supplies or services to be procured, include price.
Subsec. (h). Pub. L. 90–268 added subsec. (h).
1962—Subsec. (a). Pub. L. 87–653, §1(a), (b), provided that formal advertising be used where feasible and practicable under existing conditions and circumstances, subjected the agency head to the requirements of section 2310 of this title before negotiating a contract where formal advertising is not feasible and practicable and, in par. (14), substituted “would be likely to result in additional cost to the Government by reason of duplication of investment or would result in duplication of necessary preparation which would unduly delay the procurement of the property;” for “and competitive bidding might require duplication of investment or preparation already made or would unduly delay the procurement of that property; or”.
Subsec. (g). Pub. L. 87–653, §1(c), added subsec. (g).
1958—Subsec. (a). Pub. L. 85–861 included Commonwealths in cl. (6).
Pub. L. 85–800 substituted “$2,500” for “$1,000” in cl. (3) and inserted “or nonperishable” in cl. (9).
Amendment by section 850(f)(3)(B) of Pub. L. 105–85 effective 180 days after Nov. 18, 1997, see section 850(g) of Pub. L. 105–85, set out as a note under section 2302c of this title.
For effective date and applicability of amendments by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 101(c) [title X, §923(d)] of Pub. L. 99–500 and Pub. L. 99–591, and section 923(d) of title IX, formerly title IV of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that:
“(1) The amendment made by subsection (a) [amending this section] shall apply with respect to contracts for which solicitations are issued after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].
“(2) The amendment made by subsection (b) [amending this section] shall apply with respect to contracts awarded on the basis of unsolicited research proposals after the end of the 180-day period beginning on the date of the enactment of this Act.
“(3) The amendments made by subsection (c) [amending this section] shall apply with respect to follow-on contracts awarded after the end of the 180-day period beginning on the date of the enactment of this Act.”
Section 961(e) of Pub. L. 99–145 provided that: “The amendments made by subsections (a) [amending this section and section 253 of Title 41, Public Contracts], (b) [amending section 2323 (now section 2343) of this title], and (c) [amending section 759 of former Title 40, Public Buildings, Property, and Works] shall take effect as if included in the enactment of the Competition in Contracting Act of 1984 (title VII of division B of Public Law 98–369) [see Effective Date of 1984 Amendment note set out under section 2302 of this title].”
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Section 1(h) of Pub. L. 87–653 provided that: “The amendments made by this Act [amending this section and sections 2306, 2310, and 2311 of this title] shall take effect on the first day of the third calendar month which begins after the date of enactment of this Act [Sept. 10, 1962].”
Amendment by Pub. L. 85–861 effective Aug. 10, 1956, see section 33(g) of Pub. L. 85–861, set out as a note under section 101 of this title.
Repeal of prior subsec. (j) of this section by section 1004(b) of Pub. L. 103–355 not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former section 759 or former subchapter VI (§541 et seq.) of chapter 10 of Title 40 [now chapter 11 of Title 40, Public Buildings, Property, and Works], see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
Section 2723(c) of Pub. L. 98–369 provided that: “The amendments made by this section [amending this section and section 2305 of this title] do not supersede or affect the provisions of section 8(a) of the Small Business Act (15 U.S.C. 637(a)).”
Pub. L. 111–383, div. A, title VIII, §806, Jan. 7, 2011, 124 Stat. 4260, provided that:
“(a)
“(1) carry out a covered procurement action; and
“(2) limit, notwithstanding any other provision of law, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action.
“(b)
“(1) obtaining a joint recommendation by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Chief Information Officer of the Department of Defense, on the basis of a risk assessment by the Under Secretary of Defense for Intelligence, that there is a significant supply chain risk to a covered system;
“(2) making a determination in writing, in unclassified or classified form, with the concurrence of the Under Secretary of Defense for Acquisition, Technology, and Logistics, that—
“(A) use of the authority in subsection (a)(1) is necessary to protect national security by reducing supply chain risk;
“(B) less intrusive measures are not reasonably available to reduce such supply chain risk; and
“(C) in a case where the head of the covered agency plans to limit disclosure of information under subsection (a)(2), the risk to national security due to the disclosure of such information outweighs the risk due to not disclosing such information; and
“(3) providing a classified or unclassified notice of the determination made under paragraph (2) to the appropriate congressional committees, which notice shall include—
“(A) the information required by section 2304(f)(3) of title 10, United States Code;
“(B) the joint recommendation by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Chief Information Officer of the Department of Defense as specified in paragraph (1);
“(C) a summary of the risk assessment by the Under Secretary of Defense for Intelligence that serves as the basis for the joint recommendation specified in paragraph (1); and
“(D) a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why they were not reasonably available to reduce supply chain risk.
“(c)
“(d)
“(1) no action undertaken by the agency head under such authority shall be subject to review in a bid protest before the Government Accountability Office or in any Federal court; and
“(2) the agency head shall—
“(A) notify appropriate parties of a covered procurement action and the basis for such action only to the extent necessary to effectuate the covered procurement action;
“(B) notify other Department of Defense components or other Federal agencies responsible for procurements that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and
“(C) ensure the confidentiality of any such notifications.
“(e)
“(1)
“(A) The Secretary of Defense.
“(B) The Secretary of the Army.
“(C) The Secretary of the Navy.
“(D) The Secretary of the Air Force.
“(2)
“(A) The exclusion of a source that fails to meet qualification standards established in accordance with the requirements of section 2319 of title 10, United States Code, for the purpose of reducing supply chain risk in the acquisition of covered systems.
“(B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.
“(C) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract.
“(3)
“(A) a source selection for a covered system or a covered item of supply involving either a performance specification, as provided in section 2305(a)(1)(C)(ii) of title 10, United States Code, or an evaluation factor, as provided in section 2305(a)(2)(A) of such title, relating to supply chain risk;
“(B) the consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 2304c(d)(3) of title 10, United States Code, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk; or
“(C) any contract action involving a contract for a covered system or a covered item of supply where such contract includes a clause establishing requirements relating to supply chain risk.
“(4)
“(5)
“(6)
“(7)
“(A) in the case of a covered system included in the National Intelligence Program or the Military Intelligence Program, the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and
“(B) in the case of a covered system not otherwise included in subparagraph (A), the congressional defense committees.
“(f)
“(1) contracts that are awarded on or after such date; and
“(2) task and delivery orders that are issued on or after such date pursuant to contracts that awarded before, on, or after such date.
“(g)
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)
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.”
Pub. L. 110–417, [div. A], title VIII, §802, Oct. 14, 2008, 122 Stat. 4518, provided that:
“(a)
“(1) the appropriate application of the authority in sections 2304(b) and 2304(c)(3)(A) of title 10, United States Code, in connection with major defense acquisition programs; and
“(2) the appropriate timing and performance of the requirement in section 2440 of title 10, United States Code, to consider the national technology and industrial base in the development and implementation of acquisition plans for each major defense acquisition program.
“(b)
“(1)
“(2)
Pub. L. 110–181, div. A, title VIII, §821, Jan. 28, 2008, 122 Stat. 226, provided that:
“(a)
“(1) Government-unique clauses authorized by law or regulation.
“(2) Any additional clauses that are relevant and necessary to a specific contract.
“(b)
“(1) The term ‘commercial contract’ means a contract awarded by the Federal Government for the procurement of a commercial item.
“(2) The term ‘commercial item’ has the meaning provided by section 4(12) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(12)) [see 41 U.S.C. 103].”
Pub. L. 110–181, div. A, title VIII, §885, Jan. 28, 2008, 122 Stat. 265, as amended by Pub. L. 111–383, div. A, title VI, §641, Jan. 7, 2011, 124 Stat. 4241, provided that:
“(a)
“(1)
“(2)
“(b)
“(1)
“(2)
“(c)
Pub. L. 110–181, div. A, title VIII, §892, Jan. 28, 2008, 122 Stat. 270, provided that:
“(a)
“(1) full and open competition is obtained to the maximum extent practicable;
“(2) no responsible United States manufacturer is excluded from competing for such procurements; and
“(3) products manufactured in the United States are not excluded from the competition.
“(b)
“(1) Pistols and other weapons less than 0.50 caliber for assistance to the Army of Iraq, the Iraqi Police Forces, and other Iraqi security organizations.
“(2) Pistols and other weapons less than 0.50 caliber for assistance to the Army of Afghanistan, the Afghani Police Forces, and other Afghani security organizations.”
Pub. L. 110–417, [div. A], title VIII, §804(a)–(c), Oct. 14, 2008, 122 Stat. 4519, provided that:
“(a)
“(b)
“(1) The review and determination required by subsection (a)(1) of such section shall be completed by not later than March 15, 2009.
“(2) The review and determination required by subsection (a)(2) of such section, if necessary, shall be completed by not later than June 15, 2010, and such review and determination shall be a review and determination of such agency's procurement of property and services on behalf of the Department of Defense in fiscal year 2009.
“(3) The memorandum of understanding required by subsection (c)(1) of such section shall be entered into by not later than 60 days after the date of the enactment of this Act [Oct. 14, 2008].
“(4) The limitation specified in subsection (d)(1) of such section shall apply after March 15, 2009, and before June 16, 2010.
“(5) The limitation specified in subsection (d)(2) of such section shall apply after June 15, 2010.
“(6) The limitation required by subsection (d)(3) of such section shall commence, if necessary, on the date that is 60 days after the date of the enactment of this Act.
“(c)
“(1) The Department of Commerce.
“(2) The Department of Energy.”
Pub. L. 110–181, div. A, title VIII, §801, Jan. 28, 2008, 122 Stat. 202, as amended by Pub. L. 110–417, [div. A], title VIII, §804(d), Oct. 14, 2008, 122 Stat. 4519; Pub. L. 111–84, div. A, title VIII, §806, Oct. 28, 2009, 123 Stat. 2404, provided that:
“(a)
“(1)
“(A) review—
“(i) the procurement policies, procedures, and internal controls of such covered non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such covered non-defense agency; and
“(ii) the administration of such policies, procedures, and internal controls; and
“(B) determine in writing whether such covered non-defense agency is or is not compliant with defense procurement requirements.
“(2)
“(A) In the case of the General Services Administration, by not later than March 15, 2010.
“(B) In the case of the Department of the Interior, by not later than March 15, 2011.
“(C) In the case of each of the Department of Veterans Affairs and the National Institutes of Health, by not later than March 15, 2012.
“(D) In the case of each of the Department of Commerce and the Department of Energy, by not later than March 15, 2015.
“(3)
“(4)
“(5)
“(A) determine that the non-defense agency is compliant with defense procurement requirements; and
“(B) notify the Secretary of Defense of that determination.
“(6)
“(b)
“(1) Except as provided in paragraph (2), an acquisition official of the Department of Defense may place an order, make a purchase, or otherwise procure property or services for the Department of Defense in excess of the simplified acquisition threshold through a non-defense agency only if—
“(A) in the case of a procurement by any non-defense agency in any fiscal year, the head of the non-defense agency has certified that the non-defense agency will comply with defense procurement requirements for the fiscal year;
“(B) in the case of—
“(i) a procurement by a covered non-defense agency in a fiscal year for which a memorandum of understanding is required by subsection (a)(4), the Inspector General of the Department of Defense and the Inspector General of the covered non-defense agency have entered into such a memorandum of understanding; or
“(ii) a procurement by a covered non-defense agency in a fiscal year following the Inspectors General review and determination required by subsection (a), the Inspectors General have determined that a covered non-defense agency is compliant with defense procurement requirements or have terminated a prior determination of non-compliance in accordance with subsection (a)(5); and
“(C) the procurement is not otherwise prohibited by section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364) or section 811 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163) [see notes below].
“(2)
“(A)
“(B)
“(3)
“(c)
“(1)
“(2)
“(A) the circumstances in which it is appropriate for such acquisition officials to use direct acquisitions;
“(B) the circumstances in which it is appropriate for such acquisition officials to use assisted acquisitions;
“(C) the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items unique to the Department of Defense and the procedures for approving such interagency contracting;
“(D) the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items that are already being provided under a contract awarded by the Department of Defense;
“(E) tools that should be used by such acquisition officials to determine whether items are already being provided under a contract awarded by the Department of Defense; and
“(F) procedures for ensuring that defense procurement requirements are identified and communicated to outside agencies involved in interagency contracting.
“(d)
“(e)
“(f)
“(1)
“(2)
“(A) The General Services Administration.
“(B) The Department of the Interior.
“(C) The Department of Veterans Affairs.
“(D) The National Institutes of Health.
“(E) The Department of Commerce.
“(F) The Department of Energy.
“(3)
“(A) is entered into by a non-defense agency; and
“(B) may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government.
“(4)
“(5)
“(6)
“(A) a contracting officer of the Department of Defense; or
“(B) any other Department of Defense official authorized to approve a direct acquisition or an assisted acquisition on behalf of the Department of Defense.
“(7)
“(8)
Pub. L. 109–364, div. A, title VIII, §817, Oct. 17, 2006, 120 Stat. 2326, provided that:
“(a)
“(1)
“(A) review—
“(i) the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and
“(ii) the administration of those policies, procedures, and internal controls; and
“(B) determine in writing whether—
“(i) such non-defense agency is compliant with defense procurement requirements;
“(ii) such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements;
“(iii) neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency; or
“(iv) such non-defense agency is not compliant with defense procurement requirements to such an extent that the interests of the Department of Defense are at risk in procurements conducted by such non-defense agency.
“(2)
“(A) conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency's procurement of property or services on behalf of the Department of Defense in fiscal year 2007; and
“(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.
“(b)
“(c)
“(1)
“(2)
“(d)
“(1)
“(2)
“(3)
“(e)
“(1)
“(2)
“(f)
“(1) determine that such non-defense agency is compliant with defense procurement requirements; and
“(2) notify the Secretary of Defense of that determination.
“(g)
“(h)
“(i)
“(1) The term ‘covered non-defense agency’ means each of the following:
“(A) The Department of Veterans Affairs.
“(B) The National Institutes of Health.
“(2) The term ‘governmentwide acquisition contract’, with respect to a covered non-defense agency, means a task or delivery order contract that—
“(A) is entered into by the non-defense agency; and
“(B) may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government.”
Pub. L. 109–163, div. A, title VIII, §811, Jan. 6, 2006, 119 Stat. 3374, provided that:
“(a)
“(1)
“(A) review—
“(i) the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and
“(ii) the administration of those policies, procedures, and internal controls; and
“(B) determine in writing whether—
“(i) such non-defense agency is compliant with defense procurement requirements;
“(ii) such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements; or
“(iii) neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency.
“(2)
“(A) conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency's procurement of property or services on behalf of the Department of Defense in fiscal year 2006; and
“(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.
“(b)
“(c)
“(1)
“(2)
“(d)
“(1)
“(2)
“(3)
“(e)
“(1)
“(2)
“(f)
“(1) determine that such non-defense agency is compliant with defense procurement requirements; and
“(2) notify the Secretary of Defense of that determination.
“(g)
“(h)
“(1) The term ‘covered non-defense agency’ means each of the following:
“(A) The Department of the Treasury.
“(B) The Department of the Interior.
“(C) The National Aeronautics and Space Administration.
“(2) The term ‘governmentwide acquisition contract’, with respect to a covered non-defense agency, means a task or delivery order contract that—
“(A) is entered into by the non-defense agency; and
“(B) may be used as the contract under which property or services are procured for 1 or more other departments or agencies of the Federal Government.”
Pub. L. 109–364, div. A, title VIII, §813, Oct. 17, 2006, 120 Stat. 2320, as amended by Pub. L. 111–23, title II, §207(d), May 22, 2009, 123 Stat. 1730, provided that:
“(a)
“(1)
“(2)
“(A) A representative of the Under Secretary of Defense for Acquisition, Technology, and Logistics, who shall be the chairman of the panel.
“(B) A representative of the service acquisition executive of each military department.
“(C) A representative of the Inspector General of the Department of Defense.
“(D) A representative of the Inspector General of each military department.
“(E) A representative of each Defense Agency involved with contracting, as determined appropriate by the Secretary of Defense.
“(F) Such other representatives as may be determined appropriate by the Secretary of Defense.
“(b)
“(1) conduct reviews of progress made by the Department of Defense to eliminate areas of vulnerability of the defense contracting system that allow fraud, waste, and abuse to occur;
“(2) review the report by the Comptroller General required by section 841 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163; 119 Stat. 3389), relating to areas of vulnerability of Department of Defense contracts to fraud, waste, and abuse; and
“(3) recommend changes in law, regulations, and policy that it determines necessary to eliminate such areas of vulnerability.
“(c)
“(d)
“(1)
“(2)
“(3)
“(e)
“(1)
“(2)
Pub. L. 109–289, div. A, title VIII, §8048, Sept. 29, 2006, 120 Stat. 1284, provided that: “Notwithstanding any other provision of law, each contract awarded by the Department of Defense during the current fiscal year and hereafter for construction or service performed in whole or in part in a State (as defined in section 381(d) of title 10, United States Code) which is not contiguous with another State and has an unemployment rate in excess of the national average rate of unemployment as determined by the Secretary of Labor, shall include a provision requiring the contractor to employ, for the purpose of performing that portion of the contract in such State that is not contiguous with another State, individuals who are residents of such State and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills: Provided, That the Secretary of Defense may waive the requirements of this section, on a case-by-case basis, in the interest of national security.”
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)
Pub. L. 108–375, div. A, title VIII, §854, Oct. 28, 2004, 118 Stat. 2022, provided that:
“(a)
“(b)
“(c)
“(1) Printing, binding, or blank-book work to which section 502 of title 44, United States Code, applies.
“(2) Services available under programs pursuant to section 103 of the Library of Congress Fiscal Operations Improvement Act of 2000 (Public Law 106–481; 114 Stat. 2187; 2 U.S.C. 182c).
“(d)
“(2) In the case of procurements made on orders issued by the head of a Defense Agency, Department of Defense Field Activity, or any other organization within the Department of Defense (other than a military department) under the authority of the Secretary of Defense as the head of an agency, the report under paragraph (1) shall be submitted by the head of that Defense Agency, Department of Defense Field Activity, or other organization, respectively.
“(3) The report for a fiscal year under this subsection shall be submitted not later than December 31 of the calendar year in which such fiscal year ends.
“(e)
“(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.
“(2) The term ‘Defense Agency’ has the meaning given such term in section 101(a)(11) of title 10, United States Code.
“(3) The term ‘Department of Defense Field Activity’ has the meaning given such term in section 101(a)(12) of such title.”
Pub. L. 108–136, div. A, title III, §334, Nov. 24, 2003, 117 Stat. 1443, provided that:
“(a)
“(b)
“(2) A determination under this subsection shall be made pursuant to procedures prescribed by the Secretary of Defense.”
Pub. L. 107–107, div. A, title VIII, §803, Dec. 28, 2001, 115 Stat. 1178, which required the Secretary of Defense to promulgate in the Department of Defense Supplement to the Federal Acquisition Regulation, not later than 180 days after Dec. 28, 2001, regulations requiring competition in the purchase of services by the Department of Defense pursuant to multiple award contracts, was repealed by Pub. L. 110–417, [div. A], title VIII, §863(f), Oct. 14, 2008, 122 Stat. 4548.
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.”
Pub. L. 106–65, div. A, title VIII, §806(b), Oct. 5, 1999, 113 Stat. 705, directed the Comptroller General, not later than Mar. 1, 2001, to submit to Congress an evaluation of the test program authorized by the provisions in Pub. L. 104–106, §4202 (amending this section and section 2305 of this title and sections 253, 253a, 416, and 427 of Title 41, Public Contracts, and enacting provisions set out as a note below), together with any recommendations that the Comptroller General considered appropriate regarding the test program or the use of special simplified procedures for purchases of commercial items in excess of the simplified acquisition threshold.
Pub. L. 105–261, div. A, title VIII, §806, Oct. 17, 1998, 112 Stat. 2084, provided that:
“(a)
“(b)
“(c)
Pub. L. 105–85, div. A, title III, §391, Nov. 18, 1997, 111 Stat. 1716, as amended by Pub. L. 106–65, div. A, title III, §382, Oct. 5, 1999, 113 Stat. 583; Pub. L. 107–107, div. A, title III, §364, Dec. 28, 2001, 115 Stat. 1068; Pub. L. 107–314, div. A, title III, §368, Dec. 2, 2002, 116 Stat. 2524; Pub. L. 108–375, div. A, title III, §343, Oct. 28, 2004, 118 Stat. 1857, provided that:
“(a)
“(b)
“(1) Collection services.
“(2) Determination of amounts owed the Department of Defense for repair of aircraft engines for conditions covered by warranties.
“(3) Identification and location of the sources of information that are relevant to collection of Department of Defense claims under aircraft engine warranties, including electronic data bases and document filing systems maintained by the Department of Defense or by the manufacturers and suppliers of the aircraft engines.
“(4) Services to define the elements necessary for an effective training program to enhance and improve the performance of Department of Defense personnel in collecting and organizing documents and other information that are necessary for efficient filing, processing, and collection of Department of Defense claims under aircraft engine warranties.
“(c)
“(d)
“(e)
“(f)
“(g)
“(1) a description of the extent to which commercial firms have been used to provide the services specified in subsection (b) and the type of services procured;
“(2) a description of any problems that have limited the ability of the Secretary to utilize the pilot program to procure such services; and
“(3) the recommendation of the Secretary regarding whether the pilot program should be made permanent or extended beyond September 30, 2006.”
Pub. L. 105–85, div. A, title VIII, §848, Nov. 18, 1997, 111 Stat. 1846, provided that:
“(a)
“(2) Not later than October 1, 2000, at least 90 percent of all eligible purchases made by the Department of Defense for an amount less than the micro-purchase threshold shall be made through streamlined micro-purchase procedures.
“(b)
“(c)
“(d)
“(A) the total dollar amount of all Department of Defense purchases for an amount less than the micro-purchase threshold in the fiscal year preceding the year in which the report is submitted;
“(B) the total dollar amount of such purchases that were considered to be eligible purchases;
“(C) the total amount of such eligible purchases that were made through a streamlined micro-purchase method; and
“(D) a description of the categories of purchases excluded from the definition of eligible purchases established under subsection (b).
“(e)
“(1) The term ‘micro-purchase threshold’ has the meaning provided in section 32 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 428) [now 41 U.S.C. 1902].
“(2) The term ‘streamlined micro-purchase procedures’ means procedures providing for the use of the Government-wide commercial purchase card or any other method for carrying out micro-purchases that the Secretary of Defense prescribes in the regulations implementing this subsection.”
Pub. L. 104–106, div. D, title XLII, §4202(e), Feb. 10, 1996, 110 Stat. 654, as amended by Pub. L. 106–65, div. A, title VIII, §806(a), Oct. 5, 1999, 113 Stat. 705; Pub. L. 107–107, div. A, title VIII, §823, Dec. 28, 2001, 115 Stat. 1183; Pub. L. 107–314, div. A, title VIII, §812(a), Dec. 2, 2002, 116 Stat. 2609; Pub. L. 108–136, div. A, title XIV, §1443(b), Nov. 24, 2003, 117 Stat. 1676; Pub. L. 108–375, div. A, title VIII, §817, Oct. 28, 2004, 118 Stat. 2015; Pub. L. 110–181, div. A, title VIII, §822(a), Jan. 28, 2008, 122 Stat. 226; Pub. L. 111–84, div. A, title VIII, §816, Oct. 28, 2009, 123 Stat. 2408, provided that: “The authority to issue solicitations for purchases of commercial items in excess of the simplified acquisition threshold pursuant to the special simplified procedures authorized by section 2304(g)(1) of title 10, United States Code, section 303(g)(1) of the Federal Property and Administrative Services Act of 1949 [now 41 U.S.C. 3305(a)], and section 31(a) of the Office of Federal Procurement Policy Act [now 41 U.S.C. 1901(a)], as amended by this section, shall expire January 1, 2012. Contracts may be awarded pursuant to solicitations that have been issued before such authority expires, notwithstanding the expiration of such authority.”
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.
Pub. L. 100–180, div. A, title XI, §1111, Dec. 4, 1987, 101 Stat. 1146, directed the Secretary of Defense to authorize the commander of each military installation to (1) prepare an inventory each fiscal year of commercial activities carried out by Government personnel on the military installation, (2) decide which commercial activities were to be reviewed pursuant to Office of Management and Budget Circular A–76 or any successor administrative regulation or policy, (3) conduct a solicitation for contracts for those commercial activities selected for conversion to contractor performance under the Circular A–76 process, and (4) assist in finding suitable employment for any employee of the Department of Defense who had been displaced because of a contract entered into with a contractor for performance of a commercial activity on the military installation; directed the Secretary to prescribe regulations required by the preceding authority no later than 60 days after Dec. 4, 1987; and provided for termination of the authority on Oct. 1, 1989.
Section 804 of Pub. L. 100–456, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729, directed Secretary of Defense, within 120 days after Sept. 29, 1988, to establish criteria to ensure that proposals for contracts for professional and technical services be evaluated on a basis which does not encourage contractors to propose mandatory uncompensated overtime for professional and technical employees and, within 30 days after Sept. 29, 1988, to establish an advisory committee to make recommendations on the criteria.
Pub. L. 100–456, div. A, title VIII, §807, Sept. 29, 1988, 102 Stat. 2011, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729, which provided that not later than 120 days after Sept. 29, 1988, the Secretary of Defense was to make certain revisions to Department of Defense regulations that provide for the use of fixed-price type contracts in a development program, was repealed by Pub. L. 109–364, div. A, title VIII, §818(a), Oct. 17, 2006, 120 Stat. 2329.
Section 842 of Pub. L. 102–484 provided that: “The prohibition in section 316 of the National Defense Authorization Act for Fiscal Year 1987 [Pub. L. 99–661] (100 Stat. 3855; 10 U.S.C. 2304 note) shall cease to be effective on the date on which the President certifies to Congress that free, fair, and democratic elections have taken place in Angola.”
Determination of President of the United States, No. 93–32, July 19, 1993, 58 F.R. 40309, provided:
Pursuant to the authority vested in me by Public Law 102–484, section 842 [set out as a note above], I hereby certify that free, fair, and democratic elections have taken place in Angola.
You are authorized and directed to report this determination to the Congress and publish it in the Federal Register.
William J. Clinton.
Section 316 of Pub. L. 99–661 provided that:
“(a)
“(b)
“(c)
“(1) natural or synthetic crude;
“(2) blends of natural or synthetic crude; and
“(3) products refined or derived from natural or synthetic crude or from such blends.
“(d)
Section 101(c) [title X, §927(b)] of Pub. L. 99–500 and Pub. L. 99–591, and section 927(b) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “The Secretary of Defense shall prescribe the regulations required by section 2304(i) of such title (as added by subsection (a)) not later than 180 days after the date of the enactment of this Act [Oct. 18, 1986].”
Section 1222(b) of Pub. L. 99–661 provided that:
“(1) Except as provided in paragraph (2), funds appropriated to the Department of Defense may not be obligated or expended before October 1, 1987, for the purpose of entering into a contract for the performance of security-guard functions at any military installation or facility.
“(2) The prohibition in paragraph (1) does not apply—
“(A) to a contract to be carried out at a location outside the United States (including its commonwealths, territories, and possessions) at which military personnel would have to be used for the performance of the function described in paragraph (1) at the expense of unit readiness;
“(B) to a contract to be carried out on a Government-owned but privately operated installation;
“(C) to a contract (or the renewal of a contract) for the performance of a function under contract on September 24, 1983; or
“(D) to a contract for the performance of security-guard functions if (i) the requirement for the functions arises after the date of the enactment of this Act [Nov. 14, 1986], and (ii) the Secretary of Defense determines the functions can be performed by contractor personnel without adversely affecting installation security, safety, or readiness.”
Section 1223 of Pub. L. 99–661, which required Secretary to contract for Department of Defense supplies and services from private sector after a cost comparison demonstrates lower cost than Department of Defense can provide, and to ensure that overhead costs considered are realistic and fair, was repealed and restated in section 2462 of this title by Pub. L. 100–370, §2(a)(1), (c)(3), July 19, 1988, 102 Stat. 853, 854.
Section 1224 of Pub. L. 99–661, which required Secretary to maintain cost comparison data on performance of a commercial or industrial type activity taken over by Department of Defense comparing performance by employees of private contractor to that of civilian employees of Department of Defense, and to submit semi-annual report on savings or loss to United States, was repealed and restated in section 2463 of this title by Pub. L. 100–370, §2(a)(1), (c)(3), July 19, 1988, 102 Stat. 853, 854.
Pub. L. 101–225, title II, §205, Dec. 12, 1989, 103 Stat. 1912, provided that: “Notwithstanding any other provision of law, an officer or employee of the United States may not enter into a contract for procurement of performance of any function being performed by Coast Guard personnel as of January 1, 1989, before—
“(1) a study has been performed by the Secretary of Transportation under the Office of Management and Budget Circular A–76 with respect to that procurement;
“(2) the Secretary of Transportation has performed a study, in addition to the study required by paragraph (1) of this subsection, to determine the impact of that procurement on the multimission capabilities of the Coast Guard; and
“(3) copies of the studies required by paragraphs (1) and (2) of this subsection are submitted to the Committee on Merchant Marine and Fisheries [now Committee on Transportation and Infrastructure] of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.”
Pub. L. 100–448, §5, Sept. 28, 1988, 102 Stat. 1837, as amended by Pub. L. 104–66, title I, §1121(b), Dec. 21, 1995, 109 Stat. 724, provided that:
“(a)
“(1)
“[(2) Repealed. Pub. L. 104–66, title I, §1121(b), Dec. 21, 1995, 109 Stat. 724.]
“[(b) Repealed. Pub. L. 104–66, title I, §1121(b), Dec. 21, 1995, 109 Stat. 724.]
“(c)
“(d)
“(1)
“(2)
[For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.]
Similar provisions were contained in the following prior authorization act:
Pub. L. 99–640, §5, Nov. 10, 1986, 100 Stat. 3546.
Section 918 of Pub. L. 99–145, which provided that Secretary of Defense require each military department to establish accounting procedure to aid in control of expenditures for contracted advisory and assistance services, prescribe regulations to identify such services and which services are in direct support of a weapons system, consider specific list of factors in prescribing regulations, and identify total amount requested and separate category amount requested in budget documents for Department of Defense presented to Congress, was repealed and restated in section 2212 of this title by Pub. L. 100–370, §1(d)(2), July 19, 1988, 102 Stat. 842.
Section 925 of Pub. L. 99–145 required Secretary of Defense to develop a policy regarding mobility and regular rotation of principal administrative and corporate administrative contracting officers in Department of Defense and to report to Committees on Armed Services of Senate and House of Representatives not later than January 1, 1986, on such policy, prior to repeal by Pub. L. 101–510, div. A, title XII, §1207(a), Nov. 5, 1990, 104 Stat. 1665.
Pub. L. 99–145, title IX, §932, Nov. 8, 1985, 99 Stat. 699, prohibited certain felons from working on defense contracts and penalized employment of such persons by defense contractors, prior to repeal by Pub. L. 99–500, §101(c) [title X, §941(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–162, and Pub. L. 99–591, §101(c) [title X, §941(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–162; Pub. L. 99–661, div. A, title IX, formerly title IV, §941(b), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273.
Pub. L. 99–145, title IX, §934(a), Nov. 8, 1985, 99 Stat. 700, which provided for interest payments and penalties for overpayments due to faulty cost and pricing data, was repealed by Pub. L. 99–500, §101(c) [title X, §952(b)(2), (d)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, and Pub. L. 99–591, §101(c) [title X, §952(b)(2), (d)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(b)(2), (d), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, effective with respect to contracts or modifications on contracts entered into after the end of the 120-day period beginning on Oct. 18, 1986.
Pub. L. 99–145, title XII, §1233, Nov. 8, 1985, 99 Stat. 734, related to services and activities to be performed by non-Government personnel, prior to repeal by Pub. L. 99–661, div. A, title XII, §1222(c), Nov. 14, 1986, 100 Stat. 3977.
Section 1231(a)–(e) of Pub. L. 99–145 declared that certain specifically described functions of the Department of Defense shall be deemed logistics activities necessary to maintain the logistics capability described in section 307(a)(1) of Pub. L. 98–525, formerly set out below; contained a description of the functions, i.e., depot-level maintenance of mission-essential materiel at specifically located activities of the Army, the Navy, the Marine Corps, the Air Force, the Defense Logistics Agency, and the Defense Mapping Agency; included certain matters within the specified functions and excluded certain functions; and defined “mission-essential materiel” as related to such functions.
Section 307 of Pub. L. 98–525, as amended by Pub. L. 99–145, title XII, §1231(f), Nov. 8, 1985, 99 Stat. 733, which prohibited contracting to non-Government personnel of logistics activities necessary for effective response to national emergencies unless Secretary waives such prohibition after a determination that Government performance of such activity is no longer required for national defense reasons, and reports to Congress on waiver, was repealed and restated in section 2464 of this title by Pub. L. 100–370, §2(a)(1), (c)(2), July 19, 1988, 102 Stat. 853, 854.
Pub. L. 98–473, title I, §101(h) [title VIII, §8078], Oct. 12, 1984, 98 Stat. 1904, 1938, prohibited expenditure of funds to adjust any contract price in any shipbuilding claim, request for equitable adjustment, or demand for payment incurred due to the preparation, submission, or adjudication of any such shipbuilding claim, request, or demand under a contract entered into after Oct. 12, 1984, arising out of events occurring more than eighteen months prior to the submission of such shipbuilding claim, request, or demand, prior to repeal by Pub. L. 100–370, §1(p)(2), July 19, 1988, 102 Stat. 851.
Pub. L. 98–212, title VII, §787, Dec. 8, 1983, 97 Stat. 1453, which contained similar provisions relating to shipbuilding claims for contract price adjustments, was repealed and restated in section 2405 of this title by Pub. L. 98–525, title XII, §1234(a), (b)(2), Oct. 19, 1984, 98 Stat. 2604, effective Oct. 19, 1984.
Pub. L. 98–212, title VII, §794, Dec. 8, 1983, 97 Stat. 1454, provided for weapon system guarantees, Government-as-Source exception, and waiver, prior to repeal by Pub. L. 98–525, title XII, §1234(b)(1), Oct. 19, 1984, 98 Stat. 2604, effective Jan. 1, 1985.
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.”
Pub. L. 97–12, title I, §100, June 5, 1981, 95 Stat. 29, and Pub. L. 97–114, title VII, §770, Dec. 29, 1981, 95 Stat. 1590, which provided that no funds authorized for the Department of Defense in fiscal year 1981 and thereafter would be available to reimburse a contractor for the cost of commercial insurance, except for that normally maintained in the conduct of his business, that would protect against the cost for correction for the contractor's own defects in materials or workmanship such as were not a fortuitous casualty or loss, were repealed and restated in section 2399 of this title by Pub. L. 97–295, §§1(29)(A), 6(b), Oct. 12, 1982, 96 Stat. 1293, 1315.
Pub. L. 96–342, title V, §502, Sept. 8, 1980, 94 Stat. 1086, as amended by Pub. L. 97–252, title XI, §1112(a), Sept. 8, 1982, 96 Stat. 747; Pub. L. 99–145, title XII, §1234(a), Nov. 8, 1985, 99 Stat. 734; Pub. L. 99–661, div. A, title XII, §1221, Nov. 14, 1986, 100 Stat. 3976, which provided that no commercial or industrial type function of the Department of Defense that on October 1, 1980, was being performed by Department of Defense civilian employees could be converted to performance by a private contractor to circumvent any civilian personnel ceiling unless Secretary of Defense submitted favorable cost comparisons and certifications, and reported annually to Congress with regard to such conversions, was repealed and restated in section 2461 of this title by Pub. L. 100–370, §2(a)(1), (c)(1), July 19, 1988, 102 Stat. 851, 854.
Similar provisions for fiscal year 1980 were contained in Pub. L. 96–107, title VIII, §806, Nov. 9, 1979, 93 Stat. 813.
Pub. L. 95–485, title VIII, §813, Oct. 20, 1978, 92 Stat. 1624, which prohibited payment of a contract claim, request for equitable adjustment, or request for relief which exceeded $100,000 unless a senior company official certified that request was made in good faith and that supporting data was accurate and complete, was repealed and restated in section 2410 of this title by Pub. L. 100–370, §1(h)(2), (p)(4), July 19, 1988, 102 Stat. 847, 851.
Pub. L. 95–485, title VIII, §814, Oct. 20, 1978, 92 Stat. 1625, directed the Secretary of Defense to report to the House and Senate Committees on Armed Services any proposed change in policy or regulations from those in effect before June 30, 1976, as to whether commercial or industrial functions at Defense Department installations in the United States, Puerto Rico, and Guam should be performed by Department of Defense personnel or by private contractors during the period Oct. 1, 1978 to Sept. 30, 1979; prohibited such functions to be performed privately unless such contractor performance began before Oct. 20, 1978 or performance would have been allowed by policy and regulations in effect before June 30, 1976; and provided that such prohibition would apply until the end of the 60 day period beginning on the date the report by the Secretary of Defense is received by the House and Senate Committees.
Pub. L. 95–111, title VIII, §836, Sept. 21, 1977, 91 Stat. 906, which directed the Secretary of Defense to require all prime contractors with more than $500,000 of defense contract awards to report in dollars at the end of each year the amount of work done in that year and the State where performed, and requiring the Secretary of Defense to report annually to Congress the amount of funds spent for such work in each State, was repealed and restated in subsec. (i) of this section by Pub. L. 97–295, §§1(24)(C), 6(b), Oct. 12, 1982, 96 Stat. 1291, 1315.
Pub. L. 95–79, title VIII, §809, July 30, 1977, 91 Stat. 334, directed the Secretary of Defense and the Director of the Office of Management and Budget to review criteria used in determining whether commercial or industrial type functions at Department of Defense installations within the United States, Puerto Rico, and Guam should be performed by Department of Defense personnel or by private contractors and to report to the House and Senate Armed Services Committees before Jan. 1, 1978, the results of the review; prohibited commercial or industrial type functions being performed on July 30, 1977 by Department of Defense personnel from being converted to performance by private contractors before the earlier of Mar. 15, 1978 or the end of the 90-day period beginning on the date the report is received by the House and Senate Committees; exempted from such prohibition the conversion to performance by private contractors of industrial or commercial type functions if the conversion would have been made under policies and regulations in effect before June 30, 1976; and required the Secretary of Defense to report to the House and Senate Committees on Armed Services before Jan. 1, 1978, detailing the Department's rationale for establishing goals for the percentage of work at defense research installations to be performed by private contractors and for any direction in effect on July 30, 1977 establishing a minimum or maximum percentage for the allocation of work at any defense research installation to be performed by private contractors or directing a change in any such allocation in effect on July 30, 1977.
Pub. L. 94–106, title VIII, §816, Oct. 7, 1975, 89 Stat. 540, as amended by Pub. L. 98–620, title IV, §402(8), Nov. 8, 1984, 98 Stat. 3357, provided a remedy for discrimination by citizens of nationals of the United States or corporations organized or operating within the United States, and by organizations controlled by them, against the Department of Defense in the supply of petroleum products for two years after Oct. 7, 1975.
Pub. L. 91–441, title V, §507, Oct. 7, 1970, 84 Stat. 913, which had provided that the identity or location of a recipient of a contract from the Department of Defense may not be revealed prior to the public announcement of such identity by the Secretary of Defense, was repealed and restated in section 2316 of this title by Pub. L. 97–295, §§1(26)(A), 6(b), Oct. 12, 1982, 96 Stat. 1291, 1314.
Pub. L. 90–5, title III, §304, Mar. 16, 1967, 81 Stat. 6, which had provided that the Secretary of Defense was directed, insofar as practicable, that all contracts be formally advertised and awarded on a competitive bid basis to the lowest responsible bidder, was repealed and restated in subsec. (a) of this section by Pub. L. 97–295, §§1(24)(A), 6(b), Oct. 12, 1982, 96 Stat. 1290, 1314.
Provisions of the National Emergencies Act not applicable to the powers and authorities conferred by subsec. (a)(1) of this section and actions taken hereunder, see section 1651(a)(5) of Title 50, War and National Defense.
(a)
(b)
(1) The period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option, if any.
(2) The maximum quantity or dollar value of the services or property to be procured under the contract.
(3) A statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract.
(c)
(d)
(A) to award a single task or delivery order contract; or
(B) if the solicitation states that the head of the agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to two or more sources.
(2) No determination under section 2304(b) of this title is required for award of multiple task or delivery order contracts under paragraph (1)(B).
(3)(A) No task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source unless the head of the agency determines in writing that—
(i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work;
(ii) the contract provides only for firm, fixed price task orders or delivery orders for—
(I) products for which unit prices are established in the contract; or
(II) services for which prices are established in the contract for the specific tasks to be performed;
(iii) only one source is qualified and capable of performing the work at a reasonable price to the government; or
(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.
(B) The head of the agency shall notify the congressional defense committees within 30 days after any determination under clause (i), (ii), (iii), or (iv) of subparagraph (A).
(4) The regulations implementing this subsection shall—
(A) establish a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property under the authority of paragraph (1)(B); and
(B) establish criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government.
(e)
(f)
(g)
(h)
(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3249; amended Pub. L. 108–136, div. A, title VIII, §843(b), Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108–375, div. A, title VIII, §813(a), Oct. 28, 2004, 118 Stat. 2014; Pub. L. 110–181, div. A, title VIII, §843(a)(1), Jan. 28, 2008, 122 Stat. 236; Pub. L. 111–84, div. A, title VIII, §814(a), Oct. 28, 2009, 123 Stat. 2407.)
Another section 2304a was renumbered section 2304e of this title.
2009—Subsec. (d)(3)(B). Pub. L. 111–84 amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “The head of the agency shall notify Congress within 30 days after any determination under subparagraph (A)(iv).”
2008—Subsec. (d)(3), (4). Pub. L. 110–181 added par. (3) and redesignated former par. (3) as (4).
2004—Subsec. (f). Pub. L. 108–375 substituted “any period up to five years and may extend the contract period for one or more successive periods pursuant to an option provided in the contract or a modification of the contract. The total contract period as extended may not exceed 10 years unless such head of an agency determines in writing that exceptional circumstances necessitate a longer contract period” for “a total period of not more than five years”.
2003—Subsecs. (f) to (h). Pub. L. 108–136 added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.
Pub. L. 110–181, div. A, title VIII, §843(a)(3)(A), Jan. 28, 2008, 122 Stat. 237, provided that: “The amendments made by paragraph (1) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 28, 2008], and shall apply with respect to any contract awarded on or after such date.”
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
Pub. L. 111–84, div. A, title VIII, §814(b), Oct. 28, 2009, 123 Stat. 2407, provided that: “In the case of a task or delivery order contract awarded with respect to intelligence activities of the Department of Defense, any notification provided under subparagraph (B) of section 2304a(d)(3) of title 10, United States Code, as amended by subsection (a), shall also be provided at the same time as notification is provided to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] under that subparagraph—
“(1) to the Permanent Select Committee on Intelligence of the House of Representatives insofar as such task or delivery order contract relates to tactical intelligence and intelligence-related activities of the Department; and
“(2) to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives insofar as such task or delivery order contract relates to intelligence and intelligence-related activities of the Department other than those specified in paragraph (1).”
Section 1004(d) of Pub. L. 103–355, as amended by Pub. L. 108–136, div. A, title X, §1045(f), Nov. 24, 2003, 117 Stat. 1613, provided that: “Nothing in section 2304a, 2304b, 2304c, or 2304d of title 10, United States Code, as added by subsection (a), and nothing in the amendments made by subsections (b) and (c) [amending sections 2304 and 2331 of this title], shall be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under chapter 11 of title 40, United States Code.”
(a)
(2) The head of an agency may enter into a task order contract for procurement of advisory and assistance services only under the authority of this section.
(b)
(c)
(d)
(2) A task order contract entered into under this section shall contain the same information that is required by paragraph (1) to be included in the solicitation of offers for that contract.
(e)
(2) If, in the case of a task order contract for advisory and assistance services to be entered into under this section, the contract period is to exceed three years and the contract amount is estimated to exceed $10,000,000 (including all options), the solicitation shall—
(A) provide for a multiple award authorized under paragraph (1); and
(B) include a statement that the head of the agency may also elect to award only one task order contract if the head of the agency determines in writing that only one of the offerers is capable of providing the services required at the level of quality required.
(3) Paragraph (2) does not apply in the case of a solicitation for which the head of the agency concerned determines in writing that, because the services required under the task order contract are unique or highly specialized, it is not practicable to award more than one contract.
(f)
(2) Unless use of procedures other than competitive procedures is authorized by an exception in subsection (c) of section 2304 of this title and approved in accordance with subsection (f) of such section, competitive procedures shall be used for making such a modification.
(3) Notice regarding the modification shall be provided in accordance with section 1708 of title 41 and section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
(g)
(A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the initial contract was entered into; and
(B) the extension is necessary in order to ensure continuity of the receipt of services pending the award of, and commencement of performance under, the follow-on contract.
(2) A task order contract may be extended under the authority of paragraph (1) only once and only in accordance with the limitations and requirements of this subsection.
(h)
(i)
(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3251; amended Pub. L. 111–350, §5(b)(13), Jan. 4, 2011, 124 Stat. 3843.)
2011—Subsecs. (c), (f)(3). Pub. L. 111–350 substituted “section 1708 of title 41” for “section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)”.
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
Pub. L. 109–364, div. A, title VIII, §834, Oct. 17, 2006, 120 Stat. 2332, provided that:
“(a)
“(1)
“(A) that the contract provides engineering or technical services of such a unique and substantial technical nature that award of a new contract would be harmful to the continuity of the program for which the services are performed;
“(B) that award of a new contract would create a large disruption in services provided to the Department of Defense; and
“(C) that the Department of Defense would, through award of a new contract, endure program risk during critical program stages due to loss of program corporate knowledge of ongoing program activities.
“(2)
“(3)
“(A) The methods used by the Department of Defense to identify a contract as an advisory and assistance services contract, as defined in section 2304b of title 10, United States Code.
“(B) The number of such contracts awarded by the Department during the five-year period preceding the date of the enactment of this Act [Oct. 17, 2006].
“(C) The average annual expenditures by the Department for such contracts.
“(D) The average length of such contracts.
“(E) The number of such contracts recompeted and awarded to the previous award winner.
“(4)
“(b)
“(1)
“(A) that the contract provides engineering or technical services of such a unique and substantial technical nature that award of a new contract would be harmful to the continuity of the program for which the services are performed;
“(B) that award of a new contract would create a large disruption in services provided to the executive agency; and
“(C) that the executive agency would, through award of a new contract, endure program risk during critical program stages due to loss of program corporate knowledge of ongoing program activities.
“(2)
“(3)
“(A) The methods used by executive agencies to identify a contract as an advisory and assistance services contract, as defined in section 303I(i) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C. 253i(i)) [now 41 U.S.C. 4105(a)].
“(B) The number of such contracts awarded by each executive agency during the five-year period preceding the date of the enactment of this Act [Oct. 17, 2006].
“(C) The average annual expenditures by each executive agency for such contracts.
“(D) The average length of such contracts.
“(E) The number of such contracts recompeted and awarded to the previous award winner.
“(4)
“(c)
“(d)
“(1)
“(2)
“(A) Advisory and assistance services contracts as defined in section 2304b of title 10, United States Code.
“(B) Advisory and assistance services contracts as defined in section 303I(i) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C. 253i(i)) [now 41 U.S.C. 4105(a)].
“(3)
“(A) The extent to which executive agencies and elements of the Department of Defense require advisory and assistance services for periods of greater than five years.
“(B) The extent to which such advisory and assistance services are provided by the same contractors under recurring contracts.
“(C) The rationale for contracting for advisory and assistance services that will be needed on a continuing basis, rather than performing the services inside the Federal Government.
“(D) The contract types and oversight mechanisms used by the Federal Government in contracts for advisory and assistance services and the extent to which such contract types and oversight mechanisms are adequate to protect the interests of the Government and taxpayers.
“(E) The actions taken by the Federal Government to prevent organizational conflicts of interest and improper personal services contracts in its contracts for advisory and assistance services.
“(4)
“(A) The Committees on Armed Services and on Homeland Security and Governmental Affairs of the Senate.
“(B) The Committees on Armed Services and on Government Reform [now Oversight and Government Reform] of the House of Representatives.”
(a)
(1) A separate notice for such order under section 1708 of title 41 or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
(2) Except as provided in subsection (b), a competition (or a waiver of competition approved in accordance with section 2304(f) of this title) that is separate from that used for entering into the contract.
(b)
(1) the agency's need for the services or property ordered is of such unusual urgency that providing such opportunity to all such contractors would result in unacceptable delays in fulfilling that need;
(2) only one such contractor is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;
(3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or
(4) it is necessary to place the order with a particular contractor in order to satisfy a minimum guarantee.
(c)
(d)
(1) a notice of the task or delivery order that includes a clear statement of the agency's requirements;
(2) a reasonable period of time to provide a proposal in response to the notice;
(3) disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating such proposals, and their relative importance;
(4) in the case of an award that is to be made on a best value basis, a written statement documenting the basis for the award and the relative importance of quality and price or cost factors; and
(5) an opportunity for a post-award debriefing consistent with the requirements of section 2305(b)(5) of this title.
(e)
(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
(B) a protest of an order valued in excess of $10,000,000.
(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).
(3) Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.
(f)
(g)
(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3252; amended Pub. L. 110–181, div. A, title VIII, §843(a)(2), Jan. 28, 2008, 122 Stat. 237; Pub. L. 111–350, §5(b)(14), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 111–383, div. A, title VIII, §825, title X, §1075(f)(5)(A), Jan. 7, 2011, 124 Stat. 4270, 4376.)
2011—Subsec. (a)(1). Pub. L. 111–350 substituted “section 1708 of title 41” for “section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)”.
Subsec. (e). Pub. L. 111–383, §1075(f)(5)(A), made technical correction to directory language of Pub. L. 110–181, §843(a)(2)(C). See 2008 Amendment note below.
Subsec. (e)(3). Pub. L. 111–383, §825, amended par. (3) generally. Prior to amendment, par. (3) read as follows: “This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.”
2008—Subsec. (d). Pub. L. 110–181, §843(a)(2), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 110–181, §843(a)(2)(C), as amended by Pub. L. 111–383, §1075(f)(5)(A), added subsec. (e) and struck out former subsec. (e). Former text read as follows: “A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.”
Pub. L. 110–181, §843(a)(2)(A), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsecs. (f), (g). Pub. L. 110–181, §843(a)(2)(A), redesignated subsecs. (e) and (f) as (f) and (g), respectively.
Pub. L. 110–181, div. A, title VIII, §843(a)(3)(B), Jan. 28, 2008, 122 Stat. 238, provided that: “The amendments made by paragraph (2) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 28, 2008], and shall apply with respect to any task or delivery order awarded on or after such date.”
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
In sections 2304a, 2304b, and 2304c of this title:
(1) The term “task order contract” means a contract for services that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity) and that provides for the issuance of orders for the performance of tasks during the period of the contract.
(2) The term “delivery order contract” means a contract for property that does not procure or specify a firm quantity of property (other than a minimum or maximum quantity) and that provides for the issuance of orders for the delivery of property during the period of the contract.
(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3253.)
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
(a)
(b)
(1) small business concerns in furtherance of section 8 or 15 of the Small Business Act (15 U.S.C. 637 or 644); or
(2) entities described in subsection (a)(1) of section 2323 of this title in furtherance of the goal specified in that subsection.
(Added Pub. L. 103–160, div. A, title VIII, §848(a)(1), Nov. 30, 1993, 107 Stat. 1724, §2304a; renumbered §2304e, Pub. L. 104–106, div. D, title XLIII, §4321(b)(6)(A), Feb. 10, 1996, 110 Stat. 672.)
1996—Pub. L. 104–106 renumbered section 2304a of this title as this section.
Section 848(b) of Pub. L. 103–160 provided that: “Section 2304a [now 2304e] of title 10, United States Code, as added by subsection (a), shall take effect on the date of the enactment of this Act [Nov. 30, 1993].”
(a)(1)(A) In preparing for the procurement of property or services, the head of an agency shall—
(i) specify the agency's needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement;
(ii) use advance procurement planning and market research; and
(iii) develop specifications in such manner as is necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired.
(B) Each solicitation under this chapter shall include specifications which—
(i) consistent with the provisions of this chapter, permit full and open competition; and
(ii) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency or as authorized by law.
(C) For the purposes of subparagraphs (A) and (B), the type of specification included in a solicitation shall depend on the nature of the needs of the agency and the market available to satisfy such needs. Subject to such needs, specifications may be stated in terms of—
(i) function, so that a variety of products or services may qualify;
(ii) performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or
(iii) design requirements.
(2) In addition to the specifications described in paragraph (1), a solicitation for sealed bids or competitive proposals (other than for a procurement for commercial items using special simplified procedures or a purchase for an amount not greater than the simplified acquisition threshold) shall at a minimum include—
(A) a statement of—
(i) all significant factors and significant subfactors which the head of the agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and
(ii) the relative importance assigned to each of those factors and subfactors; and
(B)(i) in the case of sealed bids—
(I) a statement that sealed bids will be evaluated without discussions with the bidders; and
(II) the time and place for the opening of the sealed bids; or
(ii) in the case of competitive proposals—
(I) either a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and
(II) the time and place for submission of proposals.
(3)(A) In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency—
(i) shall clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);
(ii) shall include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and
(iii) shall disclose to offerors whether all evaluation factors other than cost or price, when combined, are—
(I) significantly more important than cost or price;
(II) approximately equal in importance to cost or price; or
(III) significantly less important than cost or price.
(B) The regulations implementing clause (iii) of subparagraph (A) may not define the terms “significantly more important” and “significantly less important” as specific numeric weights that would be applied uniformly to all solicitations or a class of solicitations.
(4) Nothing in this subsection prohibits an agency from—
(A) providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or
(B) stating in a solicitation that award will be made to the offeror that meets the solicitation's mandatory requirements at the lowest cost or price.
(5) The head of an agency, in issuing a solicitation for a contract to be awarded using sealed bid procedures, may not include in such solicitation a clause providing for the evaluation of prices for options to purchase additional property or services under the contract unless the head of the agency has determined that there is a reasonable likelihood that the options will be exercised.
(b)(1) The head of an agency shall evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation.
(2) All sealed bids or competitive proposals received in response to a solicitation may be rejected if the head of the agency determines that such action is in the public interest.
(3) Sealed bids shall be opened publicly at the time and place stated in the solicitation. The head of the agency shall evaluate the bids in accordance with paragraph (1) without discussions with the bidders and, except as provided in paragraph (2), shall award a contract with reasonable promptness to the responsible bidder whose bid conforms to the solicitation and is most advantageous to the United States, considering only price and the other price-related factors included in the solicitation. The award of a contract shall be made by transmitting, in writing or by electronic means, notice of the award to the successful bidder. Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded.
(4)(A) The head of an agency shall evaluate competitive proposals in accordance with paragraph (1) and may award a contract—
(i) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or
(ii) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary.
(B) If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subparagraph (A)(i) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with such criteria.
(C) Except as provided in paragraph (2), the head of the agency shall award a contract with reasonable promptness to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation. The head of the agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to such source and, within three days after the date of contract award, shall notify, in writing or by electronic means, all other offerors of the rejection of their proposals. This subparagraph does not apply with respect to the award of a contract for the acquisition of perishable subsistence items.
(5)(A) When a contract is awarded by the head of an agency on the basis of competitive proposals, an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award. The head of the agency shall debrief the offeror within, to the maximum extent practicable, five days after receipt of the request by the agency.
(B) The debriefing shall include, at a minimum—
(i) the agency's evaluation of the significant weak or deficient factors in the offeror's offer;
(ii) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror;
(iii) the overall ranking of all offers;
(iv) a summary of the rationale for the award;
(v) in the case of a proposal that includes a commercial item that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract; and
(vi) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.
(C) The debriefing may not include point-by-point comparisons of the debriefed offeror's offer with other offers and may not disclose any information that is exempt from disclosure under section 552(b) of title 5.
(D) Each solicitation for competitive proposals shall include a statement that information described in subparagraph (B) may be disclosed in post-award debriefings.
(E) If, within one year after the date of the contract award and as a result of a successful procurement protest, the agency seeks to fulfill the requirement under the protested contract either on the basis of a new solicitation of offers or on the basis of new best and final offers requested for that contract, the agency shall make available to all offerors—
(i) the information provided in debriefings under this paragraph regarding the offer of the contractor awarded the contract; and
(ii) the same information that would have been provided to the original offerors.
(6)(A) When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes such an offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within three days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award. The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as practicable but may refuse the request for a debriefing if it is not in the best interests of the Government to conduct a debriefing at that time.
(B) The contracting officer is required to debrief an excluded offeror in accordance with paragraph (5) only if that offeror requested and was refused a preaward debriefing under subparagraph (A).
(C) The debriefing conducted under subparagraph (A) shall include—
(i) the executive agency's evaluation of the significant elements in the offeror's offer;
(ii) a summary of the rationale for the offeror's exclusion; and
(iii) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.
(D) The debriefing conducted under subparagraph (A) may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors’ proposals.
(7) The contracting officer shall include a summary of any debriefing conducted under paragraph (5) or (6) in the contract file.
(8) The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract.
(9) If the head of an agency considers that a bid or proposal evidences a violation of the antitrust laws, he shall refer the bid or proposal to the Attorney General for appropriate action.
(c) The Secretary of Defense shall ensure that before a contract for the delivery of supplies to the Department of Defense is entered into—
(1) when the appropriate officials of the Department are making an assessment of the most advantageous source for acquisition of the supplies (considering quality, price, delivery, and other factors), there is a review of the availability and cost of each item of supply—
(A) through the supply system of the Department of Defense; and
(B) under standard Government supply contracts, if the item is in a category of supplies defined under regulations of the Secretary of Defense as being potentially available under a standard Government supply contract; and
(2) there is a review of both the procurement history of the item and a description of the item, including, when necessary for an adequate description of the item, a picture, drawing, diagram, or other graphic representation of the item.
(d)(1)(A) The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a development contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in subparagraph (B). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system's required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror's price.
(B) Proposals referred to in the first sentence of subparagraph (A) are the following:
(i) Proposals to incorporate in the design of the major system items which are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source.
(ii) With respect to items that are likely to be required in substantial quantities during the system's service life, proposals to incorporate in the design of the major system items which the United States will be able to acquire competitively in the future.
(2)(A) The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a production contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in subparagraph (B). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system's required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror's price.
(B) Proposals referred to in the first sentence of subparagraph (A) are proposals identifying opportunities to ensure that the United States will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals submitted in response to such requirement may include the following:
(i) Proposals to provide to the United States the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the United States, if any, of acquiring such technical data and the right to use such data.
(ii) Proposals for the qualification or development of multiple sources of supply for the item.
(3) If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in paragraphs (1) and (2) to be considered in evaluating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. Such objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.
(4)(A) Whenever the head of an agency requires that proposals described in paragraph (1)(B) or (2)(B) be submitted by an offeror in its offer, the offeror shall not be required to provide a proposal that enables the United States to acquire competitively in the future an identical item if the item was developed exclusively at private expense unless the head of the agency determines that—
(i) the original supplier of such item will be unable to satisfy program schedule or delivery requirements; or
(ii) proposals by the original supplier of such item to meet the mobilization requirements are insufficient to meet the agency's mobilization needs.
(B) In considering offers in response to a solicitation requiring proposals described in paragraph (1)(B) or (2)(B), the head of an agency shall base any evaluation of items developed exclusively at private expense on an analysis of the total value, in terms of innovative design, life-cycle costs, and other pertinent factors, of incorporating such items in the system.
(e)
(2) Information exempt from disclosure under section 552 of title 5 may be redacted in a file established pursuant to paragraph (1) unless an applicable protective order provides otherwise.
(f)
(1) may take any action set out in subparagraphs (A) through (F) of subsection (b)(1) of section 3554 of title 31; and
(2) may pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits referred to in paragraph (2) of such section.
(g)
(2) Paragraph (1) does not apply to any proposal that is set forth or incorporated by reference in a contract entered into between the Department and the contractor that submitted the proposal.
(3) In this subsection, the term “proposal” means any proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal.
(Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 85–861, §1(44), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 90–268, §3, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, div. B, title VII, §2723(b), July 18, 1984, 98 Stat. 1191; Pub. L. 98–525, title XII, §1213(a), Oct. 19, 1984, 98 Stat. 2591; Pub. L. 99–145, title XIII, §1303(a)(14), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99–500, §101(c) [title X, §924(a), (b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, and Pub. L. 99–591, §101(c) [title X, §924(a), (b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153; Pub. L. 99–661, div. A, title III, §313(b), title IX, formerly title IV, §924(a), (b), Nov. 14, 1986, 100 Stat. 3853, 3932, 3933, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–456, div. A, title VIII, §806, Sept. 29, 1988, 102 Stat. 2010; Pub. L. 101–189, div. A, title VIII, §853(f), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 101–510, div. A, title VIII, §802(a)–(d), Nov. 5, 1990, 104 Stat. 1588, 1589; Pub. L. 103–160, div. A, title XI, §1182(a)(5), Nov. 30, 1993, 107 Stat. 1771; Pub. L. 103–355, title I, §§1011–1016, title IV, §4401(b), Oct. 13, 1994, 108 Stat. 3254–3257, 3347; Pub. L. 104–106, div. D, title XLI, §§4103(a), 4104(a), title XLII, §4202(a)(2), div. E, title LVI, §5601(a), Feb. 10, 1996, 110 Stat. 643, 644, 653, 699; Pub. L. 104–201, div. A, title VIII, §821(a), title X, §1074(a)(11), (b)(4)(A), Sept. 23, 1996, 110 Stat. 2609, 2659, 2660; Pub. L. 106–65, div. A, title VIII, §821, Oct. 5, 1999, 113 Stat. 714.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2305(a) 2305(b) |
41:152 (less clause (b)). 41:152 (clause (b)). |
Feb. 19, 1948, ch. 65, §§2(d), 3, 62 Stat. 22. |
| 2305(c) | 41:151(d). |
In subsection (a), the word “needed” is substituted for the words “necessary to meet the requirements”.
In subsection (b), the words “United States” are substituted for the word “Government”.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2305 | 41:152(c). | Aug. 9, 1955, ch. 628, §15, 69 Stat. 551. |
Reference to bids is omitted as surplusage (see opinion of the Judge Advocate General of the Army (JAGT 1956/9122, 21 Dec. 1956)). The word “attachments” is substituted for the words “material required”. The words “the specifications in” are inserted in the second sentence for clarity. The word “available” is omitted as covered by the word “accessible.” The words “no award may be made” are substituted for the words “and any award or awards made to any bidder in such case shall be invalidated and rejected”.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
1999—Subsec. (g)(1). Pub. L. 106–65 substituted “an agency named in section 2303 of this title” for “the Department of Defense”.
1996—Subsec. (a)(2). Pub. L. 104–106, §4202(a)(2), inserted “a procurement for commercial items using special simplified procedures or” after “(other than for”.
Subsec. (b)(4)(B). Pub. L. 104–106, §4103(a)(3), added subpar. (B). Former subpar. (B) redesignated (C).
Pub. L. 104–106, §4103(a)(1), transferred text of subpar. (C) to end of subpar. (B) and substituted “This subparagraph” for “Subparagraph (B)” at beginning of that text.
Subsec. (b)(4)(C). Pub. L. 104–106, §4103(a)(2), redesignated subpar. (B) as (C).
Pub. L. 104–106, §4103(a)(1), struck out “(C)” before “Subparagraph (B)” and transferred text of subpar. (C) to end of subpar. (B).
Subsec. (b)(5)(F). Pub. L. 104–106, §4104(a)(1), struck out subpar. (F) which read as follows: “The contracting officer shall include a summary of the debriefing in the contract file.”
Subsec. (b)(6). Pub. L. 104–106, §4104(a)(3), added par. (6). Former par. (6) redesignated (9).
Subsec. (b)(6)(B). Pub. L. 104–201, §1074(a)(11)(A), struck out “of this section” after “paragraph (5)” and “of this paragraph” after “subparagraph (A)”.
Subsec. (b)(6)(C). Pub. L. 104–201, §1074(a)(11)(B), substituted “subparagraph (A)” for “this subsection” in introductory provisions.
Subsec. (b)(6)(D). Pub. L. 104–201, §1074(a)(11)(C), substituted “under subparagraph (A)” for “pursuant to this subsection”.
Subsec. (b)(7), (8). Pub. L. 104–106, §4104(a)(3), added pars. (7) and (8).
Subsec. (b)(9). Pub. L. 104–106, §4104(a)(2), redesignated par. (6) as (9).
Subsec. (e)(3). Pub. L. 104–106, §5601(a), as amended by Pub. L. 104–201, §1074(b)(4)(A), struck out par. (3) which read as follows: “Regulations implementing this subsection shall be consistent with the regulations regarding the preparation and submission of an agency's protest file (the so-called ‘rule 4 file’) for protests to the General Services Board of Contract Appeals under section 111 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 759).”
Subsec. (g). Pub. L. 104–201, §821(a), added subsec. (g).
1994—Subsec. (a)(2). Pub. L. 103–355, §4401(b), substituted “a purchase for an amount not greater than the simplified acquisition threshold)” for “small purchases)” in introductory provisions.
Subsec. (a)(2)(A)(i). Pub. L. 103–355, §1011(a)(1), substituted “and significant subfactors” for “(and significant subfactors)” and “cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors” for “cost- or price-related factors, and noncost- or nonprice-related factors”.
Subsec. (a)(2)(A)(ii). Pub. L. 103–355, §1011(a)(2), substituted “and subfactors” for “(and subfactors)”.
Subsec. (a)(2)(B)(ii)(I). Pub. L. 103–355, §1011(a)(3), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: “a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), unless discussions are determined to be necessary; and”.
Subsec. (a)(3). Pub. L. 103–355, §1011(b), added par. (3) and struck out former par. (3), which read as follows: “In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency shall clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, and prior experience of the offeror).”
Subsec. (a)(4). Pub. L. 103–355, §1011(b), added par. (4).
Subsec. (a)(5). Pub. L. 103–355, §1012, added par. (5).
Subsec. (b)(3). Pub. L. 103–355, §1013(a), substituted “transmitting, in writing or by electronic means, notice” for “transmitting written notice” and inserted at end “Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded.”
Subsec. (b)(4)(B). Pub. L. 103–355, §1013(b), substituted “transmitting, in writing or by electronic means, notice” for “transmitting written notice” and “, within three days after the date of contract award, shall notify, in writing or by electronic means,” for “shall promptly notify”.
Subsec. (b)(5), (6). Pub. L. 103–355, §1014, added par. (5) and redesignated former par. (5) as (6).
Subsec. (e). Pub. L. 103–355, §1015, added subsec. (e).
Subsec. (f). Pub. L. 103–355, §1016, added subsec. (f).
1993—Subsec. (b)(4)(A). Pub. L. 103–160 realigned margins of cls. (i) and (ii).
1990—Subsec. (a)(2)(A)(i). Pub. L. 101–510, §802(a)(1), inserted “(and significant subfactors)” after “significant factors” and substituted “(including cost or price, cost- or price-related factors, and noncost- or nonprice-related factors)” for “(including cost or price)”.
Subsec. (a)(2)(A)(ii). Pub. L. 101–510, §802(a)(2), inserted “(and subfactors)” after “those factors”.
Subsec. (a)(2(B)(ii)(I). Pub. L. 101–510, §802(b), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: “a statement that the proposals are intended to be evaluated with, and awards made after, discussions with the offerors, but might be evaluated and awarded without discussions with the offerors; and”.
Subsec. (a)(3). Pub. L. 101–510, §802(c), substituted “the evaluation factors and subfactors, including the quality of the product or services” for “the quality of the services”.
Subsec. (b)(1). Pub. L. 101–510, §802(d)(1), inserted “and make an award” after “competitive proposals”.
Subsec. (b)(3). Pub. L. 101–510, §802(d)(2), inserted “in accordance with paragraph (1)” after “shall evaluate the bids”.
Subsec. (b)(4)(A). Pub. L. 101–510, §802(d)(3)(A), substituted “competitive proposals in accordance with paragraph (1)” for “competitive proposals” in introductory provisions, added cls. (i) and (ii), and struck out former cls. (i) and (ii) which read as follows:
“(i) after discussions conducted with the offerors at any time after receipt of the proposals and before the award of the contract; or
“(ii) without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) when it can be clearly demonstrated from the existence of full and open competition or accurate prior cost experience with the product or service that acceptance of an initial proposal without discussions would result in the lowest overall cost to the United States.”
Subsec. (b)(4)(B) to (E). Pub. L. 101–510, §802(d)(3)(B)–(D), redesignated subpars. (D) and (E) as (B) and (C), respectively, substituted “Subparagraph (B)” for “Subparagraph (D)” in subpar. (C), and struck out former subpars. (B) and (C) which read as follows:
“(B) In the case of award of a contract under subparagraph (A)(i), the head of the agency shall conduct, before such award, written or oral discussions with all responsible sources who submit proposals within the competitive range, considering only cost or price and the other factors included in the solicitation.
“(C) In the case of award of a contract under subparagraph (A)(ii), the head of the agency shall award the contract based on the proposals received (and as clarified, if necessary, in discussions conducted for the purpose of minor clarification).”
1989—Subsec. (b)(4)(D). Pub. L. 101–189 inserted “cost or” after “considering only”.
1988—Subsec. (d)(1)(B). Pub. L. 100–456, §806(b), substituted “Proposals referred to in the first sentence of subparagraph (A) are” for “The proposals that the head of an agency is to consider requiring in a solicitation for the award of a development contract are”.
Subsec. (d)(2)(B). Pub. L. 100–456, §806(b), substituted “Proposals referred to in the first sentence of subparagraph (A) are” for “The proposals that the head of an agency is to consider requiring in a solicitation for the award of a production contract are”.
Subsec. (d)(3). Pub. L. 100–456, §806(a)(2), inserted provision that objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.
Subsec. (d)(4). Pub. L. 100–456, §806(a)(1), added par. (4).
1986—Subsec. (a). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§924(a)], Pub. L. 99–661, §924(a), amended subsec. (a) identically, in par. (2)(A)(i) striking out “(including price)” after “factors” and inserting “(including price)” and “(including cost and price)” and adding par. (3).
Subsec. (b)(4)(B). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§924(b)], Pub. L. 99–661, §924(b), amended subpar. (B) identically, inserting “cost or”.
Subsec. (b)(4)(E). Pub. L. 99–661, §313(b), added subpar. (E).
1985—Subsec. (b)(5). Pub. L. 99–145 aligned the margin of par. (5).
1984—Subsecs. (c), (d). Pub. L. 98–525 added subsecs. (c) and (d).
Catchline, subsecs. (a) to (d). Pub. L. 98–369 substituted “Contracts: planning, solicitation, evaluation, and award procedures” for “Formal advertisements for bids; time; opening; award; rejection” and completely revised the text to substitute a program using solicitation requirements covering military procurement for former provisions which had used the approach of utilizing formal advertisements, struck out former provisions which had directed that, except in cases where the Secretary of Defense had determined that military requirements necessitated the specification of container size, no advertisement or invitation to bid for the carriage of government property in other than government-owned cargo containers could specify carriage of such property in cargo containers of any stated length, height, or width, and carried forward into new subsecs. (a)(1)(A)(iii), (B)(i), and (b)(2) and (5) the content of former section.
1968—Subsec. (a). Pub. L. 90–268 inserted provision that, except in cases where the Secretary of Defense determines that military requirements necessitate such specification, no advertisement or invitation to bid for the carriage of Government property in other than Government-owned cargo containers shall specify carriage of such property in cargo containers of any stated length, height, or width.
1958—Subsecs. (b) to (d). Pub. L. 85–861 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.
For effective date and applicability of amendment by sections 4103(a), 4104(a), and 4202(a)(2) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Amendment by section 5601(a) of Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, Feb. 10, 1996, 110 Stat. 702.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 802(e) of Pub. L. 101–510 provided that:
“(1) Except as provided in paragraph (2), the amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 120-day period beginning on the date of the enactment of this Act [Nov. 5, 1990].
“(2) The Secretary of Defense may require the amendments made by this section to apply with respect to solicitations issued before the end of the period referred to in paragraph (1). The Secretary of Defense shall publish in the Federal Register notice of any such earlier effective date.”
Section 101(c) [title X, §924(c)] of Pub. L. 99–500 and Pub. L. 99–591, and section 924(c) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “The amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].”
Section 1213(b) of Pub. L. 98–525 provided that: “The amendment made by subsection (a) [amending this section] shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984].”
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Pub. L. 109–163, div. A, title VIII, §816, Jan. 6, 2006, 119 Stat. 3382, provided that:
“(a)
“(b)
“(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the award of such contract or task or delivery order under applicable law and regulations;
“(2) is unable, after conducting market research under paragraph (1), to make the determination described in that paragraph; and
“(3) includes in the contract file a written explanation of why such contracting officer was unable to make such determination.”
Pub. L. 109–163, div. A, title VIII, §819, Jan. 6, 2006, 119 Stat. 3385, provided that:
“(a)
“(b)
“(c)
Pub. L. 102–484, div. A, title VIII, §804, Oct. 23, 1992, 106 Stat. 2447, provided that, in case of contract to be entered into pursuant to this chapter, other than pursuant to simplified procedures under section 2304(g) of this title, solicitation was to contain notice of right of bidding small business concern, in case of determination by contracting officer that concern was nonresponsible, to request Small Business Administration to make determination of responsibility under section 637(b)(7) of Title 15, Commerce and Trade, that if contracting officer determined that concern was nonresponsible, such officer was to notify concern in writing, of such determination, that concern had right to request Small Business Administration to make determination, and that, if concern desired to request such determination, concern was to inform officer in writing, within 14 days after receipt of notice, of such desire, and that, after being so informed, officer was to transmit request to Administration, or, if not so informed, officer was to proceed with award of contract, and contained provisions relating to effective and termination dates and report to be submitted to Congress, prior to repeal by Pub. L. 103–355, title VII, §7101(b), Oct. 13, 1994, 108 Stat. 3367.
Amendment by Pub. L. 98–369 as not superseding or affecting the provisions of section 637(a) of Title 15, Commerce and Trade, see section 2723(c) of Pub. L. 98–369, set out as a note under section 2304 of this title.
(a)
(b)
(1) The extent to which the project requirements have been adequately defined.
(2) The time constraints for delivery of the project.
(3) The capability and experience of potential contractors.
(4) The suitability of the project for use of the two-phase selection procedures.
(5) The capability of the agency to manage the two-phase selection process.
(6) Other criteria established by the agency.
(c)
(1) The agency develops, either in-house or by contract, a scope of work statement for inclusion in the solicitation that defines the project and provides prospective offerors with sufficient information regarding the Government's requirements (which may include criteria and preliminary design, budget parameters, and schedule or delivery requirements) to enable the offerors to submit proposals which meet the Government's needs. If the agency contracts for development of the scope of work statement, the agency shall contract for architectural and engineering services as defined by and in accordance with chapter 11 of title 40.
(2) The contracting officer solicits phase-one proposals that—
(A) include information on the offeror's—
(i) technical approach; and
(ii) technical qualifications; and
(B) do not include—
(i) detailed design information; or
(ii) cost or price information.
(3) The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include specialized experience and technical competence, capability to perform, past performance of the offeror's team (including the architect-engineer and construction members of the team) and other appropriate factors, except that cost-related or price-related evaluation factors are not permitted. Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals. The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation.
(4) The contracting officer selects as the most highly qualified the number of offerors specified in the solicitation to provide the property or services under the contract and requests the selected offerors to submit phase-two competitive proposals that include technical proposals and cost or price information. Each solicitation establishes with respect to phase two—
(A) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work (or both), and
(B) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with paragraphs (2), (3), and (4) of section 2305(a) of this title.
The contracting officer separately evaluates the submissions described in subparagraphs (A) and (B).
(5) The agency awards the contract in accordance with section 2305(b)(4) of this title.
(d)
(e)
(1) regarding the factors that may be considered in determining whether the two-phase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;
(2) regarding the factors that may be used in selecting contractors; and
(3) providing for a uniform approach to be used Government-wide.
(f)
(2) Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience before funds are first made available for construction may not exceed an amount attributable to the final design of the project.
(3) For each fiscal year during which the authority provided by this subsection is in effect, the Secretary of a military department may select not more than two military construction projects to include the accelerated design effort authorized by paragraph (1) for each armed force under the jurisdiction of the Secretary. To be eligible for selection under this subsection, a request for the authorization of the project, and for the authorization of appropriations for the project, must have been included in the annual budget of the President for a fiscal year submitted to Congress under section 1105(a) of title 31.
(4) Not later than March 1, 2008, the Secretary of Defense shall submit to the congressional defense committees a report evaluating the usefulness of the authority provided by this subsection in expediting the design and construction of military construction projects. The authority provided by this subsection expires September 30, 2008, except that, if the report required by this paragraph is not submitted by March 1, 2008, the authority shall expire on that date.
(Added Pub. L. 104–106, div. D, title XLI, §4105(a)(1), Feb. 10, 1996, 110 Stat. 645; amended Pub. L. 105–85, div. A, title X, §1073(a)(44), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 107–217, §3(b)(4), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–178, §4(b)(3), Dec. 15, 2003, 117 Stat. 2641; Pub. L. 108–375, div. B, title XXVIII, §2807, Oct. 28, 2004, 118 Stat. 2123; Pub. L. 109–163, div. B, title XXVIII, §2807, Jan. 6, 2006, 119 Stat. 3508.)
A prior section 2305a was renumbered section 2438 of this title.
2006—Subsec. (f)(2). Pub. L. 109–163, §2807(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience may not exceed the actual costs incurred as of the termination date.”
Subsec. (f)(4). Pub. L. 109–163, §2807(b), substituted “2008” for “2007” wherever appearing.
2004—Subsec. (f). Pub. L. 108–375 added subsec. (f).
2003—Subsec. (c)(1). Pub. L. 108–178 substituted “chapter 11 of title 40” for “the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)”.
2002—Subsec. (a). Pub. L. 107–217 substituted “chapter 11 of title 40” for “the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)”.
1997—Subsec. (a). Pub. L. 105–85 substituted “(40 U.S.C.” for “(41 U.S.C.”.
Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees.
For effective date and applicability of section, see section 4401 of Pub. L. 104–106, set out as an Effective Date of 1996 Amendment note under section 2302 of this title.
(a) The cost-plus-a-percentage-of-cost system of contracting may not be used. Subject to the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into any kind of contract that he considers will promote the best interests of the United States.
(b) Each contract awarded under this chapter after using procedures other than sealed-bid procedures shall contain a warranty, determined to be suitable by the head of the agency, that the contractor has employed or retained no person or selling agency to solicit or obtain the contract under an understanding or agreement for a commission, percentage, brokerage, or contingent fee, except a bona fide employee or established commercial or selling agency maintained by him to obtain business. If a contractor breaks such a warranty the United States may annul the contract without liability or may deduct the commission, percentage, brokerage, or contingent fee from the contract price or consideration. This subsection does not apply to a contract that is for an amount not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items.
[(c) Repealed. Pub. L. 103–355, title I, §1021, Oct. 13, 1994, 108 Stat. 3257.]
(d) The fee for performing a cost-plus-a-fixed-fee contract for experimental, developmental, or research work may not be more than 15 percent of the estimated cost of the contract, not including the fee. The fee for performing a cost-plus-a-fixed-fee contract for architectural or engineering services for a public work or utility plus the cost of those services to the contractor may not be more than 6 percent of the estimated cost of that work or project, not including fees. The fee for performing any other cost-plus-a-fixed-fee contract may not be more than 10 percent of the estimated cost of the contract, not including the fee. Determinations under this subsection of the estimated costs of a contract or project shall be made by the head of the agency at the time the contract is made.
(e)(1) Except as provided in paragraph (2), each cost contract and each cost-plus-a-fixed-fee contract shall provide for notice to the agency by the contractor before the making, under the prime contract, of—
(A) a cost-plus-a-fixed-fee subcontract; or
(B) a fixed-price subcontract or purchase order involving more than the greater of (i) the simplified acquisition threshold, or (ii) 5 percent of the estimated cost of the prime contract.
(2) Paragraph (1) shall not apply to a prime contract with a contractor that maintains a purchasing system approved by the contracting officer for the contract.
(f) So-called “truth-in-negotiations” provisions relating to cost or pricing data to be submitted by certain contractors and subcontractors are provided in section 2306a of this title.
(g) Multiyear contracting authority for the acquisition of services is provided in section 2306c of this title.
(h) Multiyear contracting authority for the purchase of property is provided in section 2306b of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 87–653, §1(d), (e), Sept. 10, 1962, 76 Stat. 528; Pub. L. 90–378, §1, July 5, 1968, 82 Stat. 289; Pub. L. 90–512, Sept. 25, 1968, 82 Stat. 863; Pub. L. 96–513, title V, §511(77), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97–86, title IX, §§907(b), 909(b), Dec. 1, 1981, 95 Stat. 1117, 1118; Pub. L. 98–369, div. B, title VII, §2724, July 18, 1984, 98 Stat. 1192; Pub. L. 99–145, title XIII, §1303(a)(15), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99–500, §101(c) [title X, §952(b)(1), (c)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, and Pub. L. 99–591, §101(c) [title X, §952(b)(1), (c)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(b)(1), (c)(1), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–189, div. A, title VIII, §805(a), Nov. 29, 1989, 103 Stat. 1488; Pub. L. 101–510, div. A, title VIII, §808, Nov. 5, 1990, 104 Stat. 1593; Pub. L. 102–25, title VII, §701(d)(3), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title I, §§1021, 1022(b), title IV, §§4102(b), 4401(c), title VIII, §8105(a), Oct. 13, 1994, 108 Stat. 3257, 3260, 3340, 3348, 3392; Pub. L. 105–85, div. A, title X, §1073(a)(45), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 106–398, §1 [[div. A], title VIII, §802(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–205; Pub. L. 108–136, div. A, title VIII, §842, Nov. 24, 2003, 117 Stat. 1552.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2306(a) 2306(b) |
41:153(a) (1st sentence). 41:153(b) (1st 14 words of 1st sentence). 41:153(a) (less 1st sentence). |
Feb. 19, 1948, ch. 65, §4 (less words after semicolon of last sentence of (b), and less (c)), 62 Stat. 23. |
| 2306(c) | 41:153(b) (2d sentence). | |
| 2306(d) | 41:153(b) (1st sentence, less 1st 14 words). | |
| 2306(e) | 41:153(b) (less 1st and 2d sentences; and less words after semicolon of last sentence). |
In subsection (a), the words “subject to subsections (b)–(e)” are substituted for the words “Except as provided in subsection (b) of this section”. The words “United States” are substituted for the word “Government”.
In subsection (b), the words “under section 2304 of this title” are substituted for the words “pursuant to section 151(c) of this title”. The words “full amount of such” and “violation” are omitted as surplusage.
In subsection (c), the words “under section 2304 of this title” are inserted for clarity.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Provisions similar to those in subsec. (h)(11) of this section were contained in Pub. L. 100–526, title I, §104(a), Oct. 24, 1988, 102 Stat. 2624, which was set out below, prior to repeal by Pub. L. 101–189, §805(b).
2003—Subsec. (e). Pub. L. 108–136 substituted “(1) Except as provided in paragraph (2), each” for “Each”, redesignated former pars. (1) and (2) as subpars. (A) and (B) of par. (1), respectively, redesignated cls. (A) and (B) of former par. (2) as cls. (i) and (ii) of subpar. (B) of par. (1), respectively, and added par. (2).
2000—Subsec. (g). Pub. L. 106–398 amended subsec. (g) generally. Prior to amendment, subsec. (g) consisted of pars. (1) to (3) authorizing the head of an agency to enter into contracts for periods of not more than five years for certain types of services.
1997—Subsec. (h). Pub. L. 105–85 inserted “for the purchase of property” after “Multiyear contracting authority”.
1994—Subsec. (b). Pub. L. 103–355, §§4102(b), 8105(a), inserted at end “This subsection does not apply to a contract that is for an amount not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial items.”
Subsec. (c). Pub. L. 103–355, §1021, struck out subsec. (c) which read as follows: “No cost contract, cost-plus-a-fixed-fee contract, or incentive contract may be made under this chapter unless the head of the agency determines that such a contract is likely to be less costly to the United States than any other kind of contract or that it is impracticable to obtain property or services of the kind or quality required except under such a contract.”
Subsec. (e)(2)(A). Pub. L. 103–355, §4401(c), substituted “simplified acquisition threshold” for “small purchase threshold”.
Subsec. (h). Pub. L. 103–355, §1022(b), amended subsec. (h) generally. Prior to amendment, subsec. (h) related to requirements for multiyear contracts for purchase of property, including weapon systems and items and services associated with weapons systems.
1991—Subsec. (e)(2)(A). Pub. L. 102–25 substituted “the small purchase threshold” for “the small purchase amount under section 2304(g) of this title”.
1990—Subsec. (h)(1). Pub. L. 101–510, §808(a), struck out “(other than contracts described in paragraph (6))” after “multiyear contracts” in introductory provisions and substituted “substantial savings of the total anticipated costs of carrying out the program through annual contracts” for “reduced total costs under the contract” in subpar. (A).
Subsec. (h)(6). Pub. L. 101–510, §808(b), struck out “contracts for the construction, alteration, or major repair of improvements to real property or” after “not apply to”.
Subsec. (h)(9). Pub. L. 101–510, §808(c)(1), inserted “for a defense acquisition program that has been specifically authorized by law to be carried out using multiyear contract authority” after “under this subsection” in introductory provisions.
Subsec. (h)(9)(C). Pub. L. 101–510, §808(c)(2), struck out subpar. (C) which read as follows: “The proposed multiyear contract—
“(i) achieves a 10 percent savings as compared to the cost of current negotiated contracts, adjusted for changes in quantity and for inflation; or
“(ii) achieves a 10 percent savings as compared to annual contracts if no recent contract experience exists.”
1989—Subsec. (h)(9) to (11). Pub. L. 101–189 added pars. (9) to (11).
1986—Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§952(c)(1)], Pub. L. 99–661, §952(c)(1), amended section identically, striking out “: cost or pricing data: truth in negotiation” after “contracts” in section catchline.
Subsec. (f). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§952(b)(1)], Pub. L. 99–661, §952(b)(1), amended generally subsec. (f) identically, substituting provision that “truth-in-negotiations” provisions relating to cost and pricing data for contractors and subcontractors are provided in section 2306a of this title for provision relating to certification by contractors and subcontractors on cost and pricing data, circumstances under which such certification will be required, circumstances under which such certification, although not required, may be requested, and evaluation of the accuracy of the data submitted.
1985—Subsec. (a). Pub. L. 99–145, §1303(a)(15)(A), inserted a period at end.
Subsec. (b). Pub. L. 99–145, §1303(a)(15)(B), struck out “of this title” before “shall contain”.
1984—Pub. L. 98–369, §2724(f), substituted “Kinds of contracts; cost or pricing data: truth in negotiation” for “Kinds of contracts” in section catchline.
Subsec. (a). Pub. L. 98–369, §2724(a), substituted “the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into” for “this limitation and subject to subsections (b)–(f), the head of any agency may, in negotiating contracts under section 2304 of this title, make”.
Subsec. (b). Pub. L. 98–369, §2724(b), substituted “awarded under this chapter after using procedures other than sealed-bid procedures” for “negotiated under section 2304”.
Subsec. (c). Pub. L. 98–369, §2724(c), substituted “this chapter” for “section 2304 of this title,”.
Subsec. (e)(2). Pub. L. 98–369, §2724(d), substituted “the greater of (A) the small purchase amount under section 2304(g) of this title, or (B)” for “$25,000 or”.
Subsec. (f)(1). Pub. L. 98–369, §2724(e)(A)(i), (ii), substituted “such contractor's or subcontractor's” for “his” and struck out “he” before “submitted was accurate” in provisions preceding subpar. (A).
Subsec. (f)(1)(A). Pub. L. 98–369, §2724(3)(A)(iii), (vi), (vii), substituted “prime contract under this chapter entered into after using procedures other than sealed-bid procedures, if” for “negotiated prime contract under this title where”, “$100,000” for “$500,000”, and “before” for “prior to”.
Subsec. (f)(1)(B). Pub. L. 98–369, §2724(e)(A)(iv), (vi), (vii), substituted “if” for “for which”, “$100,000” for “$500,000”, and “before” for “prior to”.
Subsec. (f)(1)(C). Pub. L. 98–369, §2724(e)(A)(v)–(vii), substituted “when” for “where”, “$100,000” for “$500,000”, and “before” for “prior to”.
Subsec. (f)(1)(D). Pub. L. 98–369, §2724(e)(A)(iv), (vi), (vii), substituted “if” for “for which”, “$100,000” for “$500,000”, and “before” for “prior to”.
Subsec. (f)(2). Pub. L. 98–369, §2724(e)(B), (D), (E), struck out “negotiated” before “price as is practicable” and before “is based on adequate price competition”, redesignated as par. (3) the proviso formerly set out in this par., and as part of the redesignation substituted a period for “: Provided, That” after “or noncurrent”.
Subsec. (f)(3). Pub. L. 98–369, §2724(e)(E), designated as par. (3) the proviso formerly set out in par. (2). Former par. (3) redesignated (5).
Subsec. (f)(4). Pub. L. 98–369, §2724(e)(F), added par. (4).
Subsec. (f)(5). Pub. L. 98–369, §2724(e)(C), redesignated former par. (3) as (5) and substituted “proposal for the contract, the discussions conducted on the proposal” for “negotiation”.
1981—Subsec. (f)(1). Pub. L. 97–86, §907(b), substituted “$500,000” for “$100,000” in subpars. (A) to (D).
Subsec. (g)(1). Pub. L 97–86, §909(b)(1), struck out “to be performed outside the forty-eight contiguous States and the District of Columbia” after “(and items of supply related to such services)” in provisions preceding subpar. (A).
Subsec. (h). Pub. L. 97–86, §909(b)(2), added subsec. (h).
1980—Subsec. (f). Pub. L. 96–513, §511(77)(A), designated existing provisions as pars. (1) to (3) and in par. (1), as so designated, substituted “(A)” to “(D)” for “(1)” to “(4)”, respectively, “prior” for “Prior” wherever appearing, and “clause (C)” for “(3) above”.
Subsec. (g). Pub. L. 96–513, §511(77)(B), in par. (1) substituted “that—” for “that:”, in par. (2) substituted “(A) The” for “(A) the”, “(B) Consideration” for “(B) consideration”, and “(C) Consideration” for “(C) consideration”, and in par. (3) substituted “from—” for “from:”.
1968—Subsec. (f). Pub. L. 90–512 inserted last par.
Subsec. (g). Pub. L. 90–378 added subsec. (g).
1962—Subsec. (a). Pub. L. 87–653, §1(d), substituted “subsections (b)–(f)” for “subsections (b)–(e)”.
Subsec. (f). Pub. L. 87–653, §1(e), added subsec. (f).
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by section 101(c) [title X, §952(b)(1)] of Pub. L. 99–500 and Pub. L. 99–591, and section 952(b)(1) of Pub. L. 99–661 applicable with respect to contracts or modifications on contracts entered into after end of 120-day period beginning Oct. 18, 1986, see section 101(c) of Pub. L. 99–500 and Pub. L. 99–591, and section 952(d) of Pub. L. 99–661, set out as a note under section 2306a of this title.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
For effective date of amendment by Pub. L. 87–653 see section 1(h) of Pub. L. 87–653, set out as a note under section 2304 of this title.
Section 805(c) of Pub. L. 101–189 provided that: “Subparagraph (C) of paragraph (9) of section 2306(h) of title 10, United States Code, as added by subsection (a), does not apply to programs that are under a multiyear contract on the date of the enactment of this Act [Nov. 29, 1989].”
Pub. L. 109–364, div. A, title VIII, §818(b)–(e), Oct. 17, 2006, 120 Stat. 2329, 2330, provided that:
“(b)
“(c)
“(1) a fixed-price type contract (including a fixed price incentive contract); or
“(2) a cost type contract.
“(d)
“(1) the program is so complex and technically challenging that it would not be practicable to reduce program risk to a level that would permit the use of a fixed-price type contract; and
“(2) the complexity and technical challenge of the program is not the result of a failure to meet the requirements established in section 2366a of title 10, United States Code.
“(e)
Pub. L. 100–526, title I, §104(a), Oct. 24, 1988, 102 Stat. 2624, which provided that if for any fiscal year a multiyear contract was to be entered into under 10 U.S.C. 2306(h) was authorized by law for a particular procurement program and that authorization was subject to certain conditions established by law (including a condition as to cost savings to be achieved under the multiyear contract in comparison to specified other contracts) and if it appeared (after negotiations with contractors) that such savings could not be achieved, but that substantial savings could nevertheless be achieved through the use of a multiyear contract rather than specified other contracts, the President was to submit to Congress a request for relief from the specified cost savings that was to be achieved through multiyear contracting for that program and that any such request by the President was to include details about the request for a multiyear contract, including details about the negotiated contract terms and conditions, was repealed and restated as subsec. (h)(11) of this section by Pub. L. 101–189, §805(b), (c).
Pub. L. 94–361, title VIII, §805, July 14, 1976, 90 Stat. 932, required that military contracts entered into during Oct. 1, 1976 to Sept. 30, 1978 for development or procurement of a major system include a deferred ordering clause with an option to purchase from the contractor technical data and computer software packages relating to the system, directed that such clause require such packages to be sufficiently detailed so as to enable procurement of such system or subsystem from another contractor, authorized that a particular contract may be exempted from the deferred ordering clause if the procuring authority reports to the House and Senate Committees on Armed Services his intent to so contract with an explanation for the exemption, and set out definitions for “major system”, “deferred ordering”, and “technical data”.
(a)
(A) An offeror for a prime contract under this chapter to be entered into using procedures other than sealed-bid procedures shall be required to submit cost or pricing data before the award of a contract if—
(i) in the case of a prime contract entered into after December 5, 1990, the price of the contract to the United States is expected to exceed $500,000; and
(ii) in the case of a prime contract entered into on or before December 5, 1990, the price of the contract to the United States is expected to exceed $100,000.
(B) The contractor for a prime contract under this chapter shall be required to submit cost or pricing data before the pricing of a change or modification to the contract if—
(i) in the case of a change or modification made to a prime contract referred to in subparagraph (A)(i), the price adjustment is expected to exceed $500,000;
(ii) in the case of a change or modification made after December 5, 1991, to a prime contract that was entered into on or before December 5, 1990, and that has been modified pursuant to paragraph (6), the price adjustment is expected to exceed $500,000; and
(iii) in the case of a change or modification not covered by clause (i) or (ii), the price adjustment is expected to exceed $100,000.
(C) An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section and—
(i) in the case of a subcontract under a prime contract referred to in subparagraph (A)(i), the price of the subcontract is expected to exceed $500,000;
(ii) in the case of a subcontract entered into after December 5, 1991, under a prime contract that was entered into on or before December 5, 1990, and that has been modified pursuant to paragraph (6), the price of the subcontract is expected to exceed $500,000; and
(iii) in the case of a subcontract not covered by clause (i) or (ii), the price of the subcontract is expected to exceed $100,000.
(D) The subcontractor for a subcontract covered by subparagraph (C) shall be required to submit cost or pricing data before the pricing of a change or modification to the subcontract if—
(i) in the case of a change or modification to a subcontract referred to in subparagraph (C)(i) or (C)(ii), the price adjustment is expected to exceed $500,000; and
(ii) in the case of a change or modification to a subcontract referred to in subparagraph (C)(iii), the price adjustment is expected to exceed $100,000.
(2) A person required, as an offeror, contractor, or subcontractor, to submit cost or pricing data under paragraph (1) (or required by the head of the agency concerned to submit such data under subsection (c)) shall be required to certify that, to the best of the person's knowledge and belief, the cost or pricing data submitted are accurate, complete, and current.
(3) Cost or pricing data required to be submitted under paragraph (1) (or under subsection (c)), and a certification required to be submitted under paragraph (2), shall be submitted—
(A) in the case of a submission by a prime contractor (or an offeror for a prime contract), to the contracting officer for the contract (or to a designated representative of the contracting officer); or
(B) in the case of a submission by a subcontractor (or an offeror for a subcontract), to the prime contractor.
(4) Except as provided under subsection (b), this section applies to contracts entered into by the head of an agency on behalf of a foreign government.
(5) A waiver of requirements for submission of certified cost or pricing data that is granted under subsection (b)(1)(C) in the case of a contract or subcontract does not waive the requirement under paragraph (1)(C) for submission of cost or pricing data in the case of subcontracts under that contract or subcontract unless the head of the procuring activity granting the waiver determines that the requirement under that paragraph should be waived in the case of such subcontracts and justifies in writing the reasons for the determination.
(6) Upon the request of a contractor that was required to submit cost or pricing data under paragraph (1) in connection with a prime contract entered into on or before December 5, 1990, the head of the agency that entered into such contract shall modify the contract to reflect subparagraphs (B)(ii) and (C)(ii) of paragraph (1). All such modifications shall be made without requiring consideration.
(7) Effective on October 1 of each year that is divisible by 5, each amount set forth in paragraph (1) shall be adjusted to the amount that is equal to the fiscal year 1994 constant dollar value of the amount set forth. Any amount, as so adjusted, that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. In the case of an amount that is evenly divisible by $25,000 but not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000.
(b)
(1)
(A) for which the price agreed upon is based on—
(i) adequate price competition; or
(ii) prices set by law or regulation;
(B) for the acquisition of a commercial item; or
(C) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this section may be waived and justifies in writing the reasons for such determination.
(2)
(A) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1)(A) or (1)(B); and
(B) the modification would not change the contract or subcontract, as the case may be, from a contract or subcontract for the acquisition of a commercial item to a contract or subcontract for the acquisition of an item other than a commercial item.
(3)
(B) In this paragraph, the term “noncommercial modification”, with respect to a commercial item, means a modification of such item that is not a modification described in section 4(12)(C)(i) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)(C)(i)).
(C) Nothing in subparagraph (A) shall be construed—
(i) to limit the applicability of the exception in subparagraph (A) or (C) of paragraph (1) to cost or pricing data on a noncommercial modification of a commercial item; or
(ii) to require the submission of cost or pricing data on any aspect of an acquisition of a commercial item other than the cost and pricing of noncommercial modifications of such item.
(c)
(1)
(2)
(3)
(d)
(1)
(2)
(A) Reasonable limitations on requests for sales data relating to commercial items.
(B) A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial items from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations.
(C) A statement that any information received relating to commercial items that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.
(e)
(B) For the purposes of this section, defective cost or pricing data are cost or pricing data which, as of the date of agreement on the price of the contract (or another date agreed upon between the parties), were inaccurate, incomplete, or noncurrent. If for purposes of the preceding sentence the parties agree upon a date other than the date of agreement on the price of the contract, the date agreed upon by the parties shall be as close to the date of agreement on the price of the contract as is practicable.
(2) In determining for purposes of a contract price adjustment under a contract provision required by paragraph (1) whether, and to what extent, a contract price was increased because the contractor (or a subcontractor) submitted defective cost or pricing data, it shall be a defense that the United States did not rely on the defective data submitted by the contractor or subcontractor.
(3) It is not a defense to an adjustment of the price of a contract under a contract provision required by paragraph (1) that—
(A) the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted by the contractor or subcontractor because the contractor or subcontractor—
(i) was the sole source of the property or services procured; or
(ii) otherwise was in a superior bargaining position with respect to the property or services procured;
(B) the contracting officer should have known that the cost and pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting officer;
(C) the contract was based on an agreement between the contractor and the United States about the total cost of the contract and there was no agreement about the cost of each item procured under such contract; or
(D) the prime contractor or subcontractor did not submit a certification of cost and pricing data relating to the contract as required under subsection (a)(2).
(4)(A) A contractor shall be allowed to offset an amount against the amount of a contract price adjustment under a contract provision required by paragraph (1) if—
(i) the contractor certifies to the contracting officer (or to a designated representative of the contracting officer) that, to the best of the contractor's knowledge and belief, the contractor is entitled to the offset; and
(ii) the contractor proves that the cost or pricing data were available before the date of agreement on the price of the contract (or price of the modification) or, if applicable consistent with paragraph (1)(B), another date agreed upon between the parties, and that the data were not submitted as specified in subsection (a)(3) before such date.
(B) A contractor shall not be allowed to offset an amount otherwise authorized to be offset under subparagraph (A) if—
(i) the certification under subsection (a)(2) with respect to the cost or pricing data involved was known to be false when signed; or
(ii) the United States proves that, had the cost or pricing data referred to in subparagraph (A)(ii) been submitted to the United States before the date of agreement on the price of the contract (or price of the modification) or, if applicable consistent with paragraph (1)(B), another date agreed upon between the parties, the submission of such cost or pricing data would not have resulted in an increase in that price in the amount to be offset.
(f)
(A) for interest on the amount of such overpayment, to be computed—
(i) for the period beginning on the date the overpayment was made to the contractor and ending on the date the contractor repays the amount of such overpayment to the United States; and
(ii) at the current rate prescribed by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986; and
(B) if the submission of such defective data was a knowing submission, for an additional amount equal to the amount of the overpayment.
(2) Any liability under this subsection of a contractor that submits cost or pricing data but refuses to submit the certification required by subsection (a)(2) with respect to the cost or pricing data shall not be affected by the refusal to submit such certification.
(g)
(h)
(1)
(2)
(3)
(Added Pub. L. 99–500, §101(c) [title X, §952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–166, and Pub. L. 99–591, §101(c) [title X, §952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–166; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–180, div. A, title VIII, §804(a), (b), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 101–510, div. A, title VIII, §803(a)(1), (d), Nov. 5, 1990, 104 Stat. 1589, 1590; Pub. L. 102–25, title VII, §701(b), (f)(8), Apr. 6, 1991, 105 Stat. 113, 115; Pub. L. 102–190, div. A, title VIII, §804(a)–(c)(1), title X, §1061(a)(9), Dec. 5, 1991, 105 Stat. 1415, 1416, 1472; Pub. L. 103–355, title I, §§1201–1209, Oct. 13, 1994, 108 Stat. 3273–3277; Pub. L. 104–106, div. D, title XLII, §4201(a), title XLIII, §4321(a)(2), (b)(7), Feb. 10, 1996, 110 Stat. 649, 671, 672; Pub. L. 104–201, div. A, title X, §1074(a)(12), Sept. 23, 1996, 110 Stat. 2659; Pub. L. 105–85, div. A, title X, §1073(a)(46), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 105–261, div. A, title VIII, §§805(a), 808(a), Oct. 17, 1998, 112 Stat. 2083, 2085; Pub. L. 108–375, div. A, title VIII, §818(a), Oct. 28, 2004, 118 Stat. 2015; Pub. L. 110–181, div. A, title VIII, §814, Jan. 28, 2008, 122 Stat. 222; Pub. L. 111–350, §5(b)(15), Jan. 4, 2011, 124 Stat. 3843.)
Section 4(12)(C)(i) of the Office of Federal Procurement Policy Act, referred to in subsec. (b)(3)(B), means section 4(12)(C)(i) of Pub. L. 93–400, which was classified to section 403(12)(C)(i) of former Title 41, Public Contracts, and was repealed and restated as section 103(3)(A) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855.
Section 6621 of the Internal Revenue Code of 1986, referred to in subsec. (f)(1)(A)(ii), is classified to section 6621 of Title 26, Internal Revenue Code.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
2011—Subsec. (h)(3). Pub. L. 111–350 substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”.
2008—Subsec. (b)(3)(A). Pub. L. 110–181 substituted “the amount specified in subsection (a)(1)(A)(i), as adjusted from time to time under subsection (a)(7),” for “$500,000” and inserted “(at the time of contract award)” after “total price of the contract”.
2004—Subsec. (b)(3). Pub. L. 108–375 added par. (3).
1998—Subsec. (a)(5). Pub. L. 105–261, §805(a), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “For purposes of paragraph (1)(C), a contractor or subcontractor granted a waiver under subsection (b)(1)(C) shall be considered as having been required to make available cost or pricing data under this section.”
Subsec. (d)(1). Pub. L. 105–261, §808(a), substituted “the contracting officer shall require that the data submitted” for “the data submitted shall”.
1997—Subsec. (a)(5). Pub. L. 105–85 substituted “subsection (b)(1)(C)” for “subsection (b)(1)(B)”.
1996—Subsec. (b). Pub. L. 104–106, §4321(a)(2), made technical correction to directory language of Pub. L. 103–355, §1202(a). See 1994 Amendment note below.
Pub. L. 104–106, §4201(a)(1), amended subsec. (b) generally, revising and restating as pars. (1) and (2) the provisions of former pars. (1) and (2) and striking out par. (3).
Subsec. (c). Pub. L. 104–106, §4201(a)(1), amended subsec. (c) generally, revising and restating as subsec. (c) the provisions of former subsec. (c)(1).
Subsec. (d). Pub. L. 104–106, §4321(b)(7)(A), which directed amendment of subsec. (d)(2)(A)(ii), by inserting “to” after “The information referred”, could not be executed because subsec. (d)(2)(A) did not contain a cl. (ii) or the language “The information referred” subsequent to amendment by Pub. L. 104–106, §4201(a)(1). See below.
Pub. L. 104–106, §4201(a)(1), amended subsec. (d) generally, revising and restating as pars. (1) and (2) provisions of former subsecs. (c)(2) and (d)(2), (4) and striking out provisions of former subsec. (d)(1), (3) relating to procurements based on adequate price competition and authority to audit.
Subsec. (e)(4)(B)(ii). Pub. L. 104–106, §4321(b)(7)(B), struck out second comma after “parties”.
Subsec. (h). Pub. L. 104–106, §4201(a)(2), redesignated subsec. (i) as (h) and struck out former subsec. (h) which read as follows: “
Subsec. (h)(3). Pub. L. 104–201 inserted “(41 U.S.C. 403(12))” before period at end.
Subsec. (i). Pub. L. 104–106, §4201(a)(2)(B), redesignated subsec. (i) as (h).
Subsec. (i)(3). Pub. L. 104–106, §4321(b)(7)(C), which directed amendment of subsec. (i)(3) by inserting “(41 U.S.C. 403(12))” before period at end, could not be executed because section did not contain a subsec. (i) subsequent to the amendment by Pub. L. 104–106, §4201(a)(2)(B), redesignating subsec. (i) as (h). See above.
1994—Subsec. (a)(1)(A)(i). Pub. L. 103–355, §1201(a)(1), struck out “and before January 1, 1996,” after “December 5, 1990,”.
Subsec. (a)(1)(A)(ii). Pub. L. 103–355, §1201(a)(2), struck out “or after December 31, 1995,” after “December 5, 1990,”.
Subsec. (a)(5). Pub. L. 103–355, §1202(b), substituted “subsection (b)(1)(B)” for “subsection (b)(2)”.
Subsec. (a)(6). Pub. L. 103–355, §1201(c), struck out subpar. (A) designation and subpar. (B) which read as follows: “The head of an agency is not required to modify a contract under subparagraph (A) if that head of an agency determines that the submission of cost or pricing data with respect to that contract should be required under subsection (c).”
Subsec. (a)(7). Pub. L. 103–355, §1201(b), added par. (7).
Subsec. (b). Pub. L. 103–355, §1202(a), as amended by Pub. L. 104–106, §4321(a)(2), amended heading and text of subsec. (b) generally. Prior to amendment, text read as follows: “This section need not be applied to a contract or subcontract—
“(1) for which the price agreed upon is based on—
“(A) adequate price competition;
“(B) established catalog or market prices of commercial items sold in substantial quantities to the general public; or
“(C) prices set by law or regulation; or
“(2) in an exceptional case when the head of the agency determines that the requirements of this section may be waived and states in writing his reasons for such determination.”
Subsec. (c). Pub. L. 103–355, §1203, amended heading and text of subsec. (c) generally. Prior to amendment, text read as follows: “When cost or pricing data are not required to be submitted by subsection (a), such data may nevertheless be required to be submitted by the head of the agency if the head of the agency determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract or subcontract. In any case in which the head of the agency requires such data to be submitted under this subsection, the head of the agency shall document in writing the reasons for such requirement.”
Subsec. (d). Pub. L. 103–355, §1204, added subsec. (d) and redesignated former subsec. (d) as (e).
Subsec. (e). Pub. L. 103–355, §1204(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(4)(A)(ii), (B)(ii). Pub. L. 103–355, §1207, inserted “or, if applicable consistent with paragraph (1)(B), another date agreed upon between the parties,” after “(or price of the modification)”.
Subsec. (f). Pub. L. 103–355, §1204(1), redesignated subsec. (e) as (f). Former subsec. (f) redesignated (g).
Subsec. (f)(1). Pub. L. 103–355, §1209, struck out “with the Department of Defense” before “subject to this section” in introductory provisions.
Subsec. (g). Pub. L. 103–355, §1205, added subsec. (g) and struck out heading and text of former subsec. (g). Text read as follows:
“(1) For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this section with respect to a contract or subcontract, the head of the agency, acting through any authorized representative of the head of the agency who is an employee of the United States or a member of the armed forces, shall have the right to examine all records of the contractor or subcontractor related to—
“(A) the proposal for the contract or subcontract;
“(B) the discussions conducted on the proposal;
“(C) pricing of the contract or subcontract; or
“(D) performance of the contract or subcontract.
“(2) The right of the head of an agency under paragraph (1) shall expire three years after final payment under the contract or subcontract.
“(3) In this subsection, the term ‘records’ includes books, documents, and other data.”
Pub. L. 103–355, §1204(1), redesignated subsec. (f) as (g). Former subsec. (g) redesignated (i).
Subsec. (h). Pub. L. 103–355, §1206, added subsec. (h).
Subsec. (i). Pub. L. 103–355, §1208, amended heading and text of subsec. (i) generally. Prior to amendment, text read as follows: “In this section, the term ‘cost or pricing data’ means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification), a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived.”
Pub. L. 103–355, §1204(1), redesignated subsec. (g) as (i).
1991—Subsec. (a)(1)(A). Pub. L. 102–190, §804(a), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “An offeror for a prime contract under this chapter to be entered into using procedures other than sealed-bid procedures shall be required to submit cost or pricing data before the award of the contract if the price of the contract to the United States is expected to exceed $500,000 or, in the case of a contract to be awarded after December 31, 1995, $100,000.”
Subsec. (a)(1)(B). Pub. L. 102–190, §804(a), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “The contractor for a contract under this chapter shall be required to submit cost or pricing data before the pricing of a change or modification to the contract if the price adjustment is expected to exceed the dollar amount applicable under subparagraph (A) to that contract (or such lesser amount as may be prescribed by the head of the agency).”
Pub. L. 102–25, §701(b)(1), substituted “the dollar amount applicable under subparagraph (A) to that contract” for “$500,000 (or such lesser amount as may be prescribed by the head of the agency) or, in the case of a change or modification to a contract to be made after December 31, 1995, $100,000”.
Subsec. (a)(1)(C). Pub. L. 102–190, §804(a), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: “An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if—
“(i) the price of the subcontract is expected to exceed the dollar amount applicable under subparagraph (A) to the prime contract of that subcontract; and
“(ii) the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section.”
Subsec. (a)(1)(C)(i). Pub. L. 102–25, §701(b)(2), substituted “the dollar amount applicable under subparagraph (A) to the prime contract of that subcontract” for “$500,000 or, in the case of a subcontract to be awarded after December 31, 1995, $100,000”.
Subsec. (a)(1)(D). Pub. L. 102–190, §804(a), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: “The subcontractor for a subcontract covered by subparagraph (C) shall be required to submit cost or pricing data before the pricing of a change or modification to the subcontract if the price adjustment is expected to exceed the dollar amount applicable under subparagraph (A) to the prime contract of that subcontract (or such lesser amount as may be prescribed by the head of the agency).”
Pub. L. 102–25, §701(b)(3), substituted “the dollar amount applicable under subparagraph (A) to the prime contract of that subcontract” for “$500,000 (or such lesser amount as may be prescribed by the head of the agency) or, in the case of a change or modification to be made after December 31, 1995, $100,000”.
Subsec. (a)(5). Pub. L. 102–190, §804(c)(1), substituted “paragraph (1)(C)” for “paragraph (1)(C)(ii)”.
Subsec. (a)(6). Pub. L. 102–190, §804(b), added par. (6).
Subsec. (e)(1)(A)(i). Pub. L. 102–25, §701(f)(8), which directed the substitution of “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, could not be executed because “Internal Revenue Code of 1954” does not appear.
Subsec. (e)(1)(A)(ii). Pub. L. 102–190, §1061(a)(9), substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.
1990—Subsec. (a)(1)(A). Pub. L. 101–510, §803(a)(1)(A), substituted “$500,000 or, in the case of a contract to be awarded after December 31, 1995, $100,000” for “$100,000”.
Subsec. (a)(1)(B). Pub. L. 101–510, §803(a)(1)(B), substituted “$500,000 (or such lesser amount as may be prescribed by the head of the agency) or, in the case of a change or modification to a contract to be made after December 31, 1995, $100,000” for “$100,000”.
Subsec. (a)(1)(C)(i). Pub. L. 101–510, §803(a)(1)(C), substituted “$500,000 or, in the case of a subcontract to be awarded after December 31, 1995, $100,000” for “$100,000”.
Subsec. (a)(1)(D). Pub. L. 101–510, §803(a)(1)(D), substituted “$500,000 (or such lesser amount as may be prescribed by the head of the agency) or, in the case of a change or modification to be made after December 31, 1995, $100,000” for “$100,000”.
Subsec. (c). Pub. L. 101–510, §803(d), inserted at end “In any case in which the head of the agency requires such data to be submitted under this subsection, the head of the agency shall document in writing the reasons for such requirement.”
1987—Subsec. (a)(5). Pub. L. 100–180, §804(b)(1), substituted “a waiver under subsection (b)(2)” for “such a waiver”, and struck out first sentence authorizing head of an agency to waive requirement under this subsection for contractor, subcontractor, or offeror to submit cost or pricing data.
Subsec. (e)(2). Pub. L. 100–180, §804(b)(2), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Except as provided under subsection (d), the liability of a contractor under this subsection shall not be affected by the contractor's refusal to submit a certification under subsection (a)(2) with respect to the cost or pricing data involved.”
Subsec. (g). Pub. L. 100–180, §804(a), amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: “In this section, the term ‘cost or pricing data’ means all information that is verifiable and that, as of the date of agreement on the price of a contract (or the price of a contract modification), a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived.”
Pub. L. 108–375, div. A, title VIII, §818(b), Oct. 28, 2004, 118 Stat. 2016, as amended by Pub. L. 109–364, div. A, title X, §1071(g)(11), Oct. 17, 2006, 120 Stat. 2403, provided that: “Paragraph (3) of subsection (b) of section 2306a of title 10, United States Code (as added by subsection (a)), shall take effect on June 1, 2005, and shall apply with respect to offers submitted, and to modifications of contracts or subcontracts made, on or after that date.”
For effective date and applicability of amendment by sections 4201(a) and 4321(b)(7) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Section 4321(a) of Pub. L. 104–106 provided that the amendment made by that section is effective as of Oct. 13, 1994, and as if included in Pub. L. 103–355 as enacted.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 803(a)(2) of Pub. L. 101–510, as amended by Pub. L. 102–25, title VII, §704(a)(4), Apr. 6, 1991, 105 Stat. 118, provided that the amendments to this section by Pub. L. 101–510 would apply to contracts entered into after Dec. 5, 1990, subcontracts under such contracts, and modifications or changes to such contracts and subcontracts, prior to repeal by Pub. L. 102–190, div. A, title VIII, §804(c)(2), Dec. 5, 1991, 105 Stat. 1416.
Section 804(c) of Pub. L. 100–180 provided that:
“(1) Subsection (a) [amending this section] shall apply to any contract, or modification of a contract, entered into after the end of the 30-day period beginning on the date of the enactment of this Act [Dec. 4, 1987].
“(2) The amendments made by subsection (b) [amending this section] shall apply with respect to contracts, or modifications of contracts, entered into after the end of the 120-day period beginning on October 18, 1986.”
Section 101(c) [title X, §952(d)] of Pub. L. 99–500 and Pub. L. 99–591, and section 952(d) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that:
“(1) Except as provided in paragraph (2), section 2306a of title 10, United States Code (as added by subsection (a)), and the amendment and repeal made by subsection (b) [amending section 2306 of this title and repealing a provision set out as a note under section 2304 of this title], shall apply with respect to contracts or modifications on contracts entered into after the end of the 120-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].
“(2) Subsection (e) of such section shall apply with respect to contracts or modifications on contracts entered into after November 7, 1985.”
Section 803(c) of Pub. L. 101–510, directed Secretary of Defense to prescribe regulations identifying type of procurements for which contracting officers should consider requiring submission of certified cost or pricing data under subsec. (c) of this section, and also directed Secretary to prescribe regulations concerning types of information that offerors had to submit for contracting officer to consider in determining whether price of procurement to Government was fair and reasonable when certified cost or pricing data were not required to be submitted under this section because price of procurement to the United States was not expected to exceed $500,000, such information, at minimum, to include appropriate information on prices at which such offeror had previously sold same or similar products, with such regulations to be prescribed not later than six months after Nov. 5, 1990, prior to repeal by Pub. L. 103–355, title I, §1210, Oct. 13, 1994, 108 Stat. 3277.
Pub. L. 111–383, div. A, title VIII, §892, Jan. 7, 2011, 124 Stat. 4310, provided that:
“(a)
“(1)
“(2)
“(3)
“(4)
“(b)
“(c)
“(1)
“(2)
“(d)
Pub. L. 107–314, div. A, title VIII, §817, Dec. 2, 2002, 116 Stat. 2610, provided that:
“(a)
“(b)
“(1) the property or services cannot reasonably be obtained under the contract, subcontract, or modification, as the case may be, without the grant of the exception or waiver;
“(2) the price can be determined to be fair and reasonable without the submission of certified cost and pricing data or the application of cost accounting standards, as the case may be; and
“(3) there are demonstrated benefits to granting the exception or waiver.
“(c)
“(d)
“(2) The report for a fiscal year shall include—
“(A) with respect to any commercial item exception granted in the case of a contract, subcontract, or contract or subcontract modification that is expected to have a price of $15,000,000 or more, an explanation of the basis for the determination that the products or services to be purchased are commercial items, including an identification of the specific steps taken to ensure price reasonableness; and
“(B) with respect to any exceptional case exception or waiver granted in the case of a contract or subcontract that is expected to have a value of $15,000,000 or more, an explanation of the basis for the determination described in subsection (b), including an identification of the specific steps taken to ensure that the price was fair and reasonable.
“(e)
“(1) The term ‘exceptional case exception or waiver’ means either of the following:
“(A) An exception pursuant to section 2306a(b)(1)(C) of title 10, United States Code, relating to submission of certified cost and pricing data.
“(B) A waiver pursuant to section 26(f)(5)(B) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)(5)(B)) [now 41 U.S.C. 1502(b)(3)(B)], relating to the applicability of cost accounting standards to contracts and subcontracts.
“(2) The term ‘commercial item exception’ means an exception pursuant to section 2306a(b)(1)(B) of title 10, United States Code, relating to submission of certified cost and pricing data.”
Pub. L. 105–261, div. A, title VIII, §803, Oct. 17, 1998, 112 Stat. 2081, as amended by Pub. L. 106–65, div. A, title X, §1067(3), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title VIII, §823, Dec. 2, 2002, 116 Stat. 2615; Pub. L. 109–364, div. A, title VIII, §819, Oct. 17, 2006, 120 Stat. 2330, provided that:
“(a)
“(2) The regulations shall, at a minimum, provide specific guidance on—
“(A) the appropriate application and precedence of such price analysis tools as catalog-based pricing, market-based pricing, historical pricing, parametric pricing, and value analysis;
“(B) the circumstances under which contracting officers should require offerors of exempt commercial items to provide—
“(i) information on prices at which the offeror has previously sold the same or similar items; or
“(ii) other information other than certified cost or pricing data;
“(C) the role and responsibility of Department of Defense support organizations in procedures for determining price reasonableness; and
“(D) the meaning and appropriate application of the term ‘purposes other than governmental purposes’ in section 4(12) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(12)) [see 41 U.S.C. 103].
“(3) This subsection shall cease to be effective 1 year after the date on which final regulations prescribed pursuant to paragraph (1) take effect.
“(b)
“(c)
“(2) A category of exempt commercial items referred to in paragraph (1) consists of exempt commercial items—
“(A) that are in a single Federal Supply Group or Federal Supply Class, are provided by a single contractor, or are otherwise logically grouped for the purpose of analyzing information on price trends; and
“(B) for which there is a potential for the price paid to be significantly higher (on a percentage basis) than the prices previously paid in procurements of the same or similar items for the Department of Defense, as determined by the head of the procuring Department of Defense agency or the Secretary of the procuring military department on the basis of criteria prescribed by the Secretary of Defense.
“(3) The head of a Department of Defense agency or the Secretary of a military department shall take appropriate action to address any unreasonable escalation in prices being paid for items procured by that agency or military department as identified in an analysis conducted pursuant to paragraph (1).
“(4) Not later than April 1 of each of fiscal years 2000 through 2009, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the analyses of price trends that were conducted by the Secretary of each military department and the Director of the Defense Logistics Agency for categories of exempt commercial items during the preceding fiscal year under the procedures prescribed pursuant to paragraph (1). The report shall include a description of the actions taken by each Secretary and the Director to identify and address any unreasonable price escalation for the categories of items.
“(d)
Section 803(b) of Pub. L. 101–510 provided that (1) after increase in threshold for submission of cost or pricing data under subsec. (a) of this section, as amended by section 803(a) of Pub. L. 101–510, had been in effect for three years, Inspector General of Department of Defense was to conduct review of effects of increase in threshold, (2) that such review was to address whether increasing threshold improved acquisition process in terms of reduced paperwork, financial or other savings to government, an increase in number of contractors participating in defense contracting process, and adequacy of information available to contracting officers in cases in which certified cost or pricing data were not required under this section, (3) that Inspector General was to submit to Secretary of Defense a report on review conducted under paragraph (1), with Secretary of Defense required to submit such report to Congress, along with appropriate comments, upon completion of report (and comments) but not later than date on which President submitted budget to Congress pursuant to section 1105 of Title 31, Money and Finance, for fiscal year 1996, prior to repeal by Pub. L. 103–355, title I, §1210, Oct. 13, 1994, 108 Stat. 3277.
1 See References in Text note below.
(a)
(1) That the use of such a contract will result in substantial savings of the total anticipated costs of carrying out the program through annual contracts.
(2) That the minimum need for the property to be purchased is expected to remain substantially unchanged during the contemplated contract period in terms of production rate, procurement rate, and total quantities.
(3) That there is a reasonable expectation that throughout the contemplated contract period the head of the agency will request funding for the contract at the level required to avoid contract cancellation.
(4) That there is a stable design for the property to be acquired and that the technical risks associated with such property are not excessive.
(5) That the estimates of both the cost of the contract and the anticipated cost avoidance through the use of a multiyear contract are realistic.
(6) In the case of a purchase by the Department of Defense, that the use of such a contract will promote the national security of the United States.
(7) In the case of a contract in an amount equal to or greater than $500,000,000, that the conditions required by subparagraphs (C) through (F) of paragraph (1) of subsection (i) will be met, in accordance with the Secretary's certification and determination under such subsection, by such contract.
(b)
(2)(A) The Secretary of Defense shall prescribe the regulations applicable to the Department of Defense.
(B) The Secretary of Homeland Security shall prescribe the regulations applicable to the Coast Guard, except that the regulations prescribed by the Secretary of Defense shall apply to the Coast Guard when it is operating as a service in the Navy.
(C) The Administrator of the National Aeronautics and Space Administration shall prescribe the regulations applicable to the National Aeronautics and Space Administration.
(c)
(d)
(1) multiyear contracting under subsection (a) shall be used in such a manner as to seek, retain, and promote the use under such contracts of companies that are subcontractors, vendors, or suppliers; and
(2) upon accrual of any payment or other benefit under such a multiyear contract to any subcontractor, vendor, or supplier company participating in such contract, such payment or benefit shall be delivered to such company in the most expeditious manner practicable.
(e)
(1) to provide for competition in the production of items to be delivered under such a contract; or
(2) to provide for termination of a prime contract the performance of which is deficient with respect to cost, quality, or schedule.
(f)
(1) appropriations originally available for the performance of the contract concerned;
(2) appropriations currently available for procurement of the type of property concerned, and not otherwise obligated; or
(3) funds appropriated for those payments.
(g)
(2) In the case of a contract described in subsection (a) with a cancellation ceiling described in paragraph (1), if the budget for the contract does not include proposed funding for the costs of contract cancellation up to the cancellation ceiling established in the contract, the head of the agency concerned shall, as part of the certification required by subsection (i)(1)(A), give written notification to the congressional defense committees of—
(A) the cancellation ceiling amounts planned for each program year in the proposed multiyear procurement contract, together with the reasons for the amounts planned;
(B) the extent to which costs of contract cancellation are not included in the budget for the contract; and
(C) a financial risk assessment of not including budgeting for costs of contract cancellation.
(h)
(1) A multiyear contract for the purchase of a weapon system, items and services associated with a weapon system, and logistics support for a weapon system.
(2) A multiyear contract for advance procurement of components, parts, and materials necessary to the manufacture of a weapon system, including a multiyear contract for such advance procurement that is entered into in order to achieve economic-lot purchases and more efficient production rates.
(i)
(A) The Secretary has determined that each of the requirements in paragraphs (1) through (6) of subsection (a) will be met by such contract and has provided the basis for such determination to the congressional defense committees.
(B) The Secretary's determination under subparagraph (A) was made after the completion of a cost analysis performed by the Director of Cost Assessment and Program Analysis and such analysis supports the findings.
(C) The system being acquired pursuant to such contract has not been determined to have experienced cost growth in excess of the critical cost growth threshold pursuant to section 2433(d) of this title within 5 years prior to the date the Secretary anticipates such contract (or a contract for advance procurement entered into consistent with the authorization for such contract) will be awarded.
(D) A sufficient number of end items of the system being acquired under such contract have been delivered at or within the most current estimates of the program acquisition unit cost or procurement unit cost for such system to determine that current estimates of such unit costs are realistic.
(E) During the fiscal year in which such contract is to be awarded, sufficient funds will be available to perform the contract in such fiscal year, and the future-years defense program for such fiscal year will include the funding required to execute the program without cancellation.
(F) The contract is a fixed price type contract.
(G) The proposed multiyear contract provides for production at not less than minimum economic rates given the existing tooling and facilities.
(2) If for any fiscal year a multiyear contract to be entered into under this section is authorized by law for a particular procurement program and that authorization is subject to certain conditions established by law (including a condition as to cost savings to be achieved under the multiyear contract in comparison to specified other contracts) and if it appears (after negotiations with contractors) that such savings cannot be achieved, but that substantial savings could nevertheless be achieved through the use of a multiyear contract rather than specified other contracts, the President may submit to Congress a request for relief from the specified cost savings that must be achieved through multiyear contracting for that program. Any such request by the President shall include details about the request for a multiyear contract, including details about the negotiated contract terms and conditions.
(3) In the case of the Department of Defense, a multiyear contract in an amount equal to or greater than $500,000,000 may not be entered into for any fiscal year under this section unless the contract is specifically authorized by law in an Act other than an appropriations Act.
(4)(A) The Secretary of Defense may obligate funds for procurement of an end item under a multiyear contract for the purchase of property only for procurement of a complete and usable end item.
(B) The Secretary of Defense may obligate funds appropriated for any fiscal year for advance procurement under a contract for the purchase of property only for the procurement of those long-lead items necessary in order to meet a planned delivery schedule for complete major end items that are programmed under the contract to be acquired with funds appropriated for a subsequent fiscal year (including an economic order quantity of such long-lead items when authorized by law).
(5) The Secretary may make the certification under paragraph (1) notwithstanding the fact that one or more of the conditions of such certification are not met if the Secretary determines that, due to exceptional circumstances, proceeding with a multiyear contract under this section is in the best interest of the Department of Defense and the Secretary provides the basis for such determination with the certification.
(6) The Secretary of Defense may not delegate the authority to make the certification under paragraph (1) or the determination under paragraph (5) to an official below the level of Under Secretary of Defense for Acquisition, Technology, and Logistics.
(7) The Secretary of Defense shall send a notification containing the findings of the agency head under subsection (a), and the basis for such findings, 30 days prior to the award of a multiyear contract for a defense acquisition program that has been specifically authorized by law.
(j)
(k)
(l)
(B) Subparagraph (A) applies to the following contracts:
(i) A multiyear contract—
(I) that employs economic order quantity procurement in excess of $20,000,000 in any one year of the contract; or
(II) that includes an unfunded contingent liability in excess of $20,000,000.
(ii) Any contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year.
(2) The head of an agency may not initiate a multiyear contract for which the economic order quantity advance procurement is not funded at least to the limits of the Government's liability.
(3) The head of an agency may not initiate a multiyear procurement contract for any system (or component thereof) if the value of the multiyear contract would exceed $500,000,000 unless authority for the contract is specifically provided in an appropriations Act.
(4) Not later than the date of the submission of the President's budget request under section 1105 of title 31, the Secretary of Defense shall submit a report to the congressional defense committees each year, providing the following information with respect to each multiyear contract (and each extension of an existing multiyear contract) entered into, or planned to be entered into, by the head of an agency during the current or preceding year, shown for each year in the current future-years defense program and in the aggregate over the period of the current future-years defense program:
(A) The amount of total obligational authority under the contract (or contract extension) and the percentage that such amount represents of—
(i) the applicable procurement account; and
(ii) the agency procurement total.
(B) The amount of total obligational authority under all multiyear procurements of the agency concerned (determined without regard to the amount of the multiyear contract (or contract extension)) under multiyear contracts in effect at the time the report is submitted and the percentage that such amount represents of—
(i) the applicable procurement account; and
(ii) the agency procurement total.
(C) The amount equal to the sum of the amounts under subparagraphs (A) and (B), and the percentage that such amount represents of—
(i) the applicable procurement account; and
(ii) the agency procurement total.
(D) The amount of total obligational authority under all Department of Defense multiyear procurements (determined without regard to the amount of the multiyear contract (or contract extension)), including any multiyear contract (or contract extension) that has been authorized by the Congress but not yet entered into, and the percentage that such amount represents of the procurement accounts of the Department of Defense treated in the aggregate.
(5) The head of an agency may not enter into a multiyear contract (or extend an existing multiyear contract), the value of which would exceed $500,000,000 (when entered into or when extended, as the case may be), until the Secretary of Defense submits to the congressional defense committees a report containing the information described in paragraph (4) with respect to the contract (or contract extension).
(6) The head of an agency may not terminate a multiyear procurement contract until 10 days after the date on which notice of the proposed termination is provided to the congressional defense committees.
(7) The execution of multiyear contracting authority shall require the use of a present value analysis to determine lowest cost compared to an annual procurement.
(8) This subsection does not apply to the National Aeronautics and Space Administration or to the Coast Guard.
(9) In this subsection:
(A) The term “applicable procurement account” means, with respect to a multiyear procurement contract (or contract extension), the appropriation account from which payments to execute the contract will be made.
(B) The term “agency procurement total” means the procurement accounts of the agency entering into a multiyear procurement contract (or contract extension) treated in the aggregate.
(m)
(Added Pub. L. 103–355, title I, §1022(a)(1), Oct. 13, 1994, 108 Stat. 3257; amended Pub. L. 104–106, div. A, title XV, §1502(a)(10), div. E, title LVI, §5601(b), Feb. 10, 1996, 110 Stat. 503, 699; Pub. L. 105–85, div. A, title VIII, §806(a)(1), (b)(1), (c), title X, §1073(a)(47), (48)(A), Nov. 18, 1997, 111 Stat. 1834, 1835, 1903; Pub. L. 106–65, div. A, title VIII, §809, title X, §1067(1), Oct. 5, 1999, 113 Stat. 705, 774; Pub. L. 106–398, §1 [[div. A], title VIII, §§802(c), 806], Oct. 30, 2000, 114 Stat. 1654, 1654A–205, 1654A–207; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107–314, div. A, title VIII, §820(a), Dec. 2, 2002, 116 Stat. 2613; Pub. L. 108–136, div. A, title X, §1043(b)(10), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 108–375, div. A, title VIII, §814(a), title X, §1084(b)(2), Oct. 28, 2004, 118 Stat. 2014, 2060; Pub. L. 110–181, div. A, title VIII, §811(a), Jan. 28, 2008, 122 Stat. 217; Pub. L. 111–23, title I, §101(d)(2), May 22, 2009, 123 Stat. 1709.)
2009—Subsec. (i)(1)(B). Pub. L. 111–23 substituted “Director of Cost Assessment and Program Analysis” for “Cost Analysis Improvement Group of the Department of Defense”.
2008—Subsec. (a)(7). Pub. L. 110–181, §811(a)(1), added par. (7).
Subsec. (i)(1). Pub. L. 110–181, §811(a)(2), (3), inserted “the Secretary of Defense certifies in writing by no later than March 1 of the year in which the Secretary requests legislative authority to enter into such contract that” after “unless” in introductory provisions, added subpars. (A) to (F), redesignated former subpar. (B) as (G), and struck out former subpar. (A) which read as follows: “The Secretary of Defense certifies to Congress that the current future-years defense program fully funds the support costs associated with the multiyear program.”
Subsec. (i)(5) to (7). Pub. L. 110–181, §811(a)(4), added pars. (5) to (7).
Subsec. (m). Pub. L. 110–181, §811(a)(5), added subsec. (m).
2004—Subsec. (g). Pub. L. 108–375, §814(a)(1), designated existing provisions as par. (1).
Subsec. (g)(1). Pub. L. 108–375, §§814(a)(2), 1084(b)(2), amended par. (1) identically, substituting “congressional defense committees” for “Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives”.
Subsec. (g)(2). Pub. L. 108–375, §814(a)(3), added par. (2).
2003—Subsec. (l)(9), (10). Pub. L. 108–136 redesignated par. (10) as (9) and struck out former par. (9) which read as follows: “In this subsection, the term ‘congressional defense committees’ means the following:
“(A) The Committee on Armed Services of the Senate and the Subcommittee on Defense of the Committee on Appropriations of the Senate.
“(B) The Committee on Armed Services of the House of Representatives and the Subcommittee on National Security of the Committee on Appropriations of the House of Representatives.”
2002—Subsec. (b)(2)(B). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
Subsec. (i)(4). Pub. L. 107–314 added par. (4).
2000—Subsec. (k). Pub. L. 106–398, §1 [[div. A], title VIII, §802(c)], struck out “or services” after “purchase of property”.
Subsec. (l)(4). Pub. L. 106–398, §1 [[div. A], title VIII, §806(1)(A)], in introductory provisions, substituted “Not later than the date of the submission of the President's budget request under section 1105 of title 31, the Secretary of Defense shall submit a report to the congressional defense committees each year, providing the following information with respect to each multiyear contract (and each extension of an existing multiyear contract) entered into, or planned to be entered into, by the head of an agency during the current or preceding year” for “The head of an agency may not enter into a multiyear contract (or extend an existing multiyear contract) until the Secretary of Defense submits to the congressional defense committees a report with respect to that contract (or contract extension) that provides the following information”.
Subsec. (l)(4)(B). Pub. L. 106–398, §1 [[div. A], title VIII, §806(1)(B)], substituted “in effect at the time the report is submitted” for “in effect immediately before the contract (or contract extension) is entered into” in introductory provisions.
Subsec. (l)(5) to (10). Pub. L. 106–398, §1 [[div. A], title VIII, §806(2), (3)], added par. (5) and redesignated former pars. (5) to (9) as (6) to (10), respectively.
1999—Subsec. (g). Pub. L. 106–65, §1067(1), substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
Subsec. (l)(4) to (7). Pub. L. 106–65, §809(1), (2), added par. (4) and redesignated former pars. (4) to (6) as (5) to (7), respectively. Former par. (7) redesignated (8).
Subsec. (l)(8). Pub. L. 106–65, §809(1), redesignated par. (7) as (8).
Subsec. (l)(8)(B). Pub. L. 106–65, §1067(1), substituted “Committee on Armed Services” for “Committee on National Security”.
Subsec. (l)(9). Pub. L. 106–65, §809(3), added par. (9).
1997—Pub. L. 105–85, §1073(a)(48)(A), inserted “: acquisition of property” in section catchline.
Subsec. (a). Pub. L. 105–85, §806(c)(1), substituted “finds each of the following:” for “finds—” in introductory provisions, capitalized first letter of first word in pars. (1) to (6), and substituted a period for semicolon at end of pars. (1) to (4) and for “; and” at end of par. (5).
Subsec. (d)(1). Pub. L. 105–85, §806(c)(2), substituted “subsection (a)” for “paragraph (1)”.
Subsec. (i)(1)(A). Pub. L. 105–85, §806(c)(3), substituted “future-years” for “five-year”.
Subsec. (i)(3). Pub. L. 105–85, §806(a)(1), added par. (3).
Subsec. (k). Pub. L. 105–85, §1073(a)(47), substituted “this section” for “this subsection”.
Subsec. (l). Pub. L. 105–85, §806(b)(1), added subsec. (l).
1996—Subsec. (g). Pub. L. 104–106, §1502(a)(10), substituted “the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on National Security and the Committee on Appropriations of the” for “the Committees on Armed Services and on Appropriations of the Senate and”.
Subsecs. (k), (l). Pub. L. 104–106, §5601(b), redesignated subsec. (l) as (k) and struck out former subsec. (k) which read as follows: “
Pub. L. 110–181, div. A, title VIII, §811(b), Jan. 28, 2008, 122 Stat. 219, provided that: “The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Jan. 28, 2008] and shall apply with respect to multiyear contracts for the purchase of major systems for which legislative authority is requested on or after that date.”
Pub. L. 107–314, div. A, title VIII, §820(b), Dec. 2, 2002, 116 Stat. 2614, provided that:
“(1) Paragraph (4) of section 2306b(i) of title 10, United States Code, as added by subsection (a), shall not apply with respect to any contract awarded before the date of the enactment of this Act [Dec. 2, 2002].
“(2) Nothing in this section [amending this section] shall be construed to authorize the expenditure of funds under any contract awarded before the date of the enactment of this Act for any purpose other than the purpose for which such funds have been authorized and appropriated.”
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Section 806(a)(2) of Pub. L. 105–85 provided that: “Paragraph (3) of section 2306b(i) of title 10, United States Code, as added by paragraph (1), shall not apply with respect to a contract authorized by law before the date of the enactment of this Act [Nov. 18, 1997].”
Section 806(b)(2) of Pub. L. 105–85 provided that: “The amendment made by paragraph (1) [amending this section] shall take effect on October 1, 1998.”
Amendment by section 5601(b) of Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, Feb. 10, 1996, 110 Stat. 702.
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
Pub. L. 105–56, title VIII, §8008, Oct. 8, 1997, 111 Stat. 1221, provided that:
“(a) None of the funds provided in this Act [see Tables for classification] shall be available to initiate: (1) a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year of the contract or that includes an unfunded contingent liability in excess of $20,000,000; or (2) a contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year, unless the congressional defense committees [Committee on Armed Services and Subcommittee on National Security of the Committee on Appropriations of the House of Representatives and Committee on Armed Services and Subcommittee on Defense of the Committee on Appropriations of the Senate] have been notified at least 30 days in advance of the proposed contract award: Provided, That no part of any appropriation contained in this Act shall be available to initiate a multiyear contract for which the economic order quantity advance procurement is not funded at least to the limits of the Government's liability: Provided further, That no part of any appropriation contained in this Act shall be available to initiate multiyear procurement contracts for any systems or component thereof if the value of the multiyear contract would exceed $500,000,000 unless specifically provided in this Act: Provided further, That no multiyear procurement contract can be terminated without 10-day prior notification to the congressional defense committees: Provided further, That the execution of multiyear authority shall require the use of a present value analysis to determine lowest cost compared to an annual procurement.
“Funds appropriated in title III of this Act [111 Stat. 1211] may be used for multiyear procurement contracts as follows:
“Apache Longbow radar;
“AV–8B aircraft; and
“Family of Medium Tactical Vehicles.
“(b) None of the funds provided in this Act and hereafter may be used to submit to Congress (or to any committee of Congress) a request for authority to enter into a contract covered by those provisions of subsection (a) that precede the first proviso of that subsection unless—
“(1) such request is made as part of the submission of the President's Budget for the United States Government for any fiscal year and is set forth in the Appendix to that budget as part of proposed legislative language for appropriations bills for the next fiscal year; or
“(2) such request is formally submitted by the President as a budget amendment; or
“(3) the Secretary of Defense makes such request in writing to the congressional defense committees.”
Similar provisions were contained in the following appropriation acts:
Pub. L. 111–118, div. A, title VIII, §8011, Dec. 19, 2009, 123 Stat. 3428, as amended by Pub. L. 111–212, title I, §305, July 29, 2010, 124 Stat. 2311.
Pub. L. 110–329, div. C, title VIII, §8011, Sept. 30, 2008, 122 Stat. 3621.
Pub. L. 110–116, div. A, title VIII, §8010, Nov. 13, 2007, 121 Stat. 1315.
Pub. L. 109–289, div. A, title VIII, §8008, Sept. 29, 2006, 120 Stat. 1273.
Pub. L. 109–148, div. A, title VIII, §8008, Dec. 30, 2005, 119 Stat. 2698.
Pub. L. 108–287, title VIII, §8008, Aug. 5, 2004, 118 Stat. 970.
Pub. L. 108–87, title VIII, §8008, Sept. 30, 2003, 117 Stat. 1072.
Pub. L. 107–248, title VIII, §8008, Oct. 23, 2002, 116 Stat. 1537.
Pub. L. 107–117, div. A, title VIII, §8008, Jan. 10, 2002, 115 Stat. 2248.
Pub. L. 106–259, title VIII, §8008, Aug. 9, 2000, 114 Stat. 675.
Pub. L. 106–79, title VIII, §8008, Oct. 25, 1999, 113 Stat. 1232.
Pub. L. 105–262, title VIII, §8008, Oct. 17, 1998, 112 Stat. 2298.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8009], Sept. 30, 1996, 110 Stat. 3009–71, 3009–89.
Pub. L. 104–61, title VIII, §8010, Dec. 1, 1995, 109 Stat. 653.
Pub. L. 103–335, title VIII, §8010, Sept. 30, 1994, 108 Stat. 2618.
Pub. L. 103–139, title VIII, §8011, Nov. 11, 1993, 107 Stat. 1439.
Pub. L. 102–396, title IX, §9013, Oct. 6, 1992, 106 Stat. 1903.
Pub. L. 102–172, title VIII, §8013, Nov. 26, 1991, 105 Stat. 1173.
Pub. L. 101–511, title VIII, §8014, Nov. 5, 1990, 104 Stat. 1877.
Pub. L. 101–165, title IX, §9021, Nov. 21, 1989, 103 Stat. 1133.
(a)
(1) there will be a continuing requirement for the services consonant with current plans for the proposed contract period;
(2) the furnishing of such services will require a substantial initial investment in plant or equipment, or the incurrence of substantial contingent liabilities for the assembly, training, or transportation of a specialized work force; and
(3) the use of such a contract will promote the best interests of the United States by encouraging effective competition and promoting economies in operation.
(b)
(1) Operation, maintenance, and support of facilities and installations.
(2) Maintenance or modification of aircraft, ships, vehicles, and other highly complex military equipment.
(3) Specialized training necessitating high quality instructor skills (for example, pilot and air crew members; foreign language training).
(4) Base services (for example, ground maintenance; in-plane refueling; bus transportation; refuse collection and disposal).
(5) Environmental remediation services for—
(A) an active military installation;
(B) a military installation being closed or realigned under a base closure law; or
(C) a site formerly used by the Department of Defense.
(c)
(1) The portion of the cost of any plant or equipment amortized as a cost of contract performance should not exceed the ratio between the period of contract performance and the anticipated useful commercial life of such plant or equipment. Useful commercial life, for this purpose, means the commercial utility of the facilities rather than the physical life thereof, with due consideration given to such factors as location of facilities, specialized nature thereof, and obsolescence.
(2) Consideration shall be given to the desirability of obtaining an option to renew the contract for a reasonable period not to exceed three years, at prices not to include charges for plant, equipment and other nonrecurring costs, already amortized.
(3) Consideration shall be given to the desirability of reserving in the agency the right, upon payment of the unamortized portion of the cost of the plant or equipment, to take title thereto under appropriate circumstances.
(d)
(2) The head of an agency may not initiate a multiyear contract for services under this section if the value of the multiyear contract would exceed $500,000,000 unless authority for the contract is specifically provided by law.
(3) The head of an agency may not terminate a multiyear procurement contract for services until 10 days after the date on which notice of the proposed termination is provided to the congressional defense committees.
(4) Before any contract described in subsection (a) that contains a clause setting forth a cancellation ceiling in excess of $100,000,000 may be awarded, the head of the agency concerned shall give written notification of the proposed contract and of the proposed cancellation ceiling for that contract to the congressional defense committees, and such contract may not then be awarded until the end of a period of 30 days beginning on the date of such notification.
(5) In the case of a contract described in subsection (a) with a cancellation ceiling described in paragraph (4), if the budget for the contract does not include proposed funding for the costs of contract cancellation up to the cancellation ceiling established in the contract, the head of the agency concerned shall give written notification to the congressional defense committees of—
(A) the cancellation ceiling amounts planned for each program year in the proposed multiyear procurement contract, together with the reasons for the amounts planned;
(B) the extent to which costs of contract cancellation are not included in the budget for the contract; and
(C) a financial risk assessment of not including budgeting for costs of contract cancellation.
(e)
(1) appropriations originally available for the performance of the contract concerned;
(2) appropriations currently available for procurement of the type of services concerned, and not otherwise obligated; or
(3) funds appropriated for those payments.
(f)
[(g) Repealed. Pub. L. 108–136, div. A, title VIII, §843(a), Nov. 24, 2003, 117 Stat. 1553.]
(h)
(Added Pub. L. 106–398, §1 [[div. A], title VIII, §802(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–203; amended Pub. L. 107–314, div. A, title VIII, §§811(a), 827, Dec. 2, 2002, 116 Stat. 2608, 2617; Pub. L. 108–136, div. A, title VIII, §843(a), title X, §1043(c)(1), Nov. 24, 2003, 117 Stat. 1553, 1611; Pub. L. 108–375, div. A, title VIII, §814(b), Oct. 28, 2004, 118 Stat. 2014; Pub. L. 111–84, div. A, title X, §1073(a)(22), Oct. 28, 2009, 123 Stat. 2473.)
2009—Subsec. (h). Pub. L. 111–84 substituted “section 2801(c)(4)” for “section 2801(c)(2)”.
2004—Subsec. (d)(1), (3), (4). Pub. L. 108–375, §814(b)(1), substituted “congressional defense committees” for “committees of Congress named in paragraph (5)”.
Subsec. (d)(5). Pub. L. 108–375, §814(b)(2), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “The committees of Congress referred to in paragraphs (1), (3), and (4) are as follows:
“(A) The Committee on Armed Services and the Committee on Appropriations of the Senate.
“(B) The Committee on Armed Services and the Committee on Appropriations of the House of Representatives.”
2003—Subsec. (g). Pub. L. 108–136, §843(a), struck out heading and text of subsec. (g). Text read as follows:
“(1) The authority and restrictions of this section, including the authority to enter into contracts for periods of not more than five years, shall apply with respect to task order and delivery order contracts entered into under the authority of section 2304a, 2304b, or 2304c of this title.
“(2) The regulations implementing this subsection shall establish a preference that, to the maximum extent practicable, multi-year requirements for task order and delivery order contracts be met with separate awards to two or more sources under the authority of section 2304a(d)(1)(B) of this title.”
Subsec. (h). Pub. L. 108–136, §1043(c)(1), substituted “
“(1) The term ‘base closure law’ has the meaning given such term in section 2667(h)(2) of this title.
“(2) The term”.
2002—Subsec. (b)(5). Pub. L. 107–314, §827(a), added par. (5).
Subsec. (g). Pub. L. 107–314, §811(a), added subsec. (g).
Subsec. (h). Pub. L. 107–314, §827(b), added subsec. (h).
Pub. L. 107–314, div. A, title VIII, §811(b), Dec. 2, 2002, 116 Stat. 2608, as amended by Pub. L. 108–11, title I, §1315, Apr. 16, 2003, 117 Stat. 570, provided that: “Subsection (g) of section 2306c of title 10, United States Code, as added by subsection (a), shall apply to all task order and delivery order contracts entered into on or after January 1, 2004.”
Pub. L. 106–398, §1 [[div. A], title VIII, §802(d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–205, provided that: “Section 2306c of title 10, United States Code (as added by subsection (a)), shall apply with respect to contracts for which solicitations of offers are issued after the date of the enactment of this Act [Oct. 30, 2000].”
(a)
(1) make advance, partial, progress, or other payments under contracts for property or services made by the agency; and
(2) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments.
(b)
(1) Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls.
(2) Accomplishment of events defined in the program management plan.
(3) Other quantifiable measures of results.
(c)
(d)
(e)
(2) The Secretary shall ensure that progress payments referred to in paragraph (1) are not made for more than 80 percent of the work accomplished under a defense contract so long as the Secretary has not made the contractual terms, specifications, and price definite.
(3) This subsection applies to any contract in an amount greater than $25,000.
(f)
(2) Advance payments made under subsection (a) for commercial items may include payments, in a total amount of not more than 15 percent of the contract price, in advance of any performance of work under the contract.
(3) The conditions of subsections (d) and (e) need not be applied if they would be inconsistent, as determined by the head of the agency, with commercial terms and conditions pursuant to paragraphs (1) and (2).
(g)
(A) 95 percent, in the case of a firm considered to be a small business; and
(B) 90 percent, in the case of any other firm.
(2) The Secretary of the Navy may advance to private salvage companies such funds as the Secretary considers necessary to provide for the immediate financing of salvage operations. Advances under this paragraph shall be made on terms that the Secretary considers adequate for the protection of the United States.
(3) The Secretary of the Navy shall provide, in each contract for construction or conversion of a naval vessel, that, when partial, progress, or other payments are made under such contract, the United States is secured by a lien upon work in progress and on property acquired for performance of the contract on account of all payments so made. The lien is paramount to all other liens.
(h)
(i)
(2) The head of an agency receiving a recommendation under paragraph (1) in the case of a contractor's request for payment under a contract shall determine whether there is substantial evidence that the request is based on fraud. Upon making such a determination, the agency head may reduce or suspend further payments to the contractor under such contract.
(3) The extent of any reduction or suspension of payments by the head of an agency under paragraph (2) on the basis of fraud shall be reasonably commensurate with the anticipated loss to the United States resulting from the fraud.
(4) A written justification for each decision of the head of an agency whether to reduce or suspend payments under paragraph (2) and for each recommendation received by such agency head in connection with such decision shall be prepared and be retained in the files of such agency.
(5) The head of an agency shall prescribe procedures to ensure that, before such agency head decides to reduce or suspend payments in the case of a contractor under paragraph (2), the contractor is afforded notice of the proposed reduction or suspension and an opportunity to submit matters to the head of the agency in response to such proposed reduction or suspension.
(6) Not later than 180 days after the date on which the head of an agency reduces or suspends payments to a contractor under paragraph (2), the remedy coordination official of such agency shall—
(A) review the determination of fraud on which the reduction or suspension is based; and
(B) transmit a recommendation to the head of such agency whether the suspension or reduction should continue.
(7) The head of an agency shall prepare for each year a report containing the recommendations made by the remedy coordination official of that agency to reduce or suspend payments under paragraph (2), the actions taken on the recommendations and the reasons for such actions, and an assessment of the effects of such actions on the Federal Government. The Secretary of each military department shall transmit the annual report of such department to the Secretary of Defense. Each such report shall be available to any member of Congress upon request.
(8) This subsection applies to the agencies named in paragraphs (1), (2), (3), (4), and (6) of section 2303(a) of this title.
(9) The head of an agency may not delegate responsibilities under this subsection to any person in a position below level IV of the Executive Schedule.
(10) In this subsection, the term “remedy coordination official”, with respect to an agency, means the person or entity in that agency who coordinates within that agency the administration of criminal, civil, administrative, and contractual remedies resulting from investigations of fraud or corruption related to procurement activities.
(Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 85–800, §9, Aug. 28, 1958, 72 Stat. 967; Pub. L. 93–155, title VIII, §807(c), Nov. 16, 1973, 87 Stat. 616; Pub. L. 100–370, §1(f)(1)(A), July 19, 1988, 102 Stat. 846; Pub. L. 101–510, div. A, title VIII, §836(a), (b), title XIII, §1322(a)(4), Nov. 5, 1990, 104 Stat. 1615, 1616, 1671; Pub. L. 102–25, title VII, §701(d)(4), (j)(2)(A), Apr. 6, 1991, 105 Stat. 114, 116; Pub. L. 102–190, div. A, title X, §1061(a)(10), Dec. 5, 1991, 105 Stat. 1472; Pub. L. 102–484, div. A, title X, §1052(24), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–355, title II, §2001(a)–(g), Oct. 13, 1994, 108 Stat. 3301, 3302; Pub. L. 105–85, div. A, title VIII, §802, Nov. 18, 1997, 111 Stat. 1831; Pub. L. 106–391, title III, §306, Oct. 30, 2000, 114 Stat. 1592.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2307(a) 2307(b) |
41:154(a). 41:154 (less (a)). |
Feb. 19, 1948, ch. 65, §5, 62 Stat. 23. |
In subsection (a), the words “and appropriate” are omitted as surplusage. The words “whether or not the contract previously provided for such payments” are substituted for the words “heretofore or hereafter executed”.
In subsection (b), the words “under subsection (a)” are inserted for clarity. The words “provide for” are substituted for the words “include as security provision for”. The words “United States” are substituted for the word “Government”.
Subsection (e) is based on Pub. L. 99–145, title IX, §916, Nov. 8, 1985, 99 Stat. 688.
Level IV of the Executive Schedule, referred to in subsec. (i)(9), is set out in section 5315 of Title 5, Government Organization and Employees.
Provisions similar to those in subsec. (g) of this section were contained in sections 7312, 7364, and 7521 of this title prior to repeal by Pub. L. 103–355, §2001(j)(1).
2000—Subsec. (i)(8). Pub. L. 106–391 substituted “(4), and (6)” for “and (4)”.
1997—Subsecs. (h), (i). Pub. L. 105–85 added subsec. (h) and redesignated former subsec. (h) as (i).
1994—Pub. L. 103–355, §2001(a)(1), substituted “Contract financing” for “Advance payments” in section catchline.
Subsec. (a). Pub. L. 103–355, §2001(a)(2), inserted heading.
Subsec. (a)(2). Pub. L. 103–355, §2001(c), struck out “bid” before “solicitations”.
Subsec. (b). Pub. L. 103–355, §2001(a)(7), (b), added subsec. (b) and redesignated former subsec. (b) as (c).
Pub. L. 103–355, §2001(a)(3), inserted heading.
Subsec. (c). Pub. L. 103–355, §2001(a)(7), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).
Pub. L. 103–355, §2001(a)(4), inserted heading.
Subsec. (d). Pub. L. 103–355, §2001(d), inserted before period at end “and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the United States”.
Pub. L. 103–355, §2001(a)(7), redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e).
Pub. L. 103–355, §2001(a)(5), inserted heading.
Subsec. (e). Pub. L. 103–355, §2001(a)(7), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (h).
Pub. L. 103–355, §2001(a)(6), inserted heading.
Subsec. (e)(1). Pub. L. 103–355, §2001(e)(1), substituted “work accomplished that meets standards established under the contract” for “work, which meets standards of quality established under the contract, that has been accomplished”.
Subsec. (e)(3). Pub. L. 103–355, §2001(e)(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “This subsection does not apply to any contract for an amount not in excess of the amount of the small purchase threshold.”
Subsecs. (f), (g). Pub. L. 103–355, §2001(f), (g), added subsecs. (f) and (g).
Subsec. (h). Pub. L. 103–355, §2001(a)(7), redesignated subsec. (e) as (h).
1992—Subsec. (e)(1). Pub. L. 102–484 substituted “(1)” for “(l)” as par. designation after “(e)”.
1991—Subsec. (d)(3). Pub. L. 102–25, §701(d)(4), substituted “any contract for an amount not in excess of the amount of the small purchase threshold” for “contracts for amounts less than the maximum amount for small purchases specified in section 2304(g)(2) of this title”.
Subsec. (e). Pub. L. 102–25, §701(j)(2)(A), redesignated subsec. (f) as (e).
Subsec. (f). Pub. L. 102–190, which directed the substitution of “(1)” for “(l)” as par. designation after “(f)”, could not be executed because “(l)” did not appear after “(f)”.
Pub. L. 102–25, §701(j)(2)(A), redesignated subsec. (f) as (e).
1990—Subsec. (d). Pub. L. 101–510, §1322(a)(4), redesignated subsec. (e) as (d) and struck out former subsec. (d) which read as follows: “Payments under subsection (a) in the case of any contract, other than partial, progress, or other payments specifically provided for in such contract at the time such contract was initially entered into, may not exceed $25,000,000 unless the Committees on Armed Services of the Senate and the House of Representatives have been notified in writing of such proposed payments and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees and neither House of Congress has adopted, within such 60-day period, a resolution disapproving such payments. For purposes of this section, the continuity of a session of Congress is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of such 60-day period.”
Subsec. (e). Pub. L. 101–510, §1322(a)(4)(B), redesignated subsec. (e) as (d).
Pub. L. 101–510, §836(b), inserted at end of par. (1) “The contractor shall provide such information and evidence as the Secretary of Defense determines necessary to permit the Secretary to carry out the preceding sentence.”
Subsec. (f). Pub. L. 101–510, §836(a), added subsec. (f).
1988—Subsec. (e). Pub. L. 100–370 added subsec. (e).
1973—Subsec. (d). Pub. L. 93–155 added subsec. (d).
1958—Pub. L. 85–800 authorized advance or other payments under contracts for property or services by agency, authorized insertion in bid solicitations of provision limiting advance or progress payments to small business concerns, restricted payments under subsec. (a) to unpaid contract price, and reworded generally conditions for making advance payments.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 836(c) of Pub. L. 101–510, as amended by Pub. L. 102–25, title VII, §701(j)(2)(B), Apr. 6, 1991, 105 Stat. 116, provided that: “The provisions of section 2307 of title 10, United States Code, that are added by the amendments made by subsections (a) and (b) shall apply with respect to contracts entered into on or after May 6, 1991.”
Section 2001(h) of Pub. L. 103–355 provided that: “The amendments made by this section [amending this section and section 7522 of this title and repealing sections 7312, 7364, and 7521 of this title] are not intended to impair or modify procedures required by the provisions of chapter 39 of title 31, United States Code, and the regulations issued pursuant to such provisions of law (as such procedures are in effect on the date of the enactment of this Act [Oct. 13, 1994]), except that the Government may accept payment terms offered by a contractor offering a commercial item.”
Pub. L. 99–145, title IX, §916, Nov. 8, 1985, 99 Stat. 688, which required Secretary of Defense to ensure that any progress payment under a defense contract be commensurate with work accomplished at standard of quality in contract, that such payments be limited to 80 percent of work accomplished so long as contract terms are indefinite, that this provision be waived for small purchases, and that this provision apply only to contracts for which solicitations were issued on or after 150 days after Nov. 8, 1985, was repealed and restated in subsec. (e) of this section by Pub. L. 100–370, §1(f)(1), July 19, 1988, 102 Stat. 846.
Section 807(e) of Pub. L. 93–155 provided that: “The amendments made by this section [amending this section, section 1431 of Title 50, War and National Defense, and sections 468 and 2092 of Appendix to Title 50] shall not affect the carrying out of any contract, loan, guarantee, commitment, or other obligation entered into prior to the date of enactment of this section [Nov. 16, 1973].”
(a)
(1) The agency has an established requirement for the end item that is expected to remain substantially unchanged throughout the period of the acquisition.
(2) It is possible to acquire the higher quantity of the end item without additional funding because of production efficiencies or other cost reductions.
(3) The amount of the funds used for the acquisition of the higher quantity of the end item will not exceed the amount provided under that law for the acquisition of the end item.
(4) The amount so provided is sufficient to ensure that each unit of the end item acquired within the higher quantity is fully funded as a complete end item.
(b)
(1) The level of approval within the Department of Defense that is required for a decision to acquire a higher quantity of an end item under subsection (a).
(2) Authority (subject to subsection (a)) to acquire up to 10 percent more than the quantity of an end item approved in a justification and approval of the use of procedures other than competitive procedures for the acquisition of the end item under section 2304 of this title.
(c)
(d)
(1) specifically refers to this section; and
(2) specifically states that the acquisition of the higher quantity of the end item is prohibited notwithstanding the authority provided in this section.
(e)
(2) In this section:
(A) The term “end item” means a production product assembled, completed, and ready for issue or deployment.
(B) The term “head of an agency” means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force.
(Added Pub. L. 107–314, div. A, title VIII, §801(a)(1), Dec. 2, 2002, 116 Stat. 2600; amended Pub. L. 108–136, div. A, title X, §1043(b)(11), Nov. 24, 2003, 117 Stat. 1611.)
A prior section 2308, acts Aug. 10, 1956, ch. 1041, 70A Stat. 131; Oct. 23, 1992, Pub. L. 102–484, div. A, title VIII, §820(a), 106 Stat. 2458; May 31, 1993, Pub. L. 103–35, title II, §201(e)(2), 107 Stat. 99; Nov. 30, 1993, Pub. L. 103–160, div. A, title IX, §904(d)(1), 107 Stat. 1728, related to assignment and delegation of procurement functions and responsibilities, prior to repeal by Pub. L. 103–355, title I, §1503(b)(1), title X, §10001, Oct. 13, 1994, 108 Stat. 3297, 3404, effective Oct. 13, 1994, except as otherwise provided.
2003—Subsec. (e)(2). Pub. L. 108–136 redesignated subpars. (B) and (C) as (A) and (B), respectively, and struck out former subpar. (A) which read as follows: “The term ‘congressional defense committees’ means—
“(i) the Committee on Armed Services and the Committee on Appropriations of the Senate; and
“(ii) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.”
Pub. L. 107–314, div. A, title VIII, §801(b), Dec. 2, 2002, 116 Stat. 2602, provided that: “The Secretary of Defense shall issue the final regulations under section 2308(b) of title 10, United States Code (as added by subsection (a)), not later than 120 days after the date of the enactment of this Act [Dec. 2, 2002].”
(a) Appropriations available for procurement by an agency named in section 2303 of this title may, through administrative allotment, be made available for obligation for procurement by any other agency in amounts authorized by the head of the allotting agency and without transfer of funds on the books of the Department of the Treasury.
(b) A disbursing official of the allotting agency may make any disbursement chargeable to an allotment under subsection (a) upon a voucher certified by an officer or civilian employee of the procuring agency.
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 97–258, §2(b)(1)(B), Sept. 13, 1982, 96 Stat. 1052.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2309(a) 2309(b) |
41:159 (2d sentence). 41:159 (less 1st and 2d sentences). |
Feb. 19, 1948, ch. 65, §10 (less 1st sentence), 62 Stat. 25. |
In subsection (a), the words “an agency named in section 2303 of this title” are substituted for the words “any such agency”.
In subsection (b), the words “an allotment under subsection (a)” are substituted for the words “such allotments”.
1982—Subsec. (b). Pub. L. 97–258 substituted “disbursing official” for “disbursing officer”.
(a)
(b)
(2) Each finding referred to in paragraph (1) is final. The head of the agency making such finding shall maintain a copy of the finding for not less than 6 years after the date of the determination or decision.
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 85–800, §10, Aug. 28, 1958, 72 Stat. 967; Pub. L. 87–653, §1(f), Sept. 10, 1962, 76 Stat. 529; Pub. L. 89–607, §1(1), Sept. 27, 1966, 80 Stat. 850; Pub. L. 90–378, §2, July 5, 1968, 82 Stat. 290; Pub. L. 98–369, div. B, title VII, §2725, July 18, 1984, 98 Stat. 1193; Pub. L. 99–145, title XIII, §1303(a)(16), Nov. 8, 1985, 99 Stat. 739; Pub. L. 103–355, title I, §1504, Oct. 13, 1994, 108 Stat. 3297.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2310(a) 2310(b) |
41:156(a) (1st sentence). 41:156(c). |
Feb. 19, 1948, ch. 65, §7(a) (1st sentence), (c), 62 Stat. 24. |
In subsection (a), the words “required * * * under” are substituted for the words “provided in”.
In subsection (b), the word “person” is substituted for the word “official”. The words “to which it applies” are inserted for clarity.
1994—Pub. L. 103–355 amended section generally. Prior to amendment, section read as follows:
“(a) Determinations and decisions required to be made under this chapter by the head of an agency may be made for an individual purchase or contract or, except for determinations and decisions under section 2304 or 2305 of this title, for a class of purchases or contracts. Such a determination or decision, including a determination or decision under section 2304 or 2305 of this title, is final.
“(b) Each determination or decision under section 2306(c), 2306(g)(1), 2307(c), or 2313(c) of this title shall be based on a written finding by the person making the determination or decision, which finding shall set out facts and circumstances that—
“(1) clearly indicate why the type of contract selected under section 2306(c) of this title is likely to be less costly than any other type or that it is impracticable to obtain property or services of the kind or quality required except under such a contract;
“(2) support the findings required by section 2306(g)(1) of this title;
“(3) clearly indicate why advance payments under section 2307(c) of this title would be in the public interest; or
“(4) clearly indicate why the application of section 2313(b) of this title to a contract or subcontract with a foreign contractor or foreign subcontractor would not be in the public interest.
Such a finding is final and shall be kept available in the agency for at least six years after the date of the determination or decision. A copy of the finding shall be submitted to the General Accounting Office with each contract to which it applies.”
1985—Subsec. (a). Pub. L. 99–145 inserted “this” after “2305 of”.
1984—Subsec. (a). Pub. L. 98–369, §2725(1), inserted “, except for determinations and decisions under section 2304 or 2305 of title,” and “, including a determination or decision under section 2304 or 2305 of this title,”.
Subsec. (b). Pub. L. 98–369, §2725(2), amended subsec. (b) generally, striking out requirement that determinations to negotiate contracts be based on written findings by the contracting officers making the determinations.
1968—Subsec. (b). Pub. L. 90–378 inserted “section 2306 (g)(1),” after “clauses (11)–(16) of section 2304(a), section 2306(c),”, and “(3) support the findings required by section 2306(g)(1),” after “kind or quality required except under such a contract,”, and redesignated former cls. (3) to (5) as (4) to (6), respectively.
1966—Subsec. (b). Pub. L. 89–607 inserted reference to section 2313(c), added cl. (4), and redesignated former cl. (4) as (5).
1962—Subsec. (b). Pub. L. 87–653 substituted “section 2306(c)” for “section 2306”, required decisions to negotiate contracts under section 2304(a)(2), (7), (8), (10) to (12) of this title to be based on a written finding by the person making the decision, which findings shall set out facts and circumstances illustrative of conditions described in section 2304(a)(11) to (16), indicate why the type of contract selected under section 2306(c) is likely to be less costly than any other or that its impracticable to obtain the required property or services except under such contract, indicate why advance payments under section 2307(c) would be in the public interest, or establish with respect to section 2304(a), (2), (7), (8), (10) to (12) that formal advertising would not have been feasible and practicable.
1958—Subsec. (b). Pub. L. 85–800 substituted “2307(c)” for “2307(a)”.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
For effective date of amendment by Pub. L. 87–653, see section 1(h) of Pub. L. 87–653, set out as a note under section 2304 of this title.
(a)
(b)
(1) the head of an agency may delegate functions and assign responsibilities relating to procurement to any officer or employee within such agency;
(2) the heads of two or more agencies may by agreement delegate procurement functions and assign procurement responsibilities from one agency to another of those agencies or to an officer or civilian employee of another of those agencies; and
(3) the heads of two or more agencies may create joint or combined offices to exercise procurement functions and responsibilities.
(c)
(2) The regulations shall include the following provisions:
(A) A requirement that, before any such termination or substantial reduction in participation is approved, the proposed termination or reduction be reviewed by the Joint Requirements Oversight Council of the Department of Defense.
(B) A provision that authorizes the Under Secretary of Defense for Acquisition, Technology, and Logistics to require a military department whose participation in a joint acquisition program has been approved for termination or substantial reduction to continue to provide some or all of the funding necessary for the acquisition program to be continued in an efficient manner.
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 85–800, §11, Aug. 28, 1958, 72 Stat. 967; Pub. L. 87–653, §1(g), Sept. 10, 1962, 76 Stat. 529; Pub. L. 90–378, §3, July 5, 1968, 82 Stat. 290; Pub. L. 97–86, title IX, §§907(c), 909(f), Dec. 1, 1981, 95 Stat. 1117, 1120; Pub. L. 98–369, div. B, title VII, §2726, July 18, 1984, 98 Stat. 1194; Pub. L. 98–525, title XII, §1214, Oct. 19, 1984, 98 Stat. 2592; Pub. L. 98–577, title V, §505, Oct. 30, 1984, 98 Stat. 3087; Pub. L. 103–355, title I, §1503(a)(1), Oct. 13, 1994, 108 Stat. 3296; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2311 | 41:156(a) (less 1st sentence). 41:156(b). |
Feb. 19, 1948, ch. 65, §7(a) (less 1st sentence), (b), 62 Stat. 24. |
The words “in his discretion and” and “including the making of such determinations and decisions” are omitted as surplusage. The words “except the power to make determinations and decisions” are substituted for the words “Except as provided in subsection (b) of this section” and “The power of the agency head to make the determinations or decisions specified in paragraphs (12)–(16) of section 151(c) of this title and in section 154(a) of this title shall not be delegable”.
Provisions similar to those in this section were contained in section 2308 of this title prior to repeal by Pub. L. 103–355, §1503(b)(1).
2001—Subsec. (c)(1), (2)(B). Pub. L. 107–107 substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
1994—Pub. L. 103–355 substituted “Assignment and delegation of procurement functions and responsibilities” for “Delegation” as section catchline and amended text generally. Prior to amendment, text read as follows: “Except as provided in section 2304(d)(2) of this title, the head of an agency may delegate, subject to his direction, to any other officer or official of that agency, any power under this chapter.”
1984—Pub. L. 98–577 struck out “(a)” before “Except as provided in” and struck out subsec. (b) which related to delegation of authority by heads of procuring activities of agencies of certain functions.
Pub. L. 98–525 designated existing provisions as subsec. (a) and added subsec. (b).
Pub. L. 98–369 inserted provision relating to the exception provided in section 2304(d)(2) of this title and struck out provision that the power to make determinations and decisions under cls. (11)–(16) of section 2304(a) of this title could not be delegated, but that the power to make a determination or decision under section 2304(a)(11) of this title could be delegated to any other officer of official of that agency who was responsible for procurement, and only for contracts requiring the expenditure of not more than $5,000,000.
1981—Pub. L. 97–86 struck out in first sentence cl. (1) designation and cl. (2) relating to authorizing of contracts in excess of three years under section 2306(g) of this title, and in second sentence substituted “$5,000,000” for “$100,000”.
1968—Pub. L. 90–378 designated provisions after “the power to make determinations and decisions” as cl. (1) and added cl. (2).
1962—Pub. L. 87–653 substituted “delegated to any other officer” for “delegated only to a chief officer” and “$100,000” for “$25,000”.
1958—Pub. L. 85–800 struck out “, or section 2307(a)” after “of section 2304(a)” in first sentence.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
For effective date of amendment by Pub. L. 87–653, see section 1(h) of Pub. L. 87–653, set out as a note under section 2304 of this title.
Upon the recommendation of the head of an agency, the Secretary of the Treasury may remit all or part, as he considers just and equitable, of any liquidated damages assessed for delay in performing a contract, made by that agency, that provides for such damages.
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 104–316, title II, §202(c), Oct. 19, 1996, 110 Stat. 3842.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2312 | 41:155. | Feb. 19, 1948, ch. 65, §6, 62 Stat. 24. |
The words “a contract, made by that agency, that provides for” are substituted for the words “any contract made on behalf of the Government by the agency head or by officers authorized by him so to do includes a provision”.
1996—Pub. L. 104–316 substituted “Secretary of the Treasury” for “Comptroller General”.
(a)
(A) a contractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable contract, or any combination of such contracts, made by that agency under this chapter; and
(B) a subcontractor performing any cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable subcontract or any combination of such subcontracts under a contract referred to in subparagraph (A).
(2) The head of an agency, acting through an authorized representative, is authorized, for the purpose of evaluating the accuracy, completeness, and currency of certified cost or pricing data required to be submitted pursuant to section 2306a of this title with respect to a contract or subcontract, to examine all records of the contractor or subcontractor related to—
(A) the proposal for the contract or subcontract;
(B) the discussions conducted on the proposal;
(C) pricing of the contract or subcontract; or
(D) performance of the contract or subcontract.
(b)
(2) Any such subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order of an appropriate United States district court.
(3) The authority provided by paragraph (1) may not be redelegated.
(c)
(2) Paragraph (1) does not apply to a contract or subcontract with a foreign contractor or foreign subcontractor if the head of the agency concerned determines, with the concurrence of the Comptroller General or his designee, that the application of that paragraph to the contract or subcontract would not be in the public interest. However, the concurrence of the Comptroller General or his designee is not required—
(A) where the contractor or subcontractor is a foreign government or agency thereof or is precluded by the laws of the country involved from making its records available for examination; and
(B) where the head of the agency determines, after taking into account the price and availability of the property and services from United States sources, that the public interest would be best served by not applying paragraph (1).
(3) Paragraph (1) may not be construed to require a contractor or subcontractor to create or maintain any record that the contractor or subcontractor does not maintain in the ordinary course of business or pursuant to another provision of law.
(d)
(e)
(f)
(1) Contracts for utility services at rates not exceeding those established to apply uniformly to the public, plus any applicable reasonable connection charge.
(2) A contract or subcontract that is for an amount not greater than the simplified acquisition threshold.
(g)
(h)
(1) The contractor or subcontractor has established procedures to ensure that the imaging process preserves the integrity, reliability, and security of the original records.
(2) The contractor or subcontractor maintains an effective indexing system to permit timely and convenient access to the imaged records.
(3) The contractor or subcontractor retains the original records for a minimum of one year after imaging to permit periodic validation of the imaging systems.
(i)
(Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 89–607, §1(2), Sept. 27, 1966, 80 Stat. 850; Pub. L. 98–369, div. B, title VII, §2727(c), July 18, 1984, 98 Stat. 1195; Pub. L. 99–145, title IX, §935, Nov. 8, 1985, 99 Stat. 700; Pub. L. 100–26, §7(g)(1), Apr. 21, 1987, 101 Stat. 282; Pub. L. 101–510, div. A, title XIII, §1301(9), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 103–355, title II, §2201(a)(1), title IV, §4102(c), Oct. 13, 1994, 108 Stat. 3316, 3340; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 104–201, div. A, title VIII, §808(a), Sept. 23, 1996, 110 Stat. 2607; Pub. L. 106–65, div. A, title X, §1032(a)(2), Oct. 5, 1999, 113 Stat. 751; Pub. L. 110–417, [div. A], title VIII, §871(b), Oct. 14, 2008, 122 Stat. 4555.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2313(a) | 41:153(b) (words after semicolon of last sentence). | Feb. 19, 1948, ch. 65, §4(b) (words after semicolon of last sentence), 62 Stat. 23. |
| 2313(b) | 41:153(c). | Feb. 19, 1948, ch. 65, §4(c); added Oct. 31, 1951, ch. 652 (as applicable to §4(c); of the Act of Feb. 19, 1948, ch. 65), 65 Stat. 700. |
In subsection (a), the words “An agency named in section 2303 of this title” are substituted for the words “a procuring agency”. The words “made by that agency under this chapter” are inserted for clarity.
In subsection (b), the word “under” is substituted for the words “pursuant to authority contained in”. The word “provide” is substituted for the words “include a clause to the effect”. The words “are entitled” are substituted for the words “shall * * * have * * * the right”. The words “of the United States”, “duly authorized”, “have access to and”, and “engaged in the performance of” are omitted as surplusage.
2008—Subsec. (c)(1). Pub. L. 110–417 inserted “and to interview any current employee regarding such transactions” before period at end.
1999—Subsec. (b)(4). Pub. L. 106–65 struck out par. (4) which read as follows: “The Director (or any successor official) shall submit an annual report to the Secretary of Defense on the exercise of such authority during the preceding year and the reasons why such authority was exercised in any instance. The Secretary shall forward a copy of each such report to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives.”
1996—Subsec. (b)(4). 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”.
Subsec. (d). Pub. L. 104–201 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “
1994—Pub. L. 103–355, §2201(a)(1), amended section generally, striking out “of books” before “and records” in section catchline, and substituting subsecs. (a) to (i) for former subsecs. (a) to (d).
Subsec. (f)(2). Pub. L. 103–355, §4102(c), added par. (2).
1990—Subsec. (c). Pub. L. 101–510 struck out after cl. (2) “If subsection (b) is not applied to a contract or subcontract based on a determination under clause (2), a written report shall be furnished to the Congress.”
1987—Subsec. (d)(1). Pub. L. 100–26 substituted “section 2306a” for “section 2306(f)”.
1985—Subsec. (d). Pub. L. 99–145 added subsec. (d).
1984—Subsec. (b). Pub. L. 98–369 substituted “awarded after using procedures other than sealed bid procedures” for “negotiated under this chapter”.
1966—Subsec. (b). Pub. L. 89–607, §1(2)(A), substituted “Except as provided in subsection (c), each” for “Each”.
Subsec. (c). Pub. L. 89–607, §1(2)(B), added subsec. (c).
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Functions with respect to purchases authorized to be made outside limits of United States or District of Columbia under Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, May 12, 1965, 30 F.R. 6635, set out as a note under section 2393 of Title 22, Foreign Relations and Intercourse.
Secretaries of Defense, Army, Navy, or Air Force, or their designees, to determine, prior to exercising authority provided in amendment of this section by Pub. L. 89–607 to exempt certain contracts with foreign contractors from requirement of an examination-of-records clause, that all reasonable efforts have been made to include such examination-of-records clause, as required by par. (11) of Part I of Ex. Ord. No. 10789, and that alternate sources of supply are not reasonably available, see par. (11) of Part I of Ex. Ord. No. 10789, Nov. 14, 1958, 23 F.R. 8897, as amended, set out as a note under section 1431 of Title 50, War and National Defense.
Sections 6101(b)–(d) and 6304 of title 41 do not apply to the procurement or sale of property or services by the agencies named in section 2303 of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 133; Pub. L. 96–513, title V, §511(78), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 103–160, div. A, title VIII, §822(b)(2), Nov. 30, 1993, 107 Stat. 1706; Pub. L. 111–350, §5(b)(16), Jan. 4, 2011, 124 Stat. 3843.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2314 | 41:160. | Feb. 19, 1948, ch. 65, §11(b), 62 Stat. 25. |
2011—Pub. L. 111–350 substituted “Sections 6101(b)–(d) and 6304 of title 41” for “Sections 3709 and 3735 of the Revised Statutes (41 U.S.C. 5 and 13)”.
1993—Pub. L. 103–160 inserted “or sale” after “procurement”.
1980—Pub. L. 96–513 substituted “Sections 3709 and 3735 of the Revised Statutes (41 U.S.C. 5 and 13)” for “Sections 5, 6, 6a, and 13 of title 41”.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
For purposes of subtitle III of title 40, the term “national security system”, with respect to a telecommunications and information system operated by the Department of Defense, has the meaning given that term by section 3542(b)(2) of title 44.
(Added Pub. L. 97–86, title IX, §908(a)(1), Dec. 1, 1981, 95 Stat. 1117; amended Pub. L. 97–295, §1(25), Oct. 12, 1982, 96 Stat. 1291; Pub. L. 104–106, div. E, title LVI, §5601(c), Feb. 10, 1996, 110 Stat. 699; Pub. L. 104–201, div. A, title X, §1074(b)(4)(B), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 105–85, div. A, title X, §1073(a)(49), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 107–217, §3(b)(5), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 109–364, div. A, title IX, §906(c), Oct. 17, 2006, 120 Stat. 2354.)
2006—Pub. L. 109–364 amended text generally. Prior to amendment, section consisted of subsecs. (a) and (b) defining “national security systems” as meaning telecommunications and information systems operated by the Department of Defense, the functions, operation or use of which involves intelligence or cryptologic activities, command and control of military forces, or equipment that is an integral part of a weapons system or is critical to military or intelligence missions but is not equipment or services to be used for routine administrative and business applications.
2002—Subsec. (a). Pub. L. 107–217 substituted “subtitle III of title 40” for “division E of the Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.)” in introductory provisions.
1997—Subsec. (a). Pub. L. 105–85 substituted “division E of the Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.)” for “the Information Technology Management Reform Act of 1996”.
1996—Subsec. (a). Pub. L. 104–106, as amended by Pub. L. 104–201, substituted “For the purposes of the Information Technology Management Reform Act of 1996, the term ‘national security systems’ means those telecommunications and information systems operated by the Department of Defense, the functions, operation or use of which” for “Section 111 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759) is not applicable to the procurement by the Department of Defense of automatic data processing equipment or services if the function, operation, or use of the equipment or services”.
1982—Subsec. (a). Pub. L. 97–295 substituted “(40 U.S.C. 759)” for “(40 U.S.C. 795)”.
Amendment by Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, Feb. 10, 1996, 110 Stat. 702.
Section 908(b) of Pub. L. 97–86 provided that: “Section 2315 of title 10, United States Code, as added by subsection (a), does not apply to a contract made before the date of the enactment of this Act [Dec. 1, 1981].”
Pub. L. 103–337, div. A, title X, §1075, Oct. 5, 1994, 108 Stat. 2861, provided that:
“(a)
“(1) the Secretary of Defense submits to the Congress a report containing—
“(A) a certification by the Secretary that the FTS–2000 procurement or the other telecommunications procurement will provide assured, secure telecommunications support (including associated telecommunications services) for Department of Defense activities; and
“(B) a description of how the procurement will be implemented and managed to meet defense information infrastructure requirements, including requirements to support deployed forces and intelligence activities; and
“(2) 30 days elapse after the date on which such report is received by the committees.
“(b)
“(1) The term ‘defense telecommunications requirements’ means requirements for telecommunications equipment and services that, if procured by the Department of Defense, would be exempt from the requirements of section 111 of the Federal Property and Administrative Services Act of 1949 ([former] 40 U.S.C. 759) pursuant to section 2315 of title 10, United States Code.
“(2) The term ‘Executive agency’ has the meaning given such term in section 105 of title 5, United States Code.
“(3) The term ‘procurement’ has the meaning given such term in section 4 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403) [see 41 U.S.C. 111].
“(c)
“(1) section 111 of the Federal Property and Administrative Services Act of 1949 ([former] 40 U.S.C. 759); or
“(2) section 620 of Public Law 103–123 [107 Stat. 1264].”
The Secretary of Defense may disclose the identity or location of a person awarded a contract by the Department of Defense to any individual, including a Member of Congress, only after the Secretary makes a public announcement identifying the contractor. When the identity of a contractor is to be made public, the Secretary shall announce publicly that the contract has been awarded and the identity of the contractor.
(Added Pub. L. 97–295, §1(26)(A), Oct. 12, 1982, 96 Stat. 1291.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2316 | 10:2304 (note). | Oct. 7, 1970, Pub. L. 91–441, §507, 84 Stat. 913. |
The words “company, or corporation” are omitted as included in “person” because of section 1:1. The words “On and after the date of enactment of this Act” are omitted as executed. The word “contractor” is substituted for “person, company, or corporation to whom such contract has been awarded” and “person, company, or corporation to whom any defense contract has been awarded” to eliminate unnecessary words. The words “and the identity of the contractor” are substituted for “and to whom it was awarded” for clarity.
Section, added Pub. L. 98–525, title XII, §1215, Oct. 19, 1984, 98 Stat. 2592, related to encouragement of competition and cost savings.
(a)(1) In addition to the advocates for competition established or designated pursuant to section 1705(a) of title 41, the Secretary of Defense shall designate an officer or employee of the Defense Logistics Agency to serve as the advocate for competition of the agency.
(2) The advocate for competition of the Defense Logistics Agency shall carry out the responsibilities and functions provided for in section 1705(b) and (c) of title 41.
(b) Each advocate for competition of an agency named in section 2303(a) of this title shall be a general or flag officer if a member of the armed forces or a grade GS–16 or above under the General Schedule (or in a comparable or higher position under another schedule), if a civilian employee and shall be designated to serve for a minimum of two years.
(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2593; amended Pub. L. 100–26, §7(d)(4), Apr. 21, 1987, 101 Stat. 281; Pub. L. 102–25, title VII, §701(f)(1), Apr. 6, 1991, 105 Stat. 115; Pub. L. 103–355, title I, §1031, Oct. 13, 1994, 108 Stat. 3260; Pub. L. 111–350, §5(b)(17), Jan. 4, 2011, 124 Stat. 3843.)
2011—Subsec. (a)(1). Pub. L. 111–350, §5(b)(17)(A), substituted “section 1705(a) of title 41” for “section 20(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 418(a))”.
Subsec. (a)(2). Pub. L. 111–350, §5(b)(17)(B), substituted “section 1705(b) and (c) of title 41” for “sections 20(b) and 20(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 418(b), (c))”.
1994—Subsec. (c). Pub. L. 103–355 struck out subsec. (c) which read as follows: “Each advocate for competition of an agency of the Department of Defense shall transmit to the Secretary of Defense a report describing his activities during the preceding year. The report of each advocate for competition shall be included in the annual report of the Secretary of Defense required by section 23 of the Office of Federal Procurement Policy Act (41 U.S.C. 419), in the form in which it was submitted to the Secretary.”
1991—Subsec. (c). Pub. L. 102–25 substituted “section 23” for “section 21”.
1987—Subsec. (a)(1). Pub. L. 100–26, §7(d)(4)(A), inserted “(41 U.S.C. 418(a))” after “Policy Act”.
Subsec. (a)(2). Pub. L. 100–26, §7(d)(4)(B), inserted “(41 U.S.C. 418(b), (c))” after “Policy Act”.
Subsec. (c). Pub. L. 100–26, §7(d)(4)(C), inserted “(41 U.S.C. 419)” after “Policy Act”.
Section 1216(c)(1) of Pub. L. 98–525 provided that: “Section 2318 of title 10, United States Code (as added by subsection (a)), shall take effect on April 1, 1985.”
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.
(a) In this section, the term “qualification requirement” means a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a contract.
(b) Except as provided in subsection (c), the head of the agency shall, before establishing a qualification requirement—
(1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award;
(2) specify in writing and make available to a potential offeror upon request all requirements which a prospective offeror, or its product, must satisfy in order to become qualified, such requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification requirement;
(3) specify an estimate of the costs of testing and evaluation likely to be incurred by a potential offeror in order to become qualified;
(4) ensure that a potential offeror is provided, upon request and on a reimbursable basis, a prompt opportunity to demonstrate its ability to meet the standards specified for qualification using qualified personnel and facilities of the agency concerned or of another agency obtained through interagency agreement, or under contract, or other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency);
(5) if testing and evaluation services are provided under contract to the agency for the purposes of clause (4), provide to the extent possible that such services be provided by a contractor who is not expected to benefit from an absence of additional qualified sources and who shall be required in such contract to adhere to any restriction on technical data asserted by the potential offeror seeking qualification; and
(6) ensure that a potential offeror seeking qualification is promptly informed as to whether qualification is attained and, in the event qualification is not attained, is promptly furnished specific information why qualification was not attained.
(c)(1) Subsection (b) of this section does not apply with respect to a qualification requirement established by statute or administrative action before October 19, 1984, unless such requirement is a qualified products list.
(2)(A) Except as provided in subparagraph (B), if it is unreasonable to specify the standards for qualification which a prospective offeror or its product must satisfy, a determination to that effect shall be submitted to the advocate for competition of the procuring activity responsible for the purchase of the item subject to the qualification requirement. After considering any comments of the advocate for competition reviewing such determination, the head of the purchasing office may waive the requirements of clauses (2) through (6) of subsection (b) for up to two years with respect to the item subject to the qualification requirement.
(B) The waiver authority provided in this paragraph does not apply with respect to a qualified products list.
(3) A potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror (A) is not on a qualified bidders list, qualified manufacturers list, or qualified products list, or (B) has not been identified as meeting a qualification requirement established after October 19, 1984, if the potential offeror can demonstrate to the satisfaction of the contracting officer (or, in the case of a contract for the procurement of an aviation critical safety item or ship critical safety item, the head of the design control activity for such item) that the potential offeror or its product meets the standards established for qualification or can meet such standards before the date specified for award of the contract.
(4) Nothing contained in this subsection requires the referral of an offer to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act (15 U.S.C. 637(b)(7)) if the basis for the referral is a challenge by the offeror to either the validity of the qualification requirement or the offeror's compliance with such requirement.
(5) The head of an agency need not delay a proposed procurement in order to comply with subsection (b) or in order to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification.
(6) The requirements of subsection (b) also apply before enforcement of any qualified products list, qualified manufacturers list, or qualified bidders list.
(d)(1) If the number of qualified sources or qualified products available to compete actively for an anticipated future requirement is fewer than two actual manufacturers or the products of two actual manufacturers, respectively, the head of the agency concerned shall—
(A) periodically publish notice in the Commerce Business Daily soliciting additional sources or products to seek qualification, unless the contracting officer determines that such publication would compromise national security; and
(B) bear the cost of conducting the specified testing and evaluation (excluding the costs associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern which has met the standards specified for qualification and which could reasonably be expected to compete for a contract for that requirement, but such costs may be borne only if the head of the agency determines that such additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to amortize the costs incurred by the agency within a reasonable period of time considering the duration and dollar value of anticipated future requirements.
(2) The head of an agency shall require a prospective contractor requesting the United States to bear testing and evaluation costs under paragraph (1)(B) to certify as to its status as a small business concern under section 3 of the Small Business Act (15 U.S.C. 632).
(e) Within seven years after the establishment of a qualification requirement under subsection (b) or within seven years following an agency's enforcement of a qualified products list, qualified manufacturers list, or qualified bidders list, any such qualification requirement shall be examined and revalidated in accordance with the requirements of subsection (b). The preceding sentence does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2).
(f) Except in an emergency as determined by the head of the agency, whenever the head of the agency determines not to enforce a qualification requirement for a solicitation, the agency may not thereafter enforce that qualification requirement unless the agency complies with the requirements of subsection (b).
(g)
(1) The term “aviation critical safety item” means a part, an assembly, installation equipment, launch equipment, recovery equipment, or support equipment for an aircraft or aviation weapon system if the part, assembly, or equipment contains a characteristic any failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in the loss of or serious damage to the aircraft or weapon system, an unacceptable risk of personal injury or loss of life, or an uncommanded engine shutdown that jeopardizes safety.
(2) The term “ship critical safety item” means any ship part, assembly, or support equipment containing a characteristic the failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in loss of or serious damage to the ship or unacceptable risk of personal injury or loss of life.
(3) The term “design control activity”, with respect to an aviation critical safety item or ship critical safety item, means the systems command of a military department that is specifically responsible for ensuring the airworthiness of an aviation system or equipment, or the seaworthiness of a ship or ship equipment, in which such item is to be used.
(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2593; amended Pub. L. 100–26, §7(d)(5), (i)(4), (k)(3), Apr. 21, 1987, 101 Stat. 281, 282, 284; Pub. L. 108–136, div. A, title VIII, §802(d), Nov. 24, 2003, 117 Stat. 1541; Pub. L. 109–364, div. A, title I, §130(d), Oct. 17, 2006, 120 Stat. 2110.)
2006—Subsec. (c)(3). Pub. L. 109–364, §130(d)(1), inserted “or ship critical safety item” after “aviation critical safety item”.
Subsec. (g)(2), (3). Pub. L. 109–364, §130(d)(2), added par. (2), redesignated former par. (2) as (3), inserted “or ship critical safety item” after “aviation critical safety item” and “, or the seaworthiness of a ship or ship equipment,” after “or equipment”, and substituted “such item” for “the item”.
2003—Subsec. (c)(3). Pub. L. 108–136, §802(d)(1), inserted “(or, in the case of a contract for the procurement of an aviation critical safety item, the head of the design control activity for such item)” after “the contracting officer”.
Subsec. (g). Pub. L. 108–136, §802(d)(2), added subsec. (g).
1987—Subsec. (a). Pub. L. 100–26, §7(k)(3), inserted “the term” after “In this section,”.
Subsec. (c)(1), (3). Pub. L. 100–26, §7(i)(4), substituted “October 19, 1984,” for “the date of the enactment of the Defense Procurement Reform Act of 1984”.
Subsec. (c)(4). Pub. L. 100–26, §7(d)(5)(A), inserted “(15 U.S.C. 637(b)(7))” after “Small Business Act”.
Subsec. (d)(2). Pub. L. 100–26, §7(d)(5)(B), inserted “(15 U.S.C. 632)” after “Small Business Act”.
Section 1216(c)(2) of Pub. L. 98–525 provided that: “Sections 2319, 2320, and 2321 of title 10, United States Code (as added by subsection (a)), shall apply with respect to solicitations issued after the end of the one-year period beginning on the date of the enactment of this Act [Oct. 19, 1984].”
(a)(1) The Secretary of Defense shall prescribe regulations to define the legitimate interest of the United States and of a contractor or subcontractor in technical data pertaining to an item or process. Such regulations shall be included in regulations of the Department of Defense prescribed as part of the Federal Acquisition Regulation. Such regulations may not impair any right of the United States or of any contractor or subcontractor with respect to patents or copyrights or any other right in technical data otherwise established by law. Such regulations also may not impair the right of a contractor or subcontractor to receive from a third party a fee or royalty for the use of technical data pertaining to an item or process developed exclusively at private expense by the contractor or subcontractor, except as otherwise specifically provided by law.
(2) Such regulations shall include the following provisions:
(A) In the case of an item or process that is developed by a contractor or subcontractor exclusively with Federal funds (other than an item or process developed under a contract or subcontract to which regulations under section 9(j)(2) of the Small Business Act (15 U.S.C. 638(j)(2)) apply), the United States shall have the unlimited right to—
(i) use technical data pertaining to the item or process; or
(ii) release or disclose the technical data to persons outside the government or permit the use of the technical data by such persons.
(B) Except as provided in subparagraphs (C) and (D), in the case of an item or process that is developed by a contractor or subcontractor exclusively at private expense, the contractor or subcontractor may restrict the right of the United States to release or disclose technical data pertaining to the item or process to persons outside the government or permit the use of the technical data by such persons.
(C) Subparagraph (B) does not apply to technical data that—
(i) constitutes a correction or change to data furnished by the United States;
(ii) relates to form, fit, or function;
(iii) is necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data); or
(iv) is otherwise publicly available or has been released or disclosed by the contractor or subcontractor without restriction on further release or disclosure.
(D) Notwithstanding subparagraph (B), the United States may release or disclose technical data to persons outside the Government, or permit the use of technical data by such persons, if—
(i) such release, disclosure, or use—
(I) is necessary for emergency repair and overhaul; or
(II) is a release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the United States and is required for evaluational or informational purposes;
(ii) such release, disclosure, or use is made subject to a prohibition that the person to whom the data is released or disclosed may not further release, disclose, or use such data; and
(iii) the contractor or subcontractor asserting the restriction is notified of such release, disclosure, or use.
(E) In the case of an item or process that is developed in part with Federal funds and in part at private expense, the respective rights of the United States and of the contractor or subcontractor in technical data pertaining to such item or process shall be established as early in the acquisition process as practicable (preferably during contract negotiations) and shall be based upon negotiations between the United States and the contractor, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiations would not be practicable. The establishment of such rights shall be based upon consideration of all of the following factors:
(i) The statement of congressional policy and objectives in section 200 of title 35, the statement of purposes in section 2(b) of the Small Business Innovation Development Act of 1982 (15 U.S.C. 638 note), and the declaration of policy in section 2 of the Small Business Act (15 U.S.C. 631).
(ii) The interest of the United States in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture.
(iii) The interest of the United States in encouraging contractors to develop at private expense items for use by the Government.
(iv) Such other factors as the Secretary of Defense may prescribe.
(F) A contractor or subcontractor (or a prospective contractor or subcontractor) may not be required, as a condition of being responsive to a solicitation or as a condition for the award of a contract—
(i) to sell or otherwise relinquish to the United States any rights in technical data except—
(I) rights in technical data described in subparagraph (A) for which a use or release restriction has been erroneously asserted by a contractor or subcontractor;
(II) rights in technical data described in subparagraph (C); or
(III) under the conditions described in subparagraph (D); or
(ii) to refrain from offering to use, or from using, an item or process to which the contractor is entitled to restrict rights in data under subparagraph (B).
(G) The Secretary of Defense may—
(i) negotiate and enter into a contract with a contractor or subcontractor for the acquisition of rights in technical data not otherwise provided under subparagraph (C) or (D), if necessary to develop alternative sources of supply and manufacture;
(ii) agree to restrict rights in technical data otherwise accorded to the United States under this section if the United States receives a royalty-free license to use, release, or disclose the data for purposes of the United States (including purposes of competitive procurement); or
(iii) permit a contractor or subcontractor to license directly to a third party the use of technical data which the contractor is otherwise allowed to restrict, if necessary to develop alternative sources of supply and manufacture.
(3) The Secretary of Defense shall define the terms “developed”, “exclusively with Federal funds”, and “exclusively at private expense” in regulations prescribed under paragraph (1). In defining such terms, the Secretary shall specify the manner in which indirect costs shall be treated and shall specify that amounts spent for independent research and development and bid and proposal costs shall not be considered to be Federal funds for the purposes of paragraph (2)(B), but shall be considered to be Federal funds for the purposes of paragraph (2)(A).
(b) Regulations prescribed under subsection (a) shall require that, whenever practicable, a contract for supplies or services entered into by an agency named in section 2303 of this title contain appropriate provisions relating to technical data, including provisions—
(1) defining the respective rights of the United States and the contractor or subcontractor (at any tier) regarding any technical data to be delivered under the contract and providing that, in the case of a contract for a commercial item, the item shall be presumed to be developed at private expense unless shown otherwise in accordance with section 2321(f);
(2) specifying the technical data, if any, to be delivered under the contract and delivery schedules for such delivery;
(3) establishing or referencing procedures for determining the acceptability of technical data to be delivered under the contract;
(4) establishing separate contract line items for the technical data, if any, to be delivered under the contract;
(5) to the maximum practicable extent, identifying, in advance of delivery, technical data which is to be delivered with restrictions on the right of the United States to use such data;
(6) requiring the contractor to revise any technical data delivered under the contract to reflect engineering design changes made during the performance of the contract and affecting the form, fit, and function of the items specified in the contract and to deliver such revised technical data to an agency within a time specified in the contract;
(7) establishing remedies to be available to the United States when technical data required to be delivered or made available under the contract is found to be incomplete or inadequate or to not satisfy the requirements of the contract concerning technical data; and
(8) authorizing the head of the agency to withhold payments under the contract (or exercise such other remedies as the head of the agency considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data.
(c) Nothing in this section or in section 2305(d) of this title prohibits the Secretary of Defense from—
(1) prescribing standards for determining whether a contract entered into by the Department of Defense shall provide for a time to be specified in the contract after which the United States shall have the right to use (or have used) for any purpose of the United States all technical data required to be delivered to the United States under the contract or providing for such a period of time (not to exceed 7 years) as a negotiation objective;
(2) notwithstanding any limitation upon the license rights conveyed under subsection (a)—
(A) allowing a covered Government support contractor access to and use of any technical data delivered under a contract for the sole purpose of furnishing independent and impartial advice or technical assistance directly to the Government in support of the Government's management and oversight of the program or effort to which such technical data relates; or
(B) allowing a covered litigation support contractor access to and use of any technical, proprietary, or confidential data delivered under a contract for the sole purpose of providing litigation support to the Government in the form of administrative, technical, or professional services during or in anticipation of litigation; or
(3) prescribing reasonable and flexible guidelines, including negotiation objectives, for the conduct of negotiations regarding the respective rights in technical data of the United States and the contractor.
(d) The Secretary of Defense shall by regulation establish programs which provide domestic business concerns an opportunity to purchase or borrow replenishment parts from the United States for the purpose of design replication or modification, to be used by such concerns in the submission of subsequent offers to sell the same or like parts to the United States. Nothing in this subsection limits the authority of the head of an agency to impose restrictions on such a program related to national security considerations, inventory needs of the United States, the improbability of future purchases of the same or like parts, or any additional restriction otherwise required by law.
(e) The Secretary of Defense shall require program managers for major weapon systems and subsystems of major weapon systems to assess the long-term technical data needs of such systems and subsystems and establish corresponding acquisition strategies that provide for technical data rights needed to sustain such systems and subsystems over their life cycle. Such strategies may include the development of maintenance capabilities within the Department of Defense or competition for contracts for sustainment of such systems or subsystems. Assessments and corresponding acquisition strategies developed under this section with respect to a weapon system or subsystem shall—
(1) be developed before issuance of a contract solicitation for the weapon system or subsystem;
(2) address the merits of including a priced contract option for the future delivery of technical data that were not acquired upon initial contract award;
(3) address the potential for changes in the sustainment plan over the life cycle of the weapon system or subsystem; and
(4) apply to weapon systems and subsystems that are to be supported by performance-based logistics arrangements as well as to weapons systems and subsystems that are to be supported by other sustainment approaches.
(f) In this section, the term “covered Government support contractor” means a contractor under a contract the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government's management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), which contractor—
(1) is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and
(2) executes a contract with the Government agreeing to and acknowledging—
(A) that proprietary or nonpublic technical data furnished will be accessed and used only for the purposes stated in that contract;
(B) that the covered Government support contractor will enter into a non-disclosure agreement with the contractor to whom the rights to the technical data belong;
(C) that the covered Government support contractor will take all reasonable steps to protect the proprietary and nonpublic nature of the technical data furnished to the covered Government support contractor during the program or effort for the period of time in which the Government is restricted from disclosing the technical data outside of the Government;
(D) that a breach of that contract by the covered Government support contractor with regard to a third party's ownership or rights in such technical data may subject the covered Government support contractor—
(i) to criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and
(ii) to civil actions for damages and other appropriate remedies by the contractor or subcontractor whose technical data is affected by the breach; and
(E) that such technical data provided to the covered Government support contractor under the authority of this section shall not be used by the covered Government support contractor to compete against the third party for Government or non-Government contracts.
(g) In this section, the term “covered litigation support contractor” means a contractor (including an expert or technical consultant) under contract with the Department of Defense to provide litigation support, which contractor executes a contract with the Government agreeing to and acknowledging—
(1) that proprietary or nonpublic technical data furnished will be accessed and used only for the purposes stated in that contract;
(2) that the covered litigation support contractor will take all reasonable steps to protect the proprietary and nonpublic nature of the technical data furnished to the covered litigation support contractor; and
(3) that such technical data provided to the covered litigation support contractor under the authority of this section shall not be used by the covered litigation support contractor to compete against the third party for Government or non-Government contracts.
(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2595; amended Pub. L. 98–577, title III, §301(b), Oct. 30, 1984, 98 Stat. 3076; Pub. L. 99–145, title IX, §961(d)(1), Nov. 8, 1985, 99 Stat. 703; Pub. L. 99–500, §101(c) [title X, §953(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, and Pub. L. 99–591, §101(c) [title X, §953(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169; Pub. L. 99–661, div. A, title IX, formerly title IV, §953(a), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §7(a)(4), Apr. 21, 1987, 101 Stat. 275; Pub. L. 100–180, div. A, title VIII, §808(a), (b), Dec. 4, 1987, 101 Stat. 1128, 1130; Pub. L. 101–189, div. A, title VIII, §853(b)(2), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 103–355, title VIII, §8106(a), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 108–136, div. A, title VIII, §844, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 109–364, div. A, title VIII, §802(a), Oct. 17, 2006, 120 Stat. 2312; Pub. L. 111–84, div. A, title VIII, §821, Oct. 28, 2009, 123 Stat. 2411; Pub. L. 111–383, div. A, title VIII, §§801(a), 824(b), Jan. 7, 2011, 124 Stat. 4253, 4269.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
2011—Subsec. (a)(2)(F)(i). Pub. L. 111–383, §824(b)(1), added subcl. (I) and redesignated former subcls. (I) and (II) as (II) and (III), respectively.
Subsec. (a)(3). Pub. L. 111–383, §824(b)(2), substituted “for the purposes of paragraph (2)(B), but shall be considered to be Federal funds for the purposes of paragraph (2)(A)” for “for the purposes of definitions under this paragraph”.
Subsec. (c)(2). Pub. L. 111–383, §801(a)(1), substituted “subsection (a)—” for “subsection (a),”, inserted “(A)” before “allowing”, and added subpar. (B).
Subsec. (g). Pub. L. 111–383, §801(a)(2), added subsec. (g).
2009—Subsec. (c)(2), (3). Pub. L. 111–84, §821(a), added par. (2) and redesignated former par. (2) as (3).
Subsec. (f). Pub. L. 111–84, §821(b), added subsec. (f).
2006—Subsec. (e). Pub. L. 109–364 added subsec. (e).
2003—Subsec. (b)(7) to (9). Pub. L. 108–136 redesignated pars. (8) and (9) as (7) and (8), respectively, and struck out former par. (7) which read as follows: “requiring the contractor to furnish written assurance at the time the technical data is delivered or is made available that the technical data is complete and accurate and satisfies the requirements of the contract concerning technical data;”.
1994—Subsec. (b)(1). Pub. L. 103–355 inserted before semicolon at end “and providing that, in the case of a contract for a commercial item, the item shall be presumed to be developed at private expense unless shown otherwise in accordance with section 2321(f)”.
1989—Subsec. (a)(4). Pub. L. 101–189 struck out par. (4) which provided that for purposes of this subsection, the term “Federal Acquisition Regulation” means the single system of Government-wide procurement regulations as defined in section 4(4) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(4)).
1987—Subsec. (a)(1). Pub. L. 100–180, §808(a)(1), inserted at end “Such regulations also may not impair the right of a contractor or subcontractor to receive from a third party a fee or royalty for the use of technical data pertaining to an item or process developed exclusively at private expense by the contractor or subcontractor, except as otherwise specifically provided by law.”
Subsec. (a)(2)(A). Pub. L. 100–26, §7(a)(4)(A), inserted “(other than an item or process developed under a contract or subcontract to which regulations under section 9(j)(2) of the Small Business Act (15 U.S.C. 638(j)(2)) apply)” after “Federal funds”.
Subsec. (a)(2)(E). Pub. L. 100–180, §808(a)(2), in introductory provisions, substituted “established” for “agreed upon”, struck out comma after “negotiations)” and inserted in lieu “and shall be based upon negotiations between the United States and the contractor, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiations would not be practicable. The establishment of such rights shall be”, and added cl. (iv).
Subsec. (a)(2)(F). Pub. L. 100–180, §808(a)(3), amended subpar. (F) generally. Prior to amendment, subpar. (F) read as follows: “A contractor or subcontractor (or a prospective contractor or subcontractor) may not be required, as a condition of being responsive to a solicitation or as a condition for the award of a contract, to sell or otherwise relinquish to the United States any rights in technical data except—
“(i) rights in technical data described in subparagraph (C); or
“(ii) under the conditions described in subparagraph (D).”
Subsec. (a)(2)(G)(i). Pub. L. 100–180, §808(a)(4)(A), substituted “not otherwise provided under subparagraph (C) or (D),” for “pertaining to an item or process developed by such contractor or subcontractor exclusively at private expense” and struck out “or” at end.
Subsec. (a)(2)(G)(ii). Pub. L. 100–180, §808(a)(4)(B), substituted “this section” for “such regulations” and “; or” for period at end.
Pub. L. 100–26, §7(a)(4)(B), substituted “in technical data otherwise accorded to the United States under such regulations” for “of the United States in technical data pertaining to an item or process developed entirely or in part with Federal funds”.
Subsec. (a)(2)(G)(iii). Pub. L. 100–180, §808(a)(4)(C), added cl. (iii).
Subsec. (a)(3). Pub. L. 100–180, §808(a)(5), substituted “, ‘exclusively with Federal funds’, and ‘exclusively at private expense’ ” for “and ‘private expense’ ” and inserted at end “In defining such terms, the Secretary shall specify the manner in which indirect costs shall be treated and shall specify that amounts spent for independent research and development and bid and proposal costs shall not be considered to be Federal funds for the purposes of definitions under this paragraph.”
Subsec. (c). Pub. L. 100–180, §808(b), substituted “from—” for “from”, designated existing provisions beginning with “prescribing standards” as par. (1), and added par. (2).
1986—Subsec. (a). Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 amended generally subsec. (a) substantially identically, substituting provision that regulations to define the legitimate interest of the United States and of a contractor or subcontractor in technical data be included in regulations of the Department of Defense prescribed as part of the Federal Acquisition Regulation for provision that such regulations define the legitimate proprietary interest of the United States and a contractor and be part of the single system of Government-wide procurement regulations, detailed what such regulations must contain if the item or process is developed exclusively with Federal funds, exclusively with private funds, or partly with Federal funds and partly with private funds, inserted provision relating to relinquishment of rights in data to the United States, directed the Secretary of Defense to define “developed” and “private expense”, and defined “Federal Acquisition Regulation”. Text reflects amendment by Pub. L. 99–661, which was executed last.
1985—Subsec. (a)(1). Pub. L. 99–145 substituted “the item or process to which the technical data pertains” for “the technical data”.
1984—Subsec. (a). Pub. L. 98–577 substituted “in regulations of the Department of Defense prescribed as part” for “in regulations prescribed as part” in text preceding par. (1).
Pub. L. 111–383, div. A, title VIII, §801(b), Jan. 7, 2011, 124 Stat. 4254, provided that: “The amendments made by subsection (a) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 7, 2011].”
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 808(c) of Pub. L. 100–180 provided that: “The amendments made by this section [amending this section] shall take effect on the earlier of—
“(1) the last day of the 120-day period beginning on the date of the enactment of this Act [Dec. 4, 1987]; or
“(2) the date on which regulations are prescribed and made effective to implement such amendments.”
Section 101(c) [title X, §953(e)] of Pub. L. 99–500 and Pub. L. 99–591, and section 953(e) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “The amendments made by subsections (a) and (b) [amending this section and section 2321 of this title] shall apply to contracts for which solicitations are issued after the end of the 210-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].”
Section applicable with respect to solicitations issued after the end of the one-year period beginning Oct. 19, 1984, see section 1216(c)(2) of Pub. L. 98–525, set out as a note under section 2319 of this title.
Pub. L. 109–364, div. A, title VIII, §802(c), Oct. 17, 2006, 120 Stat. 2313, provided that: “Not later than 180 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall revise regulations under section 2320 of title 10, United States Code, to implement subsection (e) of such section (as added by this section), including incorporating policy changes developed under such subsection into Department of Defense Directive 5000.1 and Department of Defense Instruction 5000.2.”
Section 101(c) [title X, §953(d)] of Pub. L. 99–500 and Pub. L. 99–591, and section 953(d) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, required that proposed regulations under subsec. (a)(1) of this section be published in Federal Register for comment not later than 90 days after Oct. 18, 1986, and that proposed final regulations be published in Federal Register not later than 180 days after Oct. 18, 1986.
Pub. L. 111–383, div. A, title VIII, §824(a), Jan. 7, 2011, 124 Stat. 4269, provided that: “Not later than 180 days after the date of the enactment of this Act [Jan. 7, 2011], the Secretary of Defense shall review guidance issued by the military departments on the implementation of section 2320(e) of title 10, United States Code, to ensure that such guidance is consistent with the guidance issued by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the requirements of this section [amending this section and section 2321 of this title]. Such guidance shall be designed to ensure that the United States—
“(1) preserves the option of competition for contracts for the production and sustainment of systems or subsystems that are developed exclusively with Federal funds as defined in accordance with the amendments made by this section; and
“(2) is not required to pay more than once for the same technical data.”
Pub. L. 110–417, [div. A], title VIII, §822, Oct. 14, 2008, 122 Stat. 4532, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(13), Jan. 7, 2011, 124 Stat. 4375, provided that:
“(a)
“(1) establish criteria for defining the legitimate interests of the United States and the party concerned in technical data pertaining to an item or process to be developed under the agreement;
“(2) require that specific rights in technical data be established during agreement negotiations and be based upon negotiations between the United States and the potential party to the agreement, except in any case in which the Secretary of Defense determines, on the basis of criteria established in such policy guidance, that the establishment of rights during or through agreement negotiations would not be practicable; and
“(3) require the program manager for a major weapon system or an item of personnel protective equipment that is to be developed using a non-FAR agreement to assess the long-term technical data needs of such system or item.
“(b)
“(c)
“(1) The term ‘non-FAR agreement’ means an agreement that is not subject to laws pursuant to which the Federal Acquisition Regulation is prescribed, including—
“(A) a transaction authorized under section 2371 of title 10, United States Code; and
“(B) a cooperative research and development agreement.
“(2) The term ‘party’, with respect to a non-FAR agreement, means a non-Federal entity and includes any of the following:
“(A) A contractor and its subcontractors (at any tier).
“(B) A joint venture.
“(C) A consortium.
“(d)
“(1) a description of all relevant guidance or policies issued;
“(2) a description of the extent to which program managers have received training to better assess the long-term technical data needs of major weapon systems and subsystems; and
“(3) a description of one or more examples, if any, where a priced contract option has been used on major weapon systems for the future delivery of technical data and one or more examples, if any, where all relevant technical data were acquired upon contract award.”
Pub. L. 102–190, div. A, title VIII, §807, Dec. 5, 1991, 105 Stat. 1421, as amended by Pub. L. 102–484, div. A, title VIII, §814, Oct. 23, 1992, 106 Stat. 2454; Pub. L. 105–85, div. A, title X, §1073(d)(3), Nov. 18, 1997, 111 Stat. 1905, provided that not later than Sept. 15, 1992, the Secretary of Defense was to prescribe final regulations required by subsec. (a) of this section that supersede the interim regulations prescribed before Dec. 5, 1991, for the purposes of this section and contained various provisions relating to a government-industry advisory committee, reports to Congress, publication of the regulations, and application of the regulations.
Pub. L. 102–190, div. A, title VIII, §808, Dec. 5, 1991, 105 Stat. 1423, required Secretary of Defense to prescribe regulations ensuring that any Department of Defense employee or member of the armed forces with an appropriate security clearance who is engaged in oversight of an acquisition program maintains control of the employee's or member's work product, provided that procedures for protecting unauthorized disclosure of classified information by contractors do not require such an employee or member to relinquish control of his or her work product to any such contractor, required implementing regulations not later than 120 days after Dec. 5, 1991, and provided that this section would cease to be effective on Sept. 30, 1992.
(a)
(b)
(c)
(2) The review of an asserted use or release restriction under paragraph (1) shall be conducted before the end of the three-year period beginning on the later of—
(A) the date on which final payment is made on the contract under which the technical data is required to be delivered; or
(B) the date on which the technical data is delivered under the contract.
(d)
(A) reasonable grounds exist to question the current validity of the asserted restriction; and
(B) the continued adherence by the United States to the asserted restriction would make it impracticable to procure the item to which the technical data pertain competitively at a later time.
(2)(A) Except as provided in subparagraph (C), a challenge to an asserted use or release restriction may not be made under paragraph (1) after the end of the three-year period described in subparagraph (B) unless the technical data involved—
(i) are publicly available;
(ii) have been furnished to the United States without restriction; or
(iii) have been otherwise made available without restriction.
(B) The three-year period referred to in subparagraph (A) is the three-year period beginning on the later of—
(i) the date on which final payment is made on the contract under which the technical data are required to be delivered; or
(ii) the date on which the technical data are delivered under the contract.
(C) The limitation in this paragraph shall not apply to a case in which the Secretary finds that reasonable grounds exist to believe that a contractor or subcontractor has erroneously asserted a use or release restriction with regard to technical data described in section 2320(a)(2)(A) of this title.
(3) If the Secretary challenges an asserted use or release restriction under paragraph (1), the Secretary shall provide written notice of the challenge to the contractor or subcontractor asserting the restriction. Any such notice shall—
(A) state the specific grounds for challenging the asserted restriction;
(B) require a response within 60 days justifying the current validity of the asserted restriction; and
(C) state that evidence of a justification described in paragraph (4) may be submitted.
(4) It is a justification of an asserted use or release restriction challenged under paragraph (1) that, within the three-year period preceding the challenge to the restriction, the Department of Defense validated a restriction identical to the asserted restriction if—
(A) such validation occurred after a challenge to the validated restriction under this subsection; and
(B) the validated restriction was asserted by the same contractor or subcontractor (or a licensee of such contractor or subcontractor).
(e)
(f)
(2) In the case of a challenge to a use or release restriction that is asserted with respect to technical data of a contractor or subcontractor (other than technical data for a commercially available off-the-shelf item as defined in section 35(c) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))) for a major system or a subsystem or component thereof on the basis that the major system, subsystem or component was developed exclusively at private expense, the challenge to the use or release restriction shall be sustained unless information provided by the contractor or subcontractor demonstrates that the item was developed exclusively at private expense.
(g)
(2) After review of any justification submitted in response to the notice provided pursuant to subsection (d)(3), the contracting officer shall, within 60 days of receipt of any justification submitted, issue a decision or notify the party asserting the restriction of the time within which a decision will be issued.
(h)
(i)
(A) the restriction shall be cancelled; and
(B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor asserting the restriction shall be liable to the United States for payment of the cost to the United States of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the United States in challenging the asserted restriction, unless special circumstances would make such payment unjust.
(2) If, upon final disposition, the contracting officer's challenge to the use or release restriction is not sustained—
(A) the United States shall continue to be bound by the restriction; and
(B) the United States shall be liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the United States is found not to be made in good faith.
(j)
(1) to use such technical data; or
(2) to release or disclose such technical data to persons outside the Government or permit the use of such technical data by persons outside the Government.
(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2597; amended Pub. L. 99–500 §101(c) [title X, §953(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–171, and Pub. L. 99–591, §101(c) [title X, §953(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–171; Pub. L. 99–661, div. A, title IX, formerly title IV, §953(b), Nov. 14, 1986, 100 Stat. 3951, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, Pub. L. 100–26, §7(a)(5), Apr. 21, 1987, 101 Stat. 276; Pub. L. 100–180, div. A, title XII, §1231(6), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 103–35, title II, §201(g)(4), May 31, 1993, 107 Stat. 100; Pub. L. 103–355, title VIII, §8106(b), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 109–364, div. A, title VIII, §802(b), Oct. 17, 2006, 120 Stat. 2313; Pub. L. 110–181, div. A, title VIII, §815(a)(2), Jan. 28, 2008, 122 Stat. 223; Pub. L. 111–350, §5(b)(18), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 111–383, div. A, title VIII, §824(c), Jan. 7, 2011, 124 Stat. 4269.)
Section 35(c) of the Office of Federal Procurement Policy Act, referred to in subsec. (f)(2), means section 35(c) of Pub. L. 93–400, which was classified to section 431(c) of former Title 41, Public Contracts, and was repealed and restated as section 104 of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Another section 2321 of this title was contained in chapter 138 and was renumbered section 2341 of this title.
2011—Subsec. (d)(2)(A). Pub. L. 111–383, §824(c)(1), substituted “Except as provided in subparagraph (C), a challenge” for “A challenge”.
Subsec. (d)(2)(C). Pub. L. 111–383, §824(c)(2), added subpar. (C).
Subsec. (h). Pub. L. 111–350 substituted “chapter 71 of title 41” for “the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.)”.
2008—Subsec. (f)(2). Pub. L. 110–181 substituted “(other than technical data for a commercially available off-the-shelf item as defined in section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c)))” for “(whether or not under a contract for commercial items)”.
2006—Subsec. (f). Pub. L. 109–364 substituted “Expense” for “Expense for Commercial Items Contracts” in heading, designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), in” for “In”, and added par. (2).
1994—Subsecs. (f) to (j). Pub. L. 103–355 added subsec. (f) and redesignated former subsecs. (f) to (i) as (g) to (j), respectively.
1993—Subsec. (d)(1)(B). Pub. L. 103–35 substituted “adherence” for “adherance”.
1987—Subsec. (a). Pub. L. 100–26, §7(a)(5)(A)(ii), added subsec. (a) and struck out former subsec. (a) which read as follows: “A contract for supplies or services entered into by the Department of Defense which provides for the delivery of technical data shall provide that a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction asserted by the contractor or subcontractor on the right of the United States to use such technical data.”
Subsec. (b). Pub. L. 100–26, §7(a)(5)(A)(ii), added subsec. (b) and struck out former subsec. (b) which read as follows:
“(1) The Secretary of Defense shall ensure that there is a thorough review of the appropriateness of any restriction on the right of the United States to release or disclose technical data delivered under a contract to persons outside the Government, or to permit the use of such technical data by such persons. Such review shall be conducted before the end of the three-year period beginning on the date on which final payment is made on a contract under which technical data is required to be delivered, or the date on which the technical data is delivered under such contract, whichever is later.
“(2)(A) If the Secretary determines, at any time before the end of the three-year period beginning on the date on which final payment is made on a contract under which technical data is required to be delivered, or the date on which the technical data is delivered under such contract, whichever is later, that a challenge to a restriction is warranted, the Secretary shall provide written notice to the contractor or subcontractor asserting the restriction. Such a determination shall be based on a finding by the Secretary that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the United States would make it impracticable to procure the item competitively at a later time. Such notice shall—
“(i) state the specific grounds for challenging the asserted restriction;
“(ii) require a response within 60 days justifying the current validity of the asserted restriction; and
“(iii) state that evidence of a validation by the Department of Defense of a restriction identical to the asserted restriction within the three-year period preceding the challenge shall serve as justification for the asserted restriction if—
“(I) the validation occurred after a review of the validated restriction under this subsection; and
“(II) the validated restriction was asserted by the same contractor or subcontractor (or any licensee of such contractor or subcontractor) to which such notice is being provided.
“(B) Notwithstanding subparagraph (A), the United States may challenge a restriction on the release, disclosure, or use of technical data delivered under a contract at any time if such technical data—
“(i) is publicly available;
“(ii) has been furnished to the United States without restriction; or
“(iii) has been otherwise made available without restriction.”
Subsec. (c). Pub. L. 100–26, §7(a)(5)(A)(ii), added subsec. (c). Former subsec. (c) redesignated (e).
Subsec. (d). Pub. L. 100–26, §7(a)(5)(A)(ii), added subsec. (d). Former subsec. (d) redesignated (f).
Subsec. (d)(4)(A). Pub. L. 99–180, §1231(6)(A), substituted “subsection” for “paragraph”.
Subsec. (e). Pub. L. 100–26, §7(a)(5)(A)(i), (B), redesignated former subsec. (c) as (e), inserted heading, and substituted “If a contractor or subcontractor asserting a use or release restriction” for “If a contractor or subcontractor asserting a restriction subject to this section”. Former subsec. (e) redesignated (g).
Subsec. (f). Pub. L. 100–26, §7(a)(5)(A)(i), (C), redesignated former subsec. (d) as (f), inserted heading, and substituted “subsection (d)(3)” for “subsection (b)” in two places. Former subsec. (f) redesignated (h).
Subsec. (g). Pub. L. 100–26, §7(a)(5)(A)(i), (D), redesignated former subsec. (e) as (g) and inserted heading.
Subsec. (h). Pub. L. 100–26, §7(a)(5)(A)(i), (E)(i), redesignated former subsec. (f) as (h) and inserted heading.
Subsec. (h)(1). Pub. L. 100–26, §7(a)(5)(E)(ii)–(iv), substituted “the use or release restriction” for “the restriction on the right of the United States to use such technical data” in introductory provisions, struck out “on the right of the United States to use the technical data” after “the restriction” in subpar. (A), and substituted “asserting the restriction” for “, as appropriate,” in subpar. (B).
Subsec. (h)(2). Pub. L. 100–26, §7(a)(5)(E)(v), substituted “the use or release restriction” for “the restriction on the right of the United States to use such technical data” in introductory provisions.
Subsec. (i). Pub. L. 100–180, §1231(6)(B), inserted “or subcontractor” in introductory provisions.
Pub. L. 100–26, §7(a)(5)(F), added subsec. (i).
1986—Subsecs. (a), (b). Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 amended generally subsecs. (a) and (b) identically. Prior to amendment, subsecs. (a) and (b) read as follows:
“(a) A contract for supplies or services entered into by the Department of Defense which provides for the delivery of technical data shall provide that—
“(1) a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction asserted by the contractor or subcontractor on the right of the United States to use such technical data; and
“(2) the contracting officer may review the validity of any restriction asserted by the contractor or by a subcontractor under the contract on the right of the United States to use technical data furnished to the United States under the contract if the contracting officer determines that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the United States would make it impracticable to procure the item competitively at a later time.
“(b) If after such review the contracting officer determines that a challenge to the asserted restriction is warranted, the contracting officer shall provide written notice to the contractor or subcontractor asserting the restriction. Such notice shall—
“(1) state the grounds for challenging the asserted restriction; and
“(2) require a response within 60 days justifying the current validity of the asserted restriction.”
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 12(d)(1) of Pub. L. 100–26 provided that: “The amendments to section 2321 of title 10, United States Code, made by section 7(a)(5) shall apply to contracts for which solicitations are issued after the end of the 210-day period beginning on October 18, 1986.”
Amendment by Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 applicable to contracts for which solicitations are issued after end of 210-day period beginning Oct. 18, 1986, see section 101(c) of Pub. L. 99–500 and Pub. L. 99–591, and section 953(e) of Pub. L. 99–661, set out as a note under section 2320 of this title.
Section applicable with respect to solicitations issued after the end of the one-year period beginning Oct. 19, 1984, see section 1216(c)(2) of Pub. L. 98–525, set out as a note under section 2319 of this title.
1 See References in Text note below.
Section, added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2598; amended Pub. L. 100–26, §7(a)(6), Apr. 21, 1987, 101 Stat. 278; Pub. L. 100–180, div. A, title XII, §1231(7), Dec. 4, 1987, 101 Stat. 1160, limited small business set-asides under the Foreign Military Sales Program and provided that the section expired Jan. 17, 1987.
Another section 2322 of this title was contained in chapter 138 and was renumbered section 2342 of this title.
(a)
(A) small business concerns, including mass media and advertising firms, owned and controlled by socially and economically disadvantaged individuals (as such term is used in section 8(d) of the Small Business Act (15 U.S.C. 637(d)) and regulations issued under that section), the majority of the earnings of which directly accrue to such individuals, and qualified HUBZone small business concerns (as defined in section 3(p) of the Small Business Act);
(B) historically Black colleges and universities, including any nonprofit research institution that was an integral part of such a college or university before November 14, 1986;
(C) minority institutions (as defined in section 365(3) of the Higher Education Act of 1965 (20 U.S.C. 1067k));
(D) Hispanic-serving institutions (as defined in section 502(a) of the Higher Education Act of 1965 (20 U.S.C. 1101a(a))); and
(E) Native Hawaiian-serving institutions and Alaska Native-serving institutions (as defined in section 317 of the Higher Education Act of 1965).
(2) The head of the agency shall establish a specific goal within the overall 5 percent goal for the award of prime contracts and subcontracts to historically Black colleges and universities, Hispanic-serving institutions, Native Hawaiian-serving institutions and Alaska Native-serving institutions, and minority institutions in order to increase the participation of such colleges and universities and institutions in the program provided for by this section.
(3) The Federal Acquisition Regulation shall provide procedures or guidelines for contracting officers to set goals which agency prime contractors that are required to submit subcontracting plans under section 8(d)(4)(B) of the Small Business Act (15 U.S.C. 637(d)(4)(B)) in furtherance of the agency's program to meet the 5 percent goal specified in paragraph (1) should meet in awarding subcontracts, including subcontracts to minority-owned media, to entities described in that paragraph.
(b)
(A) Funds obligated for contracts entered into with the Department of Defense for such fiscal year for procurement.
(B) Funds obligated for contracts entered into with the Department of Defense for such fiscal year for research, development, test, and evaluation.
(C) Funds obligated for contracts entered into with the Department of Defense for such fiscal year for military construction.
(D) Funds obligated for contracts entered into with the Department of Defense for operation and maintenance.
(2) With respect to the Coast Guard, the requirements of subsection (a) for any fiscal year apply to the total value of all prime contract and subcontract awards entered into by the Coast Guard for such fiscal year.
(3) With respect to the National Aeronautics and Space Administration, the requirements of subsection (a) for any fiscal year apply to the total value of all prime contract and subcontract awards entered into by the National Aeronautics and Space Administration for such fiscal year.
(c)
(2) Technical assistance provided under this section shall include information about the program, advice about agency procurement procedures, instruction in preparation of proposals, and other such assistance as the head of the agency considers appropriate. If the resources of the agency are inadequate to provide such assistance, the head of the agency may enter into contracts with minority private sector entities with experience and expertise in the design, development, and delivery of technical assistance services to eligible individuals, business firms and institutions, acquisition agencies, and prime contractors. Agency contracts with such entities shall be awarded annually, based upon, among other things, the number of minority small business concerns, historically Black colleges and universities, and minority institutions that each such entity brings into the program.
(3) Infrastructure assistance provided by the Department of Defense under this section to historically Black colleges and universities, to Hispanic-serving institutions, to Native Hawaiian-serving institutions and Alaska Native-serving institutions, and to minority institutions may include programs to do the following:
(A) Establish and enhance undergraduate, graduate, and doctoral programs in scientific disciplines critical to the national security functions of the Department of Defense.
(B) Make Department of Defense personnel available to advise and assist faculty at such colleges and universities in the performance of defense research and in scientific disciplines critical to the national security functions of the Department of Defense.
(C) Establish partnerships between defense laboratories and historically Black colleges and universities and minority institutions for the purpose of training students in scientific disciplines critical to the national security functions of the Department of Defense.
(D) Award scholarships, fellowships, and the establishment of cooperative work-education programs in scientific disciplines critical to the national security functions of the Department of Defense.
(E) Attract and retain faculty involved in scientific disciplines critical to the national security functions of the Department of Defense.
(F) Equip and renovate laboratories for the performance of defense research.
(G) Expand and equip Reserve Officer Training Corps activities devoted to scientific disciplines critical to the national security functions of the Department of Defense.
(H) Provide other assistance as the Secretary determines appropriate to strengthen scientific disciplines critical to the national security functions of the Department of Defense or the college infrastructure to support the performance of defense research.
(4) The head of the agency shall, to the maximum extent practical, carry out programs under this section at colleges, universities, and institutions that agree to bear a substantial portion of the cost associated with the programs.
(d)
(1) to the extent to which the Secretary of Defense determines that compelling national security considerations require otherwise; and
(2) if the Secretary notifies Congress of such determination and the reasons for such determination.
(e)
(1)(A) The head of the agency shall—
(i) ensure that substantial progress is made in increasing awards of agency contracts to entities described in subsection (a)(1);
(ii) exercise his utmost authority, resourcefulness, and diligence;
(iii) in the case of the Department of Defense, actively monitor and assess the progress of the military departments, Defense Agencies, and prime contractors of the Department of Defense in attaining such goal; and
(iv) in the case of the Coast Guard and the National Aeronautics and Space Administration, actively monitor and assess the progress of the prime contractors of the agency in attaining such goal.
(B) In making the assessment under clauses (iii) and (iv) of subparagraph (A), the head of the agency shall evaluate the extent to which use of the authority provided in paragraphs (2) and (3) and compliance with the requirement in paragraph (4) is effective for facilitating the attainment of the goal.
(2) To the extent practicable and when necessary to facilitate achievement of the 5 percent goal described in subsection (a), the head of an agency shall make advance payments under section 2307 of this title to contractors described in subsection (a). The Federal Acquisition Regulation shall provide guidance to contracting officers for making advance payments to entities described in subsection (a)(1) under such section.
(3)(A) To the extent practicable and when necessary to facilitate achievement of the 5 percent goal described in subsection (a), the head of an agency may, except as provided in subparagraph (B), enter into contracts using less than full and open competitive procedures (including awards under section 8(a) of the Small Business Act) and partial set asides for entities described in subsection (a)(1), but shall pay a price not exceeding fair market cost by more than 10 percent in payment per contract to contractors or subcontractors described in subsection (a). The head of an agency shall adjust the percentage specified in the preceding sentence for any industry category if available information clearly indicates that nondisadvantaged small business concerns in such industry category are generally being denied a reasonable opportunity to compete for contracts because of the use of that percentage in the application of this paragraph.
(B)(i) The Secretary of Defense may not exercise the authority under subparagraph (A) to enter into a contract for a price exceeding fair market cost if the regulations implementing that authority are suspended under clause (ii) with respect to that contract.
(ii) At the beginning of each fiscal year, the Secretary shall determine, on the basis of the most recent data, whether the Department of Defense achieved the 5 percent goal described in subsection (a) during the fiscal year to which the data relates. Upon determining that the Department achieved the goal for the fiscal year to which the data relates, the Secretary shall issue a suspension, in writing, of the regulations that implement the authority under subparagraph (A). Such a suspension shall be in effect for the one-year period beginning 30 days after the date on which the suspension is issued and shall apply with respect to contracts awarded pursuant to solicitations issued during that period.
(iii) For purposes of clause (ii), the term “most recent data” means data relating to the most recent fiscal year for which data are available.
(4) To the extent practicable, the head of an agency shall maximize the number of minority small business concerns, historically Black colleges and universities, and minority institutions participating in the program.
(5) Each head of an agency shall prescribe regulations which provide for the following:
(A) Procedures or guidance for contracting officers to provide incentives for prime contractors referred to in subsection (a)(3) to increase subcontractor awards to entities described in subsection (a)(1).
(B) A requirement that contracting officers emphasize the award of contracts to entities described in subsection (a)(1) in all industry categories, including those categories in which such entities have not traditionally dominated.
(C) Guidance to agency personnel on the relationship among the following programs:
(i) The program implementing this section.
(ii) The program established under section 8(a) of the Small Business Act (15 U.S.C. 637(a)).
(iii) The small business set-aside program established under section 15(a) of the Small Business Act (15 U.S.C. 644(a)).
(D) With respect to an agency procurement which is reasonably likely to be set aside for entities described in subsection (a)(1), a requirement that (to the maximum extent practicable) the procurement be designated as such a set-aside before the solicitation for the procurement is issued.
(E) Policies and procedures which, to the maximum extent practicable, will ensure that current levels in the number or dollar value of contracts awarded under the program established under section 8(a) of the Small Business Act (15 U.S.C. 637(a)) and under the small business set-aside program established under section 15(a) of the Small Business Act (15 U.S.C. 644(a)) are maintained and that every effort is made to provide new opportunities for contract awards to eligible entities, in order to meet the goal of subsection (a).
(F) Implementation of this section in a manner which will not alter the procurement process under the program established under section 8(a) of the Small Business Act (15 U.S.C. 637(a)).
(G) A requirement that one factor used in evaluating the performance of a contracting officer be the ability of the officer to increase contract awards to entities described in subsection (a)(1).
(H) Increased technical assistance to entities described in subsection (a)(1).
(f)
(2) The Federal Acquisition Regulation shall prohibit awarding a contract under this section to an entity described in subsection (a)(1) unless the entity agrees to comply with the requirements of section 15(o)(1) of the Small Business Act (15 U.S.C. 644(o)(1)).
(g)
(A) ensure that no particular industry category bears a disproportionate share of the contracts awarded to attain the goal established by subsection (a); and
(B) ensure that contracts awarded to attain the goal established by subsection (a) are made across the broadest possible range of industry categories.
(2) Under procedures prescribed by the head of the agency, a person may request the Secretary to determine whether the use of small disadvantaged business set asides by a contracting activity of the agency has caused a particular industry category to bear a disproportionate share of the contracts awarded to attain the goal established for that contracting activity for the purposes of this section. Upon making a determination that a particular industry category is bearing a disproportionate share, the head of the agency shall take appropriate actions to limit the contracting activity's use of set asides in awarding contracts in that particular industry category.
(h)
(2) The regulations required by paragraph (1) shall ensure that, with respect to a sealed bid or competitive proposal for which the bidder or offeror is required to negotiate or submit a subcontracting plan under section 8(d) of the Small Business Act (15 U.S.C. 637(d)), the subcontracting plan shall be a factor in evaluating the bid or proposal.
(i)
(2) The report required under paragraph (1) shall include the following:
(A) A full explanation of any progress toward attaining the goal of subsection (a).
(B) A plan to achieve the goal, if necessary.
(j)
(1) The term “agency” means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.
(2) The term “head of an agency” means the Secretary of Defense, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration.
(k)
(2) This section applies in the Coast Guard and the National Aeronautics and Space Administration in each of fiscal years 1995 through 2009.
(Added and amended Pub. L. 102–484, div. A, title VIII, §§801(a)(1), (b)–(f), 802, Oct. 23, 1992, 106 Stat. 2442–2444, 2446; Pub. L. 103–35, title II, §202(a)(6), May 31, 1993, 107 Stat. 101; Pub. L. 103–160, div. A, title VIII, §811(a)–(c), (e), Nov. 30, 1993, 107 Stat. 1702; Pub. L. 103–355, title VII, §7105, Oct. 13, 1994, 108 Stat. 3369; Pub. L. 104–106, div. D, title XLIII, §4321(b)(8), Feb. 10, 1996, 110 Stat. 672; Pub. L. 105–135, title VI, §604(a), Dec. 2, 1997, 111 Stat. 2632; Pub. L. 105–261, div. A, title VIII, §801, Oct. 17, 1998, 112 Stat. 2080; Pub. L. 106–65, div. A, title VIII, §808, Oct. 5, 1999, 113 Stat. 705; Pub. L. 107–107, div. A, title X, §1048(a)(17), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107–314, div. A, title VIII, §816, Dec. 2, 2002, 116 Stat. 2610; Pub. L. 108–136, div. A, title X, §1031(a)(15), Nov. 24, 2003, 117 Stat. 1597; Pub. L. 109–163, div. A, title VIII, §842, Jan. 6, 2006, 119 Stat. 3389; Pub. L. 109–364, div. A, title VIII, §858, Oct. 17, 2006, 120 Stat. 2349; Pub. L. 110–181, div. A, title VIII, §891, Jan. 28, 2008, 122 Stat. 270; Pub. L. 111–383, div. A, title X, §1075(b)(31), Jan. 7, 2011, 124 Stat. 4370.)
Section 3(p) of the Small Business Act, referred to in subsecs. (a)(1)(A) and (f)(1), is classified to section 632(p) of Title 15, Commerce and Trade.
Section 317 of the Higher Education Act of 1965, referred to in subsec. (a)(1)(E), is classified to section 1059d of Title 20, Education.
Section 8(a) of the Small Business Act, referred to in subsec. (e)(3)(A), is classified to section 637(a) of Title 15, Commerce and Trade.
Section, as added by Pub. L. 102–484, §801(a)(1), consists of text of Pub. L. 99–661, div. A, title XII, §1207, Nov. 14, 1986, 100 Stat. 3973, revised by Pub. L. 102–484 by substituting “each of fiscal years 1987 through 2000” for “each of fiscal years 1987, 1988, 1989, 1990, 1991, 1992, and 1993” in subsec. (a)(1), “of this title” for “of title 10, United States Code,” in subsec. (e)(2), and “each of fiscal years 1987 through 2000” for “each of fiscal years 1987, 1988, 1989, 1990, 1991, 1992, and 1993” in subsec. (h). Section 1207 of Pub. L. 99–661, which was formerly set out as a note under section 2301 of this title, was repealed by Pub. L. 102–484, div. A, title VIII, §801(h)(1), Oct. 23, 1992, 106 Stat. 2445.
A prior section 2323, added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2598; amended Pub. L. 99–500, §101(c) [title X, §926(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, and Pub. L. 99–591, §101(c) [title X, §926(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153; Pub. L. 99–661, div. A, title IX, formerly title IV, §926(a)(1), Nov. 14, 1986, 100 Stat. 3933, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, related to commercial pricing for spare or repair parts, prior to repeal by Pub. L. 101–510, div. A, title VIII, §804(a), Nov. 5, 1990, 104 Stat. 1591.
2011—Subsec. (a)(1)(D). Pub. L. 111–383 inserted closing parenthesis before semicolon.
2008—Subsec. (a)(1)(E). Pub. L. 110–181, §891(1), added subpar. (E).
Subsecs. (a)(2), (c)(1). Pub. L. 110–181, §891(2), (3), inserted “Native Hawaiian-serving institutions and Alaska Native-serving institutions,” after “Hispanic-serving institutions,”.
Subsec. (c)(3). Pub. L. 110–181, §891(4), inserted “to Native Hawaiian-serving institutions and Alaska Native-serving institutions,” after “Hispanic-serving institutions,” in introductory provisions.
2006—Subsec. (a)(1)(D). Pub. L. 109–364, §858(1), added subpar. (D).
Subsec. (a)(2). Pub. L. 109–364, §858(2), inserted “, Hispanic-serving institutions,” before “and minority institutions” and “and institutions” before “in the program”.
Subsec. (c)(1). Pub. L. 109–364, §858(3), inserted “, Hispanic-serving institutions,” before “and minority institutions”.
Subsec. (c)(3). Pub. L. 109–364, §858(4), inserted “, to Hispanic-serving institutions,” before “and to minority institutions” in introductory provisions.
Subsec. (k). Pub. L. 109–163 substituted “2009” for “2006” in pars. (1) and (2).
2003—Subsec. (i)(3). Pub. L. 108–136 struck out par. (3) which listed certain items to be included in the report required under par. (1).
2002—Subsec. (j)(2). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
Subsec. (k). Pub. L. 107–314 substituted “2006” for “2003” in pars. (1) and (2).
2001—Subsec. (a)(1)(C). Pub. L. 107–107 substituted “section 365(3)” for “section 1046(3)” and “20 U.S.C. 1067k” for “20 U.S.C. 1135d–5(3)” and struck out before period at end “, which, for the purposes of this section, shall include Hispanic-serving institutions (as defined in section 316(b)(1) of such Act (20 U.S.C. 1059c(b)(1)))”.
1999—Subsec. (k). Pub. L. 106–65 substituted “2003” for “2000” in pars. (1) and (2).
1998—Subsec. (e)(3). Pub. L. 105–261 designated existing provisions as subpar. (A), inserted “, except as provided in subparagraph (B),” after “the head of an agency may” in first sentence, and added subpar. (B).
1997—Subsec. (a)(1)(A). Pub. L. 105–135, §604(a)(1), inserted before semicolon at end “, and qualified HUBZone small business concerns (as defined in section 3(p) of the Small Business Act)”.
Subsec. (f)(1). Pub. L. 105–135, §604(a)(2), inserted “or as a qualified HUBZone small business concern (as defined in section 3(p) of the Small Business Act)” after “(as described in subsection (a))”.
1996—Subsec. (a)(1)(C). Pub. L. 104–106, §4321(b)(8)(A), inserted closing parenthesis after “1135d–5(3))” and “1059c(b)(1))”.
Subsec. (a)(3). Pub. L. 104–106, §4321(b)(8)(B), struck out “(issued under section 25(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c))” after “Acquisition Regulation”.
Subsec. (b). Pub. L. 104–106, §4321(b)(8)(C), inserted “(1)” after “Amount.—”.
Subsec. (i)(3)(D). Pub. L. 104–106, §4321(b)(8)(D), added subpar. (D).
1994—Pub. L. 103–355 amended section generally to extend defense contract goal for small disadvantaged businesses and certain institutions of higher education to Coast Guard and National Aeronautics and Space Administration.
1993—Subsec. (a)(1)(B). Pub. L. 103–160, §811(a), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “historically Black colleges and universities; and”.
Subsec. (a)(1)(C). Pub. L. 103–160, §811(b), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: “minority institutions (as defined in paragraphs (3), (4), and (5) of section 312(b) of the Higher Education Act of 1965 (20 U.S.C. 1058)), including any nonprofit research institution that was an integral part of a historically Black college or university before November 14, 1986.”
Subsec. (f)(2). Pub. L. 103–160, §811(c), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The Secretary of Defense shall prescribe regulations which provide for the following:
“(A) A requirement that a business which represents itself as an entity described in subsection (a)(1) and is seeking a Department of Defense contract maintain its status as an entity at the time of contract award.
“(B) A prohibition on the award of a contract under this section to an entity described in subsection (a)(1) unless the entity agrees to comply with the requirements of section 15(o)(1) of the Small Business Act (15 U.S.C. 644(o)(1)).”
Subsec. (i). Pub. L. 103–35 amended and made technical amendment to directory language of Pub. L. 102–484, §801(f). See 1992 Amendment note for subsec. (h) below.
Subsec. (i)(3)(D). Pub. L. 103–160, §811(e), added subpar. (D).
1992—Subsec. (a)(3). Pub. L. 102–484, §801(b), added par. (3).
Subsec. (e). Pub. L. 102–484, §801(c)(1), substituted “subsection (a):” for “subsection (a)—” in introductory provisions.
Subsec. (e)(1). Pub. L. 102–484, §801(c)(2), added par. (1) and struck out former par. (1) which read as follows: “The Secretary of Defense shall exercise his utmost authority, resourcefulness, and diligence.”
Subsec. (e)(2). Pub. L. 102–484, §801(c)(3), inserted at end “The Secretary shall prescribe regulations that provide guidance to contracting officers for making advance payments to entities described in subsection (a)(1) under such section.”
Subsec. (e)(3). Pub. L. 102–484, §801(c)(4), inserted “and partial set asides for entities described in subsection (a)(1)” after “Act”.
Subsec. (e)(5). Pub. L. 102–484, §801(c)(5), added par. (5).
Subsec. (f). Pub. L. 102–484, §801(d), substituted “Penalties and Regulations Relating to Status” for “Penalties for Misrepresentation” in heading, designated existing provisions as par. (1), and added par. (2).
Subsec. (g). Pub. L. 102–484, §801(e)(2), added subsec. (g). Former subsec. (g) redesignated (h).
Subsec. (h). Pub. L. 102–484, §802(2), added subsec. (h). Former subsec. (h) redesignated (i).
Pub. L. 102–484, §801(f), as amended by Pub. L. 103–35, substituted “Report” for “Reports” in heading, struck out “July 15 of each year, the Secretary of Defense shall submit to Congress a report on the progress toward meeting the goal of subsection (a) during the current fiscal year. (2) Not later than” after “(1) Not later than”, struck out “final” after “Congress a”, and substituted “Secretary toward attaining” for “Secretary with” in former par. (2), redesignated par. (3) as (2) and substituted “report required under paragraph (1) shall” for “reports described in paragraphs (1) and (2) shall each”, redesignated par. (4) as (3) and substituted “report required under paragraph (1)” for “reports required under paragraph (2)”, and struck out par. (5) which read as follows: “The first report required by this subsection shall be submitted between May 1 and May 30, 1987.”
Pub. L. 102–484, §801(e)(1), redesignated subsec. (g) as (h). Former subsec. (h) redesignated (i).
Subsec. (i). Pub. L. 102–484, §802(1), redesignated subsec. (h) as (i). Former subsec. (i) redesignated (j).
Pub. L. 102–484, §801(e)(1), redesignated subsec. (h) as (i).
Subsec. (j). Pub. L. 102–484, §802(1), redesignated subsec. (i) as (j).
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 105–135 effective Oct. 1, 1997, see section 3 of Pub. L. 105–135 set out as a note under section 631 of Title 15, Commerce and Trade.
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 103–35 applicable as if included in the enactment of Pub. L. 102–484, see section 202(b) of Pub. L. 103–35, set out as a note under section 155 of this title.
Section 801(f) of Pub. L. 102–484 provided that the amendment made by that section is effective Oct. 1, 1993.
Pub. L. 103–160, div. A, title VIII, §811(d), Nov. 30, 1993, 107 Stat. 1702, provided that:
“(1) The Secretary of Defense shall propose amendments to the Department of Defense Supplement to the Federal Acquisition Regulation that address the matters described in subsection (g) and subsection (h)(2) of section 2323 of title 10, United States Code.
“(2) Not later than 15 days after the date of the enactment of this Act [Nov. 30, 1993], the Secretary shall publish such proposed amendments in accordance with section 22 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 418b) [now 41 U.S.C. 1707]. The Secretary shall provide a period of at least 60 days for public comment on the proposed amendments.
“(3) The Secretary shall publish the final regulations not later than 120 days after the date of the enactment of this Act.”
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
(a)
(1) work performed in connection with that Department of Defense contract, and work performed in connection with any subcontract awarded under that Department of Defense contract, if such work is performed on any Indian lands and meets the requirements of paragraph (1) of subsection (b); or
(2) work performed in connection with that Department of Defense contract, and work performed in connection with any subcontract awarded under that Department of Defense contract, if the performance of such contract or subcontract is undertaken as a joint venture that meets the requirements of paragraph (2) of that subsection.
(b)
(A) not less than 40 percent of the workers directly engaged in the performance of the work are Indians; or
(B) the contractor or subcontractor has an agreement with the tribal government having jurisdiction over such Indian lands that provides goals for training and development of the Indian workforce and Indian management.
(2) A joint venture undertaking to perform a contract or subcontract meets the requirements of this paragraph if—
(A) an Indian tribe or tribally owned corporation owns at least 50 percent of the joint venture;
(B) the activities of the joint venture under the contract or subcontract provide employment opportunities for Indians either directly or through the purchase of products or services for the performance of such contract or subcontract; and
(C) the Indian tribe or tribally owned corporation manages the performance of such contract or subcontract.
(c)
(1) in the case of work performed as described in subsection (a)(1), the value of the work performed; and
(2) in the case of a contract or subcontract undertaken to be performed by a joint venture as described in subsection (a)(2), an amount equal to the amount of the contract or subcontract multiplied by the percentage of the tribe's or tribally owned corporation's ownership interest in the joint venture.
(d)
(e)
(1) The term “Indian lands” has the meaning given that term by section 4(4) of the Indian Gaming Regulatory Act (102 Stat. 2468; 25 U.S.C. 2703(4)).
(2) The term “Indian” has the meaning given that term by section 4(d) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(d)).
(3) The term “Indian tribe” has the meaning given that term by section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e)).
(4) The term “tribally owned corporation” means a corporation owned entirely by an Indian tribe.
(Added Pub. L. 102–484, div. A, title VIII, §801(g)(1), Oct. 23, 1992, 106 Stat. 2445; amended Pub. L. 104–201, div. A, title X, §1074(a)(13), Sept. 23, 1996, 110 Stat. 2659.)
Section, as added by Pub. L. 102–484, consists of text of Pub. L. 101–189, div. A, title VIII, §832, Nov. 29, 1989, 103 Stat. 1508, revised by Pub. L. 102–484 by substituting “section 2323 of this title” for “section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)” in subsec. (a). Section 832 of Pub. L. 101–189, which was formerly set out as a note under section 2301 of this title, was repealed by Pub. L. 102–484, div. A, title VIII, §801(h)(5), Oct. 23, 1992, 106 Stat. 2445.
1996—Subsec. (a). Pub. L. 104–201, which directed amendment of subsec. (a) by substituting “section 2323 of this title” for “section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)”, could not be executed because the language “section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)” did not appear. See Codification note above.
(a)
(b)
(A) the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus
(B) interest (to be computed based on provisions in the Federal Acquisition Regulation) to compensate the United States for the use of any funds which a contractor has been paid in excess of the amount to which the contractor was entitled.
(2) If the head of the agency determines that a proposal for settlement of indirect costs submitted by a contractor includes a cost determined to be unallowable in the case of such contractor before the submission of such proposal, the head of the agency shall assess a penalty against the contractor in an amount equal to two times the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted.
(c)
(1) the contractor withdraws the proposal before the formal initiation of an audit of the proposal by the Federal Government and resubmits a revised proposal;
(2) the amount of unallowable costs subject to the penalty is insignificant; or
(3) the contractor demonstrates, to the contracting officer's satisfaction, that—
(A) it has established appropriate policies and personnel training and an internal control and review system that provide assurances that unallowable costs subject to penalties are precluded from being included in the contractor's proposal for settlement of indirect costs; and
(B) the unallowable costs subject to the penalty were inadvertently incorporated into the proposal.
(d)
(1) shall be considered a final decision for the purposes of section 7103 of title 41; and
(2) is appealable in the manner provided in section 7104(a) of title 41.
(e)
(A) Costs of entertainment, including amusement, diversion, and social activities and any costs directly associated with such costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities).
(B) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress, a State legislature, or a legislative body of a political subdivision of a State.
(C) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the United States where the contractor is found liable or has pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of a false certification).
(D) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance such payments in accordance with applicable provisions of the Federal Acquisition Regulation.
(E) Costs of membership in any social, dining, or country club or organization.
(F) Costs of alcoholic beverages.
(G) Contributions or donations, regardless of the recipient.
(H) Costs of advertising designed to promote the contractor or its products.
(I) Costs of promotional items and memorabilia, including models, gifts, and souvenirs.
(J) Costs for travel by commercial aircraft which exceed the amount of the standard commercial fare.
(K) Costs incurred in making any payment (commonly known as a “golden parachute payment”) which is—
(i) in an amount in excess of the normal severance pay paid by the contractor to an employee upon termination of employment; and
(ii) is paid to the employee contingent upon, and following, a change in management control over, or ownership of, the contractor or a substantial portion of the contractor's assets.
(L) Costs of commercial insurance that protects against the costs of the contractor for correction of the contractor's own defects in materials or workmanship.
(M) Costs of severance pay paid by the contractor to foreign nationals employed by the contractor under a service contract performed outside the United States, to the extent that the amount of severance pay paid in any case exceeds the amount paid in the industry involved under the customary or prevailing practice for firms in that industry providing similar services in the United States, as determined under the Federal Acquisition Regulation.
(N) Costs of severance pay paid by the contractor to a foreign national employed by the contractor under a service contract performed in a foreign country if the termination of the employment of the foreign national is the result of the closing of, or the curtailment of activities at, a United States military facility in that country at the request of the government of that country.
(O) Costs incurred by a contractor in connection with any criminal, civil, or administrative proceeding commenced by the United States or a State, to the extent provided in subsection (k).
(P) Costs of compensation of senior executives of contractors for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds the benchmark compensation amount determined applicable for the fiscal year by the Administrator for Federal Procurement Policy under section 1127 of title 41.
(2)(A) The Secretary of Defense may provide in a military banking contract that the provisions of paragraphs (1)(M) and (1)(N) shall not apply to costs incurred under the contract by the contractor for payment of mandated foreign national severance pay. The Secretary may include such a provision in a military banking contract only if the Secretary determines, with respect to that contract, that the contractor has taken (or has established plans to take) appropriate actions within the contractor's control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals.
(B) In subparagraph (A):
(i) The term “military banking contract” means a contract between the Secretary and a financial institution under which the financial institution operates a military banking facility outside the United States for use by members of the armed forces stationed or deployed outside the United States and other authorized personnel.
(ii) The term “mandated foreign national severance pay” means severance pay paid by a contractor to a foreign national employee the payment of which by the contractor is required in order to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract.
(C) Subparagraph (A) does not apply to a contract with a financial institution that is owned or controlled by citizens or nationals of a foreign country, as determined by the Secretary of Defense. Such a determination shall be made in accordance with the criteria set out in paragraph (1) of section 4(g) of the Buy American Act (as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988) and the policy guidance referred to in paragraph (2)(A) of that section.
(3)(A) Pursuant to the Federal Acquisition Regulation and subject to the availability of appropriations, the head of an agency awarding a covered contract (other than a contract to which paragraph (2) applies) may waive the application of the provisions of paragraphs (1)(M) and (1)(N) to that contract if the head of the agency determines that—
(i) the application of such provisions to the contract would adversely affect the continuation of a program, project, or activity that provides significant support services for members of the armed forces stationed or deployed outside the United States;
(ii) the contractor has taken (or has established plans to take) appropriate actions within the contractor's control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals; and
(iii) the payment of severance pay is necessary in order to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract or is necessary to comply with a collective bargaining agreement.
(B) The head of an agency shall include in the solicitation for a covered contract a statement indicating—
(i) that a waiver has been granted under subparagraph (A) for the contract; or
(ii) whether the head of the agency will consider granting such a waiver, and, if the agency head will consider granting a waiver, the criteria to be used in granting the waiver.
(C) The head of an agency shall make the final determination regarding whether to grant a waiver under subparagraph (A) with respect to a covered contract before award of the contract.
(4) The provisions of the Federal Acquisition Regulation implementing this section may establish appropriate definitions, exclusions, limitations, and qualifications.
(f)
(A) Air shows.
(B) Membership in civic, community, and professional organizations.
(C) Recruitment.
(D) Employee morale and welfare.
(E) Actions to influence (directly or indirectly) executive branch action on regulatory and contract matters (other than costs incurred in regard to contract proposals pursuant to solicited or unsolicited bids).
(F) Community relations.
(G) Dining facilities.
(H) Professional and consulting services, including legal services.
(I) Compensation.
(J) Selling and marketing.
(K) Travel.
(L) Public relations.
(M) Hotel and meal expenses.
(N) Expense of corporate aircraft.
(O) Company-furnished automobiles.
(P) Advertising.
(Q) Conventions.
(2) The Federal Acquisition Regulation shall require that a contracting officer not resolve any questioned costs until he has obtained—
(A) adequate documentation with respect to such costs; and
(B) the opinion of the contract auditor on the allowability of such costs.
(3) The Federal Acquisition Regulation shall provide that, to the maximum extent practicable, the contract auditor be present at any negotiation or meeting with the contractor regarding a determination of the allowability of indirect costs of the contractor.
(4) The Federal Acquisition Regulation shall require that all categories of costs designated in the report of the contract auditor as questioned with respect to a proposal for settlement be resolved in such a manner that the amount of the individual questioned costs that are paid will be reflected in the settlement.
(g)
(h)
(2) The head of the agency or the Secretary of the military department concerned may, in an exceptional case, waive the requirement for certification under paragraph (1) in the case of any contract if the head of the agency or the Secretary—
(A) determines in such case that it would be in the interest of the United States to waive such certification; and
(B) states in writing the reasons for that determination and makes such determination available to the public.
(i)
(j)
(k)
(2) A disposition referred to in paragraph (1)(B) is any of the following:
(A) In the case of a criminal proceeding, a conviction (including a conviction pursuant to a plea of nolo contendere) by reason of the violation or failure referred to in paragraph (1).
(B) In the case of a civil or administrative proceeding involving an allegation of fraud or similar misconduct, a determination of contractor liability on the basis of the violation or failure referred to in paragraph (1).
(C) In the case of any civil or administrative proceeding, the imposition of a monetary penalty by reason of the violation or failure referred to in paragraph (1).
(D) A final decision—
(i) to debar or suspend the contractor;
(ii) to rescind or void the contract; or
(iii) to terminate the contract for default;
by reason of the violation or failure referred to in paragraph (1).
(E) A disposition of the proceeding by consent or compromise if such action could have resulted in a disposition described in subparagraph (A), (B), (C), or (D).
(3) In the case of a proceeding referred to in paragraph (1) that is commenced by the United States and is resolved by consent or compromise pursuant to an agreement entered into by a contractor and the United States, the costs incurred by the contractor in connection with such proceeding that are otherwise not allowable as reimbursable costs under such paragraph may be allowed to the extent specifically provided in such agreement.
(4) In the case of a proceeding referred to in paragraph (1) that is commenced by a State, the head of the agency or Secretary of the military department concerned that awarded the covered contract involved in the proceeding may allow the costs incurred by the contractor in connection with such proceeding as reimbursable costs if the agency head or Secretary determines, in accordance with the Federal Acquisition Regulation, that the costs were incurred as a result of (A) a specific term or condition of the contract, or (B) specific written instructions of the agency or military department.
(5)(A) Except as provided in subparagraph (C), costs incurred by a contractor in connection with a criminal, civil, or administrative proceeding commenced by the United States or a State in connection with a covered contract may be allowed as reimbursable costs under the contract if such costs are not disallowable under paragraph (1), but only to the extent provided in subparagraph (B).
(B)(i) The amount of the costs allowable under subparagraph (A) in any case may not exceed the amount equal to 80 percent of the amount of the costs incurred, to the extent that such costs are determined to be otherwise allowable and allocable under the Federal Acquisition Regulation.
(ii) Regulations issued for the purpose of clause (i) shall provide for appropriate consideration of the complexity of procurement litigation, generally accepted principles governing the award of legal fees in civil actions involving the United States as a party, and such other factors as may be appropriate.
(C) In the case of a proceeding referred to in subparagraph (A), contractor costs otherwise allowable as reimbursable costs under this paragraph are not allowable if (i) such proceeding involves the same contractor misconduct alleged as the basis of another criminal, civil, or administrative proceeding, and (ii) the costs of such other proceeding are not allowable under paragraph (1).
(6) In this subsection:
(A) The term “proceeding” includes an investigation.
(B) The term “costs”, with respect to a proceeding—
(i) means all costs incurred by a contractor, whether before or after the commencement of any such proceeding; and
(ii) includes—
(I) administrative and clerical expenses;
(II) the cost of legal services, including legal services performed by an employee of the contractor;
(III) the cost of the services of accountants and consultants retained by the contractor; and
(IV) the pay of directors, officers, and employees of the contractor for time devoted by such directors, officers, and employees to such proceeding.
(C) The term “penalty” does not include restitution, reimbursement, or compensatory damages.
(l)
(1)(A) The term “covered contract” means a contract for an amount in excess of $500,000 that is entered into by the head of an agency, except that such term does not include a fixed-price contract without cost incentives or any firm fixed-price contract for the purchase of commercial items.
(B) Effective on October 1 of each year that is divisible by five, the amount set forth in subparagraph (A) shall be adjusted to the equivalent amount in constant fiscal year 1994 dollars. An amount, as so adjusted, that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. In the case of an amount that is evenly divisible by $25,000 but is not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000.
(2) The term “head of the agency” or “agency head” does not include the Secretary of a military department.
(3) The term “agency” means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.
(4) The term “compensation”, for a year, means the total amount of wages, salary, bonuses and deferred compensation for the year, whether paid, earned, or otherwise accruing, as recorded in an employer's cost accounting records for the year.
(5) The term “senior executives”, with respect to a contractor, means the five most highly compensated employees in management positions at each home office and each segment of the contractor.
(6) The term “fiscal year” means a fiscal year established by a contractor for accounting purposes.
(Added Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 682; amended Pub. L. 99–190, §101(b) [title VIII, §8112(a)], Dec. 19, 1985, 99 Stat. 1185, 1223; Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; Pub. L. 100–180, div. A, title VIII, §805(a), Dec. 4, 1987, 101 Stat. 1126; Pub. L. 100–370, §1(f)(2)(A), (3)(A), July 19, 1988, 102 Stat. 846; Pub. L. 100–456, div. A, title III, §322(a), title VIII, §§826(a), 832(a), Sept. 29, 1988, 102 Stat. 1952, 2022, 2023; Pub. L. 100–463, title VIII, §8105(a), Oct. 1, 1988, 102 Stat. 2270–36; Pub. L. 100–526, title I, §106(a)(2), Oct. 24, 1988, 102 Stat. 2625; Pub. L. 100–700, §8(b), Nov. 19, 1988, 102 Stat. 4636; Pub. L. 101–189, div. A, title III, §311(a)(1), title VIII, §853(a)(1), (b)(3), Nov. 29, 1989, 103 Stat. 1411, 1518; Pub. L. 101–510, div. A, title XIII, §1301(10), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 102–190, div. A, title III, §346(a), Dec. 5, 1991, 105 Stat. 1346; Pub. L. 102–484, div. A, title VIII, §818(a), title X, §1052(26), title XIII, §1352(b), Oct. 23, 1992, 106 Stat. 2457, 2500, 2559; Pub. L. 103–355, title II, §2101(a)–(d), Oct. 13, 1994, 108 Stat. 3306–3308; Pub. L. 104–106, div. D, title XLIII, §4321(a)(5), (b)(9), Feb. 10, 1996, 110 Stat. 671, 672; Pub. L. 105–85, div. A, title VIII, §808(a), Nov. 18, 1997, 111 Stat. 1836; Pub. L. 105–261, div. A, title VIII, §804(a), Oct. 17, 1998, 112 Stat. 2083; Pub. L. 111–350, §5(b)(19), Jan. 4, 2011, 124 Stat. 3844.)
Subsection (e)(1)(L) is based on section 2399 of this title as enacted by Pub. L. 97–295, §1(29)(A), Oct. 12, 1982, 96 Stat. 1293.
Section 1(f)(2) of the bill would transfer the provisions of existing 10 U.S.C. 2399 to a new subparagraph (L) of 10 U.S.C. 2324(e)(1). The existing section 2399 prohibits the use of appropriated funds to reimburse a defense contractor for insurance against the contractor's costs of correcting defects in the contractor's materials or workmanship. The transfer would add the provision to the list of contractor costs which are not allowable as expenses which may be paid by the Department of Defense under a contract. This allowable cost limitation applies only to contracts for more than $100,000 other than fixed price contracts without cost incentives (see 10 U.S.C. 2324(k)). The committee determined that it is appropriate to treat the subject matter of section 2399 in the same manner as other provisions relating to allowable costs of defense contractors and notes that section 2324, providing a more comprehensive treatment of allowable costs, was enacted after section 2399. The committee recognizes that contracts for amounts less than $100,000 and fixed price contracts without cost incentives are covered by the existing section 2399 and would not be covered by the provision as transferred. The committee determined that in practice the existing section 2399 would not have significant applicability to such contracts and that the transfer is appropriate as part of this bill.
Subsection (j) is based on Pub. L. 99–145, title IX, §933, Nov. 8, 1985, 99 Stat. 700.
Section 4 of the Buy American Act (as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988), referred to in subsec. (e)(2)(C), was section 4 of act Mar. 3, 1933, ch. 212, title III, as added Pub. L. 100–418, title VII, §7002(2), Aug. 23, 1988, 102 Stat. 1545. Section 4, which was classified to section 10b–1 of former Title 41, Public Contracts, was omitted from the Code in view of section 7004 of Pub. L. 100–418 which provided that the amendment by Pub. L. 100–418 which enacted section 4 ceased to be effective on Apr. 30, 1996. Section 4 was subsequently repealed by Pub. L. 111–350, §7(b), Jan. 4, 2011, 124 Stat. 3855, which Act enacted Title 41, Public Contracts.
Another section 2324 of this title was contained in chapter 138 and was renumbered section 2344 of this title.
2011—Subsec. (d)(1). Pub. L. 111–350, §5(b)(19)(A), substituted “section 7103 of title 41” for “section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)”.
Subsec. (d)(2). Pub. L. 111–350, §5(b)(19)(B), substituted “section 7104(a) of title 41” for “section 7 of such Act (41 U.S.C. 606)”.
Subsec. (e)(1)(P). Pub. L. 111–350, §5(b)(19)(C), substituted “section 1127 of title 41” for “section 39 of the Office of Federal Procurement Policy Act (41 U.S.C. 435)”.
Subsec. (e)(2)(C). Pub. L. 111–350, §5(b)(19)(D), substituted “(as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988)” for “(41 U.S.C. 10b–1)”.
1998—Subsec. (l)(5). Pub. L. 105–261 amended par. (5) generally. Prior to amendment, par. (5) read as follows: “The term ‘senior executive’, with respect to a contractor, means—
“(A) the chief executive officer of the contractor or any individual acting in a similar capacity for the contractor;
“(B) the four most highly compensated employees in management positions of the contractor other than the chief executive officer; and
“(C) in the case of a contractor that has components which report directly to the contractor's headquarters, the five most highly compensated employees in management positions at each such component.”
1997—Subsec. (e)(1)(P). Pub. L. 105–85, §808(a)(1), added subpar. (P).
Subsec. (l)(4) to (6). Pub. L. 105–85, §808(a)(2), added pars. (4) to (6).
1996—Subsec. (e)(2)(C). Pub. L. 104–106, §4321(b)(9)(A), struck out “awarding the contract” after “Secretary of Defense” and substituted “the Buy American Act (41 U.S.C. 10b–1)” for “title III of the Act of March 3, 1933 (41 U.S.C. 10b–1) (commonly referred to as the Buy American Act)”.
Subsec. (f)(2) to (4). Pub. L. 104–106, §4321(a)(5), made technical correction to directory language of Pub. L. 103–355, §2101(a)(6)(B)(ii). See 1994 Amendment notes below.
Subsec. (h)(2). Pub. L. 104–106, §4321(b)(9)(B), inserted “the head of the agency or” after “in the case of any contract if”.
1994—Subsec. (a). Pub. L. 103–355, §2101(a), inserted heading and substituted “head of an agency” for “Secretary of Defense”, “agency” for “Department of Defense”, and “applicable agency supplement” for “the Department of Defense Supplement”.
Subsec. (b). Pub. L. 103–355, §2101(a)(2)(A), inserted heading.
Subsec. (b)(1). Pub. L. 103–355, §2101(a)(2)(C), substituted “head of the agency” for “Secretary” in two places in introductory provisions.
Subsec. (b)(1)(B). Pub. L. 103–355, §2101(a)(2)(B), substituted “provisions in the Federal Acquisition Regulation” for “regulations issued by the Secretary”.
Subsec. (b)(2). Pub. L. 103–355, §2101(a)(2)(C), substituted “head of the agency” for “Secretary” in two places.
Subsec. (c). Pub. L. 103–355, §2101(a)(3), inserted heading and substituted “The Federal Acquisition Regulation shall provide” for “The Secretary shall prescribe regulations providing”.
Subsec. (d). Pub. L. 103–355, §2101(a)(4), inserted heading and substituted “the head of an agency” for “the Secretary” in introductory provisions.
Subsec. (e). Pub. L. 103–355, §2101(a)(5)(A), inserted heading.
Subsec. (e)(1)(B). Pub. L. 103–355, §2101(b), substituted “, a State legislature, or a legislative body of a political subdivision of a State” for “or a State legislature”.
Subsec. (e)(1)(D). Pub. L. 103–355, §2101(a)(5)(B), substituted “provisions of the Federal Acquisition Regulation” for “regulations of the Secretary of Defense”.
Subsec. (e)(1)(M). Pub. L. 103–355, §2101(a)(5)(C), substituted “the Federal Acquisition Regulation” for “regulations prescribed by the Secretary of Defense”.
Subsec. (e)(2)(A). Pub. L. 103–355, §2101(a)(5)(D), substituted “the Secretary of Defense may provide” for “the Secretary may provide”.
Subsec. (e)(2)(C). Pub. L. 103–355, §2101(a)(5)(E), substituted “Secretary of Defense” for “head of the agency”.
Subsec. (e)(3)(A). Pub. L. 103–355, §2101(a)(5)(F), substituted “the Federal Acquisition Regulation” for “regulations prescribed by the Secretary”.
Subsec. (e)(4). Pub. L. 103–355, §2101(a)(5)(G), amended par. (4) generally. Prior to amendment, par. (4) read as follows: “The Secretary shall prescribe regulations to implement this section. Such regulations may establish appropriate definitions, exclusions, limitations, and qualifications.”
Subsec. (f)(1). Pub. L. 103–355, §2101(a)(6)(A), inserted heading and substituted “(1) The Federal Acquisition Regulation shall contain provisions on the allowability of contractor costs. Such provisions” for “(1) The Secretary shall prescribe proposed regulations to amend those provisions of the Department of Defense Supplement to the Federal Acquisition Regulation dealing with the allowability of contractor costs. The amendments” and “The regulations” for “These regulations”.
Subsec. (f)(1)(Q). Pub. L. 103–355, §2101(c), added subpar. (Q).
Subsec. (f)(2). Pub. L. 103–355, §2101(a)(6)(B)(ii), as amended by Pub. L. 104–106, §4321(a)(5), substituted “Federal Acquisition Regulation” for “regulations”.
Subsec. (f)(2)(B). Pub. L. 103–355, §2101(a)(6)(B)(i), struck out “defense” before “contract auditor”.
Subsec. (f)(3). Pub. L. 103–355, §2101(a)(6)(B)(ii), as amended by Pub. L. 104–106, §4321(a)(5), substituted “Federal Acquisition Regulation” for “regulations”.
Pub. L. 103–355, §2101(a)(6)(B)(i), struck out “defense” before “contract auditor”.
Subsec. (f)(4). Pub. L. 103–355, §2101(a)(6)(B)(ii), as amended by Pub. L. 104–106, §4321(a)(5), substituted “Federal Acquisition Regulation” for “regulations”.
Pub. L. 103–355, §2101(a)(6)(B)(i), struck out “defense” before “contract auditor”.
Subsec. (g). Pub. L. 103–355, §2101(a)(7), amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: “The regulations of the Secretary required to be prescribed under subsections (e) and (f)(1) shall require, to the maximum extent practicable, that such regulations apply to all subcontractors of a covered contract.”
Subsec. (h). Pub. L. 103–355, §2101(a)(8), inserted heading and substituted “in the Federal Acquisition Regulation” for “by the Secretary” in par. (1) and “head of the agency” for “Secretary of Defense” in introductory provisions of par. (2).
Subsec. (i). Pub. L. 103–355, §2101(a)(9), inserted heading and substituted “The submission to an agency” for “The submission to the Department of Defense”.
Subsec. (j). Pub. L. 103–355, §2101(a)(10), inserted heading and substituted “United States Court of Federal Claims” for “United States Claims Court”.
Subsec. (k). Pub. L. 103–355, §2101(a)(11)(A), inserted heading.
Subsec. (k)(2)(D). Pub. L. 103–355, §2101(a)(11)(B), struck out “by the Department of Defense” after “decision” in introductory provisions.
Subsec. (k)(4). Pub. L. 103–355, §2101(a)(11)(C), inserted “or Secretary of the military department concerned” after “head of the agency”, “or Secretary” after “agency head”, and “or military department” before period at end and substituted “in accordance with the Federal Acquisition Regulation” for “under regulations prescribed by such agency head”.
Subsec. (l). Pub. L. 103–355, §2101(d), added subsec. (l) and struck out former subsec. (l) which related to periodic evaluation by Comptroller General of implementation of this section by Secretary of Defense.
Subsec. (m). Pub. L. 103–355, §2101(d), struck out subsec. (m) which read as follows: “In this section, the term ‘covered contract’ means a contract for an amount more than $100,000 entered into by the Department of Defense other than a fixed-price contract without cost incentives.”
1992—Subsec. (a). Pub. L. 102–484, §818(a)(1)(A), redesignated subsec. (a)(1) as entire subsection. Former subsec. (a)(2) redesignated subsec. (b)(1).
Subsec. (b)(1). Pub. L. 102–484, §818(a)(1)(B), redesignated subsec. (a)(2) as subsec. (b)(1), in introductory provisions struck out “by clear and convincing evidence” after “Secretary determines” and substituted “expressly unallowable under a cost principle referred to in subsection (a) that defines the allowability of specific selected costs” for “unallowable under paragraph (1)”, and in subpar. (A), substituted “cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted” for “costs”. Former subsec. (b) redesignated subsec. (b)(2).
Subsec. (b)(2). Pub. L. 102–484, §818(a)(2), redesignated subsec. (b) as subsec. (b)(2), struck out “, in addition to the penalty assessed under subsection (a),” after “against the contractor”, and substituted “the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted” for “the amount of such cost”.
Subsec. (c). Pub. L. 102–484, §818(a)(5), added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 102–484, §818(a)(3), (4), redesignated subsec. (c) as (d) and struck out former subsec. (d) which read as follows: “If any penalty is assessed under subsection (a) or (b) with respect to a proposal for settlement of indirect costs, the Secretary may assess an additional penalty of not more than $10,000 per proposal.”
Subsec. (e)(3), (4). Pub. L. 102–484, §1352(b), added par. (3) and redesignated former par. (3) as (4).
Subsec. (f)(5). Pub. L. 102–484, §1052(26)(A), struck out par. (5) which read as follows: “The regulations shall provide that costs to promote the export of products of the United States defense industry, including costs of exhibiting or demonstrating products, shall be allowable to the extent that such costs—
“(A) are allocable, reasonable, and not otherwise unallowable;
“(B) with respect to the activities of the business segment to which such costs are being allocated, are determined by the Secretary of Defense to be likely to result in future cost advantages to the United States; and
“(C) with respect to a business segment which allocates to Department of Defense contracts $2,500,000 or more of such costs in any fiscal year of such business segment, are not in excess of the amount equal to 110 percent of such costs incurred by such business segment in the previous fiscal year.”
Subsec. (l)(2). Pub. L. 102–484, §1052(26)(B)(i), substituted “paragraph (3)” for “subsection (e)(2)(C)”.
Subsec. (l)(3). Pub. L. 102–484, §1052(26)(B)(ii), added par. (3).
1991—Subsec. (e)(2), (3). Pub. L. 102–190 added par. (2) and redesignated former par. (2) as (3).
1990—Subsec. (e)(2). Pub. L. 101–510 struck out “(A)” before “The Secretary” and struck out subpars. (B) and (C) which read as follows:
“(B) The Secretary shall submit to the committees named in subparagraph (C) any proposed regulations that would make substantive changes to regulations prescribed under the second sentence of subparagraph (A) before the publication of such proposed regulations in accordance with section 22 of the Office of Federal Procurement Policy Act (41 U.S.C. 418b).
“(C) The committees named in this subparagraph are—
“(i) the Committees on Armed Services and on Government Operations of the House of Representatives; and
“(ii) the Committees on Armed Services and on Governmental Affairs of the Senate.”
1989—Subsec. (e)(1)(N), (O). Pub. L. 101–189, §311(a)(1), added subpar. (N) and redesignated former subpar. (N) as (O).
Subsec. (k)(5)(B)(i). Pub. L. 101–189, §853(b)(3), substituted “the Federal Acquisition Regulation” for “the single Government-wide procurement regulation issued pursuant to section 4(4)(A) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(4)(A))”.
Subsec. (k)(6). Pub. L. 101–189, §853(a)(1)(A), designated par. (2) of subsec. (l), set out first, as subsec. (k)(6) and substituted “In this subsection:” for “In subsection (k):” in introductory provisions.
Subsec. (l). Pub. L. 101–189, §853(a)(1)(A), (C), restored the text of subsec. (k) as in effect prior to being struck out by Pub. L. 100–700, §8(b)(2) (see 1988 Amendment note below), designated such text as subsec. (l), and struck out former subsec. (l)(1), set out first, which defined “covered contract”. Former subsec. (l)(2), set out first, was redesignated subsec. (k)(6). Former subsec. (l), set out second, was redesignated (m).
Subsec. (m). Pub. L. 101–189, §853(a)(1)(B), redesignated subsec. (l), set out second, as (m).
1988—Subsec. (e)(1)(L). Pub. L. 100–370, §1(f)(2)(A), added subpar. (L).
Subsec. (e)(1)(M). Pub. L. 100–456, §322(a), added subpar. (M).
Subsec. (e)(1)(N). Pub. L. 100–700, §8(b)(1)(A), which directed amendment of subsec. (e) by striking out subpar. (N) and inserting in lieu thereof a new subpar. (N), was executed to subsec. (e)(1)(N) of this section as the probable intent of Congress. Former subpar. (N) read as follows: “Except as provided in paragraph (2), costs incurred in connection with any civil, criminal, or administrative action brought by the United States that results in a determination that a contractor has violated or failed to comply with any Federal law or regulation if the action results in any of the following:
“(i) In the case of a criminal action, a conviction (including a conviction pursuant to a plea of nolo contendere).
“(ii) In the case of a civil or administrative action, (I) a determination by the Secretary of Defense that the violation or failure to comply was knowing or willful, and (II) the imposition of a monetary penalty.
“(iii) A final decision by an appropriate official of the Department of Defense to debar or suspend the contractor or to rescind, void, or terminate a contract awarded to such contractor if such decision is based on a determination by the Secretary of Defense that the violation or failure to comply was knowing or willful.”
Pub. L. 100–456, §832(a)(1), added subpar. (N).
Subsec. (e)(2), (3). Pub. L. 100–700, §8(b)(1)(B), (C), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “If a civil, criminal, or administrative action referred to in paragraph (1)(N) is resolved by consent or compromise pursuant to an agreement entered into by a contractor and the United States, the contractor's costs that are otherwise not allowable under paragraph (1)(N) may be allowed to the extent provided in such agreement.”
Pub. L. 100–456, §832(a)(2), (3), added par. (2) and redesignated former par. (2) as (3).
Subsec. (f)(5). Pub. L. 100–463, §8105(a), and Pub. L. 100–456, §826(a), amended section identically, temporarily adding par. (5). Pub. L. 100–526 provided that Pub. L. 100–463, §8105, and amendment made by that section shall cease to be effective. See Effective and Termination Dates of 1988 Amendment note below.
Subsec. (j). Pub. L. 100–370, §1(f)(3)(A)(ii), added subsec. (j). Former subsec. (j) redesignated (k).
Subsec. (k). Pub. L. 100–700, §8(b)(2), added subsec. (k), and struck out former subsec. (k), the text of which was restored and redesignated subsec. (l) by Pub. L. 101–189, §853(a)(1)(C). See 1989 Amendment note above.
Pub. L. 100–370, §1(f)(3)(A)(i), redesignated subsec. (j) as (k). Former subsec. (k) redesignated (l).
Subsec. (l). Pub. L. 100–700, §8(b)(2), added subsec. (l) defining terms “covered contract”, “proceeding”, “costs”, and “penalty”.
Pub. L. 100–370, §1(f)(3)(A)(i), redesignated subsec. (k) as (l).
1987—Subsec. (e)(1)(K). Pub. L. 100–180 added subpar. (K).
Subsec. (k). Pub. L. 100–26 inserted “the term” after “In this section,”.
1985—Subsec. (e)(2). Pub. L. 99–190, §101(b) [§8112(a)(1)], designated existing provisions as subpar. (A) and added subpars. (B) and (C).
Subsec. (h)(2). Pub. L. 99–190, §101(b) [§8112(a)(2)], inserted “, in an exceptional case,” in provisions preceding subpar. (A).
Subsecs. (j), (k). Pub. L. 99–190, §101(b) [§8112(a)(3)], added subsec. (j) and redesignated former subsec. (j) as (k).
Pub. L. 105–261, div. A, title VIII, §804(d), Oct. 17, 1998, 112 Stat. 2083, provided that: “The amendments made by this section [amending this section, sections 256 and 435 of Title 41, Public Contracts, and provisions set out as a note under section 435 of Title 41] shall apply with respect to costs of compensation of senior executives incurred after January 1, 1999, under covered contracts (as defined in section 2324(l) of title 10, United States Code, and section 306(l) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C.256(l))[)] [now 41 U.S.C. 4301(2), 4302] entered into before, on, or after the date of the enactment of this Act [Oct. 17, 1998].”
Pub. L. 105–85, div. A, title VIII, §808(e), Nov. 18, 1997, 111 Stat. 1838, provided that: “The amendments made by this section [see Tables for classification] shall—
“(1) take effect on the date that is 90 days after the date of the enactment of this Act [Nov. 18, 1997]; and
“(2) apply with respect to costs of compensation incurred after January 1, 1998, under covered contracts entered into before, on, or after the date of the enactment of this Act.”
Section 4321(a) of Pub. L. 104–106 provided that the amendment made by that section is effective as of Oct. 13, 1994, and as if included in Pub. L. 103–355 as enacted.
For effective date and applicability of amendment by section 4321(b)(9) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of Title 28, Judiciary and Judicial Procedure.
Section 818(b) of Pub. L. 102–484 provided that: “The amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Oct. 23, 1992] and shall apply, as provided in regulations prescribed by the Secretary of Defense, with respect to proposals for settlement of indirect costs for which the Federal Government has not formally initiated an audit before that date.”
Section 1352(c) of Pub. L. 102–484 provided that: “The amendments made by subsection (b) [amending this section] apply to covered contracts (as defined in section 2324 of title 10, United States Code) that are in effect or are entered into on or after October 1, 1991, for costs incurred on or after October 1, 1991.”
Section 346(b) of Pub. L. 102–190 provided that: “The amendments made by subsection (a) [amending this section] shall not apply with respect to a foreign national whose employment under a military banking contract (defined in section 2324(e)(2)(B) of title 10, United States Code, as added by subsection (a)) was terminated before the date of the enactment of this Act [Dec. 5, 1991].”
Section 311(a)(2) of Pub. L. 101–189 provided that: “Subparagraph (N) of such subsection [10 U.S.C. 2324(e)(1)(N)], as added by paragraph (1), shall not apply with respect to the termination of the employment of a foreign national employed under any covered contract (as defined in subsection (l) of such section [10 U.S.C. 2324(l)]) if such termination is the result of the closing of, or the curtailment of activities at, a United States military facility in a foreign country pursuant to an agreement entered into with the government of that country before the date of the enactment of this Act [Nov. 29, 1989].”
Section 853(a)(3) of Pub. L. 101–189 provided that: “The amendments made by this subsection [amending this section and provisions set out as a note below] shall take effect as of November 19, 1988.”
Section 8(e) of Pub. L. 100–700 provided that: “The amendments made by subsections (a) and (b) [enacting section 256 of Title 41, Public Contracts, and amending this section] shall take effect with respect to contracts awarded after the date of the enactment of this Act [Nov. 19, 1988].”
Section 8105(d) of Pub. L. 100–463 provided that subsec. (f)(5) of this section, as enacted by section 8105(a) of Pub. L. 100–463, would cease to be effective three years after Oct. 1, 1988. Section 106(a)(2) of Pub. L. 100–526 provided that section 8105 of Pub. L. 100–463 “and the amendment made by that section shall cease to be effective”.
Section 322(b) of Pub. L. 100–456 provided that: “Subparagraph (M) of section 2324(e)(1) of title 10, United States Code, as added by subsection (a), shall apply with respect to any contract entered into after the end of the 180-day period beginning on the date of the enactment of this Act [Sept. 29, 1988].”
Section 826(d) of Pub. L. 100–456, as amended by Pub. L. 100–526, title I, §106(a)(1)(B), Oct. 24, 1988, 102 Stat. 2625, provided that: “Section 2324(f)(5) of title 10, United States Code (as added by subsection (a)), shall cease to be effective on September 30, 1991.”
Section 805(b) of Pub. L. 100–180 provided that: “Subparagraph (K) of section 2324(e)(1) of title 10, United States Code, as added by subsection (a), shall apply to any contract entered into after the end of the 120-day period beginning on the date of the enactment of this Act [Dec. 4, 1987].”
Section 911(c) of Pub. L. 99–145 provided that: “Section 2324 of title 10, United States Code, as added by subsection (a), shall apply only to contracts for which solicitations are issued on or after the date on which such regulations are prescribed.”
Section 2101(e) of Pub. L. 103–355 provided that: “The regulations of the Secretary of Defense implementing section 2324 of title 10, United States Code, shall remain in effect until the Federal Acquisition Regulation is revised to implement the amendments made by this section [amending this section].”
Pub. L. 100–700, §8(d), Nov. 19, 1988, 102 Stat. 4638, provided that: “The regulations necessary for the implementation of section 306(e) of the Federal Property and Administrative Services Act of 1949 [now 41 U.S.C. 4304] (as added by subsection (a)) and section 2324(k)(5) of title 10, United States Code (as added by subsection (b))—
“(1) shall be prescribed not later than 120 days after the date of the enactment of this Act [Nov. 19, 1988]; and
“(2) shall apply to contracts entered into more than 30 days after the date on which such regulations are issued.”
Section 8105(b), (c) of Pub. L. 100–463 provided for the promulgation of regulations and the preparation of a report in connection with the operation of subsec. (f)(5), as enacted by section 8105(a) of Pub. L. 100–463. Section 106(a)(2) of Pub. L. 100–526 provided that section 8105 of Pub. L. 100–463 “and the amendment made by that section shall cease to be effective”.
Section 826(b) of Pub. L. 100–456 provided that: “The Secretary of Defense shall prescribe final regulations under paragraph (5) of section 2324(f) of title 10, United States Code (as added by subsection (a)), not later than 90 days after the date of the enactment of this Act [Sept. 29, 1988]. Such regulations shall apply with respect to costs referred to in such paragraph that are incurred by a Department of Defense contractor (or a subcontractor of such a contractor) on or after the first day of the contractor's (or subcontractor's) first fiscal year that begins on or after the date on which such final regulations are prescribed.”
Section 832(b) of Pub. L. 100–456 related to regulations for the implementation of subsec. (e)(1)(N) of this section, prior to repeal by Pub. L. 100–700, §8(c), Nov. 19, 1988, 102 Stat. 4638.
Pub. L. 99–190, 101(b) [title VIII, §8112(b), (c)], Dec. 19, 1985, 99 Stat. 1185, 1223, required the regulations required under section 911(b) of Pub. L. 99–145, set out below, to be submitted to Congress before the publication of such regulations in accordance with former 41 U.S.C. 418b (now 41 U.S.C. 1707) and directed the Comptroller General, within 180 days of publication of the regulations, to submit to Congress a report on the Comptroller General's initial evaluation under subsection (j)(1) of this section.
Pub. L. 99–145, title IX, §911(b), Nov. 8, 1985, 99 Stat. 685, provided that:
“(1) Not later than 150 days after the date of the enactment of this Act [Nov. 8, 1985], the Secretary of Defense shall prescribe the regulations required by subsections (e) and (f) of section 2324 of title 10, United States Code, as added by subsection (a). Such regulations shall be published in accordance with section 22 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 418b) [now 41 U.S.C. 1707].
“(2) The Secretary shall review such regulations at least once every five years. The results of each such review shall be made public.”
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 109–364, div. A, title VIII, §852, Oct. 17, 2006, 120 Stat. 2340, provided that:
“(a)
“(1)
“(2)
“(A) shall assess the extent to which the Department of Defense has paid excessive pass-through charges to contractors who provided little or no value to the performance of the contract;
“(B) shall assess the extent to which the Department has been particularly vulnerable to excessive pass-through charges on any specific category of contracts or by any specific category of contractors (including any category of small business); and
“(C) shall determine the extent to which any prohibition on excessive pass-through charges would be inconsistent with existing commercial practices for any specific category of contracts or have an unjustified adverse effect on any specific category of contractors (including any category of small business).
“(b)
“(1)
“(2)
“(A) shall not apply to any firm, fixed-price contract or subcontract (or task or delivery order) that is—
“(i) awarded on the basis of adequate price competition; or
“(ii) for the acquisition of a commercial item, as defined in section 4(12) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(12)) [see 41 U.S.C. 103]; and
“(B) may include such additional exceptions as the Secretary determines to be necessary in the interest of the national defense.
“(3)
“(4)
“(A) any standards for determining when no, or negligible, value has been added to a contract by a contractor or subcontractor;
“(B) any procedures established for preventing excessive pass-through charges; and
“(C) any exceptions determined by the Secretary to be necessary in the interest of the national defense.
“(5)
Pub. L. 103–337, div. A, title VIII, §818, Oct. 5, 1994, 108 Stat. 2821, as amended by Pub. L. 105–85, div. A, title VIII, §804(d), Nov. 18, 1997, 111 Stat. 1834, provided that:
“[(a) Repealed. Pub. L. 105–85, div. A, title VIII, §804(d), Nov. 18, 1997, 111 Stat. 1834.]
“(b)
“(c)
“(1) include a definition of the term ‘restructuring costs’; and
“(2) address the issue of contract novations under such contracts.
“(d)
“(e)
“(1) A description of the procedures being followed within the Department of Defense for evaluating projected costs and savings under a defense contract resulting from a restructuring of a defense contractor associated with a business combination.
“(2) A list of all defense contractors for which restructuring costs have been allowed by the Department, along with the identities of the firms which those contractors have acquired or with which those contractors have combined since July 21, 1993, that qualify the contractors for such restructuring reimbursement.
“(3) The Department's experience with business combinations for which the Department has agreed to allow restructuring costs since July 21, 1993, including the following:
“(A) The estimated amount of costs associated with each restructuring that have been or will be treated as allowable costs under defense contracts, including the type and amounts of costs that would not have arisen absent the business combination.
“(B) The estimated amount of savings associated with each restructuring that are expected to be achieved on defense contracts.
“(C) The types of documentation relied on to establish that savings associated with each restructuring will exceed costs associated with the restructuring.
“(D) Actual experience on whether savings associated with each restructuring are exceeding costs associated with the restructuring.
“(E) Identification of any programmatic or budgetary disruption in the Department of Defense resulting from contractor restructuring.
“(f)
“(g)
“(A) whether such regulations are consistent with the purposes of this section, other applicable law, and the Federal Acquisition Regulation; and
“(B) whether such regulations establish policies, procedures, and standards to ensure that restructuring costs are paid only when in the best interests of the United States.
“(2) The Comptroller General shall report periodically to Congress on the implementation of the policy of the Department of Defense regarding defense industry restructuring.”
Pub. L. 103–160, div. A, title VIII, §841, Nov. 30, 1993, 107 Stat. 1719, as amended by Pub. L. 105–244, title I, §102(a)(2)(C), Oct. 7, 1998, 112 Stat. 1617, provided that:
“(a)
“(b)
“(c)
“(1) The term ‘allowable indirect costs’ means costs that are generally considered allowable as indirect costs under regulations that establish the cost reimbursement principles applicable to an institution of higher education for purposes of Department of Defense contracts.
“(2) The term ‘institution of higher education’ has the meaning given such term in section 101 of the Higher Education Act of 1965 [20 U.S.C. 1001].”
Section 826(c) of Pub. L. 100–456, as amended by Pub. L. 100–526, title I, §106(a)(1)(A), Oct. 24, 1988, 102 Stat. 2625, directed Comptroller General of United States and Inspector General of Department of Defense, not later than 2 years after Sept. 29, 1988, to submit to Congress a report including an assessment of whether the regulations required by subsec. (f)(5) of this section provide the appropriate incentives to stimulate exports by the United States defense industry and provide cost savings to the United States and whether such regulations provide appropriate criteria to ensure that costs allowed are reasonably likely to provide future cost savings to the United States.
Pub. L. 100–456, div. A, title VIII, §833, Sept. 29, 1988, 102 Stat. 2024, as amended by Pub. L. 101–189, div. A, title VIII, §853(a)(2), Nov. 29, 1989, 103 Stat. 1518, directed the Administrator of General Services to enter into negotiations with commercial air carriers for agreements that would permit personnel of contractors who were traveling solely in the performance of covered contracts to be transported by such carriers at the same discount rates as such carriers charged for travel by Federal Government employees traveling at Government expense, directed the Secretary of Defense, not later than 120 days after the first such agreement would go into effect, to prescribe regulations that would provide that costs in excess of the rates established under the agreement were not allowable if the rate had been available and travel could have reasonably been performed under the conditions required by the air carrier to qualify for such rate, and provided that section 833 of Pub. L. 100–456 would cease to be effective three years after Sept. 29, 1988.
Section 933 of Pub. L. 99–145, which provided that in proceeding before the Armed Services Board of Contract Appeals, United States Claims Court, or any other Federal court in which reasonableness of indirect costs for which a contractor seeks reimbursement from Department of Defense is in issue, the burden of proof is upon the contractor to establish that such costs are reasonable, was repealed and restated in subsec. (j) of this section by Pub. L. 100–370, §1(f)(3)(A)(ii), (B), July 19, 1988, 102 Stat. 846.
(a)
(A) that the amount of projected savings for the Department of Defense associated with the restructuring will be at least twice the amount of the costs allowed; or
(B) that the amount of projected savings for the Department of Defense associated with the restructuring will exceed the amount of the costs allowed and that the business combination will result in the preservation of a critical capability that otherwise might be lost to the Department.
(2) The Secretary may not delegate the authority to make a determination under paragraph (1), with respect to a business combination, to an official of the Department of Defense—
(A) below the level of an Assistant Secretary of Defense for cases in which the amount of restructuring costs is expected to exceed $25,000,000 over a 5-year period; or
(B) below the level of the Director of the Defense Contract Management Agency for all other cases.
(b)
(1) For each defense contractor to which the Secretary has paid, under section 2324 of this title, restructuring costs associated with a business combination, a summary of the following:
(A) An estimate of the amount of savings for the Department of Defense associated with the restructuring that has been realized as of the end of the preceding calendar year.
(B) An estimate of the amount of savings for the Department of Defense associated with the restructuring that is expected to be achieved on defense contracts.
(2) An identification of any business combination for which the Secretary has paid restructuring costs under section 2324 of this title during the preceding calendar year and, for each such business combination—
(A) the supporting rationale for allowing such costs;
(B) factual information associated with the determination made under subsection (a) with respect to such costs; and
(C) a discussion of whether the business combination would have proceeded without the payment of restructuring costs by the Secretary.
(3) For business combinations of major defense contractors that took place during the year preceding the year of the report—
(A) an assessment of any potentially adverse effects that the business combinations could have on competition for Department of Defense contracts (including potential horizontal effects, vertical effects, and organizational conflicts of interest), the national technology and industrial base, or innovation in the defense industry; and
(B) the actions taken to mitigate the potentially adverse effects.
(c)
(Added Pub. L. 105–85, div. A, title VIII, §804(a)(1), Nov. 18, 1997, 111 Stat. 1832; amended Pub. L. 106–65, div. A, title X, §1066(a)(19), Oct. 5, 1999, 113 Stat. 771; Pub. L. 108–375, div. A, title VIII, §819, Oct. 28, 2004, 118 Stat. 2016.)
A prior section 2325, added Pub. L. 99–500, §101(c) [title X, §907(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–137, and Pub. L. 99–591, §101(c) [title X, §907(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–137; Pub. L. 99–661, div. A, title IX, formerly title IV, §907(a)(1), Nov. 14, 1986, 100 Stat. 3917, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 101–189, div. A, title XVI, §1622(c)(5), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 101–510, div. A, title VIII, §810, Nov. 5, 1990, 104 Stat. 1595; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728, directed Secretary of Defense to ensure that requirements of Department of Defense with respect to procurement of supplies be stated in terms of functions to be performed, performance required, or essential physical characteristics, and related to preference for nondevelopmental items in procurement of supplies, prior to repeal by Pub. L. 103–355, title VIII, §8104(b)(1), Oct. 13, 1994, 108 Stat. 3391. See sections 2376 and 2377 of this title.
Another prior section 2325 was renumbered section 2345 of this title.
2004—Subsec. (a)(2). Pub. L. 108–375 substituted “paragraph (1), with respect to a business combination, to an official of the Department of Defense—” for “paragraph (1) to an official of the Department of Defense below the level of an Assistant Secretary of Defense.” and added subpars. (A) and (B).
1999—Subsec. (a)(1). Pub. L. 106–65 inserted “that occurs after November 18, 1997,” after “of the contractor” in introductory provisions.
Section 804(c) of Pub. L. 105–85 provided that: “Section 2325(a) of title 10, United States Code, as added by subsection (a), shall apply with respect to business combinations that occur after the date of the enactment of this Act [Nov. 18, 1997].”
Pub. L. 105–85, div. A, title VIII, §804(b), Nov. 18, 1997, 111 Stat. 1832, directed the Comptroller General, not later than Apr. 1, 1998, to identify major market areas affected by business combinations of defense contractors since Jan. 1, 1990, and develop a methodology for determining the savings from business combinations of defense contractors on the prices paid on particular defense contracts, and to submit to committees of Congress a report describing the changes in numbers of businesses competing for major defense contracts since Jan. 1, 1990; and directed the Comptroller General, not later than Dec. 1, 1998, to submit to committees of Congress a report containing updated information on restructuring costs of business combinations paid by the Department of Defense pursuant to certifications under Pub. L. 103–337, §818 (set out as a note under section 2324 of this title), savings realized by the Department of Defense as a result of the business combinations for which the payment of restructuring costs was so certified, and an assessment of the savings on the prices paid on a meaningful sample of defense contracts.
(a)
(b)
(A) the end of the 180-day period beginning on the date on which the contractor submits a qualifying proposal to definitize the contractual terms, specifications, and price; or
(B) the date on which the amount of funds obligated under the contractual action is equal to more than 50 percent of the negotiated overall ceiling price for the contractual action.
(2) Except as provided in paragraph (3), the contracting officer for an undefinitized contractual action may not obligate with respect to such contractual action an amount that is equal to more than 50 percent of the negotiated overall ceiling price until the contractual terms, specifications, and price are definitized for such contractual action.
(3) If a contractor submits a qualifying proposal (as defined in subsection (g)) to definitize an undefinitized contractual action before an amount equal to more than 50 percent of the negotiated overall ceiling price is obligated on such action, the contracting officer for such action may not obligate with respect to such contractual action an amount that is equal to more than 75 percent of the negotiated overall ceiling price until the contractual terms, specifications, and price are definitized for such contractual action.
(4) The head of an agency may waive the provisions of this subsection with respect to a contract of that agency if that head of an agency determines that the waiver is necessary in order to support any of the following operations:
(A) A contingency operation.
(B) A humanitarian or peacekeeping operation.
(5) This subsection does not apply to an undefinitized contractual action for the purchase of initial spares.
(c)
(1) good business practice; and
(2) in the best interests of the United States.
(d)
(1) good business practice; and
(2) in the best interests of the United States.
(e)
(1) the possible reduced cost risk of the contractor with respect to costs incurred during performance of the contract before the final price is negotiated; and
(2) the reduced cost risk of the contractor with respect to costs incurred during performance of the remaining portion of the contract.
(f)
(g)
(1) The term “undefinitized contractual action” means a new procurement action entered into by the head of an agency for which the contractual terms, specifications, or price are not agreed upon before performance is begun under the action. Such term does not include contractual actions with respect to the following:
(A) Foreign military sales.
(B) Purchases in an amount not in excess of the amount of the simplified acquisition threshold.
(C) Special access programs.
(D) Congressionally mandated long-lead procurement contracts.
(2) The term “qualifying proposal” means a proposal that contains sufficient information to enable the Department of Defense to conduct complete and meaningful audits of the information contained in the proposal and of any other information that the Department is entitled to review in connection with the contract, as determined by the contracting officer.
(Added Pub. L. 99–500, §101(c) [title X, §908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–140, and Pub. L. 99–591, §101(c) [title X, §908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–140; Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 101–189, div. A, title XVI, §1622(c)(6), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 102–25, title VII, §701(d)(5), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title I, §1505, Oct. 13, 1994, 108 Stat. 3298; Pub. L. 105–85, div. A, title VIII, §803(a), Nov. 18, 1997, 111 Stat. 1831.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
A prior section 2326 was renumbered section 2346 of this title.
1997—Subsec. (b)(4). Pub. L. 105–85 amended par. (4) generally. Prior to amendment, par. (4) read as follows: “The head of an agency may waive the provisions of this subsection with respect to a contract of that agency if such head of an agency determines that the waiver is necessary in order to support a contingency operation.”
1994—Subsec. (b). Pub. L. 103–355, §1505(a)(1), struck out “and expenditure” after “obligation” in heading.
Subsec. (b)(1)(B). Pub. L. 103–355, §1505(a)(2), struck out “or expended” after “obligated”.
Subsec. (b)(2). Pub. L. 103–355, §1505(a)(3), substituted “obligate” for “expend”.
Subsec. (b)(3). Pub. L. 103–355, §1505(a)(4), substituted “obligated” for “expended” and “obligate” for “expend”.
Subsec. (b)(4), (5). Pub. L. 103–355, §1505(b), added par. (4) and redesignated former par. (4) as (5).
Subsec. (g)(1)(B). Pub. L. 103–355, §1505(c), substituted “simplified acquisition threshold” for “small purchase threshold”.
1991—Subsec. (g)(1)(B). Pub. L. 102–25 substituted “in an amount not in excess of the amount of the small purchase threshold” for “of less than $25,000”.
1989—Subsec. (g)(1)(D). Pub. L. 101–189 substituted “Congressionally mandated” for “Congressionally-mandated”.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 101(c) [title X, §908(d)(2)] of Pub. L. 99–500 and Pub. L. 99–591, and section 908(d)(2) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “Section 2326 of title 10, United States Code (as added by subsection (d)(1)), applies to undefinitized contractual actions that are entered into after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].”
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 111–84, div. A, title VIII, §812, Oct. 28, 2009, 123 Stat. 2406, provided that:
“(a)
“(b)
“(1) such limitations as described in part 52.216-26 of the Federal Acquisition Regulation; and
“(2) any such limitations implementing the requirements of section 809 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181; 10 U.S.C. 2326 note).”
Pub. L. 110–181, div. A, title VIII, §809, Jan. 28, 2008, 122 Stat. 216, provided that:
“(a)
“(b)
“(1) the circumstances in which it is, and is not, appropriate for Department of Defense officials to use undefinitized contractual actions;
“(2) approval requirements (including thresholds) for the use of undefinitized contractual actions;
“(3) procedures for ensuring that timelines for the definitization of undefinitized contractual actions are met;
“(4) procedures for ensuring compliance with regulatory limitations on the obligation of funds pursuant to undefinitized contractual actions;
“(5) procedures for ensuring compliance with regulatory limitations on profit or fee with respect to costs incurred before the definitization of an undefinitized contractual action; and
“(6) reporting requirements for undefinitized contractual actions that fail to meet required timelines for definitization or fail to comply with regulatory limitations on the obligation of funds or on profit or fee.
“(c)
“(1)
“(2) GAO
“(A) the level of insight that senior Department of Defense officials have into the use of undefinitized contractual actions;
“(B) the appropriate use of undefinitized contractual actions;
“(C) the timely definitization of undefinitized contractual actions; and
“(D) the negotiation of appropriate profits and fees for undefinitized contractual actions.”
Section 101(c) [title X, §908(a)–(c), (e)] of Pub. L. 99–500 and Pub. L. 99–591, and section 908(a)–(c), (e) of title IX, formerly title IV, of Pub. L. 99–661; renumbered title IX and amended by Pub. L. 100–26, §§3(5), 5(2), Apr. 21, 1987, 101 Stat. 273, 274; Pub. L. 104–106, div. D, title XLIII, §4322(b)(2), Feb. 10, 1996, 110 Stat. 677, provided that:
“(a)
“(A) the total amount of funds obligated for contractual actions during the six-month period;
“(B) the total amount of funds obligated during the six-month period for undefinitized contractual actions; and
“(C) the total amount of funds obligated during the six-month period for undefinitized contractual actions that are not definitized on or before the last day of such period.
“(2) On the last day of each six-month period described in paragraph (4), the amount of funds obligated for undefinitized contractual actions entered into by the Secretary of Defense (with respect to the Defense Logistics Agency) or the Secretary of a military department during the six-month period that are not definitized on or before such day may not exceed 10 percent of the amount of funds obligated for all contractual actions entered into by the Secretary during the six-month period.
“(3) If on the last day of a six-month period described in paragraph (4) the total amount of funds obligated for undefinitized contractual actions under the jurisdiction of a Secretary that were entered into during the six-month period exceeds the limit established in paragraph (2), the Secretary—
“(A) shall, not later than the end of the 45-day period beginning on the first day following the six-month period, submit to the defense committees an unclassified report concerning—
“(i) the amount of funds obligated for contractual actions under the jurisdiction of the Secretary that were entered into during the six-month period with respect to which the report is submitted; and
“(ii) the amount of such funds obligated for undefinitized contractual actions; and
“(B) except with respect to the six-month period described in paragraph (4)(A), may not enter into any additional undefinitized contractual actions until the date on which the Secretary certifies to Congress that such limit is not exceeded by the cumulative amount of funds obligated for undefinitized contractual actions under the jurisdiction of the Secretary that are not definitized on or before such date and were entered into—
“(i) during the six-month period for which such limit was exceeded; or
“(ii) after the end of such six-month period.
“(4) This subsection applies to the following six-month periods:
“(A) The period beginning on October 1, 1986, and ending on March 31, 1987.
“(B) The period beginning on April 1, 1987, and ending on September 30, 1987.
“(C) The period beginning on October 1, 1987, and ending on March 31, 1988.
“(D) The period beginning on April 1, 1988, and ending on September 30, 1988.
“(E) The period beginning on October 1, 1988, and ending on March 31, 1989.
“(b)
“(1) periodically conduct an audit of contractual actions under the jurisdiction of the Secretary of Defense (with respect to the Defense Logistics Agency) and the Secretaries of the military departments; and
“(2) after each audit, submit to Congress a report on the management of undefinitized contractual actions by each Secretary, including the amount of contractual actions under the jurisdiction of each Secretary that is represented by undefinitized contractual actions.
“(c)
“(e)
(a)
(b)
(1) a foreign government owns or controls (whether directly or indirectly) a significant interest in such firm or subsidiary (or, in the case of a subsidiary, in the firm that owns the subsidiary); and
(2) such foreign government is the government of a country that the Secretary of State determines under section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) has repeatedly provided support for acts of international terrorism.
(c)
(B) The Secretary shall maintain records of each contract entered into by reason of subparagraph (A). Such records shall include the following:
(i) The identity of the foreign government concerned.
(ii) The nature of the contract.
(iii) The extent of ownership or control of the firm or subsidiary concerned (or, if appropriate in the case of a subsidiary, of the firm that owns the subsidiary) by the foreign government concerned or the agency or instrumentality of such foreign government.
(iv) The reasons for entering into the contract.
(2) Upon the request of the head of an agency, the Secretary of Defense shall determine whether entering into a contract with a firm or subsidiary described in subsection (b) is inconsistent with the national security objectives of the United States. In making such a determination, the Secretary of Defense shall consider the following:
(A) The relationship of the United States with the foreign government concerned.
(B) The obligations of the United States under international agreements.
(C) The extent of the ownership or control of the firm or subsidiary (or, if appropriate in the case of a subsidiary, of the firm that owns the subsidiary) by the foreign government or an agent or instrumentality of the foreign government.
(D) Whether payments made, or information made available, to the firm or subsidiary under the contract could be used for purposes hostile to the interests of the United States.
(d)
(2)(A) A person may request the Secretary to include on the list maintained under paragraph (1) any firm or subsidiary of a firm that the person believes to be owned or controlled by a foreign government described in subsection (b)(2). Upon receipt of such a request, the Secretary shall determine whether the conditions in paragraphs (1) and (2) of subsection (b) exist in the case of that firm or subsidiary. If the Secretary determines that such conditions do exist, the Secretary shall include the firm or subsidiary on the list.
(B) A firm or subsidiary of a firm included on the list may request the Secretary to remove such firm or subsidiary from the list on the basis that it has been erroneously included on the list or its ownership circumstances have significantly changed. Upon receipt of such a request, the Secretary shall determine whether the conditions in paragraphs (1) and (2) of subsection (b) exist in the case of that firm or subsidiary. If the Secretary determines that such conditions do not exist, the Secretary shall remove the firm or subsidiary from the list.
(C) The Secretary shall establish procedures to carry out this paragraph.
(3) The head of an agency shall prohibit each firm or subsidiary of a firm awarded a contract by the agency from entering into a subcontract under that contract in an amount in excess of $25,000 with a firm or subsidiary included on the list maintained under paragraph (1) unless there is a compelling reason to do so. In the case of any subcontract requiring consent by the head of an agency, the head of the agency shall not consent to the award of the subcontract to a firm or subsidiary included on such list unless there is a compelling reason for such approval.
(e)
(f)
(2) This section does not apply to the Coast Guard or the National Aeronautics and Space Administration.
(g)
(Added Pub. L. 99–500, §101(c) [title X, §951(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–164, and Pub. L. 99–591, §101(c) [title X, §951(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–164; Pub. L. 99–661, div. A, title IX, formerly title IV, §951(a)(1), Nov. 14, 1986, 100 Stat. 3944, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–180, div. A, title XII, §1231(8), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 100–224, §5(b)(2), Dec. 30, 1987, 101 Stat. 1538; Pub. L. 105–85, div. A, title VIII, §843, Nov. 18, 1997, 111 Stat. 1844; Pub. L. 108–136, div. A, title X, §1031(a)(16), Nov. 24, 2003, 117 Stat. 1597.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
A prior section 2327 was renumbered section 2347 of this title.
2003—Subsec. (c)(1)(A). Pub. L. 108–136, §1031(a)(16)(A), substituted “if in the best interests of the Government” for “after the date on which such head of an agency submits to Congress a report on the contract”.
Subsec. (c)(1)(B). Pub. L. 108–136, §1031(a)(16)(B), substituted “The Secretary shall maintain records of each contract entered into by reason of subparagraph (A). Such records” for “A report under subparagraph (A)”.
Subsec. (c)(1)(C). Pub. L. 108–136, §1031(a)(16)(C), struck out subpar. (C) which read as follows: “After the head of an agency submits a report to Congress under subparagraph (A) with respect to a firm or a subsidiary, such head of an agency is not required to submit a report before entering into any subsequent contract with such firm or subsidiary unless the information required to be included in such report under subparagraph (B) has materially changed since the submission of the previous report.”
1997—Subsecs. (d) to (g). Pub. L. 105–85 added subsecs. (d) and (e) and redesignated former subsecs. (d) and (e) as (f) and (g), respectively.
1987—Subsecs. (a), (b)(2). Pub. L. 100–224 substituted “50 U.S.C. App.” for “50 U.S.C.” in parenthetical after “Export Administration Act of 1979”.
Subsec. (d)(1). Pub. L. 100–180 inserted par. (1) designation.
Section 101(c) [title X, §951(c)] of Pub. L. 99–500 and Pub. L. 99–591, and section 951(c) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “Section 2327 of title 10, United States Code (as added by subsection (a)(1)), shall apply to contracts entered into by the Secretary of Defense after the end of the 90-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].”
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 103–160, div. A, title VIII, §843, Nov. 30, 1993, 107 Stat. 1720, as amended by Pub. L. 103–355, title VIII, §8105(j), Oct. 13, 1994, 108 Stat. 3393, directed the Secretary of Defense to require any person with whom the Secretary proposed to enter into a contract for the provision of goods or services in an amount in excess of $5,000,000, to report to the Secretary each commercial transaction which that person had conducted with the government of any terrorist country during the preceding three years and during the course of the contract, required the Secretary to prescribe regulations and to submit an annual report to Congress setting forth those commercial transactions with terrorist countries that had been included in the reports made during the preceding fiscal year, and provided that section 843 of Pub. L. 103–160 would expire on Sept. 30, 1996.
(a)
(2) The Secretary of Defense shall prescribe regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees under this section.
(b)
(1) shall be retained by the Department of Defense or the element of the Department of Defense receiving the amount; and
(2) shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs incurred in complying with requests for technical data were paid.
(c)
(1) the request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to enable such citizen or corporation to submit an offer or determine whether it is capable of submitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States (except that the Secretary may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, to be refunded upon submission of an offer by the citizen or corporation);
(2) the release of technical data is requested in order to comply with the terms of an international agreement; or
(3) the Secretary determines, in accordance with section 552(a)(4)(A)(iii) of title 5, that such a waiver is in the interests of the United States.
(Added Pub. L. 99–500, §101(c) [title X, §954(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–172, and Pub. L. 99–591, §101(c) [title X, §954(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–172; Pub. L. 99–661, div. A, title IX, formerly title IV, §954(a)(1), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, §7(a)(7)(A), (B)(i), Apr. 21, 1987, 101 Stat. 278.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
A prior section 2328 was renumbered section 2348 of this title.
1987—Pub. L. 100–26, §7(a)(7)(B)(i), substituted “Release of technical data under Freedom of Information Act: recovery of costs” for “Release of technical data” in section catchline.
Subsec. (a)(1). Pub. L. 100–26, §7(a)(7)(A)(i)(I), substituted “such technical data to the person requesting the” for “technical data to a person requesting such a”.
Pub. L. 100–26, §7(a)(7)(A)(i)(II), substituted “search, duplication, and review” for “search and duplication”.
Subsec. (b). Pub. L. 100–26, §7(a)(7)(A)(ii), substituted “Crediting of receipts” for “Disposition of costs” in heading.
Subsec. (c)(3). Pub. L. 100–26, §7(a)(7)(A)(iii), substituted “section 552(a)(4)(A)(iii)” for “section 552(a)(4)(A)”.
Section 12(d)(2) of Pub. L. 100–26 provided that: “The amendment to section 2328 of such title made by section 7(a)(7)(A)(i)(II) shall take effect on the same date and in the same manner as provided in section 1804(b) of Public Law 99–570 [set out as an Effective Date of 1986 Amendment note under section 552 of Title 5, Government Organization and Employees] for the amendment made by section 1803 of that Public Law to section 552a of title 5, United States Code [probably means amendment by section 1803 of Pub. L. 99–570 to section 552(a) of Title 5].”
Section 101(c) [title X, §954(b)] of Pub. L. 99–500 and Pub. L. 99–591, and section 954(b) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX by Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “The amendments made by this section [enacting this section] shall take effect at the end of the 90-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].”
Section, added Pub. L. 100–180, div. A, title VIII, §810(a)(1), Dec. 4, 1987, 101 Stat. 1130; amended Pub. L. 100–456, div. A, title XII, §1233(j), Sept. 29, 1988, 102 Stat. 2058; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728, related to contract terms and conditions for production special tooling and production special test equipment.
(a)
(1) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall—
(A) develop and maintain (in consultation with the service acquisition executives) policies, procedures, and best practices guidelines addressing the procurement of contract services, including policies, procedures, and best practices guidelines for—
(i) acquisition planning;
(ii) solicitation and contract award;
(iii) requirements development and management;
(iv) contract tracking and oversight;
(v) performance evaluation; and
(vi) risk management;
(B) work with the service acquisition executives and other appropriate officials of the Department of Defense—
(i) to identify the critical skills and competencies needed to carry out the procurement of contract services on behalf of the Department of Defense;
(ii) to develop a comprehensive strategy for recruiting, training, and deploying employees to meet the requirements for such skills and competencies; and
(iii) to ensure that the military departments and Defense Agencies have staff and administrative support that are adequate to effectively perform their duties under this section;
(C) establish contract services acquisition categories, based on dollar thresholds, for the purpose of establishing the level of review, decision authority, and applicable procedures in such categories; and
(D) oversee the implementation of the requirements of this section and the policies, procedures, and best practices guidelines established pursuant to subparagraph (A).
(2) The service acquisition executive of each military department shall be the senior official responsible for the management of acquisition of contract services for or on behalf of the military department.
(3) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall be the senior official responsible for the management of acquisition of contract services for or on behalf of the Defense Agencies and other components of the Department of Defense outside the military departments.
(b)
(2) With respect to the acquisition of contract services by a component or command of the Department of Defense the primary mission of which is the acquisition of products and services, such acquisition shall be conducted in accordance with policies, procedures, and best practices guidelines developed and maintained by the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to subsection (a)(1), subject to oversight by the senior officials referred to in paragraph (1).
(3) In carrying out paragraph (1), each senior official responsible for the management of acquisition of contract services shall—
(A) implement the requirements of this section and the policies, procedures, and best practices guidelines developed by the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to subsection (a)(1)(A);
(B) authorize the procurement of contract services through contracts entered into by agencies outside the Department of Defense in appropriate circumstances, in accordance with the requirements of section 854 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (10 U.S.C. 2304 note), section 814 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (31 U.S.C. 1535 note), and the regulations implementing such sections;
(C) dedicate full-time commodity managers to coordinate the procurement of key categories of services;
(D) ensure that contract services are procured by means of procurement actions that are in the best interests of the Department of Defense and are entered into and managed in compliance with applicable laws, regulations, directives, and requirements;
(E) ensure that competitive procedures and performance-based contracting are used to the maximum extent practicable for the procurement of contract services; and
(F) monitor data collection under section 2330a of this title, and periodically conduct spending analyses, to ensure that funds expended for the procurement of contract services are being expended in the most rational and economical manner practicable.
(c)
(1) The term “procurement action” includes the following actions:
(A) Entry into a contract or any other form of agreement.
(B) Issuance of a task order, delivery order, or military interdepartmental purchase request.
(2) The term “contract services” includes all services acquired from private sector entities by or for the Department of Defense, other than services relating to research and development or military construction.
(Added Pub. L. 107–107, div. A, title VIII, §801(b)(1), Dec. 28, 2001, 115 Stat. 1174; amended Pub. L. 107–314, div. A, title X, §1062(a)(8), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 109–163, div. A, title VIII, §812(a)(1), Jan. 6, 2006, 119 Stat. 3376.)
Section 854 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, referred to in subsec. (b)(3)(B), is section 854 of div. A of Pub. L. 108–375, which is set out as a note under section 2304 of this title.
Section 814 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, referred to in subsec. (b)(3)(B), is section 814 of div. A of Pub. L. 105–261, which was formerly set out as a note under section 1535 of Title 31, Money and Finance.
A prior section 2330, added Pub. L. 100–456, div. A, title VIII, §801(a)(1), Sept. 29, 1988, 102 Stat. 2007; amended Pub. L. 101–510, div. A, title XIV, §1484(h)(2), Nov. 5, 1990, 104 Stat. 1717; Pub. L. 102–190, div. A, title VIII, §802(d), Dec. 5, 1991, 105 Stat. 1414, related to integrated financing policy, prior to repeal by Pub. L. 102–484, div. D, title XLII, §4271(a)(1), Oct. 23, 1992, 106 Stat. 2695.
Another prior section 2330 was renumbered section 2349 of this title.
2006—Pub. L. 109–163 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to requirement for management structure, contracting responsibilities of designated officials, and definitions.
2002—Subsec. (c). Pub. L. 107–314 inserted comma after “a task order”.
Pub. L. 111–383, div. A, title VIII, §863(a)–(h), Jan. 7, 2011, 124 Stat. 4293, 4294, provided that:
“(a)
“(b)
“(1) that the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, and the Commandant of the Marine Corps implement and bear chief responsibility for carrying out, within the Armed Force concerned, the process established pursuant to subsection (a) for such Armed Force; and
“(2) that commanders of unified combatant commands and other officers identified or designated as joint qualified officers have an opportunity to participate in the process of each military department to provide input on joint requirements for the acquisition of services.
“(c)
“(d)
“(1) The organization of such process.
“(2) The level of command responsibility required for identifying, assessing, reviewing, and validating requirements for the acquisition of services in accordance with the requirements of this section and the categories established under section 2330(a)(1)(C) of title 10, United States Code.
“(3) The composition of positions necessary to operate such process.
“(4) The training required for personnel engaged in such process.
“(5) The relationship between doctrine and such process.
“(6) Methods of obtaining input on joint requirements for the acquisition of services.
“(7) Procedures for coordinating with the acquisition process.
“(8) Considerations relating to opportunities for strategic sourcing.
“(e)
“(f)
“(g)
“(h)
Pub. L. 110–181, div. A, title VIII, §805, Jan. 28, 2008, 122 Stat. 212, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(4), Oct. 14, 2008, 122 Stat. 4613, provided that:
“(a)
“(b)
“(1)
“(2)
“(A) prices paid for the same or similar commercial items under comparable terms and conditions by both government and commercial customers; and
“(B) if the contracting officer determines that the information described in subparagraph (A) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.
“(c)
“(1)
“(A) Services procured for support of a commercial item, as described in section 4(12)(E) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(12)(E)) [now 41 U.S.C. 103(5)].
“(B) Emergency repair services.
“(C) Any other commercial services only to the extent that the head of the agency concerned approves a determination in writing by the contracting officer that—
“(i) the services to be acquired are commercial services as defined in section 4(12)(F) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(12)(F)) [now 41 U.S.C. 103(6)];
“(ii) if the services to be acquired are subject to subsection (b), the offeror of the services has submitted sufficient information in accordance with that subsection;
“(iii) such services are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and
“(iv) the use of a time-and-materials or labor-hour contract type is in the best interest of the Government.
“(2)
Pub. L. 110–181, div. A, title VIII, §808, Jan. 28, 2008, 122 Stat. 215, as amended by Pub. L. 111–383, div. A, title X, §1075(f)(3), Jan. 7, 2011, 124 Stat. 4376, provided that:
“(a)
“(1) contract performance in terms of cost, schedule, and requirements;
“(2) the use of contracting mechanisms, including the use of competition, the contract structure and type, the definition of contract requirements, cost or pricing methods, the award and negotiation of task orders, and management and oversight mechanisms;
“(3) the contractor's use, management, and oversight of subcontractors;
“(4) the staffing of contract management and oversight functions; and
“(5) the extent of any pass-throughs, and excessive pass-through charges (as defined in section 852 of the John Warner National Defense Authorization Act for Fiscal Year 2007 [Pub. L. 109–364, 10 U.S.C. 2324 note]), by the contractor.
“(b)
“(1) the extent of the agency's reliance on the contractor to perform acquisition functions closely associated with inherently governmental functions as defined in section 2383(b)(3) of title 10, United States Code; and
“(2) the financial interest of any prime contractor performing acquisition functions described in paragraph (1) in any contract or subcontract with regard to which the contractor provided advice or recommendations to the agency.
“(c)
“(1) the contracts subject to independent management reviews, including any applicable thresholds and exceptions;
“(2) the frequency with which independent management reviews shall be conducted;
“(3) the composition of teams designated to perform independent management reviews;
“(4) any phase-in requirements needed to ensure that qualified staff are available to perform independent management reviews;
“(5) procedures for tracking the implementation of recommendations made by independent management review teams; and
“(6) procedures for developing and disseminating lessons learned from independent management reviews.
“(d)
“(1)
“(2) GAO
Pub. L. 107–107, div. A, title VIII, §801(b)(2), Dec. 28, 2001, 115 Stat. 1176, directed the Secretary of Defense to establish and implement the management structure required under this section and the Under Secretary of Defense for Acquisition, Technology, and Logistics to issue guidance for officials in such management structure not later than 180 days after Dec. 28, 2001.
Pub. L. 109–163, div. A, title VIII, §812(b), (c), Jan. 6, 2006, 119 Stat. 3378, 3379, provided that:
“(b)
“(1) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall—
“(A) establish an initial set of contract services acquisition categories, based on dollar thresholds, by not later than June 1, 2006; and
“(B) issue an initial set of policies, procedures, and best practices guidelines in accordance with section 2330(a)(1)(A) by not later than October 1, 2006.
“(2) The contract services acquisition categories established by the Under Secretary shall include—
“(A) one or more categories for acquisitions with an estimated value of $250,000,000 or more;
“(B) one or more categories for acquisitions with an estimated value of at least $10,000,000 but less than $250,000,000; and
“(C) one or more categories for acquisitions with an estimated value greater than the simplified acquisition threshold but less than $10,000,000.
“(3) The senior officials responsible for the management of acquisition of contract services shall assign responsibility to specific individuals in the Department of Defense for the review and approval of procurements in the contract services acquisition categories established by the Under Secretary, as follows:
“(A) Not later than October 1, 2006, for all categories established pursuant to paragraph (2)(A).
“(B) Not later than October 1, 2007, for all categories established pursuant to paragraph (2)(B).
“(C) Not later than October 1, 2009, for all categories established pursuant to paragraph (2)(C).
“(c)
Pub. L. 107–107, div. A, title VIII, §801(d)–(f), Dec. 28, 2001, 115 Stat. 1177, provided that:
“(d)
“(2) The program review structure for the procurement of services shall, at a minimum, include the following:
“(A) Standards for determining which procurements should be subject to review by either the senior procurement executive of a military department or the senior procurement executive of the Department of Defense under such section, including criteria based on dollar thresholds, program criticality, or other appropriate measures.
“(B) Appropriate key decision points at which those reviews should take place.
“(C) A description of the specific matters that should be reviewed.
“(e)
“(f)
“(1) The term ‘senior procurement executive’ means the official designated as the senior procurement executive under section 16(3) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 414(3)) [see 41 U.S.C. 1702(c)].
“(2) The term ‘performance-based’, with respect to a contract or a task order means that the contract or task order, respectively, includes the use of performance work statements that set forth contract requirements in clear, specific, and objective terms with measurable outcomes.”
Pub. L. 107–107, div. A, title VIII, §802, Dec. 28, 2001, 115 Stat. 1178, as amended by Pub. L. 107–314, div. A, title VIII, §805, Dec. 2, 2002, 116 Stat. 2605, provided that:
“(a)
“(A) performance-based services contracting;
“(B) appropriate competition for task orders under services contracts;
“(C) program review, spending analyses, and improved management of services contracts.
“(2) In furtherance of such objective, the Department of Defense shall have the following goals:
“(A) To increase, as a percentage of all of the individual purchases of services made by or for the Department of Defense under multiple award contracts for a fiscal year (calculated on the basis of dollar value), the volume of the individual purchases of services that are made on a competitive basis and involve receipt of more than one offer from qualified contractors to a percentage as follows:
“(i) For fiscal year 2003, a percentage not less than 40 percent.
“(ii) For fiscal year 2004, a percentage not less than 50 percent.
“(iii) For fiscal year 2011, a percentage not less than 75 percent.
“(B) To increase, as a percentage of all of the individual purchases of services made by or for the Department of Defense under multiple award contracts for a fiscal year (calculated on the basis of dollar value), the use of performance-based purchasing specifying firm fixed prices for the specific tasks to be performed to a percentage as follows:
“(i) For fiscal year 2003, a percentage not less than 25 percent.
“(ii) For fiscal year 2004, a percentage not less than 35 percent.
“(iii) For fiscal year 2005, a percentage not less than 50 percent.
“(iv) For fiscal year 2011, a percentage not less than 70 percent.
“(3) The Secretary of Defense may adjust any percentage goal established in paragraph (2) if the Secretary determines in writing that such a goal is too high and cannot reasonably be achieved. In the event that the Secretary chooses to adjust such a goal, the Secretary shall—
“(A) establish a percentage goal that the Secretary determines would create an appropriate incentive for Department of Defense components to use competitive procedures or performance-based services contracting, as the case may be; and
“(B) submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report containing an explanation of the reasons for the Secretary's determination and a statement of the new goal that the Secretary has established.
“(b)
“(1) A summary of the steps taken or planned to be taken in the fiscal year of the report to improve the management of procurements of services.
“(2) A summary of the steps planned to be taken in the following fiscal year to improve the management of procurements of services.
“(3) An estimate of the amount that will be expended by the Department of Defense for procurements of services in the fiscal year of the report.
“(4) An estimate of the amount that will be expended by the Department of Defense for procurements of services in the following fiscal year.
“(5) Regarding the individual purchases of services that were made by or for the Department of Defense under multiple award contracts in the fiscal year preceding the fiscal year in which the report is required to be submitted, information (determined using the data collection system established under section 2330a of title 10, United States Code) as follows:
“(A) The percentage (calculated on the basis of dollar value) of such purchases that are purchases that were made on a competitive basis and involved receipt of more than one offer from qualified contractors.
“(B) The percentage (calculated on the basis of dollar value) of such purchases that are performance-based purchases specifying firm fixed prices for the specific tasks to be performed.
“(c)
“(2) For the purposes of this section, an individual purchase of services is made on a competitive basis only if it is made pursuant to procedures described in paragraphs (2), (3), and (4) of section 803(b) of this Act [10 U.S.C. 2304 note].”
(a)
(b)
(1) The services purchased.
(2) The total dollar amount of the purchase.
(3) The form of contracting action used to make the purchase.
(4) Whether the purchase was made through—
(A) a performance-based contract, performance-based task order, or other performance-based arrangement that contains firm fixed prices for the specific tasks to be performed;
(B) any other performance-based contract, performance-based task order, or performance-based arrangement; or
(C) any contract, task order, or other arrangement that is not performance based.
(5) In the case of a purchase made through an agency other than the Department of Defense, the agency through which the purchase is made.
(6) The extent of competition provided in making the purchase and whether there was more than one offer.
(7) Whether the purchase was made from—
(A) a small business concern;
(B) a small business concern owned and controlled by socially and economically disadvantaged individuals; or
(C) a small business concern owned and controlled by women.
(c)
(A) The Under Secretary of Defense for Personnel and Readiness, as supported by the Under Secretary of Defense (Comptroller), shall be responsible for developing guidance for—
(i) the collection of data regarding functions and missions performed by contractors in a manner that is comparable to the manpower data elements used in inventories of functions performed by Department of Defense employees; and
(ii) the calculation of contractor manpower equivalents in a manner that is comparable to the calculation of full-time equivalents for use in inventories of functions performed by Department of Defense employees.
(B) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall be responsible for developing guidance on other data elements and implementing procedures.
(2) The entry for an activity on an inventory under this subsection shall include, for the fiscal year covered by such entry, the following:
(A) The functions and missions performed by the contractor.
(B) The contracting organization, the component of the Department of Defense administering the contract, and the organization whose requirements are being met through contractor performance of the function.
(C) The funding source for the contract under which the function is performed by appropriation and operating agency.
(D) The fiscal year for which the activity first appeared on an inventory under this section.
(E) The number of contractor employees, expressed as full-time equivalents for direct labor, using direct labor hours and associated cost data collected from contractors (except that estimates may be used where such data is not available and cannot reasonably be made available in a timely manner for the purpose of the inventory).
(F) A determination whether the contract pursuant to which the activity is performed is a personal services contract.
(G) A summary of the data required to be collected for the activity under subsection (a).
(3) The inventory required under this subsection shall be submitted in unclassified form, but may include a classified annex.
(d)
(1) make the inventory available to the public; and
(2) publish in the Federal Register a notice that the inventory is available to the public.
(e)
(1) review the contracts and activities in the inventory for which such Secretary or agency head is responsible;
(2) ensure that—
(A) each contract on the list that is a personal services contract has been entered into, and is being performed, in accordance with applicable statutory and regulatory requirements;
(B) the activities on the list do not include any inherently governmental functions; and
(C) to the maximum extent practicable, the activities on the list do not include any functions closely associated with inherently governmental functions;
(3) identify activities that should be considered for conversion—
(A) to performance by civilian employees of the Department of Defense pursuant to section 2463 of this title; or
(B) to an acquisition approach that would be more advantageous to the Department of Defense; and
(4) develop a plan, including an enforcement mechanism and approval process, to provide for appropriate consideration of the conversion of activities identified under paragraph (3) within a reasonable period of time.
(f)
(g)
(1) The term “performance-based”, with respect to a contract, task order, or arrangement, means that the contract, task order, or arrangement, respectively, includes the use of performance work statements that set forth contract requirements in clear, specific, and objective terms with measurable outcomes.
(2) The definitions set forth in section 2225(f) of this title for the terms “simplified acquisition threshold”, “small business concern”, “small business concern owned and controlled by socially and economically disadvantaged individuals”, and “small business concern owned and controlled by women” shall apply.
(3)
(4)
(5)
(Added Pub. L. 107–107, div. A, title VIII, §801(c), Dec. 28, 2001, 115 Stat. 1176; amended Pub. L. 110–181, div. A, title VIII, §807(a), Jan. 28, 2008, 122 Stat. 213; Pub. L. 111–84, div. A, title VIII, §803(b), Oct. 28, 2009, 123 Stat. 2402; Pub. L. 111–383, div. A, title III, §321, Jan. 7, 2011, 124 Stat. 4183.)
2011—Subsec. (c). Pub. L. 111–383, §321(2) to (4), substituted “The guidance for compiling the inventory shall be issued by the Under Secretary of Defense for Personnel and Readiness, the Under Secretary of Defense (Comptroller), and the Under Secretary of Defense for Acquisition, Technology, and Logistics, as follows:” for “The entry for an activity on an inventory under this subsection shall include, for the fiscal year covered by such entry, the following:” in par. (1), added new subpars. (A) and (B) to par. (1), inserted par. (2) designation and introductory provisions before former subpars. (A) to (G) of par. (1) thereby making them part of par. (2), added subpar. (E), and struck out former subpar. (E) which read as follows: “The number of full-time contractor employees (or its equivalent) paid for the performance of the activity.”
Subsec. (c)(2), (3). Pub. L. 111–383, §321(1), redesignated par. (2) as (3).
2009—Subsec. (e)(4). Pub. L. 111–84 inserted “, including an enforcement mechanism and approval process,” after “plan”.
2008—Subsecs. (c) to (g). Pub. L. 110–181, §807(a)(1), (2), added subsecs. (c) to (f), redesignated former subsec. (d) as (g), and struck out heading and text of former subsec. (c). Former text read as follows: “To the maximum extent practicable, a single data collection system shall be used to collect data under this section and information under section 2225 of this title.”
Subsec. (g)(3) to (5). Pub. L. 110–181, §807(a)(3), added pars. (3) to (5).
Pub. L. 110–181, div. A, title VIII, §807(b), Jan. 28, 2008, 122 Stat. 215, provided that:
“(1) The amendments made by subsection (a) [amending this section] shall be effective upon the date of the enactment of this Act [Jan. 28, 2008].
“(2) The first inventory required by section 2330a(c) of title 10, United States Code, as added by subsection (a), shall be submitted not later than the end of the third quarter of fiscal year 2008.”
Pub. L. 110–417, [div. A], title VIII, §831, Oct. 14, 2008, 122 Stat. 4534, provided that:
“(a)
“(1) require a clear distinction between employees of the Department of Defense and employees of Department of Defense contractors;
“(2) provide appropriate safeguards with respect to when, where, and to what extent the Secretary may enter into a contract for the procurement of personal services; and
“(3) assess and take steps to mitigate the risk that, as implemented and administered, non-personal services contracts may become personal services contracts.
“(b)
(a)
(b)
(1) include standards and approval procedures to minimize the use of such contracts;
(2) establish criteria to ensure that proposals for contracts for technical and professional services are evaluated on a basis which does not encourage contractors to propose uncompensated overtime;
(3) ensure appropriate emphasis on technical and quality factors in the source selection process;
(4) require identification of any hours in excess of 40-hour weeks included in a proposal;
(5) ensure that offerors are notified that proposals which include unrealistically low labor rates or which do not otherwise demonstrate cost realism will be considered in a risk assessment and evaluated appropriately; and
(6) provide guidance to contracting officers to ensure that any use of uncompensated overtime will not degrade the level of technical expertise required to perform the contract.
(Added Pub. L. 101–510, div. A, title VIII, §834(a)(1), Nov. 5, 1990, 104 Stat. 1613; amended Pub. L. 102–25, title VII, §701(a), Apr. 6, 1991, 105 Stat. 113; Pub. L. 103–355, title I, §1004(c), Oct. 13, 1994, 108 Stat. 3253; Pub. L. 107–107, div. A, title VIII, §801(g)(1), Dec. 28, 2001, 115 Stat. 1177.)
A prior section 2331 was renumbered section 2350 of this title.
2001—Pub. L. 107–107 substituted “Procurement of services: contracts” for “Contracts” in section catchline.
1994—Subsec. (c). Pub. L. 103–355 struck out text and heading of subsec. (c). Text read as follows:
“(1) The Secretary of Defense may waive the limitation in section 2304(j)(4) of this title on the total value of task orders for specific contracting activities to the extent the Secretary considers the use of master agreements necessary in order to further the policy set forth in subsection (a).
“(2) During any fiscal year, such a waiver may not increase the total value of task orders under master agreements of a contracting activity by more than 20 percent of the value of all contracts for advisory and assistance services awarded by that contracting activity during fiscal year 1989.
“(3) Such a waiver shall not become effective until 60 days after the Secretary of Defense has published notice thereof in the Federal Register.”
1991—Subsec. (c)(1). Pub. L. 102–25 struck out “on a case-by-case basis” after “value of task orders”, substituted “considers the use of master agreements necessary” for “considers necessary the use of master agreements”, and struck out “of this section” before period at end.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 834(b) of Pub. L. 101–510 provided that: “Not later than 180 days after the date of the enactment of this Act [Nov. 5, 1990], the Secretary of Defense shall publish for public comment new regulations to carry out the requirements in this section [enacting this section]. The Secretary shall promulgate final regulations to carry out such requirements not later than 270 days after the date of the enactment of this Act.”
Repeal of subsec. (c) of this section by Pub. L. 103–355 not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note under section 2304a of this title.
(a)
(2)(A) Except as provided in subparagraph (B), a share-in-savings contract shall be awarded for a period of not more than five years.
(B) A share-in-savings contract may be awarded for a period greater than five years, but not more than 10 years, if the head of the agency determines in writing prior to award of the contract that—
(i) the level of risk to be assumed and the investment to be undertaken by the contractor is likely to inhibit the government from obtaining the needed information technology competitively at a fair and reasonable price if the contract is limited in duration to a period of five years or less; and
(ii) usage of the information technology to be acquired is likely to continue for a period of time sufficient to generate reasonable benefit for the government.
(3) Contracts awarded pursuant to the authority of this section shall, to the maximum extent practicable, be performance-based contracts that identify objective outcomes and contain performance standards that will be used to measure achievement and milestones that must be met before payment is made.
(4) Contracts awarded pursuant to the authority of this section shall include a provision containing a quantifiable baseline that is to be the basis upon which a savings share ratio is established that governs the amount of payment a contractor is to receive under the contract. Before commencement of performance of such a contract, the senior procurement executive of the agency shall determine in writing that the terms of the provision are quantifiable and will likely yield value to the Government.
(5)(A) The head of the agency may retain savings realized through the use of a share-in-savings contract under this section that are in excess of the total amount of savings paid to the contractor under the contract, but may not retain any portion of such savings that is attributable to a decrease in the number of civilian employees of the Federal Government performing the function. Except as provided in subparagraph (B), savings shall be credited to the appropriation or fund against which charges were made to carry out the contract and shall be used for information technology.
(B) Amounts retained by the agency under this subsection shall—
(i) without further appropriation, remain available until expended; and
(ii) be applied first to fund any contingent liabilities associated with share-in-savings procurements that are not fully funded.
(b)
(A) appropriations available for the performance of the contract;
(B) appropriations available for acquisition of the information technology procured under the contract, and not otherwise obligated; or
(C) funds subsequently appropriated for payments of costs of cancellation or termination, subject to the limitations in paragraph (3).
(2) The amount payable in the event of cancellation or termination of a share-in-savings contract shall be negotiated with the contractor at the time the contract is entered into.
(3)(A) Subject to subparagraph (B), the head of an agency may enter into share-in-savings contracts under this section in any given fiscal year even if funds are not made specifically available for the full costs of cancellation or termination of the contract if funds are available and sufficient to make payments with respect to the first fiscal year of the contract and the following conditions are met regarding the funding of cancellation and termination liability:
(i) The amount of unfunded contingent liability for the contract does not exceed the lesser of—
(I) 25 percent of the estimated costs of a cancellation or termination; or
(II) $5,000,000.
(ii) Unfunded contingent liability in excess of $1,000,000 has been approved by the Director of the Office of Management and Budget or the Director's designee.
(B) The aggregate number of share-in-savings contracts that may be entered into under subparagraph (A) by all agencies to which this chapter applies in a fiscal year may not exceed 5 in each of fiscal years 2003, 2004, and 2005.
(c)
(1) The term “contractor” means a private entity that enters into a contract with an agency.
(2) The term “savings” means—
(A) monetary savings to an agency; or
(B) savings in time or other benefits realized by the agency, including enhanced revenues (other than enhanced revenues from the collection of fees, taxes, debts, claims, or other amounts owed the Federal Government).
(3) The term “share-in-savings contract” means a contract under which—
(A) a contractor provides solutions for—
(i) improving the agency's mission-related or administrative processes; or
(ii) accelerating the achievement of agency missions; and
(B) the head of the agency pays the contractor an amount equal to a portion of the savings derived by the agency from—
(i) any improvements in mission-related or administrative processes that result from implementation of the solution; or
(ii) acceleration of achievement of agency missions.
(d)
(Added Pub. L. 107–347, title II, §210(a)(1), Dec. 17, 2002, 116 Stat. 2932.)
Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.
(a)
(b)
(1) The assignment of a senior commissioned officer or civilian member of the senior executive service, with appropriate experience and qualifications related to the definition of requirements to be satisfied through acquisition contracts (such as for delivery of products or services, performance of work, or accomplishment of a project), to act as head of requirements definition and coordination during combat operations, post-conflict operations, and contingency operations, if required, including leading a requirements review board involving all organizations concerned.
(2) An organizational approach to requirements definition and coordination during combat operations, post-conflict operations, and contingency operations that is designed to ensure that requirements are defined in a way that effectively implements United States Government and Department of Defense objectives, policies, and decisions regarding the allocation of resources, coordination of interagency efforts in the theater of operations, and alignment of requirements with the proper use of funds.
(c)
(1) The assignment of a senior commissioned officer or civilian member of the senior executive service, with appropriate program management experience and qualifications, to act as head of program management during combat operations, post-conflict operations, and contingency operations, including stabilization and reconstruction operations involving multiple United States Government agencies and international organizations, if required.
(2) A preplanned organizational approach to program management during combat operations, post-conflict operations, and contingency operations that is designed to ensure that the Department of Defense is prepared to conduct such program management.
(3) Identification of a deployable cadre of experts, with the appropriate tools and authority, and trained in processes under paragraph (6).
(4) Utilization of the hiring and appointment authorities necessary for the rapid deployment of personnel to ensure the availability of key personnel for sufficient lengths of time to provide for continuing program and project management.
(5) A requirement to provide training (including training under a program to be created by the Defense Acquisition University) to program management personnel in—
(A) the use of laws, regulations, policies, and directives related to program management in combat or contingency environments;
(B) the integration of cost, schedule, and performance objectives into practical acquisition strategies aligned with available resources and subject to effective oversight; and
(C) procedures of the Department of Defense related to funding mechanisms and contingency contract management.
(6) Appropriate steps to ensure that training is maintained for such personnel even when they are not deployed in a contingency operation.
(7) Such steps as may be needed to ensure jointness and cross-service coordination in the area of program management during contingency operations.
(d)
(A) The designation of a senior commissioned officer or civilian member of the senior executive service 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) A sourcing approach to contingency contracting that is designed to ensure that each military department is prepared to conduct contingency contracting during combat operations, post-conflict operations, and contingency operations, including stabilization and reconstruction operations involving interagency organizations, if required.
(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 this title, 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.
(F) Such steps as may be needed to ensure jointness and cross-service coordination in the area of contingency contracting.
(2) To the extent practicable, the joint policy for contingency contracting required by subsection (a) should be taken into account in the development of interagency plans for stabilization and reconstruction operations, consistent with the report submitted by the President under section 1035 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2388) on interagency operating procedures for the planning and conduct of stabilization and reconstruction operations.
(e)
(2) Training under paragraph (1) shall be sufficient to ensure that the military personnel referred to in that paragraph understand the scope and scale of contractor support they will experience in contingency operations and are prepared for their roles and responsibilities with regard to requirements definition, program management (including contractor oversight), and contingency contracting.
(3) The joint policy shall also provide for the incorporation of contractors and contract operations in mission readiness exercises for operations that will include contracting and contractor support.
(f)
(1)
(2)
(3)
(4)
(5)
(6)
(Added Pub. L. 109–364, div. A, title VIII, §854(a)(1), Oct. 17, 2006, 120 Stat. 2343; amended Pub. L. 110–181, div. A, title VIII, §849(a), Jan. 28, 2008, 122 Stat. 245; Pub. L. 111–84, div. A, title X, §1073(a)(23), Oct. 28, 2009, 123 Stat. 2473.)
Section 1035 of the John Warner National Defense Authorization Act for Fiscal Year 2007, referred to in subsec. (d)(2), is section 1035 of Pub. L. 109–364, div. A, title X, Oct. 17, 2006, 120 Stat. 2388, which is not classified to the Code.
2009—Subsec. (d)(1)(D)(ii). Pub. L. 111–84, §1073(a)(23)(A), substituted “indefinite delivery-indefinite quantity” for “indefinite delivery indefinite quantity”.
Subsec. (d)(2). Pub. L. 111–84, §1073(a)(23)(B), substituted “the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2388)” for “this Act”.
Subsec. (f)(3). Pub. L. 111–84, §1073(a)(23)(C), substituted “section 101(a)(13)” for “section 101(13)”.
2008—Subsecs. (e), (f). Pub. L. 110–181 added subsec. (e) and redesignated former subsec. (e) as (f).
Pub. L. 109–364, div. A, title VIII, §854(b), Oct. 17, 2006, 120 Stat. 2346, provided that: “The Secretary of Defense shall develop the joint policies required under section 2333 of title 10, United States Code, as added by subsection (a), not later than 18 months after the date of enactment of this Act [Oct. 17, 2006].”
(a)
(1) prescribe, by authority of the Secretary of Defense, policies and procedures for the conduct of cost estimation and cost analysis for the acquisition programs of the Department of Defense;
(2) provide guidance to and consult with the Secretary of Defense, the Under Secretary of Defense for Acquisition, Technology, and Logistics, the Under Secretary of Defense (Comptroller), the Secretaries of the military departments, and the heads of the Defense Agencies with respect to cost estimation in the Department of Defense in general and with respect to specific cost estimates and cost analyses to be conducted in connection with a major defense acquisition program under chapter 144 of this title or a major automated information system program under chapter 144A of this title;
(3) issue guidance relating to the proper selection of confidence levels in cost estimates generally, and specifically, for the proper selection of confidence levels in cost estimates for major defense acquisition programs and major automated information system programs;
(4) issue guidance relating to full consideration of life-cycle management and sustainability costs in major defense acquisition programs and major automated information system programs;
(5) review all cost estimates and cost analyses conducted in connection with major defense acquisition programs and major automated information system programs;
(6) conduct independent cost estimates and cost analyses for major defense acquisition programs and major automated information system programs for which the Under Secretary of Defense for Acquisition, Technology, and Logistics is the Milestone Decision Authority—
(A) in advance of—
(i) any certification under section 2366a or 2366b of this title;
(ii) any decision to enter into low-rate initial production or full-rate production;
(iii) any certification under section 2433a of this title; and
(iv) any report under section 2445c(f) of this title; and
(B) at any other time considered appropriate by the Director or upon the request of the Under Secretary of Defense for Acquisition, Technology, and Logistics; and
(7) periodically assess and update the cost indexes used by the Department to ensure that such indexes have a sound basis and meet the Department's needs for realistic cost estimation.
(b)
(1) promptly receives the results of all cost estimates and cost analyses conducted by the military departments and Defense Agencies, and all studies conducted by the military departments and Defense Agencies in connection with such cost estimates and cost analyses, for major defense acquisition programs and major automated information system programs of the military departments and Defense Agencies; and
(2) has timely access to any records and data in the Department of Defense (including the records and data of each military department and Defense Agency and including classified and proprietary information) that the Director considers necessary to review in order to carry out any duties under this section.
(c)
(1) participate in the discussion of any discrepancies between an independent cost estimate and the cost estimate of a military department or Defense Agency for a major defense acquisition program or major automated information system program of the Department of Defense;
(2) comment on deficiencies in the methodology or execution of any cost estimate or cost analysis developed by a military department or Defense Agency for a major defense acquisition program or major automated information system program;
(3) concur in the choice of a cost estimate within the baseline description or any other cost estimate (including the confidence level for any such cost estimate) for use at any event specified in subsection (a)(6); and
(4) participate in the consideration of any decision to request authorization of a multiyear procurement contract for a major defense acquisition program.
(d)
(1) disclose in accordance with paragraph (3) the confidence level used in establishing a cost estimate for a major defense acquisition program or major automated information system program and the rationale for selecting such confidence level;
(2) ensure that such confidence level provides a high degree of confidence that the program can be completed without the need for significant adjustment to program budgets; and
(3) include the disclosure required by paragraph (1)—
(A) in any decision documentation approving a cost estimate within the baseline description or any other cost estimate for use at any event specified in subsection (a)(6); and
(B) in the next Selected Acquisition Report pursuant to section 2432 of this title in the case of a major defense acquisition program, or the next quarterly report pursuant to section 2445c of this title in the case of a major automated information system program.
(e)
(A) cost estimates developed for baseline descriptions and other program purposes conducted pursuant to subsection (a)(6) are not to be used for the purpose of contract negotiations or the obligation of funds; and
(B) cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are based on the Government's reasonable expectation of successful contractor performance in accordance with the contractor's proposal and previous experience.
(2) The Program Manager and contracting officer for each major defense acquisition program and major automated information system program shall ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are carried out in accordance with the requirements of paragraph (1) and the policies, procedures, and guidance issued by the Director of Cost Assessment and Program Evaluation.
(3) Funds that are made available for a major defense acquisition program or major automated information system program in accordance with a cost estimate conducted pursuant to subsection (a)(6), but are excess to a cost analysis or target developed pursuant to paragraph (2), shall remain available for obligation in accordance with the terms of applicable authorization and appropriations Acts.
(4) Funds described in paragraph (3)—
(A) may be used—
(i) to cover any increased program costs identified by a revised cost analysis or target developed pursuant to paragraph (2);
(ii) to acquire additional end items in accordance with the requirements of section 2308 of this title; or
(iii) to cover the cost of risk reduction and process improvements; and
(B) may be reprogrammed, in accordance with established procedures, only if determined to be excess to program needs on the basis of a cost estimate developed with the concurrence of the Director of Cost Assessment and Program Evaluation.
(f)
(A) the extent to which each of the military departments and Defense Agencies have complied with policies, procedures, and guidance issued by the Director with regard to the preparation of cost estimates for major defense acquisition programs and major automated information systems;
(B) the overall quality of cost estimates prepared by each of the military departments and Defense Agencies for major defense acquisition programs and major automated information system programs; and
(C) any consistent differences in methodology or approach among the cost estimates prepared by the military departments, the Defense Agencies, and the Director.
(2) Each report under this subsection shall be submitted concurrently to the Secretary of Defense, the Under Secretary of Defense for Acquisition, Technology, and Logistics, the Under Secretary of Defense (Comptroller), and the congressional defense committees not later than 10 days after the transmittal to Congress of the budget of the President for the next fiscal year (as submitted pursuant to section 1105 of title 31).
(3)(A) Each report submitted to the congressional defense committees under this subsection shall be submitted in unclassified form, but may include a classified annex.
(B) The Director shall ensure that a report submitted under this subsection does not include any information, such as proprietary or source selection sensitive information, that could undermine the integrity of the acquisition process.
(C) The unclassified version of each report submitted to the congressional defense committees under this subsection shall be posted on an Internet website of the Department of Defense that is available to the public.
(4) The Secretary of Defense may comment on any report of the Director to the congressional defense committees under this subsection.
(g)
(Added Pub. L. 111–23, title I, §101(b)(1), May 22, 2009, 123 Stat. 1706; amended Pub. L. 111–383, div. A, title VIII, §811, Jan. 7, 2011, 124 Stat. 4263.)
2011—Subsec. (d)(1). Pub. L. 111–383, §811(1)(A), substituted “paragraph (3)” for “paragraph (2)” and “and the rationale for selecting such confidence level;” for “, the rationale for selecting such confidence level, and, if such confidence level is less than 80 percent, the justification for selecting a confidence level of less than 80 percent; and”.
Subsec. (d)(2), (3). Pub. L. 111–383, §811(1)(B), (C), added par. (2) and redesignated former par. (2) as (3).
Subsecs. (e) to (g). Pub. L. 111–383, §811(2), (3), added subsec. (e) and redesignated former subsecs. (e) and (f) as (f) and (g), respectively.
1990—Pub. L. 101–510, div. A, title XIV, §1484(i)(7), Nov. 5, 1990, 104 Stat. 1718, inserted “Sec.” above “2341”.
1989—Pub. L. 101–189, div. A, title IX, §931(a)(1), Nov. 29, 1989, 103 Stat. 1531, substituted “COOPERATIVE AGREEMENTS WITH NATO ALLIES AND OTHER COUNTRIES” for “ACQUISITION AND CROSS-SERVICING AGREEMENTS WITH NATO ALLIES AND OTHER COUNTRIES” in chapter heading, and added subchapter analysis, consisting of subchapters I and II.
1987—Pub. L. 100–26, §7(a)(8), Apr. 21, 1987, 101 Stat. 278, substituted “ACQUISITION AND CROSS-SERVICING AGREEMENTS WITH NATO ALLIES AND OTHER COUNTRIES” for “NORTH ATLANTIC TREATY ORGANIZATION ACQUISITION AND CROSS-SERVICING AGREEMENTS” in chapter heading.
Chapter 138 was originally comprised of sections 2321 to 2331. Sections 2321 to 2328, 2330, and 2331, were renumbered sections 2341 to 2348, 2349, and 2350, respectively, of this title, by Pub. L. 99–145, title XIII, §1304(a)(1), (3), Nov. 8, 1985, 99 Stat. 741.
Section 2329, added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1018, required the Secretary of Defense to prescribe regulations to implement this chapter, prior to repeal by Pub. L. 99–145, title XIII, §1304(a)(2), Nov. 8, 1985, 99 Stat. 741.
1994—Pub. L. 103–337, div. A, title XIII, §1317(c)(2)(B), (i)(2), Oct. 5, 1994, 108 Stat. 2900, 2902, substituted “Waiver of applicability of certain laws” for “Law applicable to acquisition and cross-servicing agreements” in item 2343 and added item 2349a.
1993—Pub. L. 103–160, div. A, title XIV, §1431(a)(2), Nov. 30, 1993, 107 Stat. 1833, added item 2349.
1990—Pub. L. 101–510, div. A, title XIII, §1331(3), Nov. 5, 1990, 104 Stat. 1673, struck out item 2349 “Annual reports”.
1989—Pub. L. 101–189, div. A, title IX, §931(a)(1), Nov. 29, 1989, 103 Stat. 1531, added subchapter heading.
1986—Pub. L. 99–661, div. A, title XI, §1104(g), Nov. 14, 1986, 100 Stat. 3965, substituted “elements of the armed forces deployed outside the United States” for “United States armed forces in Europe” in item 2341.
1985—Pub. L. 99–145, title XIII, §1304(a)(6), Nov. 8, 1985, 99 Stat. 742, renumbered items 2321 to 2328 as 2341 to 2348, respectively, and items 2330 and 2331 as 2349 and 2350, respectively, and struck out item 2329 “Regulations”.
Subject to section 2343 of this title and subject to the availability of appropriations, the Secretary of Defense may—
(1) acquire from the Governments of North Atlantic Treaty Organization countries, from North Atlantic Treaty Organization subsidiary bodies, and from the United Nations Organization or any regional international organization logistic support, supplies, and services for elements of the armed forces deployed outside the United States; and
(2) acquire from any government not a member of the North Atlantic Treaty Organization logistic support, supplies, and services for elements of the armed forces deployed (or to be deployed) outside the United States if that country—
(A) has a defense alliance with the United States;
(B) permits the stationing of members of the armed forces in such country or the homeporting of naval vessels of the United States in such country;
(C) has agreed to preposition materiel of the United States in such country; or
(D) serves as the host country to military exercises which include elements of the armed forces or permits other military operations by the armed forces in such country.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1016, §2321; renumbered §2341 and amended Pub. L. 99–145, title XIII, §1304(a)(1), (4), Nov. 8, 1985, 99 Stat. 741; Pub. L. 99–661, div. A, title XI, §1104(a), Nov. 14, 1986, 100 Stat. 3963; Pub. L. 102–484, div. A, title XIII, §1312(a), Oct. 23, 1992, 106 Stat. 2547; Pub. L. 103–337, div. A, title XIII, §1317(a), Oct. 5, 1994, 108 Stat. 2899; Pub. L. 109–163, div. A, title XII, §1204, Jan. 6, 2006, 119 Stat. 3456.)
2006—Par. (1). Pub. L. 109–163 struck out “of which the United States is a member” before “logistic support”.
1994—Par. (1). Pub. L. 103–337 substituted a comma for “and” after “countries” and inserted “, and from the United Nations Organization or any regional international organization of which the United States is a member” after “subsidiary bodies”.
1992—Par. (1). Pub. L. 102–484, §1312(a)(1), substituted “outside the United States” for “in Europe and adjacent waters”.
Par. (2). Pub. L. 102–484, §1312(a)(2), in introductory provisions, struck out “in which elements of the armed forces are deployed (or are to be deployed)” after “North Atlantic Treaty Organization” and substituted “outside the United States” for “in such country or in the military region in which such country is located”.
1986—Pub. L. 99–661 substituted “elements of the armed forces deployed outside the United States” for “United States armed forces in Europe” in section catchline.
Pub. L. 99–661 amended section generally, restating existing provisions into introductory text and par. (1) and adding par. (2).
1985—Pub. L. 99–145 renumbered section 2321 of this title as this section and substituted “section 2343” for “section 2323”.
Section 1317(j) of Pub. L. 103–337 provided that: “The amendments made by this section [enacting section 2349a of this title and amending this section and sections 2342 to 2347 and 2350 of this title] shall apply with regard to any acquisition or transfer of logistic support, supplies, and services under the authority of subchapter I of chapter 138 of title 10, United States Code, that is initiated after the date of the enactment of this Act [Oct. 5, 1994].”
Section 1312(c) of Pub. L. 102–484 provided that: “The amendments made by this section [amending this section and section 2347 of this title] shall take effect on the date of enactment of this Act [Oct. 23, 1992] and shall apply to acquisitions of logistics support, supplies, and services under chapter 138 of title 10, United States Code, that are initiated on or after the date of enactment of this Act.”
Section 1 of Pub. L. 96–323 provided: “That this Act [enacting this chapter] may be cited as the ‘North Atlantic Treaty Organization Mutual Support Act of 1979’.”
Pub. L. 101–165, title IX, §9008, Nov. 21, 1989, 103 Stat. 1130, which authorized agencies of Department of Defense to accept use of real property from foreign countries for United States in accordance with mutual defense agreements or occupational arrangements and to accept services furnished by foreign countries as reciprocal international courtesies or as services customarily made available without charge and to use same for support of United States forces in such areas without specific appropriation therefor, was repealed and restated in section 2350g of this title by Pub. L. 101–510, div. A, title XIV, §1451(b)(1), (c), Nov. 5, 1990, 104 Stat. 1692, 1693.
Pub. L. 101–510, div. A, title XIV, §1465, Nov. 5, 1990, 104 Stat. 1700, as amended by Pub. L. 102–190, div. A, title X, §1085, Dec. 5, 1991, 105 Stat. 1483; Pub. L. 102–484, div. A, title XIII, §1353, Oct. 23, 1992, 106 Stat. 2559, which related to eligibility of a firm of any member nation of North Atlantic Treaty Organization (NATO) or of any major non-NATO ally to bid on any contract for maintenance, repair, or overhaul of equipment of the Department of Defense to be awarded under competitive procedures as part of the Overseas Workload Program, was repealed and restated in section 2349 of this title by Pub. L. 103–160, div. A, title XIV, §1431(a)(1), (b)(1), Nov. 30, 1993, 107 Stat. 1832, 1833. Similar provisions were contained in the following authorization or appropriation acts:
Pub. L. 102–396, title IX, §9130, Oct. 6, 1992, 106 Stat. 1935, as amended by Pub. L. 103–160, div. A, title XIV, §1431(b)(2), Nov. 30, 1993, 107 Stat. 1833.
Pub. L. 102–172, title VIII, §8122, Nov. 26, 1991, 105 Stat. 1205.
Pub. L. 101–511, title VIII, §8003, Nov. 5, 1990, 104 Stat. 1873.
Pub. L. 100–180, div. A, title X, §1021, Dec. 4, 1987, 101 Stat. 1143.
(a)(1) Subject to section 2343 of this title and to the availability of appropriations, and after consultation with the Secretary of State, the Secretary of Defense may enter into an agreement described in paragraph (2) with any of the following:
(A) The government of a North Atlantic Treaty Organization country.
(B) A subsidiary body of the North Atlantic Treaty Organization.
(C) The United Nations Organization or any regional international organization.
(D) The government of a country not a member of the North Atlantic Treaty Organization but which is designated by the Secretary of Defense, subject to the limitations prescribed in subsection (b), as a government with which the Secretary may enter into agreements under this section.
(2) An agreement referred to in paragraph (1) is an agreement under which the United States agrees to provide logistic support, supplies, and services to military forces of a country or organization referred to in paragraph (1) in return for the reciprocal provisions of logistic support, supplies, and services by such government or organization to elements of the armed forces.
(b) The Secretary of Defense may not designate a country for an agreement under this section unless—
(1) the Secretary, after consultation with the Secretary of State, determines that the designation of such country for such purpose is in the interest of the national security of the United States; and
(2) in the case of a country which is not a member of the North Atlantic Treaty Organization, the Secretary submits to the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on Armed Services and the Committee on International Relations of the House of Representatives notice of the intended designation at least 30 days before the date on which such country is designated by the Secretary under subsection (a).
(c) The Secretary of Defense may not use the authority of this subchapter to procure from any foreign government or international organization any goods or services reasonably available from United States commercial sources.
(d) The Secretary shall prescribe regulations to ensure that contracts entered into under this subchapter are free from self-dealing, bribery, and conflict of interests.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1016, §2322; renumbered §2342 and amended Pub. L. 99–145, title XIII, §1304(a)(1), (4), Nov. 8, 1985, 99 Stat. 741; Pub. L. 99–661, div. A, title XI, §1104(a), Nov. 14, 1986, 100 Stat. 3963; Pub. L. 100–180, div. A, title XII, §1231(9), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 101–189, div. A, title IX, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; Pub. L. 101–510, div. A, title XIV, §1451(a), Nov. 5, 1990, 104 Stat. 1692; Pub. L. 103–337, div. A, title XIII, §1317(b), Oct. 5, 1994, 108 Stat. 2900; Pub. L. 104–106, div. A, title XV, §1502(a)(16), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 109–163, div. A, title XII, §1204, Jan. 6, 2006, 119 Stat. 3456.)
2006—Subsec. (a)(1)(C). Pub. L. 109–163 struck out “of which the United States is a member” before period at end.
1999—Subsec. (b)(2). 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 inserted “unless” after “section” in introductory provisions, struck out “unless” after “(1)” in par. (1), and substituted “the Secretary submits to the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on National Security and the Committee on International Relations of the House of Representatives notice of the intended designation” for “notifies the Committees on Armed Services and Foreign Relations of the Senate and the Committees on Armed Services and Foreign Affairs of the House of Representatives” in par. (2).
1994—Subsec. (a)(1). Pub. L. 103–337, §1317(b)(1), substituted “with any of the following:” for “with—” in introductory provisions, substituted “The government” for “the government” and a period for the semicolon in subpar. (A), substituted “A subsidiary” for “a subsidiary” and “Organization.” for “Organization; or” in subpar. (B), added subpar. (C), redesignated former subpar. (C) as (D) and substituted “The government” for “the government”.
Subsec. (a)(2). Pub. L. 103–337, §1317(b)(2), substituted “organization” for “subsidiary body” in two places.
Subsec. (c). Pub. L. 103–337, §1317(b)(3), substituted “or international organization” for “as a routine or normal source”.
1990—Subsec. (a). Pub. L. 101–510 amended subsec. (a) generally, revising and restating former pars. (1) to (3) relating to reciprocal logistical support agreements as pars. (1) and (2).
1989—Subsecs. (c), (d). Pub. L. 101–189 substituted “this subchapter” for “this chapter”.
1987—Pub. L. 100–180 substituted “Cross-servicing” for “Cross servicing” in section catchline.
1986—Pub. L. 99–661 amended section generally, restating existing provisions in introductory text and par. (1) of subsec. (a), adding pars. (2) and (3) of subsec. (a), and adding subsecs. (b) to (d).
1985—Pub. L. 99–145 renumbered section 2322 of this title as this section and substituted “section 2343” for “section 2323”.
Committee on International Relations of House of Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, supplies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title.
Sections 2207, 2304(a), 2306(a), 2306(b), 2306(e), 2306a, and 2313 of this title and section 6306 of title 41 shall not apply to acquisitions made under the authority of section 2341 of this title or to agreements entered into under section 2342 of this title.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1017, §2323; renumbered §2343 and amended Pub. L. 99–145, title IX, §961(b), title XIII, §1304(a)(1), (5), Nov. 8, 1985, 99 Stat. 703, 741; Pub. L. 100–26, §7(g)(2), Apr. 21, 1987, 101 Stat. 282; Pub. L. 100–456, div. A, title XII, §1233(d), Sept. 29, 1988, 102 Stat. 2057; Pub. L. 101–189, div. A, title IX, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; Pub. L. 102–190, div. A, title X, §1061(a)(12), Dec. 5, 1991, 105 Stat. 1473; Pub. L. 103–337, div. A, title XIII, §1317(c)(1), (2)(A), Oct. 5, 1994, 108 Stat. 2900; Pub. L. 111–350, §5(b)(20), Jan. 4, 2011, 124 Stat. 3844.)
2011—Pub. L. 111–350 substituted “section 6306 of title 41” for “section 3741 of the Revised Statutes (41 U.S.C. 22)”.
1994—Pub. L. 103–337, §1317(c)(2)(A), substituted “Waiver of applicability of certain laws” for “Law applicable to acquisition and cross-servicing agreements” as section catchline.
Pub. L. 103–337, §1317(c)(1), designated subsec. (b) as entire section and struck out former subsec. (a) which read as follows: “Except as provided in subsection (b), acquisition of logistic support, supplies, and services under section 2341 of this title and agreements entered into under section 2342 of this title shall be made in accordance with chapter 137 of this title and the provisions of this subchapter.”
1991—Subsec. (b). Pub. L. 102–190 substituted “this title and” for “this title,” and struck out “, and section 719 of the Defense Production Act of 1950 (50 U.S.C. App. 2168)” before “shall not apply”.
1989—Subsec. (a). Pub. L. 101–189 substituted “this subchapter” for “this chapter”.
1988—Subsec. (b). Pub. L. 100–456 struck out “section” before “2306a”.
1987—Subsec. (b). Pub. L. 100–26 substituted “section 2306a,” for “2306(f),”.
1985—Pub. L. 99–145, §1304(a)(1), renumbered section 2323 of this title as this section.
Subsec. (a). Pub. L. 99–145, §1304(a)(5), substituted “section 2341” for “section 2321” and “section 2342” for “section 2322”.
Subsec. (b). Pub. L. 99–145, §1304(a)(5), substituted “section 2341” for “section 2321” and “section 2342” for “section 2322”.
Pub. L. 99–145, §961(b), substituted “section 2304(a)” for “section 2304(g)”.
Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, supplies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title.
Amendment by section 961(b) of Pub. L. 99–145 effective as if included in enactment of Competition in Contracting Act of 1984, Pub. L. 98–369, div. B, title VII, making amendment applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 961(e) of Pub. L. 99–145, set out as a note under section 2304 of this title.
(a) Logistics support, supplies, and services may be acquired or transferred by the United States under the authority of this subchapter on a reimbursement basis or by replacement-in-kind or exchange of supplies or services of an equal value.
(b)(1) In entering into agreements with the Government of another North Atlantic Treaty Organization country or other foreign country for the acquisition or transfer of logistic support, supplies, and services on a reimbursement basis, the Secretary of Defense shall negotiate for adoption of the following pricing principles for reciprocal application:
(A) The price charged by a supplying country for logistics support, supplies, and services specifically procured by the supplying country from its contractors for a recipient country shall be no less favorable than the price for identical items or services charged by such contractors to the armed forces of the supplying country, taking into account price differentials due to delivery schedules, points of delivery, and other similar considerations.
(B) The price charged a recipient country for supplies furnished by a supplying country from its inventory, and the price charged a recipient country for logistics support and services furnished by the officers, employees, or governmental agencies of a supplying country, shall be the same as the price charged for identical supplies, support, or services acquired by an armed force of the supplying country from such governmental sources.
(2) To the extent that the Secretary of Defense is unable to obtain mutual acceptance by the other country involved of the reciprocal pricing principles for reimbursable transactions set forth in paragraph (1)—
(A) the United States may not acquire from such country any logistic support, supply, or service not governed by such reciprocal pricing principles unless the United States forces commander acquiring such support, supply, or service determines (after price analysis) that the price thereof is fair and reasonable; and
(B) transfers by the United States to such country under this subchapter of any logistic support, supply, or service that is not governed by such reciprocal pricing principles shall be subject to the pricing provisions of the Arms Export Control Act (22 U.S.C. 2751 et seq.).
(3) To the extent that indirect costs (including charges for plant and production equipment), administrative surcharges, and contract administration costs with respect to any North Atlantic Treaty Organization country or other foreign country are not waived by operation of the reciprocal pricing principles of paragraph (1), the Secretary of Defense may, on a reciprocal basis, agree to waive such costs.
(4) The pricing principles set forth in paragraph (2) and the waiver authority provided in paragraph (3) shall also apply to agreements with North Atlantic Treaty Organization subsidiary bodies and the United Nations Organization or any regional international organization under this subchapter.
(c) In acquiring or transferring logistics support, supplies, or services under the authority of this subchapter by exchange of supplies or services, the Secretary of Defense may not agree to or carry out the following:
(1) Transfers in exchange for property the acquisition of which by the Department of Defense is prohibited by law.
(2) Transfers of source, byproduct, or special nuclear materials or any other material, article, data, or thing of value the transfer of which is subject to the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).
(3) Transfers of chemical munitions.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1017, §2324; amended Pub. L. 97–22, §11(a)(8), July 10, 1981, 95 Stat. 138; renumbered §2344, Pub. L. 99–145, title XIII, §1304(a)(1), Nov. 8, 1985, 99 Stat. 741; Pub. L. 99–661, div. A, title XI, §1104(b), Nov. 14, 1986, 100 Stat. 3964; Pub. L. 101–189, div. A, title IX, §§931(e)(1), 938(a), (b), Nov. 29, 1989, 103 Stat. 1535, 1539; Pub. L. 102–25, title VII, §701(f)(2), Apr. 6, 1991, 105 Stat. 115; Pub. L. 103–337, div. A, title XIII, §1317(d), Oct. 5, 1994, 108 Stat. 2900; Pub. L. 109–163, div. A, title XII, §1204, Jan. 6, 2006, 119 Stat. 3456.)
The Arms Export Control Act, referred to in subsec. (b)(2)(B), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, as amended, which is classified principally to chapter 39 (§2751 et seq.) of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of Title 22 and Tables.
The Atomic Energy Act of 1954, referred to in subsec. (c)(2), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, §1, 68 Stat. 921, and amended, which is classified generally to chapter 23 (§2011 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 42 and Tables.
2006—Subsec. (b)(4). Pub. L. 109–163 struck out “of which the United States is a member” before “under this subchapter”.
1994—Subsec. (b)(4). Pub. L. 103–337 inserted “and the United Nations Organization or any regional international organization of which the United States is a member” after “subsidiary bodies”.
1991—Subsec. (c). Pub. L. 102–25 substituted “subchapter” for “chapter” in introductory provisions.
1989—Subsec. (a). Pub. L. 101–189, §§931(e)(1), 938(a), substituted “equal value” for “identical or substantially identical nature” and “this subchapter” for “this chapter”.
Subsec. (b)(2)(B), (4). Pub. L. 101–189, §931(e)(1), substituted “this subchapter” for “this chapter”.
Subsec. (c). Pub. L. 101–189, §938(b), added subsec. (c).
1986—Subsec. (b)(1), (3). Pub. L. 99–661 inserted “or other foreign country” after “country”.
1985—Pub. L. 99–145 renumbered section 2324 of this title as this section.
1981—Subsec. (b)(2)(B). Pub. L. 97–22 substituted “this chapter” for “this Act”.
Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, supplies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title.
(a) Credits and liabilities of the United States accrued as a result of acquisitions and transfers of logistic support, supplies, and services under the authority of this subchapter shall be liquidated not less often than once every 12 months by direct payment to the entity supplying such support, supplies, or services by the entity receiving such support, supplies, or services.
(b) Payment-in-kind or exchange entitlements accrued as a result of acquisitions and transfers of logistic support, supplies, and services under authority of this subchapter shall be satisfied within 12 months after the date of the delivery of the logistic support, supplies, or services.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1018, §2325; renumbered §2345, Pub. L. 99–145, title XIII, §1304(a)(1), Nov. 8, 1985, 99 Stat. 741; amended Pub. L. 99–661, div. A, title XI, §1104(c), Nov. 14, 1986, 100 Stat. 3965; Pub. L. 101–189, div. A, title IX, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; Pub. L. 103–337, div. A, title XIII, §1317(e), Oct. 5, 1994, 108 Stat. 2900.)
1994—Subsec. (a). Pub. L. 103–337 substituted “12 months” for “three months”.
1989—Subsecs. (a), (b). Pub. L. 101–189 substituted “this subchapter” for “this chapter”.
1986—Pub. L. 99–661 designated existing provisions as subsec. (a) and added subsec. (b).
1985—Pub. L. 99–145 renumbered section 2325 of this title as this section.
Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, supplies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title.
Any receipt of the United States as a result of an agreement entered into under this subchapter shall be credited, at the option of the Secretary of Defense, to (1) the appropriation, fund, or account used in incurring the obligation, or (2) an appropriate appropriation, fund, or account currently available for the purposes for which the expenditures were made.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1018, §2326; renumbered §2346, Pub. L. 99–145, title XIII, §1304(a)(1), Nov. 8, 1985, 99 Stat. 741; amended Pub. L. 101–189, div. A, title IX, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; Pub. L. 103–337, div. A, title XIII, §1317(f), Oct. 5, 1994, 108 Stat. 2900.)
1994—Pub. L. 103–337 substituted “shall be credited, at the option of the Secretary of Defense, to (1) the appropriation, fund, or account used in incurring the obligation, or (2) an appropriate appropriation, fund, or account currently available for the purposes for which the expenditures were made” for “shall be credited to applicable appropriations, accounts, and funds of the Department of Defense”.
1989—Pub. L. 101–189 substituted “this subchapter” for “this chapter”.
1985—Pub. L. 99–145 renumbered section 2326 of this title as this section.
Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, supplies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title.
(a)(1) Except during a period of active hostilities involving the armed forces, the total amount of reimbursable liabilities that the United States may accrue under this subchapter (before the computation of offsetting balances) with other member countries of the North Atlantic Treaty Organization, subsidiary bodies of the North Atlantic Treaty Organization, or from the United Nations Organization or any regional international organization of which the United States is a member may not exceed $200,000,000 in any fiscal year, and of such amount not more than $50,000,000 in liabilities may be accrued for the acquisition of supplies.
(2) Except during a period of active hostilities involving the armed forces, the total amount of reimbursable liabilities that the United States may accrue under this subchapter (before the computation of offsetting balances) with a country which is not a member of the North Atlantic Treaty Organization, but with which the United States has one or more acquisition or cross-servicing agreements, may not exceed $60,000,000 in any fiscal year, and of such amount not more than $20,000,000 in liabilities may be accrued for the acquisition of supplies. The $60,000,000 limitation specified in this paragraph is in addition to the limitation specified in paragraph (1).
(b)(1) Except during a period of active hostilities involving the armed forces, the total amount of reimbursable credits that the United States may accrue under this subchapter (before the computation of offsetting balances) with other member countries of the North Atlantic Treaty Organization, subsidiary bodies of the North Atlantic Treaty Organization, or from the United Nations Organization or any regional international organization of which the United States is a member may not exceed $150,000,000 in any fiscal year.
(2) Except during a period of active hostilities involving the armed forces, the total amount of reimbursable credits that the United States may accrue under this subchapter (before the computation of offsetting balances) with a country which is not a member of the North Atlantic Treaty Organization, but with which the United States has one or more acquisition or cross-servicing agreements may not exceed $75,000,000 in any fiscal year. Such limitation specified in this paragraph is in addition to the limitation specified in paragraph (1).
(c) When the armed forces are involved in a contingency operation or in a non-combat operation (including an operation in support of the provision of humanitarian or foreign disaster assistance or in support of peacekeeping operations under chapter VI or VII of the Charter of the United Nations), the restrictions in subsections (a) and (b) are waived for the purposes and duration of that operation.
(d) The amount of any sale, purchase, or exchange of petroleum, oils, or lubricants by the United States under this subchapter in any fiscal year shall be excluded in any computation for the purposes of subsection (a) or (b) of the amount of reimbursable liabilities or reimbursable credits that the United States accrues under this subchapter in that fiscal year.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1018, §2327; renumbered §2347, Pub. L. 99–145, title XIII, §1304(a)(1), Nov. 8, 1985, 99 Stat. 741; amended Pub. L. 99–661, div. A, title XI, §1104(d), Nov. 14, 1986, 100 Stat. 3965; Pub. L. 100–456, div. A, title X, §1001, Sept. 29, 1988, 102 Stat. 2037; Pub. L. 101–189, div. A, title IX, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; Pub. L. 102–484, div. A, title XIII, §1312(b), Oct. 23, 1992, 106 Stat. 2547; Pub. L. 103–35, title II, §202(a)(10), May 31, 1993, 107 Stat. 101; Pub. L. 103–337, div. A, title XIII, §1317(g), Oct. 5, 1994, 108 Stat. 2901; Pub. L. 109–364, div. A, title XII, §1221(a), Oct. 17, 2006, 120 Stat. 2423.)
2006—Subsec. (a)(1), (2). Pub. L. 109–364, §1221(a)(1), struck out “(other than petroleum, oils, and lubricants)” after “supplies”.
Subsec. (d). Pub. L. 109–364, §1221(a)(2), added subsec. (d).
1994—Subsec. (a)(1). Pub. L. 103–337, §1317(g)(1), substituted “Organization, subsidiary” for “Organization and subsidiary”, inserted “, or from the United Nations Organization or any regional international organization of which the United States is a member” after “Treaty Organization”, and substituted “$200,000,000” for “$150,000,000” and “$50,000,000” for “$25,000,000”.
Subsec. (a)(2). Pub. L. 103–337, §1317(g)(2), substituted “$60,000,000” for “$10,000,000” in two places and “$20,000,000” for “$2,500,000”.
Subsec. (b)(1). Pub. L. 103–337, §1317(g)(3), substituted “Organization, subsidiary” for “Organization and subsidiary”, inserted “, or from the United Nations Organization or any regional international organization of which the United States is a member” after “Treaty Organization”, and substituted “$150,000,000” for “$100,000,000”.
Subsec. (b)(2). Pub. L. 103–337, §1317(g)(4), substituted “$75,000,000” for “$10,000,000”.
Subsec. (c). Pub. L. 103–337, §1317(g)(5), added subsec. (c).
1993—Subsec. (b)(2). Pub. L. 103–35 made technical amendment to directory language of Pub. L. 102–484, §1312(b)(4)(B). See 1992 Amendment note below.
1992—Subsec. (a)(1). Pub. L. 102–484, §1312(b)(1), substituted “armed forces” for “North Atlantic Treaty Organization” and inserted “with other member countries of the North Atlantic Treaty Organization and subsidiary bodies of the North Atlantic Treaty Organization” after “(before the computation of offsetting balances)”.
Subsec. (a)(2). Pub. L. 102–484, §1312(b)(2), substituted “involving the armed forces, the total amount of reimbursable liabilities that the United States may accrue under this subchapter (before the computation of offsetting balances) with” for “in the military region affecting” and struck out “the total amount of reimbursable liabilities that the United States may accrue under this subchapter (before the computation of offsetting balances) with such country” after “cross-servicing agreements,”.
Subsec. (b)(1). Pub. L. 102–484, §1312(b)(3), substituted “armed forces” for “North Atlantic Treaty Organization” and inserted “with other member countries of the North Atlantic Treaty Organization and subsidiary bodies of the North Atlantic Treaty Organization” after “(before the computation of offsetting balances)”.
Subsec. (b)(2). Pub. L. 102–484, §1312(b)(4)(A), substituted “involving the armed forces” for “in the military region affecting a country referred to in paragraph (1)”.
Pub. L. 102–484, §1312(b)(4)(B), as amended by Pub. L. 103–35, substituted “(before the computation of offsetting balances) with a country which is not a member of the North Atlantic Treaty Organization, but with which the United States has one or more acquisition or cross-servicing agreements” for “from such country (before computation of offsetting balances)”.
1989—Pub. L. 101–189 substituted “this subchapter” for “this chapter” wherever appearing.
1988—Subsec. (a)(1). Pub. L. 100–456 substituted “$150,000,000” for “$100,000,000”.
1986—Subsec. (a). Pub. L. 99–661, §1104(d)(1), designated existing provisions as par. (1) and added par. (2).
Subsec. (b). Pub. L. 99–661, §1104(d)(2), designated existing provisions as par. (1) and added par. (2).
1985—Pub. L. 99–145 renumbered section 2327 of this title as this section.
Pub. L. 109–364, div. A, title XII, §1221(b), Oct. 17, 2006, 120 Stat. 2423, provided that: “The amendments made by subsection (a) [amending this section] shall take effect beginning with fiscal year 2007.”
Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, supplies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title.
Amendment by Pub. L. 103–35 applicable as if included in the enactment of Pub. L. 102–484, see section 202(b) of Pub. L. 103–35, set out as a note under section 155 of this title.
Amendment by Pub. L. 102–484 effective Oct. 23, 1992, and applicable to acquisitions of logistics support, supplies, and services under this chapter that are initiated on or after Oct. 23, 1992, see section 1312(c) of Pub. L. 102–484, set out as a note under section 2341 of this title.
Inventories of supplies for elements of the armed forces may not be increased for the purpose of transferring supplies under the authority of this subchapter.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1018, §2328; amended Pub. L. 97–22, §11(a)(8), July 10, 1981, 95 Stat. 138; renumbered §2348, Pub. L. 99–145, title XIII, §1304(a)(1), Nov. 8, 1985, 99 Stat. 741; Pub. L. 99–661, div. A, title XI, §1104(e), Nov. 14, 1986, 100 Stat. 3965; Pub. L. 101–189, div. A, title IX, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535.)
1989—Pub. L. 101–189 substituted “this subchapter” for “this chapter”.
1986—Pub. L. 99–661 struck out “to military forces of any North Atlantic Treaty Organization country or any North Atlantic Treaty Organization subsidiary body” after “chapter”.
1985—Pub. L. 99–145 renumbered section 2328 of this title as this section.
1981—Pub. L. 97–22 substituted “this chapter” for “this Act”.
(a)
(b)
(c)
(1) could adversely affect the military preparedness of the armed forces; or
(2) would violate the terms of an international agreement to which the United States is a party.
(d)
(Added Pub. L. 103–160, div. A, title XIV, §1431(a)(1), Nov. 30, 1993, 107 Stat. 1832; amended Pub. L. 108–375, div. A, title X, §1084(d)(18), Oct. 28, 2004, 118 Stat. 2062.)
A prior section 2349, added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1018, §2330; renumbered §2349, Pub. L. 99–145, title XIII, §1304(a)(3), Nov. 8, 1985, 99 Stat. 741; Pub. L. 101–189, div. A, title IX, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535, directed Secretary of Defense to submit a report to Congress annually relating to agreements under this chapter, prior to repeal by Pub. L. 101–510, §1301(11).
Provisions similar to those in this section were contained in Pub. L. 101–510, div. A, title XIV, §1465, Nov. 5, 1990, 104 Stat. 1700, as amended, which was set out as a note under section 2341 of this title, prior to repeal by Pub. L. 103–160, §1431(b)(1). Other prior similar provisions, formerly set out under section 2341 of this title, were contained in the following authorization or appropriation acts:
Pub. L. 102–396, title IX, §9130, Oct. 6, 1992, 106 Stat. 1935, as amended by Pub. L. 103–160, div. A, title XIV, §1431(b)(2), Nov. 30, 1993, 107 Stat. 1833.
Pub. L. 102–172, title VIII, §8122, Nov. 26, 1991, 105 Stat. 1205.
Pub. L. 101–511, title VIII, §8003, Nov. 5, 1990, 104 Stat. 1873.
Pub. L. 100–180, div. A, title X, §1021, Dec. 4, 1987, 101 Stat. 1143.
2004—Subsec. (d). Pub. L. 108–375 substituted “section 2350a(i)(2)” for “section 2350a(i)(3)”.
(a)
(b)
(1) The total dollar amounts involved.
(2) A description of any services and equipment provided or received through those actions.
(3) A description of any equipment provided through those actions that is not returned.
(4) The volume of credits and liabilities accrued and liquidated.
(c)
(Added Pub. L. 103–337, div. A, title XIII, §1317(i)(1), Oct. 5, 1994, 108 Stat. 2902.)
Section applicable with regard to any acquisition or transfer of logistic support, supplies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as an Effective Date of 1994 Amendment note under section 2341 of this title.
In this subchapter:
(1) The term “logistic support, supplies, and services” means food, billeting, transportation (including airlift), petroleum, oils, lubricants, clothing, communications services, medical services, ammunition, base operations support (and construction incident to base operations support), storage services, use of facilities, training services, spare parts and components, repair and maintenance services, calibration services, and port services. Such term includes temporary use of general purpose vehicles and other nonlethal items of military equipment which are not designated as significant military equipment on the United States Munitions List promulgated pursuant to section 38(a)(1) of the Arms Export Control Act.
(2) The term “North Atlantic Treaty Organization subsidiary bodies” means—
(A) any organization within the meaning of the term “subsidiary bodies” in article I of the multilateral treaty on the Status of the North Atlantic Treaty Organisation, National Representatives and International Staff, signed at Ottawa on September 20, 1951 (TIAS 2992; 5 UST 1087); and
(B) any international military headquarters or organization to which the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty, signed at Paris on August 28, 1952 (TIAS 2978; 5 UST 870), applies.
(3) The term “military region” means the geographical area of responsibility assigned to the commander of a unified combatant command (excluding Europe and adjacent waters).
(4) The term “transfer” means selling (whether for payment in currency, replacement-in-kind, or exchange of supplies or services of equal value), leasing, loaning, or otherwise temporarily providing logistic support, supplies, and services under the terms of a cross-servicing agreement.
(Added Pub. L. 96–323, §2(a), Aug. 4, 1980, 94 Stat. 1019, §2331; renumbered §2350, Pub. L. 99–145, title XIII, §1304(a)(3), Nov. 8, 1985, 99 Stat. 741; amended Pub. L. 99–661, div. A, title XI, §1104(f), Nov. 14, 1986, 100 Stat. 3965; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 101–189, div. A, title IX, §931(e)(1), Nov. 29, 1989, 103 Stat. 1535; Pub. L. 103–337, div. A, title XIII, §1317(h), Oct. 5, 1994, 108 Stat. 2901; Pub. L. 105–85, div. A, title XII, §1222, Nov. 18, 1997, 111 Stat. 1937.)
Section 38(a)(1) of the Arms Export Control Act, referred to in par. (1), is classified to section 2778(a)(1) of Title 22, Foreign Relations and Intercourse.
1997—Par. (1). Pub. L. 105–85, in second sentence, substituted “other nonlethal items of military equipment which are not designated as significant military equipment on the United States Munitions List promulgated” for “other items of military equipment not designated as part of the United States Munitions List”.
1994—Par. (1). Pub. L. 103–337, §1317(h)(1), inserted “(including airlift)” after “transportation”, “calibration services,” after “maintenance services,”, and “Such term includes temporary use of general purpose vehicles and other items of military equipment not designated as part of the United States Munitions List pursuant to section 38(a)(1) of the Arms Export Control Act.” at end.
Par. (4). Pub. L. 103–337, §1317(h)(2), added par. (4).
1989—Pub. L. 101–189 substituted “this subchapter” for “this chapter” in introductory provisions.
1987—Pub. L. 100–26 inserted “The term” after each par. designation and struck out uppercase letter of first word after first quotation marks in pars. (1) and (3) and substituted lowercase letter.
1986—Par. (3). Pub. L. 99–661 added par. (3).
1985—Pub. L. 99–145 renumbered section 2331 of this title as this section.
Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, supplies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title.
2008—Pub. L. 110–417, [div. A], title XII, §1232(a)(2), Oct. 14, 2008, 122 Stat. 4639, added item 2350m.
2001—Pub. L. 107–107, div. A, title XII, §§1212(e)(2), 1213(b), Dec. 28, 2001, 115 Stat. 1250, 1251, substituted “Cooperative research and development agreements: NATO organizations; allied and friendly foreign countries” for “Cooperative research and development projects: allied countries” in item 2350a and added item 2350l.
1996—Pub. L. 104–106, div. A, title XIII, §1332(a)(2), Feb. 10, 1996, 110 Stat. 484, added item 2350k.
1993—Pub. L. 103–160, div. A, title XIV, §1402(b), Nov. 30, 1993, 107 Stat. 1826, added item 2350j.
1991—Pub. L. 102–190, div. A, title X, §1047(b), Dec. 5, 1991, 105 Stat. 1468, added item 2350i.
Pub. L. 102–25, title VII, §704(a)(9), Apr. 6, 1991, 105 Stat. 119, made clarifying amendment to directory language of Pub. L. 101–510, div. A, title XIV, §1451(b)(2), Nov. 5, 1990, 104 Stat. 1693. See 1990 Amendment note below.
1990—Pub. L. 101–510, div. A, title XIV, §1452(a)(2), Nov. 5, 1990, 104 Stat. 1694, added item 2350h.
Pub. L. 101–510, div. A, title XIV, §1451(b)(2), Nov. 5, 1990, 104 Stat. 1693, as amended by Pub. L. 102–25, title VII, §704(a)(9), Apr. 6, 1991, 105 Stat. 119, added item 2350g.
(a)
(2) The countries and organizations with which the Secretary may enter into a memorandum of agreement (or other formal agreement) under paragraph (1) are as follows:
(A) The North Atlantic Treaty Organization.
(B) A NATO organization.
(C) A member nation of the North Atlantic Treaty Organization.
(D) A major non-NATO ally.
(E) Any other friendly foreign country.
(3) If such a memorandum of understanding (or other formal agreement) is with a country referred to in subparagraph (E) of paragraph (2), such memorandum (or agreement) may go into effect only after the Secretary submits to the Committees on Armed Services and on Foreign Relations of the Senate and to the Committees on Armed Services and on International Relations of the House of Representatives a report with respect to the proposed memorandum (or agreement) and a period of 30 days has passed after the report has been submitted.
(b)
(2) The authority of the Secretary to make a determination under paragraph (1) may only be delegated to the Deputy Secretary of Defense and to one other official of the Department of Defense.
(c)
(d)
(2) A country or organization referred to in subsection (a)(2) may not use any military or economic assistance grant, loan, or other funds provided by the United States for the purpose of making the contribution of that country or organization to a cooperative research and development program entered into with the United States under this section.
(e)
(2) A cooperative opportunities document referred to in paragraph (1) shall include the following:
(A) A statement indicating whether or not a project similar to the one under consideration by the Department of Defense is in development or production by any country or organization referred to in subsection (a)(2) or NATO organizations.
(B) If a project similar to the one under consideration by the Department of Defense is in development or production by one or more countries and organizations referred to in subsection (a)(2), an assessment by the Under Secretary of Defense for Acquisition, Technology, and Logistics as to whether that project could satisfy, or could be modified in scope so as to satisfy, the military requirements of the project of the United States under consideration by the Department of Defense.
(C) An assessment of the advantages and disadvantages with regard to program timing, developmental and life cycle costs, technology sharing, and Rationalization, Standardization, and Interoperability (RSI) of seeking to structure a cooperative development program with one or more countries and organizations referred to in subsection (a)(2) or NATO organizations.
(D) The recommendation of the Under Secretary as to whether the Department of Defense should explore the feasibility and desirability of a cooperative development program with one or more countries and organizations referred to in subsection (a)(2) or NATO organizations.
[(f) Repealed. Pub. L. 108–136, div. A, title X, §1031(a)(17), Nov. 24, 2003, 117 Stat. 1597.]
(g)
(A) that the Secretary of Defense should test conventional defense equipment, munitions, and technologies manufactured and developed by countries referred to in subsection (a)(2) to determine the ability of such equipment, munitions, and technologies to satisfy United States military requirements or to correct operational deficiencies; and
(B) that while the testing of nondevelopmental items and items in the late state of the development process are preferred, the testing of equipment, munitions, and technologies may be conducted to determine procurement alternatives.
(2) The Secretary of Defense may acquire equipment, munitions, and technologies of the type described in paragraph (1) for the purpose of conducting the testing described in that paragraph.
(3) The Assistant Secretary of Defense for Research and Engineering shall notify the congressional defense committees of the intent to obligate funds made available to carry out this subsection not less than 7 days before such funds are obligated.
(h)
(i)
(1) The term “cooperative research and development project” means a project involving joint participation by the United States and one or more countries and organizations referred to in subsection (a)(2) under a memorandum of understanding (or other formal agreement) to carry out a joint research and development program—
(A) to develop new conventional defense equipment and munitions; or
(B) to modify existing military equipment to meet United States military requirements.
(2) The term “major non-NATO ally” means a country (other than a member nation of the North Atlantic Treaty Organization) that is designated as a major non-NATO ally for purposes of this section by the Secretary of Defense with the concurrence of the Secretary of State.
(3) The term “NATO organization” means any North Atlantic Treaty Organization subsidiary body referred to in section 2350(2) of this title and any other organization of the North Atlantic Treaty Organization.
(Added Pub. L. 101–189, div. A, title IX, §931(a)(2), Nov. 29, 1989, 103 Stat. 1531; amended Pub. L. 101–510, div. A, title XIII, §1331(4), Nov. 5, 1990, 104 Stat. 1673; Pub. L. 102–190, div. A, title X, §1053, Dec. 5, 1991, 105 Stat. 1471; Pub. L. 102–484, div. A, title VIII, §843(b)(1), Oct. 23, 1992, 106 Stat. 2469; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–337, div. A, title XIII, §1301, Oct. 5, 1994, 108 Stat. 2888; Pub. L. 104–106, div. A, title XV, §1502(a)(17), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title IX, §911(a)(1), title X, §1067(1), Oct. 5, 1999, 113 Stat. 717, 774; Pub. L. 107–107, div. A, title X, §1048(b)(2), title XII, §1212(a)–(e)(1), Dec. 28, 2001, 115 Stat. 1225, 1248–1250; Pub. L. 107–314, div. A, title X, §§1041(a)(9), 1062(f)(2), Dec. 2, 2002, 116 Stat. 2645, 2651; Pub. L. 108–136, div. A, title X, §1031(a)(17), Nov. 24, 2003, 117 Stat. 1597; Pub. L. 110–181, div. A, title II, §237, title XII, §1251, Jan. 28, 2008, 122 Stat. 48, 401; Pub. L. 111–383, div. A, title IX, §901(j)(4), Jan. 7, 2011, 124 Stat. 4324.)
Provisions relating to NATO countries were contained in Pub. L. 99–145, title XI, §1103, Nov. 8, 1985, 99 Stat. 712, which was set out as a note under section 2407 of this title, prior to repeal by Pub. L. 101–189, §931(d)(1).
Provisions relating to major non-NATO allies were contained in section 2767a of Title 22, Foreign Relations and Intercourse, prior to repeal by Pub. L. 101–189, §931(d)(2).
2011—Subsec. (g)(3). Pub. L. 111–383 substituted “Assistant Secretary of Defense for Research and Engineering” for “Director of Defense Research and Engineering”.
2008—Subsec. (e)(1). Pub. L. 110–181, §1251(1), struck out subpar. (A) designation before “In order to ensure”, substituted “a cooperative opportunities document before the first milestone or decision point” for “an arms cooperation opportunities document”, and struck out subpar. (B) which read as follows: “The Under Secretary shall also prepare an arms cooperation opportunities document for review of each new project for which a document known as a Mission Need Statement is prepared.”
Subsec. (e)(2). Pub. L. 110–181, §1251(2), substituted “A cooperative opportunities document” for “An arms cooperation opportunities document” in introductory provisions.
Subsec. (g)(3). Pub. L. 110–181, §237, amended par. (3) generally. Prior to amendment, par. (3) read as follows: “The Deputy Director, Defense Research and Engineering (Test and Evaluation) shall notify the Speaker of the House of Representatives and the Committees on Armed Services and on Appropriations of the Senate of the Deputy Director's intent to obligate funds made available to carry out this subsection not less than 30 days before such funds are obligated.”
2003—Subsec. (f). Pub. L. 108–136 struck out subsec. (f) which required that, not later than Mar. 1 of each year, the Under Secretary of Defense for Acquisition, Technology, and Logistics was to submit to the Speaker of the House and the Committees on Armed Services and Appropriations of the Senate a report on cooperative research and development projects under this section, and that, not later than Jan. 1 of each year, the Secretary of Defense was to submit to the Committees on Armed Services and Foreign Relations of the Senate and Committees on Armed Services and International Relations of the House a report specifying the countries eligible to participate in a cooperative project agreement under this section and the criteria used to determine the eligibility of such countries.
2002—Subsec. (g)(1)(A). Pub. L. 107–314, §1062(f)(2), amended directory language of Pub. L. 107–107, §1212(a)(5). See 2001 Amendment note below.
Subsec. (g)(4). Pub. L. 107–314, §1041(a)(9), struck out par. (4) which read as follows: “The Secretary of Defense shall submit to Congress each year, not later than March 1, a report containing information on—
“(A) the equipment, munitions, and technologies manufactured and developed by countries referred to in subsection (a)(2) that were evaluated under this subsection during the previous fiscal year;
“(B) the obligation of any funds under this subsection during the previous fiscal year; and
“(C) the equipment, munitions, and technologies that were tested under this subsection and procured during the previous fiscal year.”
Subsec. (g)(4)(A). Pub. L. 107–314, §1062(f)(2), amended directory language of Pub. L. 107–107, §1212(a)(5). See 2001 Amendment note below.
2001—Pub. L. 107–107, §1212(e)(1), substituted “Cooperative research and development agreements: NATO organizations; allied and friendly foreign countries” for “Cooperative research and development projects: allied countries” in section catchline.
Subsec. (a)(1). Pub. L. 107–107, §1212(a)(1)(A), (B), designated existing provisions of subsec. (a) as par. (1) and substituted “countries or organizations referred to in paragraph (2)” for “major allies of the United States or NATO organizations”.
Subsec. (a)(2). Pub. L. 107–107, §1212(a)(1)(C), added par. (2).
Subsec. (a)(3). Pub. L. 107–107, §1212(b), added par. (3).
Subsec. (b)(1). Pub. L. 107–107, §1212(a)(2), struck out “(NATO)” after “North Atlantic Treaty Organization” and substituted “a country or organization referred to in subsection (a)(2)” for “its major non-NATO allies”.
Subsec. (b)(2). Pub. L. 107–107, §1212(c), substituted “Deputy Secretary of Defense and to one other official of the Department of Defense” for “Deputy Secretary of Defense or the Under Secretary of Defense for Acquisition, Technology, and Logistics”.
Subsec. (d)(1). Pub. L. 107–107, §1212(a)(3)(A), substituted “countries and organizations referred to in subsection (a)(2)” for “the major allies of the United States”.
Subsec. (d)(2). Pub. L. 107–107, §1212(a)(3)(B), substituted “country or organization referred to in subsection (a)(2)” for “major ally of the United States” and “the contribution of that country or organization” for “that ally's contribution”.
Subsec. (e)(1)(A). Pub. L. 107–107, §1048(b)(2), substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
Subsec. (e)(2)(A). Pub. L. 107–107, §1212(a)(4)(A), substituted “any country or organization referred to in subsection (a)(2)” for “one or more of the major allies of the United States”.
Subsec. (e)(2)(B). Pub. L. 107–107, §§1048(b)(2), 1212(a)(4)(B), substituted “countries and organizations referred to in subsection (a)(2)” for “major allies of the United States or NATO organizations” and “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
Subsec. (e)(2)(C). Pub. L. 107–107, §1212(a)(4)(C), substituted “countries and organizations referred to in subsection (a)(2)” for “major allies of the United States”.
Subsec. (e)(2)(D). Pub. L. 107–107, §1212(a)(4)(D), substituted “countries and organizations referred to in subsection (a)(2)” for “major allies of the United States”.
Subsec. (f)(1). Pub. L. 107–107, §1048(b)(2), substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
Subsec. (f)(2). Pub. L. 107–107, §1212(d), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The Secretary of Defense and the Secretary of State, whenever they consider such action to be warranted, shall jointly submit to the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on Armed Services and the Committee on International Relations of the House of Representatives a report—
“(A) enumerating those countries to be added to or deleted from the existing designation of countries designated as major non-NATO allies for purposes of this section; and
“(B) specifying the criteria used in determining the eligibility of a country to be designated as a major non-NATO ally for purposes of this section.”
Subsec. (g)(1)(A), (4)(A). Pub. L. 107–107, §1212(a)(5), as amended by Pub. L. 107–314, §1062(f)(2), substituted “countries referred to in subsection (a)(2)” for “major allies of the United States and other friendly foreign countries”.
Subsec. (h). Pub. L. 107–107, §1212(a)(6), substituted “member nations of the North Atlantic Treaty Organization, major non-NATO allies, and other friendly foreign countries” for “major allies of the United States”.
Subsec. (i)(1). Pub. L. 107–107, §1212(a)(7)(A), substituted “countries and organizations referred to in subsection (a)(2)” for “major allies of the United States or NATO organizations”.
Subsec. (i)(2) to (4). Pub. L. 107–107, §1212(a)(7)(B), (C), redesignated pars. (3) and (4) as (2) and (3), respectively, and struck out former par. (2) which read as follows: “The term ‘major ally of the United States’ means—
“(A) a member nation of the North Atlantic Treaty Organization (other than the United States); or
“(B) a major non-NATO ally.”
1999—Subsec. (b)(2). Pub. L. 106–65, §911(a)(1), substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
Subsec. (f)(2). Pub. L. 106–65, §1067(1), substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1996—Subsec. (f)(2). Pub. L. 104–106 substituted “submit to the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on National Security and the Committee on International Relations of the House of Representatives” for “submit to the Committees on Armed Services and Foreign Relations of the Senate and to the Committees on Armed Services and Foreign Affairs of the House of Representatives”.
1994—Subsecs. (a), (e)(2)(A) to (D), (i)(1). Pub. L. 103–337, §1301(a), inserted “or NATO organizations” after “major allies of the United States”.
Subsec. (i)(4). Pub. L. 103–337, §1301(b), added par. (4).
1993—Subsecs. (b)(2), (e)(1)(A), (2)(B), (f)(1). Pub. L. 103–160 substituted “Under Secretary of Defense for Acquisition and Technology” for “Under Secretary of Defense for Acquisition”.
1992—Subsec. (c). Pub. L. 102–484 inserted “(including the costs of claims)” after “the project”.
1991—Subsec. (g)(1)(A), (4)(A). Pub. L. 102–190 inserted “and other friendly foreign countries” after “major allies of the United States”.
1990—Subsec. (g)(4). Pub. L. 101–510 amended introductory provisions generally, substituting “submit to Congress each year, not later than March 1, a report containing” for “include in the annual report to Congress required by section 2457(d) of this title”.
Committee on International Relations of House of Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.
Pub. L. 107–314, div. A, title X, §1062(f), Dec. 2, 2002, 116 Stat. 2651, provided that the amendment made by section 1062(f)(2) is effective as of Dec. 28, 2001, and as if included in Pub. L. 107–107 as enacted.
Section 843(c) of Pub. L. 102–484, as amended by Pub. L. 103–35, title II, §202(a)(7), May 31, 1993, 107 Stat. 101, provided that, effective Oct. 23, 1994, subsections (a) and (b) of section 843 of Pub. L. 102–484 (amending sections 2350a and 2350d of this title and section 2767 of Title 22, Foreign Relations and Intercourse) were to cease to be in effect, and section 27(c) of the Arms Export Control Act (22 U.S.C. 2767(c)) and sections 2350a(c) and 2350d(c) of this title were to read as if such subsections had not been enacted, prior to repeal by Pub. L. 103–337, div. A, title XIII, §1318, Oct. 5, 1994, 108 Stat. 2902.
(a)(1) If the President delegates to the Secretary of Defense the authority to carry out section 27(d) of the Arms Export Control Act (22 U.S.C. 2767(d)), relating to cooperative projects (as defined in such section), the Secretary may utilize his authority under this title in carrying out contracts or obligations incurred under such section.
(2) Except as provided in subsection (c), chapter 137 of this title shall apply to such contracts (referred to in paragraph (1)) entered into by the Secretary of Defense. Except to the extent waived under subsection (c) or some other provision of law, all other provisions of law relating to procurement, if otherwise applicable, shall apply to such contracts entered into by the Secretary of Defense.
(b) When contracting or incurring obligations under section 27(d) of the Arms Export Control Act for cooperative projects, the Secretary of Defense may require subcontracts to be awarded to particular subcontractors in furtherance of the cooperative project.
(c)(1) Subject to paragraph (2), when entering into contracts or incurring obligations under section 27(d) of the Arms Export Control Act outside the United States, the Secretary of Defense may waive with respect to any such contract or subcontract the application of any provision of law, other than a provision of the Arms Export Control Act or section 2304 of this title, that specifically prescribes—
(A) procedures to be followed in the formation of contracts;
(B) terms and conditions to be included in contracts;
(C) requirements for or preferences to be given to goods grown, produced, or manufactured in the United States or in United States Government-owned facilities or for services to be performed in the United States; or
(D) requirements regulating the performance of contracts.
(2) A waiver may not be made under paragraph (1) unless the Secretary determines that the waiver is necessary to ensure that the cooperative project will significantly further standardization, rationalization, and interoperability.
(3) The authority of the Secretary to make waivers under this subsection may be delegated only to the Deputy Secretary of Defense or the Acquisition Executive designated for the Office of the Secretary of Defense.
(d)(1) The Secretary of Defense shall notify the Congress each time he requires that a prime contract be awarded to a particular prime contractor or that a subcontract be awarded to a particular subcontractor to comply with a cooperative agreement. The Secretary shall include in each such notice the reason for exercising his authority to designate a particular contractor or subcontractor, as the case may be.
(2) The Secretary shall also notify the Congress each time he exercises a waiver under subsection (c) and shall include in such notice the particular provision or provisions of law that were waived.
(3) A report under this subsection shall be required only to the extent that the information required by this subsection has not been provided in a report made by the President under section 27(e) of the Arms Export Control Act (22 U.S.C. 2767(e)).
(e)(1) In carrying out a cooperative project under section 27 of the Arms Export Control Act, the Secretary of Defense may agree that a participant (other than the United States) or a NATO organization may make a contract for requirements of the United States under the project if the Secretary determines that such a contract will significantly further standardization, rationalization, and interoperability. Except to the extent waived under this section or under any other provision of law, the Secretary shall ensure that such contract will be made on a competitive basis and that United States sources will not be precluded from competing under the contract.
(2) If a participant (other than the United States) in such a cooperative project or a NATO organization makes a contract on behalf of such project to meet the requirements of the United States, the contract may permit the contracting party to follow its own procedures relating to contracting.
(f) In carrying out a cooperative project, the Secretary of Defense may also agree to the disposal of property that is jointly acquired by the members of the project without regard to any laws of the United States applicable to the disposal of property owned by the United States. Disposal of such property may include a transfer of the interest of the United States in such property to one of the other governments participating in the cooperative agreement or the sale of such property. Payment for the transfer or sale of any interest of the United States in any such property shall be made in accordance with the terms of the cooperative agreement.
(g) Nothing in this section shall be construed as authorizing the Secretary of Defense—
(1) to waive any of the financial management responsibilities administered by the Secretary of the Treasury; or
(2) to waive the cargo preference laws of the United States, including section 2631 of this title and section 55305 of title 46.
(Added Pub. L. 99–145, title XI, §1102(b)(1), Nov. 8, 1985, 99 Stat. 710, §2407; amended Pub. L. 99–661, div. A, title XI, §1103(b)(1), (2)(A), title XIII, §1343(a)(15), Nov. 14, 1986, 100 Stat. 3963, 3993; renumbered §2350b and amended Pub. L. 101–189, div. A, title IX, §931(b)(1), (e)(3), Nov. 29, 1989, 103 Stat. 1534, 1535; Pub. L. 104–106, div. A, title XIII, §1335, div. D, title XLIII, §4321(b)(10), Feb. 10, 1996, 110 Stat. 484, 672; Pub. L. 108–375, div. A, title X, §1084(d)(19), Oct. 28, 2004, 118 Stat. 2062; Pub. L. 109–304, §17(a)(3), Oct. 6, 2006, 120 Stat. 1706.)
The Arms Export Control Act, referred to in subsec. (c)(1), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, as amended, which is classified principally to chapter 39 (§2751 et seq.) of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of Title 22 and Tables.
2006—Subsec. (g)(2). Pub. L. 109–304 substituted “section 55305 of title 46” for “section 901(b) of the Merchant Marine Act, 1936 (46 U.S.C. App. 1241(b))”.
2004—Subsec. (g). Pub. L. 108–375, §1084(d)(19)(A), inserted “the Secretary of Defense” after “authorizing” in introductory provisions.
Subsec. (g)(1). Pub. L. 108–375, §1084(d)(19)(B), struck out “the Secretary of Defense” before “to waive”.
1996—Subsec. (c)(1). Pub. L. 104–106, §4321(b)(10)(A), inserted “prescribes” after “specifically” in introductory provisions and struck out “prescribe” before “procedures” in subpar. (A), before “terms” in subpar. (B), and before “requirements” in subpars. (C) and (D).
Subsec. (d)(1). Pub. L. 104–106, §4321(b)(10)(B), struck out “to” after “subcontract”.
Subsec. (e)(1). Pub. L. 104–106, §1335(1), inserted “or a NATO organization” after “United States)”.
Subsec. (e)(2). Pub. L. 104–106, §1335(2), substituted “such a cooperative project or a NATO organization” for “a cooperative project”.
1989—Pub. L. 101–189 renumbered section 2407 of this title as this section and substituted “Cooperative projects under Arms Export Control Act: acquisition of defense equipment” for “Acquisition of defense equipment under cooperative projects” as section catchline.
1986—Pub. L. 99–661, §1103(b)(2)(A), struck out “North Atlantic Treaty Organization” before “cooperative projects” in section catchline.
Subsec. (a)(1). Pub. L. 99–661, §1103(b)(1)(A), struck out “North Atlantic Treaty Organization (NATO)” before “cooperative projects”.
Subsec. (c)(2). Pub. L. 99–661, §1103(b)(1)(B), struck out “NATO” after “will significantly further”.
Subsec. (e). Pub. L. 99–661, §1103(b)(1)(C), struck out “NATO” after “will significantly further” in par. (1) and after “United States) in a” in par. (2).
Subsec. (g)(2). Pub. L. 99–661, §1343(a)(15), substituted “section 2631 of this title and section 901(b) of the Merchant Marine Act, 1936 (46 U.S.C. App. 1241(b))” for “the Military Cargo Preference Act of 1904 (10 U.S.C. 2631) and the Cargo Preference Act of 1954 (46 U.S.C. 1241(b))”.
For effective date and applicability of amendment by section 4321(b)(10) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
(a) Subject to the availability of appropriations, and after consultation with the Secretary of State, the Secretary of Defense may enter into cooperative military airlift agreements with the government of any allied country for the transportation of the personnel and cargo of the military forces of that country on aircraft operated by or for the military forces of the United States in return for the reciprocal transportation of the personnel and cargo of the military forces of the United States on aircraft operated by or for the military forces of that allied country. Any such agreement shall include the following terms:
(1) The rate of reimbursement for transportation provided shall be the same for each party and shall be not less than the rate charged to military forces of the United States, as determined by the Secretary of Defense under section 2208(h) of this title.
(2) Credits and liabilities accrued as a result of providing or receiving transportation shall be liquidated as agreed upon by the parties. Liquidation shall be either by direct payment to the country that has provided the greater amount of transportation or by the providing of in-kind transportation services to that country. The liquidation shall occur on a regular basis, but not less often than once every 12 months.
(3) During peacetime, the only military airlift capacity that may be used to provide transportation is that capacity that (A) is not needed to meet the transportation requirements of the military forces of the country providing the transportation, and (B) was not created solely to accommodate the requirements of the military forces of the country receiving the transportation.
(4) Defense articles purchased by an allied country from the United States under the Arms Export Control Act (22 U.S.C. 2751 et seq.) or from a commercial source under the export controls of the Arms Export Control Act may not be transported (for the purpose of delivery incident to the purchase of the defense articles) to the purchasing allied country on aircraft operated by or for the military forces of the United States except at a rate of reimbursement that is equal to the full cost of transportation of the defense articles, as required by section 21(a)(3) of the Arms Export Control Act (22 U.S.C. 2761(a)(3)).
(b) Subject to the availability of appropriations, and after consultation with the Secretary of State, the Secretary of Defense may enter into nonreciprocal military airlift agreements with North Atlantic Treaty Organization subsidiary bodies for the transportation of the personnel and cargo of such subsidiary bodies on aircraft operated by or for the military forces of the United States. Any such agreement shall be subject to such terms as the Secretary of Defense considers appropriate.
(c) Any amount received by the United States as a result of an agreement entered into under this section shall be credited to applicable appropriations, accounts, and funds of the Department of Defense.
(d) In this section:
(1) The term “allied country” means any of the following:
(A) A country that is a member of the North Atlantic Treaty Organization.
(B) Australia, New Zealand, Japan, and the Republic of Korea.
(C) Any other country designated as an allied country for the purposes of this section by the Secretary of Defense with the concurrence of the Secretary of State.
(2) The term “North Atlantic Treaty Organization subsidiary bodies” has the meaning given to it by section 2350 of this title.
(Added Pub. L. 97–252, title XI, §1125(a), Sept. 8, 1982, 96 Stat. 757, §2213; amended Pub. L. 99–145, title XIII, §1304(b), Nov. 8, 1985, 99 Stat. 742; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; renumbered §2350c and amended Pub. L. 101–189, div. A, title IX, §931(b)(2), (e)(4), Nov. 29, 1989, 103 Stat. 1534, 1535; Pub. L. 102–484, div. A, title XIII, §1311, Oct. 23, 1992, 106 Stat. 2547; Pub. L. 106–398, §1 [[div. A], title XII, §1222], Oct. 30, 2000, 114 Stat. 1654, 1654A–328.)
The Arms Export Control Act (22 U.S.C. 2751 et seq.), referred to in subsec. (a)(4), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, as amended, which is classified principally to chapter 39 (§2751 et seq.) of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of Title 22 and Tables.
2000—Subsecs. (d), (e). Pub. L. 106–398 redesignated subsec. (e) as (d) and struck out former subsec. (d) which read as follows: “Notwithstanding subchapter I, the Secretary of Defense may enter into military airlift agreements with allied countries only under the authority of this section.”
1992—Subsec. (a)(2). Pub. L. 102–484, §1311(a), substituted “as agreed upon by the parties. Liquidation shall be either by direct payment to the country that has provided the greater amount of transportation or by the providing of in-kind transportation services to that country. The liquidation shall occur on a regular basis, but not less often than once every 12 months.” for “not less often than once every 3 months by direct payment to the country that has provided the greater amount of transportation.”
Subsec. (e)(1)(B). Pub. L. 102–484, §1311(b), substituted “, New Zealand, Japan, and the Republic of Korea” for “or New Zealand”.
1989—Pub. L. 101–189 renumbered section 2213 of this title as this section and inserted “: allied countries” after “airlift agreements” in section catchline.
Subsec. (d). Pub. L. 101–189, §931(b)(2), substituted “subchapter I” for “chapter 138 of this title”.
1987—Subsec. (e). Pub. L. 100–26 inserted “The term” after each par. designation and substituted “allied” for “Allied” in par. (1).
1985—Subsec. (e)(2). Pub. L. 99–145 substituted “section 2350” for “section 2331”.
Pub. L. 110–181, div. A, title X, §1032, Jan. 28, 2008, 122 Stat. 306, provided that:
“(a)
“(1)
“(A) the acquisition, equipping, ownership, and operation of strategic airlift aircraft; and
“(B) the acquisition or transfer of airlift and airlift-related services and supplies among members of the Strategic Airlift Capability Partnership, or between the Partnership and non-member countries or international organizations, on a reimbursable basis or by replacement-in-kind or exchange of airlift or airlift-related services of an equal value.
“(2)
“(b)
“(1) Waive reimbursement of the United States for the cost of the following functions performed by Department of Defense personnel with respect to the Strategic Airlift Capability Partnership:
“(A) Auditing.
“(B) Quality assurance.
“(C) Inspection.
“(D) Contract administration.
“(E) Acceptance testing.
“(F) Certification services.
“(G) Planning, programming, and management services.
“(2) Waive the imposition of any surcharge for administrative services provided by the United States that would otherwise be chargeable against the Strategic Airlift Capability Partnership.
“(3) Pay the salaries, travel, lodging, and subsistence expenses of Department of Defense personnel assigned for duty to the Strategic Airlift Capability Partnership without seeking reimbursement or cost-sharing for such expenses.
“(c)
“(1) The appropriation, fund, or account used in incurring the obligation for which such amount is received.
“(2) An appropriation, fund, or account currently providing funds for the purposes for which such obligation was made.
“(d)
“(1)
“(2)
“(e)
(a)
(A) shall be entered into pursuant to the terms of the charter of the NATO Maintenance and Supply Organization; and
(B) shall provide for the common logistic support of a specific weapon system common to the participating countries.
(2) Such an agreement may provide for—
(A) the transfer of logistics support, supplies, and services by the United States to the NATO Maintenance and Supply Organization; and
(B) the acquisition of logistics support, supplies, and services by the United States from that Organization.
(b)
(1) may agree that the NATO Maintenance and Supply Organization may enter into contracts for supply and acquisition of logistics support in Europe for requirements of the United States, to the extent the Secretary determines that the procedures of such Organization governing such supply and acquisition are appropriate; and
(2) may share the costs of set-up charges of facilities for use by the NATO Maintenance and Supply Organization to provide cooperative logistics support and in the costs of establishing a revolving fund for initial acquisition and replenishment of supply stocks to be used by the NATO Maintenance and Supply Organization to provide cooperative logistics support.
(c)
(d)
(e)
(f)
(Added and amended Pub. L. 101–189, div. A, title IX, §§931(c), 938(c), Nov. 29, 1989, 103 Stat. 1534, 1539; Pub. L. 102–484, div. A, title VIII, §843(b)(2), Oct. 23, 1992, 106 Stat. 2469.)
The Arms Export Control Act, referred to in subsec. (e), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, as amended, which is classified principally to chapter 39 (§2751 et seq.) of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of Title 22 and Tables.
Provisions similar to those in this section were contained in Pub. L. 99–661, div. A, title XI, §1102, Nov. 14, 1986, 100 Stat. 3961, which was set out as a note under section 2407 of this title, prior to repeal by Pub. L. 101–189, §931(d)(2).
1992—Subsec. (c). Pub. L. 102–484 inserted “and costs of claims” after “administrative costs”.
1989—Subsec. (e). Pub. L. 101–189, §938(c), inserted “this chapter and” after “in accordance with”.
(a)
(1) Waive reimbursement for the cost of the following functions performed by personnel other than personnel employed in the United States Air Force Airborne Warning and Control System (AWACS) program office:
(A) Auditing.
(B) Quality assurance.
(C) Codification.
(D) Inspection.
(E) Contract administration.
(F) Acceptance testing.
(G) Certification services.
(H) Planning, programming, and management services.
(2) Waive any surcharge for administrative services otherwise chargeable.
(3) In connection with that Program, assume contingent liability for—
(A) program losses resulting from the gross negligence of any contracting officer of the United States;
(B) identifiable taxes, customs duties, and other charges levied within the United States on the program; and
(C) the United States share of the unfunded termination liability.
(b)
(c)
(1) the Multilateral Memorandum of Understanding Between the North Atlantic Treaty Organization (NATO) Ministers of Defence on the NATO E–3A Cooperative Programme, signed by the Secretary of Defense on December 6, 1978;
(2) the Memorandum of Understanding for Operations and Support of the NATO Airborne Early Warning and Control Force, signed by the United States Ambassador to NATO on September 26, 1984;
(3) the Addendum to the Multilateral Memorandum of Understanding Between the North Atlantic Treaty Organization (NATO) Ministers of Defence on the NATO E–3A Cooperative Programme (dated December 6, 1978) relating to the modernization of the NATO Airborne Early Warning and Control (NAEW&C) System, dated December 7, 1990; and
(4) any other follow-on support agreement for the NATO E–3A Cooperative Programme.
(Added Pub. L. 101–189, div. A, title IX, §932(a)(1), Nov. 29, 1989, 103 Stat. 1536; amended Pub. L. 102–190, div. A, title X, §1051, Dec. 5, 1991, 105 Stat. 1470; Pub. L. 103–160, div. A, title XIV, §1413, Nov. 30, 1993, 107 Stat. 1829.)
Provisions similar to those in this section were contained in Pub. L. 97–86, title I, §103, Dec. 1, 1981, 95 Stat. 1100, as amended, which was set out as a note under section 2407 of this title, prior to repeal by Pub. L. 101–189, §932(b).
1993—Subsec. (d). Pub. L. 103–160 struck out subsec. (d) which read as follows: “
1991—Subsec. (c)(3), (4). Pub. L. 102–190, §1051(1), added par. (3) and redesignated former par. (3) as (4).
Subsec. (d). Pub. L. 102–190, §1051(2), substituted “1993” for “1991”.
(a) As an alternative means of obtaining communications support and related supplies and services, the Secretary of Defense, subject to the approval of the Secretary of State, may enter into a bilateral arrangement with any allied country or allied international organization or may enter into a multilateral arrangement with allied countries and allied international organizations, under which, in return for being provided communications support and related supplies and services, the United States would agree to provide to the allied country or countries or allied international organization or allied international organizations, as the case may be, an equivalent value of communications support and related supplies and services. The term of an arrangement entered into under this subsection may not exceed five years.
(b)(1) Any arrangement entered into under this section shall require that any accrued credits and liabilities resulting from an unequal exchange of communications support and related supplies and services during the term of such arrangement would be liquidated by direct payment to the party having provided the greater amount of communications support and related supplies and services. Liquidations may be made at such times as the parties in an arrangement may agree upon, but in no case may final liquidation in the case of an arrangement be made later than 30 days after the end of the term for which the arrangement was entered into.
(2) Parties to an arrangement entered into under this section shall annually reconcile accrued credits and liabilities accruing under such agreement. Any liability of the United States resulting from a reconciliation shall be charged against the applicable appropriation available to the Department of Defense (at the time of the reconciliation) for obligation for communications support and related supplies and services.
(3) Payments received by the United States shall be credited to the appropriation from which such communications support and related supplies and services have been provided.
[(c) Repealed. Pub. L. 107–314, div. A, title X, §1041(a)(10), Dec. 2, 2002, 116 Stat. 2645.]
(d) In this section:
(1) The term “allied country” means—
(A) a country that is a member of the North Atlantic Treaty Organization;
(B) Australia, New Zealand, Japan, or the Republic of Korea; or
(C) any other country designated as an allied country for purposes of this section by the Secretary of Defense with the concurrence of the Secretary of State.
(2) The term “allied international organization” means the North Atlantic Treaty Organization (NATO) or any other international organization designated as an allied international organization for the purposes of this section by the Secretary of Defense with the concurrence of the Secretary of State.
(Added Pub. L. 98–525, title X, §1005(a), Oct. 19, 1984, 98 Stat. 2578, §2401a; amended Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; renumbered §2350f and amended Pub. L. 101–189, div. A, title IX, §933(a)–(d), Nov. 29, 1989, 103 Stat. 1537; Pub. L. 101–510, div. A, title XIV, §1484(k)(8), Nov. 5, 1990, 104 Stat. 1719; Pub. L. 104–106, div. A, title XV, §1502(a)(2), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title X, §1041(a)(10), Dec. 2, 2002, 116 Stat. 2645.)
2002—Subsec. (c). Pub. L. 107–314 struck out subsec. (c) which read as follows: “The Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of all documents evidencing an arrangement entered into under subsection (a) not later than 45 days after entering into such an arrangement.”
1999—Subsec. (c). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1996—Subsec. (c). 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 the House of Representatives”.
1990—Subsec. (d)(1)(A). Pub. L. 101–510 substituted a semicolon for “, or” at end.
1989—Pub. L. 101–189, §933(a), renumbered section 2401a of this title as this section.
Subsec. (a). Pub. L. 101–189, §933(b), substituted “a bilateral arrangement with any allied country or allied international organization or may enter into a multilateral arrangement with allied countries and allied international organizations” for “an arrangement with the Minister of Defense or other appropriate official of any allied country or with the North Atlantic Treaty Organization (NATO),” and “the allied country or countries or allied international organization or allied international organizations, as the case may be,” for “such country or NATO” and inserted “The term of an arrangement entered into under this subsection may not exceed five years.”
Subsec. (b). Pub. L. 101–189, §933(c), designated first sentence as par. (1), inserted “Liquidations may be made at such times as the parties in an arrangement may agree upon, but in no case may final liquidation in the case of an arrangement be made later than 30 days after the end of the term for which the arrangement was entered into.” after “supplies and services.”, added par. (2), and designated second sentence as par. (3).
Subsec. (d). Pub. L. 101–189, §933(d)(1), (2), substituted “In this section:” and par. (1) for “In this section, the term ‘allied country’ means—” and redesignated former cls. (1) and (2) as cls. (A) and (B).
Subsec. (d)(1)(A). Pub. L. 101–189, §933(d)(3), which directed amendment of cl. (A) by substituting a semicolon for “; or” at end, could not be executed because “; or” did not appear.
Subsec. (d)(1)(B). Pub. L. 101–189, §933(d)(4), substituted “; or” for period at end.
Subsec. (d)(1)(C), (2). Pub. L. 101–189, §933(d)(5), added cl. (C) and par. (2).
1987—Subsec. (d). Pub. L. 100–26 inserted “the term” after “In this section,”.
(a)
(1) real property or the use of real property and services and supplies for the United States or for the use of the United States in accordance with a mutual defense agreement or occupational arrangement; and
(2) services furnished as reciprocal international courtesies or as services customarily made available without charge.
(b)
(c)
(Added Pub. L. 101–510, div. A, title XIV, §1451(b)(1), Nov. 5, 1990, 104 Stat. 1692; amended Pub. L. 103–160, div. A, title XI, §1105(a), Nov. 30, 1993, 107 Stat. 1749; Pub. L. 106–65, div. A, title X, §1032(a)(3), Oct. 5, 1999, 113 Stat. 751.)
Provisions similar to those in this section were contained in Pub. L. 101–165, title IX, §9008, Nov. 21, 1989, 103 Stat. 1130, which was set out as a note under section 2341 of this title, prior to repeal by Pub. L. 101–510, §1451(c).
1999—Subsecs. (b) to (d). Pub. L. 106–65 redesignated subsecs. (c) and (d) as (b) and (c), respectively, and struck out heading and text of former subsec. (b). Text read as follows:
“(1) Not later than 30 days after the end of each quarter of each fiscal year, the Secretary of Defense shall submit to Congress a report on property, services, and supplies accepted by the Secretary under this section during the preceding quarter. The Secretary shall include in each such report a description of all property, services, and supplies having a value of more than $1,000,000.
“(2) In computing the value of any property, services, and supplies referred to in paragraph (1), the Secretary shall aggregate the value of—
“(A) similar items of property, services, and supplies accepted by the Secretary during the quarter concerned; and
“(B) components which, if assembled, would comprise all or a substantial part of an item of equipment or a facility.”
1993—Subsec. (d). Pub. L. 103–160 substituted “Periodic Audits” for “Annual Audit” in heading and amended text generally. Prior to amendment, text read as follows: “The Comptroller General of the United States shall conduct an annual audit of property, services, and supplies accepted by the Secretary of Defense under this section and shall submit a copy of the results of each such audit to Congress.”
The Secretary of Defense shall designate an official to act as ombudsman within the Department of Defense on behalf of foreign governments who are parties to memorandums of agreement with the United States concerning acquisition matters under the jurisdiction of the Secretary of Defense. The official so designated shall assist officials of those foreign governments in understanding and complying with procedures and requirements of the Department of Defense (and, as appropriate, other departments and agencies of the United States) insofar as they relate to any such memorandum of agreement.
(Added Pub. L. 101–510, div. A, title XIV, §1452(a)(1), Nov. 5, 1990, 104 Stat. 1693.)
Pub. L. 101–510, div. A, title XIV, §1452(b), Nov. 5, 1990, 104 Stat. 1694, provided that the official required to be designated under this section was to be designated by the Secretary of Defense not later than 90 days after Nov. 5, 1990.
(a)
(b)
(1) Payments to contractors and other suppliers (including the Department of Defense and other participants acting as suppliers) for necessary articles and services.
(2) Payments for any damages and costs resulting from the performance or cancellation of any contract or other obligation.
(3) Payments or reimbursements of other program expenses, including program office overhead and administrative costs.
(4) Refunds to other participants.
(c)
(1) The term “cooperative project” means a jointly managed arrangement, described in a written cooperative agreement entered into by the participants, that—
(A) is undertaken by the participants in order to improve the conventional defense capabilities of the participants; and
(B) provides for—
(i) one or more participants (other than the United States) to share with the United States the cost of research and development, testing, evaluation, or joint production (including follow-on support) of defense articles;
(ii) the United States and another participant concurrently to produce in the United States and the country of such other participant a defense article jointly developed in a cooperative project described in clause (i); or
(iii) the United States to procure a defense article or a defense service from another participant in the cooperative project.
(2) The term “defense article” has the meaning given such term in section 47(3) of the Arms Export Control Act (22 U.S.C. 2794(3)).
(3) The term “defense service” has the meaning given such term in section 47(4) of the Arms Export Control Act (22 U.S.C. 2794(4)).
(Added Pub. L. 102–190, div. A, title X, §1047(a), Dec. 5, 1991, 105 Stat. 1467.)
(a)
(b)
(c)
(1) Compensation for local national employees of the Department of Defense.
(2) Military construction projects of the Department of Defense.
(3) Supplies and services of the Department of Defense.
(d)
(1) by the Secretary of Defense to carry out a military construction project that is consistent with the purposes for which the contributions were made and is not otherwise authorized by law; or
(2) by the Secretary of a military department, with the approval of the Secretary of Defense, to carry out such a project.
(e)
(A) an explanation of the need for the project;
(B) the then current estimate of the cost of the project; and
(C) a justification for carrying out the project under that subsection.
(2) The Secretary of Defense or the Secretary of a military department may not commence a military construction project under subsection (d) until the end of the 21-day period beginning on the date on which the Secretary of Defense submits the report under paragraph (1) regarding the project or, if earlier, the end of the 14-day period beginning on the date on which a copy of that report is provided in an electronic medium pursuant to section 480 of this title.
(3)(A) A military construction project under subsection (d) may be carried out without regard to the requirement in paragraph (1) and the limitation in paragraph (2) if the project is necessary to support the armed forces in the country or region in which the project is carried out by reason of a declaration of war, or a declaration by the President of a national emergency pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), that is in force at the time of the commencement of the project.
(B) When a decision is made to carry out a military construction project under subparagraph (A), the Secretary of Defense shall submit to the congressional defense committees—
(i) a notice of the decision; and
(ii) a statement of the current estimated cost of the project, including the cost of any real property transaction in connection with the project.
(f)
(1) the amount of the contributions accepted by the Secretary during the preceding fiscal year under subsection (a) and the purposes for which the contributions were made; and
(2) the amount of the contributions expended by the Secretary during the preceding fiscal year and the purposes for which the contributions were expended.
(Added Pub. L. 103–160, div. A, title XIV, §1402(a), Nov. 30, 1993, 107 Stat. 1825; amended Pub. L. 103–337, div. A, title X, §1070(a)(10), Oct. 5, 1994, 108 Stat. 2856; Pub. L. 104–106, div. A, title XIII, §1331, Feb. 10, 1996, 110 Stat. 482; Pub. L. 106–65, div. A, title X, §1067(1), div. B, title XXVIII, §2801, Oct. 5, 1999, 113 Stat. 774, 845; Pub. L. 108–136, div. A, title X, §§1031(a)(18), 1043(b)(12), Nov. 24, 2003, 117 Stat. 1597, 1611.)
The National Emergencies Act, referred to in subsec. (e)(3), is Pub. L. 94–412, Sept. 14, 1976, 90 Stat. 1255, as amended, which is classified principally to chapter 34 (§1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables.
Section, as added by Pub. L. 103–160, consists of text of Pub. L. 102–190, div. A, title X, §1045, Dec. 5, 1991, 105 Stat. 1465, as amended by Pub. L. 102–484, div. A, title XIII, §1305(a), (b), Oct. 23, 1992, 106 Stat. 2546, and revised by Pub. L. 103–160, in subsec. (a), by substituting “The Secretary” for “During fiscal years 1992 and 1993, the Secretary”, inserting “, after consultation with the Secretary of State,” after “Secretary of Defense”, and substituting “from any country or regional organization designated for purposes of this section by the Secretary of Defense, in consultation with the Secretary of State” for “from Japan, Kuwait, and the Republic of Korea”, and in subsec. (f), by substituting “each fiscal year” for “each quarter of fiscal years 1992 and 1993”, “Congress” for “congressional defense committees”, “each country and regional organization from which contributions have been accepted by the Secretary under subsection (a)” for “Japan, Kuwait, and the Republic of Korea”, and “the preceding fiscal year” for “the preceding quarter” in pars. (1) and (2).
2003—Subsec. (e)(1). Pub. L. 108–136, §1043(b)(12)(A), substituted “congressional defense committees” for “congressional committees specified in subsection (g)” in introductory provisions.
Subsec. (e)(2). Pub. L. 108–136, §1031(a)(18), inserted before period at end “or, if earlier, the end of the 14-day period beginning on the date on which a copy of that report is provided in an electronic medium pursuant to section 480 of this title”.
Subsec. (e)(3)(B). Pub. L. 108–136, §1043(b)(12)(A), substituted “congressional defense committees” for “congressional committees specified in subsection (g)” in introductory provisions.
Subsec. (g). Pub. L. 108–136, §1043(b)(12)(B), struck out subsec. (g) which listed the congressional committees referred to in subsec. (e).
1999—Subsec. (e)(3). Pub. L. 106–65, §2801(a), added par. (3).
Subsec. (g). Pub. L. 106–65, §2801(b), substituted “subsection (e)” for “subsection (e)(1)” in introductory provisions.
Subsec. (g)(2). Pub. L. 106–65, §1067(1), substituted “Committee on Armed Services” for “Committee on National Security”.
1996—Subsec. (b). Pub. L. 104–106, §1331(a), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “
“(1) merged with the appropriations to which they are credited; and
“(2) available for the same time period as those appropriations.”
Subsec. (d). Pub. L. 104–106, §1331(b), substituted “placed in an account established under subsection (b)” for “credited under subsection (b) to an appropriation account of the Department of Defense”.
Subsec. (e)(1). Pub. L. 104–106, §1331(c)(1), substituted “to the congressional committees specified in subsection (g) a report” for “a report to the congressional defense committees”.
Subsec. (g). Pub. L. 104–106, §1331(c)(2), added subsec. (g).
1994—Subsec. (a). Pub. L. 103–337, §1070(a)(10)(A), inserted a comma after second reference to “Secretary of State”.
Subsec. (f). Pub. L. 103–337, §1070(a)(10)(B), struck out “the” before “Congress” in introductory provisions.
(a)
(b)
(1) Design and construction services, including development and review of statements of work, master plans and designs, acquisition of construction, and supervision and administration of contracts relating thereto.
(2) Transportation and movement services, including packing, unpacking, storage, and transportation.
(3) Communications services, including installation and deinstallation of communications equipment, transmission of messages and data, and rental of transmission capability.
(4) Supply and administration, including acquisition of expendable office supplies, rental of office space, budgeting and accounting services, auditing services, secretarial services, and translation services.
(5) Personnel costs, including salary, allowances and overhead of employees whether full-time or part-time, temporary or permanent (except for military personnel), and travel and temporary duty costs.
(6) All other clearly identifiable expenses directly related to relocation.
(c)
(1) Irrevocable letter of credit issued by a financial institution acceptable to the Treasurer of the United States.
(2) Drawing rights on a commercial bank account established and funded by the host nation, which account is blocked such that funds deposited cannot be withdrawn except by or with the approval of the United States.
(3) Cash, which shall be deposited in a separate trust fund in the United States Treasury pending expenditure and which shall accrue interest in accordance with section 9702 of title 31.
(Added Pub. L. 104–106, div. A, title XIII, §1332(a)(1), Feb. 10, 1996, 110 Stat. 482; amended Pub. L. 107–314, div. A, title X, §1041(a)(11), Dec. 2, 2002, 116 Stat. 2645.)
2002—Subsec. (d). Pub. L. 107–314 struck out heading and text of subsec. (d). Text read as follows: “Not later than 30 days after the end of each fiscal year, the Secretary shall submit to Congress a report specifying—
“(1) the amount of the contributions accepted by the Secretary during the preceding fiscal year under subsection (a) and the purposes for which the contributions were made; and
“(2) the amount of the contributions expended by the Secretary during the preceding fiscal year and the purposes for which the contributions were expended.”
Section 1332(b) of Pub. L. 104–106 provided that: “Section 2350k of title 10, United States Code, as added by subsection (a), shall take effect on the date of the enactment of this Act [Feb. 10, 1996] and shall apply to contributions for relocation of elements of the Armed Forces in or to any nation received on or after such date.”
(a)
(b)
(1) The user party shall be charged the amount equal to the direct costs incurred by the provider party in furnishing test and evaluation services by the providing party's officers, employees, or governmental agencies.
(2) The user party may also be charged indirect costs relating to the use of the test facility, but only to the extent specified in the memorandum or other agreement.
(c)
(2) The Secretary may delegate the authority under paragraph (1) only to the Deputy Secretary of Defense and to one other official of the Department of Defense.
(d)
(e)
(1) The term “direct cost”, with respect to the use of a test facility pursuant to a memorandum or other agreement under subsection (a)—
(A) means any item of cost that is easily and readily identified to a specific unit of work or output within the test facility where the use occurred, that would not have been incurred if such use had not occurred; and
(B) may include costs of labor, materials, facilities, utilities, equipment, supplies, and any other resources of the test facility that are consumed or damaged in connection with—
(i) the use; or
(ii) the maintenance of the test facility for purposes of the use.
(2) The term “indirect cost”, with respect to the use of a test facility pursuant to a memorandum or other agreement under subsection (a)—
(A) means any item of cost that is not easily and readily identified to a specific unit of work or output within the test facility where the use occurred; and
(B) may include general and administrative expenses for such activities as supporting base operations, manufacturing, supervision, procurement of office supplies, and utilities that are accumulated costs allocated among several users.
(3) The term “test facility” means a range or other facility at which testing of defense equipment may be carried out.
(Added Pub. L. 107–107, div. A, title XII, §1213(a), Dec. 28, 2001, 115 Stat. 1250.)
(a)
(1) enhancing the ability of military forces and civilian personnel of the nations participating in such center to engage in joint exercises or coalition or international military operations; or
(2) improving interoperability between the armed forces and the military forces of friendly foreign nations.
(b)
(2) If Department of Defense facilities, equipment, or funds are used to support a multinational military center of excellence under subsection (a), the memoranda of understanding under paragraph (1) with respect to that center shall provide details of any cost-sharing arrangement or other funding arrangement.
(c)
(A) To pay the United States share of the operating expenses of any multinational military center of excellence in which the United States participates under this section.
(B) To pay the costs of the participation of members of the armed forces and Department of Defense civilian personnel in multinational military centers of excellence under this section, including the costs of expenses of such participants.
(2) No funds may be used under this section to fund the pay or salaries of members of the armed forces and Department of Defense civilian personnel who participate in multinational military centers of excellence under this section.
(d)
(e)
(2) Each report required by paragraph (1) shall include, for the fiscal year covered by such report, the following:
(A) A detailed description of the participation of the Department of Defense, and of members of the armed forces and civilian personnel of the Department, in multinational military centers of excellence under the authority of this section.
(B) For each multinational military center of excellence in which the Department of Defense, or members of the armed forces or civilian personnel of the Department, so participated—
(i) a description of such multinational military center of excellence;
(ii) a description of the activities participated in by the Department, or by members of the armed forces or civilian personnel of the Department; and
(iii) a statement of the costs of the Department for such participation, including—
(I) a statement of the United States share of the expenses of such center and a statement of the percentage of the United States share of the expenses of such center to the total expenses of such center; and
(II) a statement of the amount of such costs (including a separate statement of the amount of costs paid for under the authority of this section by category of costs).
(f)
(1) enhance education and training;
(2) improve interoperability and capabilities;
(3) assist in the development of doctrine; and
(4) validate concepts through experimentation.
(Added Pub. L. 110–417, [div. A], title XII, §1232(a)(1), Oct. 14, 2008, 122 Stat. 4637.)
Pub. L. 110–417, [div. A], title XII, §1232(c), Oct. 14, 2008, 122 Stat. 4639, provided that: “The amendments made by this section [enacting this section] shall take effect on October 1, 2008”.
2009—Pub. L. 111–84, div. A, title II, §252(b), Oct. 28, 2009, 123 Stat. 2243, added item 2362.
2008—Pub. L. 110–417, [div. A], title VIII, §813(c), Oct. 14, 2008, 122 Stat. 4527, added items 2366a and 2366b and struck out former items 2366a “Major defense acquisition programs: certification required before Milestone B approval or Key Decision Point B approval” and 2366b “Major defense acquisition programs: certification required before Milestone A or Key Decision Point A approval”.
Pub. L. 110–181, div. A, title IX, §943(a)(2), Jan. 28, 2008, 122 Stat. 289, added item 2366b.
2006—Pub. L. 109–163, div. A, title VIII, §801(b), Jan. 6, 2006, 119 Stat. 3367, added item 2366a.
2004—Pub. L. 108–375, div. A, title X, §1005(b), Oct. 28, 2004, 118 Stat. 2036, struck out item 2370a “Medical countermeasures against biowarfare threats: allocation of funding between near-term and other threats”.
2003—Pub. L. 108–136, div. A, title II, §§231(b), 232(b), Nov. 24, 2003, 117 Stat. 1422, 1423, added items 2352 and 2365.
2002—Pub. L. 107–314, div. A, title II, §§242(a)(2), 243(b), 248(c)(2), Dec. 2, 2002, 116 Stat. 2495, 2498, 2503, added items 2359a, 2359b, and 2374b.
2000—Pub. L. 106–398, §1 [[div. A], title IX, §904(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–225, added item 2359.
1999—Pub. L. 106–65, div. A, title II, §244(b), Oct. 5, 1999, 113 Stat. 552, added item 2374a.
1996—Pub. L. 104–201, div. A, title II, §267(c)(1)(C), Sept. 23, 1996, 110 Stat. 2468, added item 2371a.
Pub. L. 104–106, div. A, title VIII, §802(b), title X, §§1061(j)(2), 1062(c)(2), Feb. 10, 1996, 110 Stat. 390, 443, 444, struck out items 2352 “Contracts: notice to Congress required for contracts performed over period exceeding 10 years”, 2356 “Contracts: delegations”, and 2370 “Biological Defense Research Program”.
1994—Pub. L. 103–355, title I, §1301(c), title II, §2002(b), title III, §3062(b), title VII, §7203(a)(3), Oct. 13, 1994, 108 Stat. 3287, 3303, 3337, 3380, added item 2374, substituted in item 2358 “Research and development projects” for “Research projects” and in item 2371 “Research projects: transactions other than contracts and grants” for “Advanced research projects: cooperative agreements and other transactions”, and struck out item 2355 “Contracts: vouchering procedures” and item 2369 “Product evaluation activity”.
1993—Pub. L. 103–160, div. A, title II, §214(b), title VIII, §828(a)(2), (c)(2), Nov. 30, 1993, 107 Stat. 1586, 1713, 1714, struck out item 2362 “Testing requirements: wheeled or tracked armored vehicles” and added items 2370a and 2373.
1992—Pub. L. 102–484, div. A, title VIII, §821(c)(2), div. D, title XLII, §4271(b)(3), Oct. 23, 1992, 106 Stat. 2460, 2696, struck out items 2363 “Encouragement of technology transfer” and 2365 “Competitive prototype strategy requirement: major defense acquisition programs”.
1991—Pub. L. 102–190, div. A, title VIII, §§802(a)(2), 803(a)(2), 821(c)(2), Dec. 5, 1991, 105 Stat. 1414, 1415, 1431, substituted item 2352 for former item 2352 “Contracts: limited to five-year terms”, struck out item 2368 “Critical technologies research”, and substituted item 2372 for former item 2372 “Independent research and development”.
Pub. L. 102–25, title VII, §701(e)(5), Apr. 6, 1991, 105 Stat. 114, inserted period at end of item 2366.
1990—Pub. L. 101–510, div. A, title II, §241(b), title VIII, §824(a)(2), title XIII, §1331(5), Nov. 5, 1990, 104 Stat. 1517, 1604, 1673, struck out items 2357 “Contracts: reports to Congress” and 2359 “Salaries of officers of Federal contract research centers: reports to Congress” and added items 2370 and 2372.
1989—Pub. L. 101–189, div. A, title II, §251(a)(2), title VIII, §§802(c)(4)(B), 841(c)(2), Nov. 29, 1989, 103 Stat. 1404, 1486, 1514, substituted “testing and lethality testing required before full-scale production” for “and lethality testing; operational testing” in item 2366, substituted “research” for “plan” in item 2368, and added item 2371.
1988—Pub. L. 100–456, div. A, title II, §220(b), title VIII, §§823(a)(2), 842(b), Sept. 29, 1988, 102 Stat. 1941, 2018, 2026, added items 2361, 2368, and 2369.
Pub. L. 100–370, §1(g)(4), July 19, 1988, 102 Stat. 847, added item 2351, and struck out item 2361 “Availability of appropriations”.
1987—Pub. L. 100–180, div. A, title XII, §1231(10)(C), (12), Dec. 4, 1987, 101 Stat. 1160, substituted “defense” for “Defense” in item 2364 and “federally” for “Federally” in item 2367.
Pub. L. 100–26, §5(3)(B), Apr. 21, 1987, 101 Stat. 274, made technical amendment to directory language of section 909(a)(2) of Pub. L. 99–500, Pub. L. 99–591, and 99–661. See 1986 Amendment note below.
Pub. L. 100–26, §3(1)(B), Apr. 21, 1987, 101 Stat. 273, made technical amendment to directory language of section 234(c)(2) of Pub. L. 99–661. See 1986 Amendment note below.
1986—Pub. L. 99–661, div. A, title II, §234(c)(2), Nov. 14, 1986, 100 Stat. 3849, as amended by Pub. L. 100–26, §3(1)(B), Apr. 21, 1987, 101 Stat. 273, added item 2364.
Pub. L. 99–500, §101(c) [title X, §§909(a)(2), 910(a)(2), 912(a)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–143, 1783–144, 1783–146, and Pub. L. 99–591, §101(c) [title X, §§909(a)(2), 910(a)(2), 912(a)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–143, 3341–144, 3341–146; Pub. L. 99–661, div. A, title IX, formerly title IV, §§909(a)(2), 910(a)(2), 912(a)(2), Nov. 14, 1986, 100 Stat. 3849, 3922, 3924, 3926, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; as amended by Pub. L. 100–26, §5(3)(B), Apr. 21, 1987, 101 Stat. 274, amended analysis identically, adding items 2365, 2366, and 2367.
1985—Pub. L. 99–145, title I, §123(a)(2), title XIV, §1457(b), Nov. 8, 1985, 99 Stat. 601, 763, added items 2362 and 2363.
1982—Pub. L. 97–258, §2(b)(3)(A), Sept. 13, 1982, 96 Stat. 1052, added item 2361.
1981—Pub. L. 97–86, title VI, §603(b), Dec. 1, 1981, 95 Stat. 1110, added item 2360.
1979—Pub. L. 96–107, title VIII, 819(a)(2), Nov. 9, 1979, 93 Stat. 819, added item 2359.
1962—Pub. L. 87–651, title II, §208(b), Sept. 7, 1962, 76 Stat. 523, added item 2358.
1958—Pub. L. 85–599, §3(d), Aug. 6, 1958, 72 Stat. 516, struck out item 2351 “Policy, plans, and coordination”.
(a) Funds appropriated to the Department of Defense for research and development remain available for obligation for a period of two consecutive years.
(b) Funds appropriated to the Department of Defense for research and development may be used—
(1) for the purposes of section 2353 of this title; and
(2) for purposes related to research and development for which expenditures are specifically authorized in other appropriations of the Department of Defense.
(Added Pub. L. 97–258, §2(b)(3)(B), Sept. 13, 1982, 96 Stat. 1052, §2361; renumbered §2351 and amended Pub. L. 100–370, §1(g)(1), July 19, 1988, 102 Stat. 846.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2361 | 31:649c(2). | Aug. 10, 1956, ch. 1041, §40(2), 70A Stat. 636; Nov. 17, 1971, Pub. L. 92–156, §201(b), 85 Stat. 424. |
The words “Unless otherwise provided in the appropriation Act concerned” are omitted as unnecessary and for consistency. The word “Funds” is substituted for “moneys” for consistency in title 10.
Subsection (a) is based on section 2361 of this title.
Subsection (b) is based on Pub. L. 99–190, §101(b) [title VIII, §8015], Dec. 19, 1985, 99 Stat. 1185, 1205.
A prior section 2351, act Aug. 10, 1956, ch. 1041, 70A Stat. 133, related to policy, plans, and coordination relative to research and development on scientific problems relating to the national security, prior to repeal by Pub. L. 85–599, §3(d).
1988—Pub. L. 100–370 renumbered section 2361 of this title as this section, designated such provisions as subsec. (a), and added subsec. (b).
(a)
(b)
(1) The long-term strategic goals of that agency.
(2) Identification of the research programs of that agency that support—
(A) achievement of those strategic goals; and
(B) exploitation of opportunities that hold the potential for yielding significant military benefits.
(3) The connection of the activities and programs of that agency to activities and missions of the armed forces.
(4) A technology transition strategy for the programs of that agency.
(5) A description of the policies of that agency on the management, organization, and personnel of that agency.
(c)
(Added Pub. L. 108–136, div. A, title II, §232(a), Nov. 24, 2003, 117 Stat. 1422.)
A prior section 2352, acts Aug. 10, 1956, ch. 1041, 70A Stat. 133; Dec. 5, 1991, Pub. L. 102–190, div. A, title VIII, §803(a)(1), 105 Stat. 1414; Pub. L. 102–484, div. A, title X, §1053(4), Oct. 23, 1992, 106 Stat. 2501, required Secretary of military department to give notice to Congress of contracts performed over a period exceeding 10 years, prior to repeal by Pub. L. 104–106, div. A, title X, §1062(c)(1), Feb. 10, 1996, 110 Stat. 444.
(a) A contract of a military department for research or development, or both, may provide for the acquisition or construction by, or furnishing to, the contractor, of research, developmental, or test facilities and equipment that the Secretary of the military department concerned determines to be necessary for the performance of the contract. The facilities and equipment, and specialized housing for them, may be acquired or constructed at the expense of the United States, and may be lent or leased to the contractor with or without reimbursement, or may be sold to him at fair value. This subsection does not authorize new construction or improvements having general utility.
(b) Facilities that would not be readily removable or separable without unreasonable expense or unreasonable loss of value may not be installed or constructed under this section on property not owned by the United States, unless the contract contains—
(1) a provision for reimbursing the United States for the fair value of the facilities at the completion or termination of the contract or within a reasonable time thereafter;
(2) an option in the United States to acquire the underlying land; or
(3) an alternative provision that the Secretary concerned considers to be adequate to protect the interests of the United States in the facilities.
(c) Proceeds of sales or reimbursements under this section shall be paid into the Treasury as miscellaneous receipts, except to the extent otherwise authorized by law with respect to property acquired by the contractor.
(Aug. 10, 1956, ch. 1041, 70A Stat. 134.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2353(a) | 5:235e (1st sentence; and 2d sentence, less 2d and last provisos). 5:475j (1st sentence; and 2d sentence, less 2d and last provisos). |
July 16, 1952, ch. 882, §4 (less 3d and last sentences), 66 Stat. 725. |
| 5:628e (1st sentence; and 2d sentence, less 2d and last provisos). | ||
| 2353(b) | 5:235e (2d proviso of 2d sentence). | |
| 5:475j (2d proviso of 2d sentence). | ||
| 5:628e (2d proviso of 2d sentence). | ||
| 2353(c) | 5:235e (last proviso of 2d sentence). | |
| 5:475j (last proviso of 2d sentence). | ||
| 5:628e (last proviso of 2d sentence). |
In subsection (a), the words “furnished to” and “for the use thereof” are omitted as surplusage.
In subsections (a) and (b), the words “United States” are substituted for the word “Government”.
In subsection (b), the introductory clause is substituted for 5:235e (words of 2d proviso before clause (1)), 475j, and 628e. The words “that * * * considers” are substituted for the words “as will in the opinion”. The words “an alternative” are substituted for the words “such other”.
In subsection (c), the words “Proceeds of” are substituted for the words “That all moneys arising from”.
Pub. L. 111–84, div. A, title X, §1043, Oct. 28, 2009, 123 Stat. 2456, as amended by Pub. L. 111–383, div. A, title X, §1075(d)(12), Jan. 7, 2011, 124 Stat. 4373, provided that:
“(a)
“(1) that the modification of such article of military equipment is necessary to execute the contractual scope of work and there is no suitable alternative to modifying such article;
“(2) that the research, development, test, and evaluation effort is of sufficient interest to the military department to warrant the modification of such article of military equipment;
“(3) that—
“(A) prior to the end of the period of performance of such a contractual agreement, the article of military equipment will be restored to its original condition; or
“(B) it is not necessary to restore the article of military equipment to its original condition because the military department intends to dispose of the equipment or operate the equipment in its modified form.
“(4) that the private entity has sufficient resources and capability to fully perform the contractual research, development, test, and evaluation; and
“(5) that the military department has—
“(A) identified the scope of future test and evaluation likely to be required prior to transition of the associated technology to a program of record; and
“(B) a plan for the conduct of such future test and evaluation, including the anticipated roles and responsibilities of government and the private entity, as applicable.
“(b)
“(c)
“(d)
“(e)
“(1)
“(2)
“(f)
“(g)
“(1) A condition stipulating that the transfer of the X-49A aircraft is for the sole purpose of further development, test, and evaluation of vectored thrust ducted propeller (hereinafter in this section referred to as ‘VTDP’) technology.
“(2) A condition providing the Government the right to procure the VTDP technology demonstrated under this program at a discounted cost based on the value of the X-49A aircraft and associated equipment at the time of transfer, with such valuation and terms determined by the Secretary.
“(3) A condition that the transferee not transfer any interest in, or transfer possession of, the military equipment transferred under subsection (b) to any other party without the prior written approval of the Secretary.
“(4) A condition that if the Secretary determines at any time that the transferee has failed to comply with a condition set forth in paragraphs (1) through (3), all items referred to in subsection (b) shall be transferred back to the Navy, at no cost to the United States.
“(5) A condition that the transferee acknowledges sole responsibility of the X-49A aircraft and associated equipment and assumes all liability for operation of the X-49A aircraft and associated equipment.
“(h)
“(i)
“(j)
“(1) The term ‘major system’ has the meaning provided in section 2302 of title 10, United States Code.
“(2) The term ‘contractual agreement’ includes contracts, grants, cooperative agreements, and other transactions.”
Pub. L. 99–190, §101(b) [title VIII, §8015], Dec. 19, 1985, 99 Stat. 1185, 1205, which provided that appropriations available to the Department of Defense for research and development could be used for 10 U.S.C. 2353 and for purposes related to research and development for which expenditures are specifically authorized in other appropriations of the Service concerned, was repealed and restated in section 2351(b) of this title by Pub. L. 100–370, §1(g)(1)(B), (2), July 19, 1988, 102 Stat. 846.
(a) With the approval of the Secretary of the military department concerned, any contract of a military department for research or development, or both, may provide that the United States will indemnify the contractor against either or both of the following, but only to the extent that they arise out of the direct performance of the contract and to the extent not compensated by insurance or otherwise:
(1) Claims (including reasonable expenses of litigation or settlement) by third persons, including employees of the contractor, for death, bodily injury, or loss of or damage to property, from a risk that the contract defines as unusually hazardous.
(2) Loss of or damage to property of the contractor from a risk that the contract defines as unusually hazardous.
(b) A contract, made under subsection (a), that provides for indemnification must also provide for—
(1) notice to the United States of any claim or suit against the contractor for the death, bodily injury, or loss of or damage to property; and
(2) control of or assistance in the defense by the United States, at its election, of that suit or claim.
(c) No payment may be made under subsection (a) unless the Secretary of the department concerned, or an officer or official of his department designated by him, certifies that the amount is just and reasonable.
(d) Upon approval by the Secretary concerned, payments under subsection (a) may be made from—
(1) funds obligated for the performance of the contract concerned;
(2) funds available for research or development, or both, and not otherwise obligated; or
(3) funds appropriated for those payments.
(Aug. 10, 1956, ch. 1041, 70A Stat. 134.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2354(a) | 5:235f (1st sentence, less provisos). 5:475k (1st sentence, less provisos). |
July 16, 1952, ch. 882, §5, 66 Stat. 726. |
| 5:628f (1st sentence, less provisos). | ||
| 2354(b) | 5:235f (1st proviso of 1st sentence). | |
| 5:475k (1st proviso of 1st sentence). | ||
| 5:628f (1st proviso of 1st sentence). | ||
| 2354(c) | 5:235f (last proviso of 1st sentence). | |
| 5:475k (last proviso of 1st sentence). | ||
| 5:628f (last proviso of 1st sentence). | ||
| 2354(d) | 5:235f (less 1st sentence). | |
| 5:475k (less 1st sentence). | ||
| 5:628f (less 1st sentence). |
In subsection (a), the words “Liability on account of”, and “of such claims” are omitted as surplusage. In clauses (1) and (2), the word “from” is substituted for the words “arising as a result of”.
In subsections (a) and (b), the words “United States” are substituted for the word “Government”.
In subsection (b), the words “made under subsection (a), that provides for indemnification” are substituted for the words “so providing * * * with respect to any alleged liability for such death”. The words “appropriate” and “or actions filed * * * or made” are omitted as surplusage.
In subsection (c), the words “by the Government”, “authority of”, and “for such purpose” are omitted as surplusage.
In subsection (d), the words “by the Congress” and “the making of” are omitted as surplusage. The words “or both” are inserted to conform to subsection (a).
Section, act Aug. 10, 1956, ch. 1041, 70A Stat. 135, authorized Secretary of each military department to prescribe by regulation the extent of itemization, substantiation, or certification of vouchers for funds spent under research or development contracts prior to payment.
Section, acts Aug. 10, 1956, ch. 1041, 70A Stat. 135; Sept. 2, 1958, Pub. L. 85–861, §1(43A), 72 Stat. 1457; July 18, 1984, Pub. L. 98–369, div. B, title VII, §2727(d), 98 Stat. 1195; Dec. 4, 1987, Pub. L. 100–180, div. A, title XII, §1231(18)(B), 101 Stat. 1161, related to delegations of authority under sections 1584, 2353, 2354, and 2355 of this title.
Section, act Aug. 10, 1956, ch. 1041, 70A Stat. 135, required Secretary of each military department to report to Congress on contracts for research and development.
(a)
(1) are necessary to the responsibilities of such Secretary's department in the field of research and development; and
(2) either—
(A) relate to weapon systems and other military needs; or
(B) are of potential interest to the Department of Defense.
(b)
(1) by contract, cooperative agreement, or grant, in accordance with chapter 63 of title 31;
(2) through one or more military departments;
(3) by using employees and consultants of the Department of Defense; or
(4) by mutual agreement with the head of any other department or agency of the Federal Government.
(c)
(d)
(Added Pub. L. 87–651, title II, §208(a), Sept. 7, 1962, 76 Stat. 523; amended Pub. L. 97–86, title IX, §910, Dec. 1, 1981, 95 Stat. 1120; Pub. L. 100–370, §1(g)(3), July 19, 1988, 102 Stat. 846; Pub. L. 103–160, div. A, title VIII, §827(a), Nov. 30, 1993, 107 Stat. 1712; Pub. L. 103–355, title I, §1301(a), Oct. 13, 1994, 108 Stat. 3284; Pub. L. 104–201, div. A, title II, §267(c)(2), Sept. 23, 1996, 110 Stat. 2468.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2358 | 5:171c(b)(2), (3). | July 26, 1947, ch. 343, §203(b)(2), (3); added Aug. 6, 1958, Pub. L. 85–599, §9(a) (3d and 4th pars.), 72 Stat. 520. |
5 U.S.C. 171c(b)(3) is omitted as unnecessary since the authorization for appropriations is implied in 5 U.S.C. 171c(b)(2).
In the existing text of 10 U.S.C. 2358, the bill would in two instances strike the phrase “or his designee” appearing after “Secretary of Defense” (section 1(g)(3)). The change is made for consistency in the Code, and no substantive change is intended. The committee notes that the Secretary of Defense has general authority to delegate functions under 10 U.S.C. 113(d).
Subsection (b) is based on Pub. L. 91–441, title II, §204, Oct. 7, 1970, 84 Stat. 908.
1996—Subsec. (d). Pub. L. 104–201 substituted “sections 2371 and 2371a” for “section 2371”.
1994—Pub. L. 103–355 amended section generally, inserting reference to development projects in section catchline, and in text specifying that relevant Secretary may perform research and development projects in accordance with chapter 63 of title 31, and adding subsec. (d) relating to additional provisions applicable to cooperative agreements.
1993—Pub. L. 103–160 amended section generally. Prior to amendment, section read as follows:
“(a)
“(1) by contract with, or by grant to, educational or research institutions, private businesses, or other agencies of the United States;
“(2) through one or more of the military departments; or
“(3) by using employees and consultants of the Department of Defense.
“(b)
1988—Pub. L. 100–370 designated existing provisions as subsec. (a), inserted heading, struck out “or his designee” after “Secretary of Defense” and “President, the Secretary”, and added subsec. (b).
1981—Par. (1). Pub. L. 97–86 substituted “by contract with, or by grant to,” for “by contract with”.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 111–383, div. A, title II, §214, Jan. 7, 2011, 124 Stat. 4164, provided that:
“(a)
“(b)
“(1) To identify and support technological advances that are necessary for the development of advanced technologies for use in ground vehicles of types to be used by the Department of Defense.
“(2) To procure and deploy significant quantities of advanced technology ground vehicles for use by the Department.
“(3) To maximize the leverage of Federal and nongovernment funds used for the development and deployment of advanced technology ground vehicles, ground vehicle systems, and components.
“(c)
“(1) enhanced research and development activities for advanced technology ground vehicles, ground vehicle systems, and components, including—
“(A) increased investments in research and development of batteries, advanced materials, power electronics, fuel cells and fuel cell systems, hybrid systems, and advanced engines;
“(B) pilot projects for the demonstration of advanced technologies in ground vehicles for use by the Department of Defense; and
“(C) the establishment of public-private partnerships, including research centers, manufacturing and prototyping facilities, and test beds, to speed the development, deployment, and transition to use of advanced technology ground vehicles, ground vehicle systems, and components; and
“(2) enhanced activities to procure and deploy advanced technology ground vehicles in the Department, including—
“(A) preferences for the purchase of advanced technology ground vehicles;
“(B) the use of authorities available to the Secretary of Defense to stimulate the development and production of advanced technology systems and ground vehicles through purchases, loan guarantees, and other mechanisms;
“(C) pilot programs to demonstrate advanced technology ground vehicles and associated infrastructure at select defense installations;
“(D) metrics to evaluate environmental and other benefits, life cycle costs, and greenhouse gas emissions associated with the deployment of advanced technology ground vehicles; and
“(E) schedules and objectives for the conversion of the ground vehicle fleet of the Department to advanced technology ground vehicles.
“(d)
“(1)
“(A) universities and other academic institutions;
“(B) companies in the automobile and truck manufacturing industry;
“(C) companies that supply systems and components to the automobile and truck manufacturing industry; and
“(D) any other companies or private sector entities that the Secretary considers appropriate.
“(2)
“(e)
Pub. L. 111–383, div. A, title II, §243, Jan. 7, 2011, 124 Stat. 4178, provided that:
“(a)
“(b)
“(c)
“(d)
“(1) The term ‘designated system’ means any system (including a major system, as defined in section 2302(5) of title 10, United States Code) that the Under Secretary of Defense for Acquisition, Technology, and Logistics designates as being included in the pilot program established under this section.
“(2) The term ‘technology protection features’ means the technical modifications necessary to protect critical program information, including anti-tamper technologies and other systems engineering activities intended to prevent or delay exploitation of critical technologies in a designated system.”
Pub. L. 111–383, div. A, title X, §1078, Jan. 7, 2011, 124 Stat. 4380, provided that:
“(a)
“(b)
“(1)
“(2)
“(c)
“(1)
“(2)
“(A) A description of the results of any demonstrations and assessments of non-lethal weapons conducted during fiscal year 2011.
“(B) A description of the Secretary's plans for any demonstrations and assessments of non-lethal weapons to be conducted during fiscal years 2012 and 2013.
“(C) A description of the extent to which non-lethal weapons doctrine, training, and employment include the use of strategic communications strategies to enable the effective employment of non-lethal weapons.
“(D) A description of the input of the military departments in developing concepts of operations and tactics, techniques, and procedures for incorporating non-lethal weapons into the current escalation of force procedures of each department.
“(E) A description of the extent to which non-lethal weapons and technologies are integrated into the standard equipment and training of military units.”
Pub. L. 110–417, [div. A], title II, §219, Oct. 14, 2008, 122 Stat. 4389, as amended by Pub. L. 111–84, div. B, title XXVIII, §2801(c), Oct. 28, 2009, 123 Stat. 2660, provided that:
“(a)
“(1)
“(A) To fund innovative basic and applied research that is conducted at the defense laboratory and supports military missions.
“(B) To fund development programs that support the transition of technologies developed by the defense laboratory into operational use.
“(C) To fund workforce development activities that improve the capacity of the defense laboratory to recruit and retain personnel with needed scientific and engineering expertise.
“(D) To fund the revitalization and recapitalization of the laboratory pursuant to section 2805(d) of title 10, United States Code.
“(2)
“(b)
“(c)
Pub. L. 110–417, [div. A], title XV, §1504, Oct. 14, 2008, 122 Stat. 4650, as amended by Pub. L. 111–383, div. A, title IX, §901(a)(2), Jan. 7, 2011, 124 Stat. 4317, provided that:
“(a)
“(b)
“(1) Identification of counter-IED capability gaps.
“(2) A taxonomy describing the major technical areas for the Department of Defense to address the counter-IED capability gaps and in which science and technology funding investments should be made.
“(3) Identification of funded programs to develop or mature technologies from or to the level of system or subsystem model or prototype demonstration in a relevant environment, and investment levels for those initiatives.
“(4) Identification of JIEDDO's mechanisms for coordinating Department of Defense and Federal Government science and technology activities in areas covered by the strategy.
“(5) Identification of technology transition mechanisms developed or utilized to efficiently transition technologies to acquisition programs of the Department of Defense or into operational use, including a summary of counter-IED technologies transitioned from JIEDDO, the military departments, and other Defense Agencies to the acquisition programs or into operational use.
“(6) Identification of high priority basic research efforts that should be addressed through JIEDDO or other Department of Defense activities to support development of next generation IED defeat capabilities.
“(7) Identification of barriers or issues, such as industrial base, workforce, or statutory or regulatory barriers, that could hinder the efficient and effective development and operational use of advanced IED defeat capabilities, and discussion of activities undertaken to address them.
“(8) Identification of the measures of effectiveness for the overall Department of Defense science and technology counter-IED effort.
“(9) Such other matters as the Director of the JIEDDO and the Assistant Secretary of Defense for Research and Engineering consider appropriate.
“(c)
Pub. L. 109–364, div. A, title II, §218, Oct. 17, 2006, 120 Stat. 2126, provided that:
“(a)
“(b)
“(c)
“(1) Coordinate and integrate current and future research, development, test, and evaluation programs and system demonstration programs of the Department of Defense on hypersonics.
“(2) Undertake appropriate actions to ensure—
“(A) close and continuous integration of the programs on hypersonics of the military departments with the programs on hypersonics of the Defense Agencies;
“(B) coordination of the programs referred to in subparagraph (A) with the programs on hypersonics of the National Aeronautics and Space Administration; and
“(C) that developmental testing resources are adequate and facilities are made available in a timely manner to support hypersonics research, demonstration programs, and system development.
“(3) Approve demonstration programs on hypersonic systems.
“(4) Ensure that any demonstration program on hypersonic systems that is carried out in any year after its approval under paragraph (3) is carried out only if certified under subsection (e) as being consistent with the roadmap under subsection (d).
“(d)
“(1)
“(2)
“(3)
“(A) Anticipated or potential mission requirements for hypersonics.
“(B) Short-term, mid-term, and long-term goals for the Department of Defense on hypersonics, which shall be consistent with the missions and anticipated requirements of the Department over the applicable period.
“(C) A schedule for meeting such goals, including—
“(i) the activities and funding anticipated to be required for meeting such goals; and
“(ii) the activities of the National Aeronautics and Space Administration to be leveraged by the Department to meet such goals.
“(D) The test and evaluation facilities required to support the activities identified in subparagraph (C), along with the schedule and funding required to upgrade those facilities, as necessary.
“(E) Acquisition transition plans for hypersonics.
“(4)
“(A) at the same time as the submittal to Congress of the budget for fiscal year 2008 (as submitted pursuant to section 1105 of title 31, United States Code), the roadmap developed under paragraph (1); and
“(B) at the same time as the submittal to Congress of the budget for each even-numbered fiscal year after 2008, the roadmap revised under paragraph (1).
“(e)
“(1)
“(A) the funding available for research, development, test, and evaluation and demonstration programs within the Department of Defense for hypersonics, in order to determine whether or not such funding is consistent with the roadmap developed under subsection (d); and
“(B) the hypersonics demonstration programs of the Department, in order to determine whether or not such programs avoid duplication of effort and support the goals of the Department in a manner consistent with the roadmap developed under subsection (d).
“(2)
“(3)
“(f)
Pub. L. 108–375, div. A, title II, §212, Oct. 28, 2004, 118 Stat. 1832, as amended by Pub. L. 111–383, div. A, title IX, §901(a)(2), Jan. 7, 2011, 124 Stat. 4317, provided that:
“(a)
“(b)
“(1) Activities needed for development and maturation of advanced vacuum electronics technologies needed to meet the requirements of the Department of Defense.
“(2) Identification of legacy and developmental Department of Defense systems which may make use of advanced vacuum electronics under the program.
“(c)
“(1) Identification of the organization to have lead responsibility for carrying out the program.
“(2) Assessment of the role of investing in vacuum electronics technologies as part of the overall strategy of the Department of Defense for investing in electronics technologies to meet the requirements of the Department.
“(3) The management plan and schedule for the program and any agreements relating to that plan.
“(4) Identification of the funding required for fiscal year 2006 and for the future-years defense program to carry out the program.
“(5) A list of program capability goals and objectives.
“(6) An outline of the role of basic and applied research in support of the development and maturation of advanced vacuum electronics technologies needed to meet the requirements of the Department of Defense.
“(7) Assessment of global capabilities in vacuum electronics technologies and the effect of those capabilities on the national security and economic competitiveness of the United States.”
Pub. L. 108–136, div. A, title II, §234, Nov. 24, 2003, 117 Stat. 1423, provided that:
“(a)
“(b)
“(1) To accelerate the development and fielding by the Armed Forces of network-centric operational capabilities (including expanded use of unmanned vehicles, satellite communications, and sensors) through the promotion of research and development, and the focused coordination of programs, to achieve high-speed, high-bandwidth connectivity to military assets.
“(2) To provide for the development of equipment and technologies for military high-speed, high-bandwidth communications capabilities for support of network-centric operations.
“(c)
“(1) identify areas of advanced wireless communications in which research and development, or the use of emerging technologies, has significant potential to improve the performance, efficiency, cost, and flexibility of advanced communications systems for support of network-centric operations;
“(2) develop a coordinated plan for research and development on—
“(A) improved spectrum access through spectrum-efficient communications for support of network-centric operations;
“(B) high-speed, high-bandwidth communications;
“(C) networks, including complex ad hoc adaptive network structures;
“(D) communications devices, including efficient receivers and transmitters;
“(E) computer software and wireless communication applications, including robust security and encryption; and
“(F) any other matters that the Secretary considers appropriate for the purposes described in subsection (b);
“(3) ensure joint research and development, and promote joint systems acquisition and deployment, among the military departments and defense agencies, including the development of common cross-service technology requirements and doctrine, so as to enhance interoperability among the military services and defense agencies;
“(4) conduct joint experimentation among the Armed Forces, and coordinate with the Joint Forces Command, on experimentation to support the development of network-centric warfare capabilities from the operational to the small unit level in the Armed Forces;
“(5) consult with other Federal entities and with private industry to develop cooperative research and development efforts, to the extent that such efforts are practicable.
“(d)
“(2) The report under paragraph (1) shall include the following:
“(A) A description of the research and development activities carried out under subsection (a), including the particular activities carried out under the plan required by subsection (c)(2).
“(B) Current and proposed funding for the particular activities carried out under that plan, as set forth in each of subparagraphs (A) through (F) of subsection (c)(2).
“(C) A description of the joint research and development activities required by subsection (c)(3).
“(D) A description of the joint experimentation activities required by subsection (c)(4).
“(E) An analysis of the effects on recent military operations of limitations on communications bandwidth and access to radio frequency spectrum.
“(F) An assessment of the effect of additional resources on the ability to achieve the purposes described in subsection (b).
“(G) Such recommendations for additional activities under this section as the Secretary considers appropriate to meet the purposes described in subsection (b).”
Pub. L. 108–136, div. A, title XVI, §1601, Nov. 24, 2003, 117 Stat. 1680, provided that:
“(a)
“(b)
“(2) The Secretary, through regular, structured, and close consultation with the Secretary of Health and Human Services and the Secretary of Homeland Security, shall ensure that the activities of the Department of Defense in carrying out the program are coordinated with, complement, and do not unnecessarily duplicate activities of the Department of Health and Human Services or the Department of Homeland Security.
“(c)
“(A) section 32A of the Office of Federal Procurement Policy Act, as added by section 1443 of this Act [now 41 U.S.C. 1903]; and
“(B) section 2371 of title 10, United States Code, and section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160; 10 U.S.C. 2371 note).
“(2) Notwithstanding paragraph (1) and the provisions of law referred to in such paragraph, each of the following provisions shall apply to the procurements described in this subsection to the same extent that such provisions would apply to such procurements in the absence of paragraph (1):
“(A) Chapter 37 of title 40, United States Code (relating to contract work hours and safety standards).
“(B) Subsections (a) and (b) of section 7 of the Anti-Kickback Act of 1986 ([former] 41 U.S.C. 57(a) and (b)) [now 41 U.S.C. 8703(a)].
“(C) Section 2313 of title 10, United States Code (relating to the examination of contractor records).
“(3) The Secretary shall institute appropriate internal controls for use of the authority under paragraph (1), including requirements for documenting the justification for each use of such authority.
“(d)
“(2) The Secretary shall use existing construction authorities provided by subchapter I of chapter 169 of title 10, United States Code, to the maximum extent possible.
“(3)(A) If the Secretary determines that use of authorities in paragraph (2) would prevent the Department from meeting a specific facility requirement for the program, the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of Senate and House of Representatives] advance notification, which shall include the following:
“(i) Certification by the Secretary that use of existing construction authorities would prevent the Department from meeting the specific facility requirement.
“(ii) A detailed explanation of the reasons why existing authorities cannot be used.
“(iii) A justification of the facility requirement.
“(iv) Construction project data and estimated cost.
“(v) Identification of the source or sources of the funds proposed to be expended.
“(B) The facility project may be carried out only after the end of the 21-day period beginning on the date the notification is received by the congressional defense committees.
“(4) If the Secretary determines: (A) that the facility is vital to national security or to the protection of health, safety, or the quality of the environment; and (B) the requirement for the facility is so urgent that the advance notification in paragraph (3) and the subsequent 21-day deferral of the facility project would threaten the life, health, or safety of personnel, or would otherwise jeopardize national security, the Secretary may obligate funds for the facility and notify the congressional defense committees within seven days after the date on which appropriated funds are obligated with the information required in paragraph (3).
“(5) The Secretary shall submit to the congressional defense committees a quarterly report detailing any use of the authority provided by paragraph (4), including costs incurred or to be incurred by the United States as a result of the use of the authority.
“(6) Nothing in this section shall be construed to authorize the Secretary to acquire, construct, lease, or improve a facility having general utility beyond the specific purposes of the program.
“(7) In this subsection, the term ‘facility’ has the meaning given the term in section 2801(c) of title 10, United States Code.
“(e)
“(2) The authority provided by such section 1091 may not be used for a personal services contract unless the contracting officer for the contract ensures that—
“(A) the services to be procured are urgent or unique; and
“(B) it would not be practicable for the Department of Defense to obtain such services by other measures.
“(f)
“(2) The Secretary may use the authority under paragraph (1) only upon a determination by the Secretary that use of such authority is necessary to accelerate the research and development under the program.
“(3) The Secretary shall institute appropriate internal controls for each use of the authority under paragraph (1).”
Pub. L. 107–107, div. A, title X, §1044(a), Dec. 28, 2001, 115 Stat. 1219, provided that:
“(1) The Secretary of Defense shall carry out a program to aggressively accelerate the research, development, testing, and licensure of new medical countermeasures for defense against the biological warfare agents that are the highest threat.
“(2) The program shall include the following activities:
“(A) As the program's first priority, investment in multiple new technologies for medical countermeasures for defense against the biological warfare agents that are the highest threat, including for the prevention and treatment of anthrax.
“(B) Leveraging of ideas and technologies from the biological technology industry.”
Pub. L. 107–314, div. A, title II, §245, Dec. 2, 2002, 116 Stat. 2500, provided that:
“(a)
“(b)
“(1) To identify and support technological advances that are necessary for the development of fuel cell technology for use in vehicles of types to be used by the Department of Defense.
“(2) To ensure that critical technology advances are shared among the various fuel cell technology programs within the Federal Government.
“(3) To maximize the leverage of Federal funds that are used for the development of fuel cell technology.
“(c)
“(1) development of vehicle propulsion technologies and fuel cell auxiliary power units, together with pilot projects for the demonstration of such technologies, as appropriate; and
“(2) development of technologies necessary to address critical issues with respect to vehicle fuel cells, such as issues relating to hydrogen storage and hydrogen fuel infrastructure.
“(d)
“(A) companies in the automobile and truck manufacturing industry;
“(B) companies in the business of supplying systems and components to that industry; and
“(C) companies in any other industries that the Secretary considers appropriate.
“(2) The Secretary may enter into a cooperative agreement with one or more companies selected under paragraph (1) to establish an entity for carrying out activities required by subsection (c).
“(3) The Secretary shall ensure that companies referred to in paragraph (1) collectively contribute, in cash or in kind, not less than one-half of the total cost of carrying out the program under this section.
“(e)
“(f)
Pub. L. 107–314, div. A, title II, §246, Dec. 2, 2002, 116 Stat. 2500, as amended by Pub. L. 110–181, div. A, title II, §240, Jan. 28, 2008, 122 Stat. 48; Pub. L. 111–84, div. A, title II, §242, Oct. 28, 2009, 123 Stat. 2237; Pub. L. 111–383, div. A, title IX, §901(a)(2), Jan. 7, 2011, 124 Stat. 4317, provided that:
“(a)
“(b)
“(1) To ensure United States global superiority in nanotechnology necessary for meeting national security requirements.
“(2) To coordinate all nanoscale research and development within the Department of Defense, and to provide for interagency cooperation and collaboration on nanoscale research and development between the Department of Defense and other departments and agencies of the United States that are involved in the National Nanotechnology Initiative and with the National Nanotechnology Coordination Office under section 3 of the 21st Century Nanotechnology Research and Development Act (15 U.S.C. 7502).
“(3) To develop and manage a portfolio of nanotechnology research and development initiatives that is stable, consistent, and balanced across scientific disciplines.
“(4) To accelerate the transition and deployment of technologies and concepts derived from nanoscale research and development into the Armed Forces, and to establish policies, procedures, and standards for measuring the success of such efforts.
“(5) To collect, synthesize, and disseminate critical information on nanoscale research and development.
“(c)
“(1) prescribe a set of long-term challenges and a set of specific technical goals for the program;
“(2) develop a coordinated and integrated research and investment plan for meeting the long-term challenges and achieving the specific technical goals that builds upon investments by the Department and other departments and agencies participating in the National Nanotechnology Initiative in nanotechnology research and development;
“(3) develop memoranda of agreement, joint funding agreements, and other cooperative arrangements necessary for meeting the long-term challenges and achieving the specific technical goals; and
“(4) oversee Department of Defense participation in interagency coordination of the program with other departments and agencies participating in the National Nanotechnology Initiative.
“(d)
“(1) is integrated with the strategic plan for the National Nanotechnology Initiative and the strategic plans of the Assistant Secretary of Defense for Research and Engineering, the military departments, and the Defense Agencies; and
“(2) includes a clear strategy for transitioning the research into products needed by the Department.
“(e)
Pub. L. 107–314, div. A, title X, §1032, Dec. 2, 2002, 116 Stat. 2643, as amended by Pub. L. 108–136, div. C, title XXXI, §3135, Nov. 24, 2003, 117 Stat. 1752, as amended by Pub. L. 110–181, div. A, title X, §1041, Jan. 28, 2008, 122 Stat. 310; Pub. L. 111–383, div. A, title X, §1075(j), Jan. 7, 2011, 124 Stat. 4378, provided that:
“(a)
“(b)
“(1) include a discussion of the integration and interoperability of the activities referred to in that subsection that were or will be undertaken during the four-fiscal-year period covered by the report, including a discussion of the relevance of such activities to applicable recommendations by the Chairman of the Joint Chiefs of Staff, assisted under section 181(b) of title 10, United States Code, by the Joint Requirements Oversight Council; and
“(2) set forth separately a description of the activities referred to in that subsection, if any, that were or will be undertaken during the four-fiscal-year period covered by the report by each element of—
“(A) the Department of Defense;
“(B) the Department of Energy; and
“(C) the intelligence community.
“(c)
“(d)
“(e)
Pub. L. 107–314, div. A, title II, §241, Dec. 2, 2002, 116 Stat. 2492, provided that:
“(a)
“(2) Under the pilot program, the Secretary of Defense shall provide the director of one science and technology laboratory, and the director of one test and evaluation laboratory, of each military department with authority for the following:
“(A) To use innovative methods of personnel management appropriate for ensuring that the selected laboratories can—
“(i) employ and retain a workforce appropriately balanced between permanent and temporary personnel and among workers with appropriate levels of skills and experience; and
“(ii) effectively shape workforces to ensure that the workforces have the necessary sets of skills and experience to fulfill their organizational missions.
“(B) To develop or expand innovative methods of entering into and expanding cooperative relationships and arrangements with private sector organizations, educational institutions (including primary and secondary schools), and State and local governments to facilitate the training of a future scientific and technical workforce that will contribute significantly to the accomplishment of organizational missions.
“(C) To develop or expand innovative methods of establishing cooperative relationships and arrangements with private sector organizations and educational institutions to promote the establishment of the technological industrial base in areas critical for Department of Defense technological requirements.
“(D) To waive any restrictions not required by law that apply to the demonstration and implementation of methods for achieving the objectives set forth in subparagraphs (A), (B), and (C).
“(3) The Secretary may carry out the pilot program under this subsection at each selected laboratory for a period of three years beginning not later than March 1, 2003.
“(b)
“(c)
“(A) barriers to the exercise of the authorities that have been encountered;
“(B) the proposed solutions for overcoming the barriers; and
“(C) the progress made in overcoming the barriers.
“(2) Not later than September 1, 2003, the Secretary of Defense shall submit to Congress a report on the implementation of the pilot program under subsection (a) and the fiscal years 1999 and 2000 revitalization pilot programs. The report shall include, for each such pilot program, the following:
“(A) Each laboratory selected for the pilot program.
“(B) To the extent practicable, a description of the innovative methods that are to be tested at each laboratory.
“(C) The criteria to be used for measuring the success of each method to be tested.
“(3) Not later than 90 days after the expiration of the period for the participation of a laboratory in a pilot program referred to in paragraph (2), the Secretary of Defense shall submit to Congress a final report on the participation of that laboratory in the pilot program. The report shall include the following:
“(A) A description of the methods tested.
“(B) The results of the testing.
“(C) The lessons learned.
“(D) Any proposal for legislation that the Secretary recommends on the basis of the experience at that laboratory under the pilot program.
“(d)
“(2) [Amended section 245(a)(4) of Pub. L. 106–65, formerly set out as a note below.]
“(e)
“(2) A competitive process shall be used for the selection of entities outside the Government to participate in a public-private partnership.
“(3)(A) Not more than one public-private partnership may be established as a limited liability company.
“(B) An entity participating in a limited liability company as a party to a public-private partnership under the pilot program may contribute funds to the company, accept contributions of funds for the company, and provide materials, services, and use of facilities for research, technology, and infrastructure of the company, if it is determined under regulations prescribed by the Secretary of Defense that doing so will improve the efficiency of the performance of research, test, and evaluation functions of the Department of Defense.
“(f)
“(1) the pilot programs authorized by section 246 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105–261; 112 Stat. 1955; [former] 10 U.S.C. 2358 note); and
“(2) the pilot programs authorized by section 245 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65; 113 Stat. 552; [former] 10 U.S.C. 2358 note).”
Pub. L. 106–65, div. A, title II, §245, Oct. 5, 1999, 113 Stat. 552, as amended by Pub. L. 107–314, div. A, title II, §241(d)(2), Dec. 2, 2002, 116 Stat. 2493, authorized the Secretary of Defense to carry out a pilot program for up to five years beginning not later than Mar. 1, 2000, to demonstrate improved efficiency in the performance of research, development, test, and evaluation functions of the Department of Defense, and directed the Secretary to submit to Congress a report on the implementation of the program not later than Mar. 1, 2000, and a final report promptly after the expiration of the period for participation in the program.
Pub. L. 105–261, div. A, title II, §246, Oct. 17, 1998, 112 Stat. 1955, as amended by Pub. L. 107–314, div. A, title II, §241(d)(1), Dec. 2, 2002, 116 Stat. 2493, authorized the Secretary of Defense to carry out a pilot program for up to six years beginning not later than Mar. 1, 1999, to demonstrate improved cooperative relationships with universities and other private sector entities for the performance of research and development functions, and directed the Secretary to submit a report on the implementation of the program to Congress not later than Mar. 1, 1999, and a final report on participation in the program promptly after the expiration of the period for participation.
Pub. L. 105–18, title I, §307, June 12, 1997, 111 Stat. 169, provided that: “For the purposes of implementing the 1997 Defense Experimental Program to Stimulate Competitive Research (DEPSCoR), the term ‘State’ means a State of the United States, the District of Columbia, Puerto Rico, Guam and the Virgin Islands of the United States, American Samoa and the Commonwealth of the Northern Mariana Islands.”
Pub. L. 103–337, div. A, title II, §257, Oct. 5, 1994, 108 Stat. 2705, as amended by Pub. L. 104–106, div. A, title II, §273, Feb. 10, 1996, 110 Stat. 239; Pub. L. 104–201, div. A, title II, §264, Sept. 23, 1996, 110 Stat. 2465; Pub. L. 105–85, div. A, title II, §243, Nov. 18, 1997, 111 Stat. 1667; Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717; Pub. L. 107–314, div. A, title II, §247, Dec. 2, 2002, 116 Stat. 2502; Pub. L. 110–181, div. A, title II, §239, Jan. 28, 2008, 122 Stat. 48; Pub. L. 111–383, div. A, title IX, §901(a)(2), Jan. 7, 2011, 124 Stat. 4317, provided that:
“(a)
“(b)
“(1) To enhance the capabilities of institutions of higher education in eligible States to develop, plan, and execute science and engineering research that is competitive under the peer-review systems used for awarding Federal research assistance.
“(2) To increase the probability of long-term growth in the competitively awarded financial assistance that institutions of higher education in eligible States receive from the Federal Government for science and engineering research.
“(c)
“(1) Competitive award of grants for research and instrumentation to support such research.
“(2) Competitive award of financial assistance for graduate students.
“(3) Any other activities that are determined necessary to further the achievement of the objectives of the program.
“(d)
“(2) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall designate a State as an eligible State if, as determined by the Under Secretary—
“(A) the average annual amount of all Department of Defense obligations for science and engineering research and development that were in effect with institutions of higher education in the State for the three fiscal years preceding the fiscal year for which the designation is effective or for the last three fiscal years for which statistics are available is less than the amount determined by multiplying 60 percent times the amount equal to 1/50 of the total average annual amount of all Department of Defense obligations for science and engineering research and development that were in effect with institutions of higher education in the United States for such three preceding or last fiscal years, as the case may be; and
“(B) the State has demonstrated a commitment to developing research bases in the State and to improving science and engineering research and education programs at institutions of higher education in the State.
“(e)
“(2) All solicitations under the Defense Experimental Program to Stimulate Competitive Research may be made to, and all awards may be made through, the State committees established for purposes of the Experimental Program to Stimulate Competitive Research conducted by the National Science Foundation.
“(3) A State committee referred to in paragraph (2) shall ensure that activities carried out in the State of that committee under the Defense Experimental Program to Stimulate Competitive Research are coordinated with the activities carried out in the State under other similar initiatives of the Federal Government to stimulate competitive research.
“(f)
Pub. L. 111–84, div. A, title XI, §1105, Oct. 28, 2009, 123 Stat. 2486, provided that:
“(a)
“(1) The Aviation and Missile Research Development and Engineering Center.
“(2) The Army Research Laboratory.
“(3) The Medical Research and Materiel Command.
“(4) The Engineer Research and Development Command.
“(5) The Communications-Electronics Command.
“(6) The Soldier and Biological Chemical Command.
“(7) The Naval Sea Systems Command Centers.
“(8) The Naval Research Laboratory.
“(9) The Office of Naval Research.
“(10) The Air Force Research Laboratory.
“(11) The Tank and Automotive Research Development and Engineering Center.
“(12) The Armament Research Development and Engineering Center.
“(13) The Naval Air Warfare Center, Weapons Division.
“(14) The Naval Air Warfare Center, Aircraft Division.
“(15) The Space and Naval Warfare Systems Center, Pacific.
“(16) The Space and Naval Warfare Systems Center, Atlantic.
“(17) The laboratories within the Army Research Development and Engineering Command.
“(b)
“(1) shall not adversely affect any employee with respect to pay or any other term or condition of employment;
“(2) shall be consistent with section 4703(f) of title 5, United States Code;
“(3) shall be completed within 18 months after the date of the enactment of this Act; and
“(4) shall not apply to prevailing rate employees (as defined by section 5342(a)(2) of title 5, United States Code) or senior executives (as defined by section 3132(a)(3) of such title).
“(c)
Pub. L. 110–181, div. A, title XI, §1107, Jan. 28, 2008, 122 Stat. 357, as amended by Pub. L. 110–417, [div. A], title XI, §1109, Oct. 14, 2008, 122 Stat. 4618; Pub. L. 111–84, div. A, title X, §1073(d), Oct. 28, 2009, 123 Stat. 2475; Pub. L. 111–383, div. A, title XI, §1101(b), Jan. 7, 2011, 124 Stat. 4382, provided that:
“(a)
“(b)
“(c)
“(d)
“(e)
“(1)
“(2)
“(A) The actions taken by the Secretary of Defense under subsection (a) during the year covered by the report.
“(B) The progress made by the Secretary of Defense during such year in developing and implementing the plan required by subsection (b), including the anticipated date for completion of such plan and a list and description of any issues relating to the development or implementation of such plan.
“(C) With respect to any applications by any Department of Defense laboratories seeking to be designated as a demonstration laboratory or to otherwise obtain any of the personnel flexibilities available to a demonstration laboratory—
“(i) the number of applications that were received, pending, or acted on during such year;
“(ii) the status or disposition of any applications under clause (i), including, in the case of any application on which a final decision was rendered, the laboratory involved, what the laboratory had requested, the decision reached, and the reasons for the decision; and
“(iii) in the case of any applications under clause (i) on which a final decision was not rendered, the date by which a final decision is anticipated.
“(3)
Pub. L. 103–337, div. A, title III, §342(b), Oct. 5, 1994, 108 Stat. 2721, as amended by Pub. L. 106–65, div. A, title XI, §1109, Oct. 5, 1999, 113 Stat. 779; Pub. L. 106–398, §1 [[div. A], title XI, §1114], Oct. 30, 2000, 114 Stat. 1654, 1654A–315, provided that:
“(1) The Secretary of Defense may carry out personnel demonstration projects at Department of Defense laboratories designated by the Secretary as Department of Defense science and technology reinvention laboratories.
“(2)(A) Each personnel demonstration project carried out under the authority of paragraph (1) shall be generally similar in nature to the China Lake demonstration project.
“(B) For purposes of subparagraph (A), the China Lake demonstration project is the demonstration project that is authorized by section 6 of the Civil Service Miscellaneous Amendments Act of 1983 [Pub. L. 98–224, 98 Stat. 49] to be continued at the Naval Weapons Center, China Lake, California, and at the Naval Ocean Systems Center, San Diego, California.
“(3) If the Secretary carries out a demonstration project at a laboratory pursuant to paragraph (1), section 4703 of title 5, United States Code, shall apply to the demonstration project, except that—
“(A) subsection (d) of such section 4703 shall not apply to the demonstration project;
“(B) the authority of the Secretary to carry out the demonstration project is that which is provided in paragraph (1) rather than the authority which is provided in such section 4703; and
“(C) the Secretary shall exercise the authorities granted to the Office of Personnel Management under such section 4703.
“(4) The employees of a laboratory covered by a personnel demonstration project carried out under this section [enacting this note] shall be exempt from, and may not be counted for the purposes of, any constraint or limitation in a statute or regulation in terms of supervisory ratios or maximum number of employees in any specific category or categories of employment that may otherwise be applicable to the employees. The employees shall be managed by the director of the laboratory subject to the supervision of the Under Secretary of Defense for Acquisition, Technology, and Logistics.
“(5) The limitations in section 5373 of title 5, United States Code, do not apply to the authority of the Secretary under this section to prescribe salary schedules and other related benefits.”
Section 252 of Pub. L. 103–160 provided that:
“(a)
“(1) women who are members of the Armed Forces are included as subjects in each project of such research; and
“(2) members of minority groups who are members of the Armed Forces are included as subjects of such research.
“(b)
“(1) is inappropriate with respect to the health of the subjects;
“(2) is inappropriate with respect to the purpose of the research; or
“(3) is inappropriate under such other circumstances as the Secretary of Defense may designate.
“(c)
Pub. L. 103–160, div. A, title VIII, §802, Nov. 30, 1993, 107 Stat. 1701, as amended by Pub. L. 104–106, div. A, title II, §275, Feb. 10, 1996, 110 Stat. 241; Pub. L. 104–201, div. A, title II, §263, Sept. 23, 1996, 110 Stat. 2465; Pub. L. 111–383, div. A, title IX, §901(a)(2), Jan. 7, 2011, 124 Stat. 4317, provided that:
“(a)
“(b)
“(c)
“(d)
“(e)
“(f)
“(g)
Pub. L. 91–441, title II, §203, Oct. 7, 1970, 84 Stat. 906, as amended by Pub. L. 96–342, title II, §208, Sept. 8, 1980, 94 Stat. 1081, provided that no funds authorized to be appropriated to Department of Defense by this or any other Act were to be used to finance independent research and development or bid and proposal costs unless such work had, in opinion of Secretary of Defense, potential relationship to military functions or operations, and advance agreements regarding payment for such work had been negotiated, prior to repeal by Pub. L. 101–510, div. A, title VIII, §824(b), Nov. 5, 1990, 104 Stat. 1604. See section 2372 of this title.
Pub. L. 91–441, title II, §204, Oct. 7, 1970, 84 Stat. 908, which provided that no funds authorized to be appropriated to the Department of Defense by this or any other Act may be used to finance any research project or study unless such project or study has, in the opinion of the Secretary of Defense, a potential relationship to a military function or operation, was repealed and restated in subsec. (b) of this section by Pub. L. 100–370, §1(g)(3)(C), (5), July 19, 1988, 102 Stat. 847.
Pub. L. 91–441, title V, §506(c), Oct. 7, 1970, 84 Stat. 913, directed Secretary of Defense to enter into appropriate arrangements with National Academy of Sciences to conduct a comprehensive study and investigation to determine (A) ecological and physiological dangers inherent in use of herbicides, and (B) ecological and physiological effects of defoliation program carried out by Department of Defense in South Vietnam, with a report on the study to be transmitted to President and Congress by Mar. 1, 1972.
Pub. L. 92–436, title VI, §606, Sept. 29, 1972, 86 Stat. 740, provided that:
“(a) No part of the funds appropriated pursuant to this or any other Act for the Department of Defense or any of the Armed Forces may be used at any institution of higher learning if the Secretary of Defense or his designee determines that recruiting personnel of any of the Armed Forces of the United States are being barred by the policy of such institution from the premises of the institution: except in a case where the Secretary of the service concerned certifies to the Congress in writing that a specific course of instruction is not available at any other institution of higher learning and furnishes to the Congress the reasons why such course of instruction is of vital importance to the security of the United States.
“(b) The prohibition made by subsection (a) of this section as it applies to research and development funds shall not apply if the Secretary of Defense or his designee determines that the expenditure is a continuation or a renewal of a previous program with such institution which is likely to make a significant contribution to the defense effort.
“(c) The Secretaries of the military departments shall furnish to the Secretary of Defense or his designee within 60 days after the date of enactment of this Act [Sept. 29, 1972] and each January 31 and June 30 thereafter the names of any institution of higher learning which the Secretaries determine on such dates are affected by the prohibitions contained in this section.”
Similar provisions were contained in the following prior authorization acts:
Pub. L. 92–156, title V, §502, Nov. 17, 1971, 85 Stat. 427.
Pub. L. 91–441, title V, §510, Oct. 7, 1970, 84 Stat. 914.
Pub. L. 91–121, title IV, §407, Nov. 19, 1969, 83 Stat. 208, related to restrictions on use of appropriations for compensation of officers and employees of Federal contract research centers, and notice requirements respecting such payments, prior to repeal by Pub. L. 96–107, title VIII, §819(c), Nov. 9, 1979, 93 Stat. 819. See section 2359 of this title.
(a)
(b)
(1) The Under Secretary of Defense for Acquisition, Technology, and Logistics.
(2) The Secretary of each military department.
(3) The Director of the Defense Advanced Research Projects Agency.
(4) The directors and heads of other offices and agencies of the Department of Defense with assigned research, development, test, and evaluation responsibilities.
(Added Pub. L. 106–398, §1 [[div. A], title IX, §904(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–225.)
A prior section 2359, added Pub. L. 96–107, title VIII, §819(a)(1), Nov. 9, 1979, 93 Stat. 818, related to reports on salaries of officers of Federal contract research centers, prior to repeal by Pub. L. 101–510, div. A, title XIII, §1322(a)(5), Nov. 5, 1990, 104 Stat. 1671.
(a)
(b)
(1) To accelerate the introduction of new technologies into operational capabilities for the armed forces.
(2) To successfully demonstrate new technologies in relevant environments.
(c)
(2) In managing the Initiative, the Manager shall—
(A) report directly to the Under Secretary; and
(B) obtain advice and other assistance from the Technology Transition Council established under subsection (g).
(3) The Manager shall—
(A) in consultation with the Technology Transition Council established under subsection (g), identify promising technology transition projects that can contribute to meeting Department of Defense technology goals and requirements;
(B) identify potential sponsors in the Department of Defense to manage such projects; and
(C) provide funds under subsection (f) for those projects that are selected under subsection (d)(2).
(d)
(2) The Manager, in consultation with the Technology Transition Council established under subsection (g), shall select projects for implementation under subsection (e) from among the projects on the lists submitted under paragraph (1).
(e)
(f)
(2) The amount of funds provided to a project under paragraph (1) by the military department or Defense Agency concerned shall be the appropriate share of the military department or Defense Agency, as the case may be, of the cost of the project, as determined by the Manager.
(3) A project shall not be provided funds under this subsection for more than four fiscal years.
(g)
(A) The science and technology executive of each military department and each Defense Agency.
(B) The acquisition executive of each military department.
(C) The members of the Joint Requirements Oversight Council.
(2) The duty of the Council shall be to support the Under Secretary of Defense for Acquisition, Technology, and Logistics in developing policies to facilitate the rapid transition of technologies from science and technology programs into acquisition programs of the Department of Defense.
(3) The Council shall meet not less often than semiannually to carry out its duty under paragraph (2).
(h)
(Added Pub. L. 107–314, div. A, title II, §242(a)(1), Dec. 2, 2002, 116 Stat. 2494; amended Pub. L. 109–163, div. A, title II, §255(a), Jan. 6, 2006, 119 Stat. 3180; Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 110–181, div. A, title II, §233, Jan. 28, 2008, 122 Stat. 46; Pub. L. 110–417, [div. A], title II, §253(b), Oct. 14, 2008, 122 Stat. 4402.)
Section 16(c) of the Office of Federal Procurement Policy Act, referred to in subsec. (h), which was classified to section 414(c) of former Title 41, Public Contracts, was repealed and restated as section 1702(c) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855.
2008—Subsec. (f)(2). Pub. L. 110–181 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The amount of funds provided to a project under paragraph (1) shall be not less than the amount equal to 50 percent of the total cost of the project.”
Subsecs. (h), (i). Pub. L. 110–417 redesignated subsec. (i) as (h) and struck out heading and text of former subsec. (h). Text read as follows: “Not later than March 31 of each year, the Under Secretary shall submit to the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives a report on the activities carried out by the Initiative during the preceding fiscal year.”
2006—Subsec. (g)(2). Pub. L. 109–163 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The duty of the Council shall be to provide advice and assistance to the Manager under this section.”
Subsec. (i). Pub. L. 109–364 substituted “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))” for “section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))”.
Pub. L. 111–383, div. A, title X, §1073, Jan. 7, 2011, 124 Stat. 4366, provided that:
“(a)
“(b)
“(1) The issuance of an annual broad agency announcement or the use of any other competitive or merit-based processes by the Department of Defense and by each military department for candidate proposals in direct support of primarily major defense acquisition programs, but also other defense acquisition programs as described in subsection (a).
“(2) The review of candidate proposals by the Department of Defense and by each military department and the merit-based selection of the most promising cost-effective proposals for funding through contracts, cooperative agreements, and other transactions for the purposes of carrying out the program.
“(3) The total amount of funding provided to any project under the program shall not exceed $3,000,000, unless the Secretary, or the Secretary's designee, approves a larger amount of funding for the project. Any such approval shall be made on a case-by-case basis and notice of any such approval shall be submitted to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] by not later than 30 days after such approval is made.
“(4) No project shall be funded under the program for more than two years, unless the Secretary, or the Secretary's designee, approves funding for any additional year. Any such approval shall be made on a case-by-case basis and notice of any such approval shall be submitted to the congressional defense committees by not later than 30 days after such approval is made.
“(c)
“(d)
“(e)
“(f)
“(g)
1 See References in Text note below.
(a)
(2) The program, to be known as the Defense Acquisition Challenge Program (hereinafter in this section referred to as the “Challenge Program”), shall provide any person or activity within or outside the Department of Defense with the opportunity to propose alternatives, to be known as challenge proposals, at the component, subsystem, or system level of an existing Department of Defense acquisition program that would result in improvements in performance, affordability, manufacturability, or operational capability of that acquisition program.
(b)
(c)
(2) The Under Secretary shall establish procedures pursuant to which appropriate officials of the Department of Defense may identify proposals submitted through the unsolicited proposal process as challenge proposals. The procedures shall provide for the expeditious referral of such proposals to a Panel for preliminary evaluation under this subsection.
(3) The Under Secretary shall issue on an annual basis not less than one such broad agency announcement inviting interested parties to submit challenge proposals. Such announcements may also identify particular technology areas and acquisition programs that will be given priority in the evaluation of challenge proposals.
(4)(A) The Under Secretary shall establish procedures for the prompt issuance of a solicitation for challenge proposals addressing—
(i) any acquisition program for which, since the last such announcement, the Secretary concerned has determined under section 2433(d) of this title that the program's acquisition unit cost or procurement unit cost has increased by a percentage equal to or greater than the critical cost growth threshold for the program (in this section referred to as a “critical cost growth threshold breach”); and
(ii) any design, engineering, manufacturing, or technology integration issues, in accordance with the assessment required by section 2433(e)(2)(A) of this title, that have contributed significantly to the cost growth of such program.
(B) A solicitation under this paragraph may be included in a broad agency announcement issued pursuant to paragraph (3) as long as the broad agency announcement is released in an expeditious manner following the determination of the Secretary concerned that a critical cost growth threshold breach has occurred with respect to a major defense acquisition program.
(5) Under procedures established by the Under Secretary, a Panel shall carry out a preliminary evaluation of each challenge proposal submitted in response to a broad agency announcement, or submitted through the unsolicited proposal process and identified as a challenge proposal in accordance with paragraph (2), to determine each of the following:
(A) Whether the challenge proposal has merit.
(B) Whether the challenge proposal is likely to result in improvements in performance, affordability, manufacturability, or operational capability at the component, subsystem, or system level of an acquisition program.
(C) Whether the challenge proposal could be implemented in the acquisition program rapidly, at an acceptable cost, and without unacceptable disruption to the acquisition program.
(6) The Under Secretary—
(A) may establish procedures to ensure that the Challenge Program does not become an avenue for the repetitive submission of proposals that have been previously reviewed and found not to have merit; and
(B) may establish procedures to ensure that the Challenge Program establishes appropriate priorities for proposals from businesses that are not major contractors with the Department of Defense.
(7) If a Panel determines that a challenge proposal satisfies each of the criteria specified in paragraph (5), the person or activity submitting that challenge proposal shall be provided an opportunity to submit such challenge proposal for a full review and evaluation under subsection (d).
(d)
(2) The full review and evaluation shall, independent of the determination of a Panel under subsection (c)(5), determine each of the matters specified in subparagraphs (A), (B), and (C) of such subsection. The full review and evaluation shall also include—
(A) an assessment of the cost of adopting the challenge proposal and implementing it in the acquisition program; and
(B) consideration of any intellectual property issues associated with the challenge proposal.
(e)
(2) The Under Secretary shall encourage the adoption of each challenge proposal referred to in paragraph (1) by providing suitable incentives to the office carrying out the acquisition program and the prime system contractor carrying out such program.
(3) In the case of a challenge proposal submitted in response to a solicitation issued as a result of a critical cost growth threshold breach that is determined under full review and evaluation to satisfy each of the criteria specified in subsection (c)(5), the Under Secretary shall establish guidelines for covering the costs of the challenge proposal. If appropriate, such guidelines shall not be restricted to funding provided by the Defense Acquisition Challenge Program, but shall also consider alternative funding sources, such as the acquisition program with respect to which the breach occurred.
(f)
(1) The office carrying out the full review and evaluation shall provide to the Panel that conducted the preliminary evaluation a statement containing a summary of the rationale for the unfavorable evaluation.
(2) If the Panel disagrees with the rationale provided under paragraph (1), the Panel may return the challenge proposal to the office for further consideration.
(g)
(2) Funds available to carry out this program may be used to compensate such laboratories, centers, activities, and elements for technical assistance provided to a Panel pursuant to paragraph (1).
(h)
(i)
(j)
(1) means—
(A) the organization of hardware, software, material, facilities, personnel, data, and services needed to perform a designated function with specified results (such as the gathering of specified data, its processing, and its delivery to users); or
(B) a combination of two or more interrelated pieces (or sets) of equipment arranged in a functional package to perform an operational function or to satisfy a requirement; and
(2) includes a major system (as defined in section 2302(5) of this title).
(k)
(1)
(2)
(A) is evaluated as achieving a level of performance that is at least equal to the level of performance of an item being procured under a covered acquisition program and as providing savings in excess of 15 percent after considering all costs to the Government of implementing such proposal; or
(B) is evaluated as achieving a level of performance that is significantly better than the level of performance of an item being procured under a covered acquisition program without any increase in cost to the Government.
(3)
(4)
(A)
(B)
(C)
(5)
(Added Pub. L. 107–314, div. A, title II, §243(a), Dec. 2, 2002, 116 Stat. 2495; amended Pub. L. 109–364, div. A, title II, §213(b), (d)–(g), Oct. 17, 2006, 120 Stat. 2121–2123; Pub. L. 110–417, [div. A], title VIII, §821, Oct. 14, 2008, 122 Stat. 4531; Pub. L. 111–383, div. A, title VIII, §827, Jan. 7, 2011, 124 Stat. 4270.)
Section 4 of the Office of Federal Procurement Policy Act, referred to in subsec. (k)(4)(A), is section 4 of Pub. L. 93–400, which was classified to section 403 of former Title 41, Public Contracts, and was repealed and the provisions thereof restated in sections 102, 103, 105, 107 to 116, 131 to 134, and 1301 of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
The Small Business Act, referred to in subsec. (k)(4)(B), is Pub. L. 85–536, §2(1 et seq.), July 18, 1958, 72 Stat. 384, which is classified generally to chapter 14A (§631 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 631 of Title 15 and Tables.
The date of the enactment of this Act, referred to in subsec. (k)(5), probably means the date of enactment of Pub. L. 111–383, which enacted subsec. (k) and was approved Jan. 4, 2011.
2011—Subsecs. (j) to (l). Pub. L. 111–383 redesignated subsec. (l) as (j), added subsec. (k), and struck out former subsecs. (j) and (k) which related to annual report and termination of authority, respectively.
2008—Subsec. (l). Pub. L. 110–417 added subsec. (l).
2006—Subsec. (c)(4), (5). Pub. L. 109–364, §213(b)(1), added par. (4) and redesignated former par. (4) as (5). Former par. (5) redesignated (6).
Subsec. (c)(6). Pub. L. 109–364, §213(b)(1)(A), (d), redesignated par. (5) as (6) and amended it generally. Prior to amendment, par. (6) read as follows: “The Under Secretary may establish procedures to ensure that the Challenge Program does not become an avenue for the repetitive submission of proposals that have been previously reviewed and found not to have merit.” Former par. (6) redesignated (7).
Subsec. (c)(7). Pub. L. 109–364, §213(b)(1)(A), (g)(1), redesignated par. (6) as (7) and substituted “paragraph (5)” for “paragraph (4)”.
Subsec. (d)(1). Pub. L. 109–364, §213(g)(2), substituted “subsection (c)(7)” for “subsection (c)(6)”.
Subsec. (d)(2). Pub. L. 109–364, §213(g)(3), substituted “subsection (c)(5)” for “subsection (c)(4)” in introductory provisions.
Subsec. (e)(1). Pub. L. 109–364, §213(g)(4), substituted “subsection (c)(5)” for “subsection (c)(4)”.
Subsec. (e)(3). Pub. L. 109–364, §213(b)(2), added par. (3).
Subsecs. (f), (g). Pub. L. 109–364, §213(b)(3), added subsec. (f) and redesignated former subsec. (f) as (g). Former subsec. (g) redesignated (h).
Subsec. (h). Pub. L. 109–364, §213(b)(3)(A), (e), redesignated subsec. (g) as (h), substituted “Conflicts of Interest and Confidentiality” for “Elimination of Conflicts of Interest” in heading, substituted “conflicts of interest and that the identity of any person or activity submitting a challenge proposal is not disclosed outside the Federal Government, prior to contract award, without the consent of the person or activity” for “conflicts of interest”, and inserted at end “For purposes of the proceeding sentence, the term ‘Federal Government’ includes both employees of the Federal Government and employees of Federal Government contractors providing advisory and assistance services as described in part 37 of the Federal Acquisition Regulation.” Former subsec. (h) redesignated (i).
Subsec. (i). Pub. L. 109–364, §213(b)(3)(A), redesignated subsec. (h) as (i). Former subsec. (i) redesignated (j).
Subsec. (j). Pub. L. 109–364, §213(b)(3)(A), (4), redesignated subsec. (i) as (j) and substituted “The report shall also include a list of each challenge proposal that was determined by a Panel to satisfy each of the criteria specified in subsection (c)(5), but was not determined under a full review and evaluation to satisfy such criteria, together with a detailed rationale for the Department's determination that such criteria were not satisfied” for “No report is required for a fiscal year in which the Challenge Program is not carried out”. Former subsec. (j) redesignated (k).
Subsec. (k). Pub. L. 109–364, §213(b)(3)(A), (f), redesignated subsec. (j) as (k) and substituted “2012” for “2007”.
1 See References in Text note below.
2 So in original. Probably should be followed by a period.
(a) Subject to the availability of appropriations for such purpose, the Secretary of Defense may procure by contract under the authority of this section the temporary or intermittent services of students at institutions of higher learning for the purpose of providing technical support at defense research and development laboratories. Such contracts may be made directly with such students or with nonprofit organizations employing such students.
(b) Students providing services pursuant to a contract made under subsection (a) shall be considered to be employees for the purposes of chapter 81 of title 5, relating to compensation for work injuries, and to be employees of the government for the purposes of chapter 171 of title 28, relating to tort claims. Such students who are not otherwise employed by the Federal Government shall not be considered to be Federal employees for any other purpose.
(c) The Secretary of Defense shall prescribe regulations to carry out this section. Such regulations shall include definitions for the purposes of this section of the terms “student”, “institution of higher learning”, and “nonprofit organization”.
(Added Pub. L. 97–86, title VI, §603(a), Dec. 1, 1981, 95 Stat. 1110.)
(a) The Secretary of Defense may not make a grant or award a contract to a college or university for the performance of research and development, or for the construction of any research or other facility, unless—
(1) in the case of a grant, the grant is made using competitive procedures; and
(2) in the case of a contract, the contract is awarded in accordance with section 2304 of this title (other than pursuant to subsection (c)(5) of that section).
(b)(1) A provision of law may not be construed as modifying or superseding the provisions of subsection (a), or as requiring funds to be made available by the Secretary of Defense to a particular college or university by grant or contract, unless that provision of law—
(A) specifically refers to this section;
(B) specifically states that such provision of law modifies or supersedes the provisions of this section; and
(C) specifically identifies the particular college or university involved and states that the grant to be made or the contract to be awarded, as the case may be, pursuant to such provision of law is being made or awarded in contravention of subsection (a).
(2) A grant may not be made, or a contract awarded, pursuant to a provision of law that authorizes or requires the making of the grant, or the awarding of the contract, in a manner that is inconsistent with subsection (a) until—
(A) the Secretary of Defense submits to Congress a notice in writing of the intent to make the grant or award the contract; and
(B) a period of 180 days has elapsed after the date on which the notice is received by Congress.
(Added Pub. L. 100–456, div. A, title II, §220(a), Sept. 29, 1988, 102 Stat. 1940; amended Pub. L. 101–189, div. A, title II, §252(a), (b)(1), (c)(1), Nov. 29, 1989, 103 Stat. 1404, 1405; Pub. L. 101–510, div. A, title XIII, §1311(4), Nov. 5, 1990, 104 Stat. 1669; Pub. L. 103–35, title II, §201(g)(5), May 31, 1993, 107 Stat. 100; Pub. L. 103–160, div. A, title VIII, §821(b), Nov. 30, 1993, 107 Stat. 1704; Pub. L. 103–337, div. A, title VIII, §813, Oct. 5, 1994, 108 Stat. 2816; Pub. L. 104–106, div. A, title II, §264, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 237, 502; Pub. L. 104–201, div. A, title II, §265, Sept. 23, 1996, 110 Stat. 2466.)
A prior section 2361 was renumbered section 2351 of this title.
1996—Subsec. (c). Pub. L. 104–201 struck out subsec. (c) which read as follows:
“(1) The Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives an annual report on the use of competitive procedures for the award of research and development contracts, and the award of construction contracts, to colleges and universities. Each such report shall include—
“(A) a list of each college and university that, during the period covered by the report, received more than $1,000,000 in such contracts through the use of procedures other than competitive procedures; and
“(B) the cumulative amount of such contracts received during that period by each such college and university.
“(2) Each report under paragraph (1) shall cover the preceding fiscal year and shall be submitted not later than February 1 of the fiscal year after the fiscal year covered by the report.”
Subsec. (c)(1). Pub. L. 104–106, §1502(a)(1), 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”.
Subsec. (c)(2). Pub. L. 104–106, §264, substituted “preceding fiscal year” for “preceding calendar year” and “the fiscal year after the fiscal year” for “the year after the year”.
1994—Subsec. (c). Pub. L. 103–337 added subsec. (c).
1993—Subsec. (b)(2). Pub. L. 103–35 substituted “inconsistent” for “inconsisent”.
Subsec. (c). Pub. L. 103–160 struck out subsec. (c) which read as follows:
“(1) The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives an annual report on the use of competitive procedures for the award of research and development contracts, and the award of construction contracts, to colleges and universities. Each such report shall include—
“(A) a list of each college and university that, during the period covered by the report, received more than $1,000,000 in such contracts through the use of procedures other than competitive procedures; and
“(B) the cumulative amount of such contracts received during that period by each such college and university.
“(2) The reports under paragraph (1) shall cover the preceding calendar year and shall be submitted not later than February 1 of the year after the year covered by the report.
“(3) A report is not required under paragraph (1) for any period beginning after December 31, 1993.”
1990—Subsec. (c)(1). Pub. L. 101–510, §1311(4)(A), substituted “an annual report” for “a semiannual report” in introductory provisions.
Subsec. (c)(2). Pub. L. 101–510, §1311(4)(B), substituted “the preceding calendar year and shall be submitted not later than February 1 of the year after the year covered by the report” for “the six-month periods ending on June 30 and December 31 of each year. Each such report shall be submitted within 30 days after the end of the period covered by the report”.
1989—Subsec. (a). Pub. L. 101–189, §252(a), substituted “unless—” for “unless” and pars. (1) and (2) for “the grant or contract is made or awarded using competitive procedures.”
Subsec. (b). Pub. L. 101–189, §252(b)(1), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “A provision of law enacted after the date of the enactment of this section may not be construed as modifying or superseding the provisions of subsection (a) unless that provision of law specifically refers to this section and specifically states that such provision of law modifies or supersedes the provisions of this section.”
Subsec. (c). Pub. L. 101–189, §252(c)(1), added subsec. (c).
Section 821(b) of Pub. L. 103–160 provided that the amendment made by that section is effective Feb. 1, 1994.
Section 252(b)(2) of Pub. L. 101–189 provided that: “Subsection (b) of section 2361 of title 10, United States Code, as amended by paragraph (1), applies with respect to any provision of law enacted after September 30, 1989.”
Section 220(c) of Pub. L. 100–456 provided that: “The limitation specified in section 2361(a) of title 10, United States Code (as added by subsection (a)), on the authority of the Secretary of Defense to make grants and award contracts shall take effect on October 1, 1989.”
Section 252(c)(2) of Pub. L. 101–189 required that first report under subsec. (c) of this section cover last six months of 1989 and be submitted not later than Feb. 1, 1990.
(a)
(b)
(1) enhance the research and educational capabilities of such institutions in areas of importance to national defense, as determined by the Secretary;
(2) encourage the participation of such institutions in the research, development, testing, and evaluation programs and activities of the Department of Defense;
(3) increase the number of graduates from such institutions engaged in disciplines important to the national security functions of the Department of Defense, as determined by the Secretary; and
(4) encourage research and educational collaborations between such institutions and other institutions of higher education, Government defense organizations, and the defense industry.
(c)
(1) Support for research, development, testing, evaluation, or educational enhancements in areas important to national defense through the competitive awarding of grants, cooperative agreements, contracts, scholarships, fellowships, or the acquisition of research equipment or instrumentation.
(2) Support to assist in the attraction and retention of faculty in scientific disciplines important to the national security functions of the Department of Defense.
(3) Establishing partnerships between such institutions and defense laboratories, Government defense organizations, the defense industry, and other institutions of higher education in research, development, testing, and evaluation in areas important to the national security functions of the Department of Defense.
(4) Other such non-monetary assistance as the Secretary finds appropriate to enhance defense-related research, development, testing, and evaluation activities at such institutions.
(d)
(e)
(1) an institution of higher education eligible for assistance under title III or V of the Higher Education Act of 1965 (20 U.S.C. 1051 et seq.); or
(2) an accredited postsecondary minority institution.
(Added Pub. L. 111–84, div. A, title II, §252(a), Oct. 28, 2009, 123 Stat. 2242; amended Pub. L. 111–383, div. A, title IX, §901(a)(2), title X, §1075(b)(32), Jan. 7, 2011, 124 Stat. 4317, 4370.)
The Higher Education Act of 1965, referred to in subsec. (e)(1), is Pub. L. 89–329, Nov. 8, 1965, 79 Stat. 1219. Titles III and V of the Act are classified generally to subchapters III (§1051 et seq.) and V (§1101 et seq.), respectively, of chapter 28 of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 20 and Tables.
A prior section 2362, added Pub. L. 99–145, title I, §123(a)(1), Nov. 8, 1985, 99 Stat. 599; amended Pub. L. 99–433, title I, §110(g)(4), Oct. 1, 1986, 100 Stat. 1004; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284, which related to testing requirements for wheeled or tracked armored vehicles, was repealed by Pub. L. 103–160, div. A, title VIII, §821(a)(3), Nov. 30, 1993, 107 Stat. 1704.
2011—Subsec. (e)(1). Pub. L. 111–383, §1075(b)(32), substituted “title III or V” for “title III or IV”.
“Assistant Secretary of Defense for Research and Engineering” substituted for “Director of Defense Research and Engineering” in subsec. (a) on authority of section 901(a)(2) of Pub. L. 111–383, set out as a note under section 131 of this title.
Section, added Pub. L. 99–145, title XIV, §1457(a), Nov. 8, 1985, 99 Stat. 762, related to encouragement of technology transfer. See section 2514 of this title.
(a)
(1) among the Defense research facilities, combatant commands, and other organizations that are involved in developing for the Department of Defense the technological requirements for new items for use by combat forces; and
(2) among Defense research facilities and other offices, agencies, and bureaus in the Department that are engaged in related technological matters.
(b)
(1) that Defense research facilities are assigned broad mission requirements rather than specific hardware needs;
(2) that appropriate personnel of such facilities are assigned to serve as consultants on component and support system standardization;
(3) that the managers of such facilities have broad latitude to choose research and development projects;
(4) that technology position papers prepared by Defense research facilities are readily available to all combatant commands and to contractors who submit bids or proposals for Department of Defense contracts; and
(5) that, in order to promote increased consideration of technological issues early in the development process, any position paper prepared by a Defense research facility on a technological issue relating to a major weapon system, and any technological assessment made by such facility in the case of such component, is made a part of the records considered for the purpose of making acquisition program decisions.
(c)
(1) The term “Defense research facility” means a Department of Defense facility which performs or contracts for the performance of—
(A) basic research; or
(B) applied research known as exploratory development.
(2) The term “acquisition program decision” has the meaning prescribed by the Secretary of Defense in regulations.”
(Added Pub. L. 99–661, div. A, title II, §234(c)(1), Nov. 14, 1986, 100 Stat. 3848; amended Pub. L. 100–26, §§3(1)(A), 7(a)(9), Apr. 21, 1987, 101 Stat. 273, 278; Pub. L. 100–180, div. A, title XII, §1231(10)(A), (B), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 104–106, div. A, title VIII, §805, Feb. 10, 1996, 110 Stat. 390.)
1996—Subsec. (b)(5). Pub. L. 104–106, §805(1), substituted “acquisition program” for “milestone O, milestone I, and milestone II”.
Subsec. (c)(2) to (4). Pub. L. 104–106, §805(2), added par. (2) and struck out former pars. (2) to (4) which read as follows:
“(2) The term ‘milestone O decision’ means the decision made within the Department of Defense that there is a mission need for a new major weapon system and that research and development is to begin to meet such need.
“(3) The term ‘milestone I decision’ means the decision by an appropriate official of the Department of Defense selecting a new major weapon system concept and a program for demonstration and validation of such concept.
“(4) The term ‘milestone II decision’ means the decision by an appropriate official of the Department of Defense approving the full-scale development of a new major weapon system.”
1987—Pub. L. 100–26, §3(1)(A), made technical amendment to directory language of section 234(c)(1) of Pub. L. 99–661, which enacted this section.
Pub. L. 100–180, §1231(10)(B), substituted “defense” for “Defense” in section catchline.
Subsec. (b)(5). Pub. L. 100–180, §1231(10)(A), substituted “milestone O, milestone I, and milestone II decisions” for “milestone O, I, and II decisions”.
Subsec. (c)(2). Pub. L. 100–26, §7(a)(9)(A), substituted “the decision” for “a decision”.
Subsec. (c)(3). Pub. L. 100–26, §7(a)(9)(B), substituted “the decision by an appropriate official of the Department of Defense selecting” for “[a]/[the] selection by an appropriate official of the Department of Defense of”.
Subsec. (c)(4). Pub. L. 100–26, §7(a)(9)(C), substituted “the decision by an appropriate official of the Department of Defense approving” for “approval by an appropriate official of the Department of Defense for”.
Amendment by section 3(1)(A) of Pub. L. 100–26 applicable as if included in Pub. L. 99–661 when enacted on Nov. 14, 1986, see section 12(a) of Pub. L. 100–26, set out as a note under section 776 of this title.
Pub. L. 106–65, div. A, title IX, §913(b), Oct. 5, 1999, 113 Stat. 720, provided that: “Not later than 180 days after the date of the enactment of this Act [Oct. 5, 1999], the Secretary of Defense shall develop an appropriate performance review process for rating the quality and relevance of work performed by the Department of Defense laboratories. The process shall include customer evaluation and peer review by Department of Defense personnel and appropriate experts from outside the Department of Defense. The process shall provide for rating all laboratories of the Army, Navy, and Air Force on a consistent basis.”
Section 218(b)(2) of Pub. L. 100–180, as amended by Pub. L. 100–418, title V, §5115(c), Aug. 23, 1988, 102 Stat. 1433; Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729; Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717, provided that: “The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall—
“(A) coordinate the research and development activities of the Department of Defense relating to high-temperature superconductivity; and
“(B) ensure that such research and development—
“(i) is carried out in coordination with the high-temperature superconductivity research and development activities of the Department of Energy (including the national laboratories of the Department of Energy), the National Science Foundation, the National Institute of Standards and Technology, and the National Aeronautics and Space Administration; and
“(ii) complements rather than duplicates such activities.”
Section 234(a), (b) of Pub. L. 99–661 provided that:
“(a)
“(b)
“(1) to ensure that personnel of the Department are currently informed about emerging technology for defense systems; and
“(2) to avoid unnecessary and costly duplication of research staffs and projects.”
(a)
(b)
(1) To monitor and analyze the basic and applied research activities and capabilities of foreign nations in areas of military interest, including allies and competitors.
(2) To provide standards for comparison and comparative analysis of research capabilities of foreign nations in relation to the research capabilities of the United States.
(3) To assist Congress and Department of Defense officials in making investment decisions for research in technical areas where the United States may not be the global leader.
(4) To identify areas where significant opportunities for cooperative research may exist.
(5) To coordinate and promote the international cooperative research and analysis activities of each of the armed forces and Defense Agencies.
(6) To establish and maintain an electronic database on international research capabilities, comparative assessments of capabilities, cooperative research opportunities, and ongoing cooperative programs.
(c)
(d)
(2) The Secretaries of the military departments and the directors of the Defense Agencies shall provide the Assistant Secretary of Defense for Research and Engineering such assistance as the Assistant Secretary may require for purposes of the program.
(3)(A) Funds available to a military department for a fiscal year for monitoring or analyzing the research activities and capabilities of foreign nations may not be obligated or expended until the Director 2 certifies to the Under Secretary of Defense for Acquisition, Technology, and Logistics that the Secretary of such military department has provided the assistance required under paragraph (2).
(B) The limitation in subparagraph (A) shall not be construed to alter or effect the availability to a military department of funds for intelligence activities.
(e)
(f)
(Added Pub. L. 108–136, div. A, title II, §231(a), Nov. 24, 2003, 117 Stat. 1421; amended Pub. L. 109–364, div. A, title II, §232, Oct. 17, 2006, 120 Stat. 2134; Pub. L. 111–84, div. A, title II, §211, Oct. 28, 2009, 123 Stat. 2225; Pub. L. 111–383, div. A, title IX, §901(j)(3), Jan. 7, 2011, 124 Stat. 4324.)
A prior section 2365, added Pub. L. 99–500, §101(c) [title X, §909(a)(1), formerly §909(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–142, and Pub. L. 99–591, §101(c) [title X, §909(a)(1), formerly §909(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–142, redesignated §909(a)(1), Pub. L. 100–26, §4(b), Apr. 21, 1987, 101 Stat. 274; Pub. L. 99–661, div. A, title IX, formerly title IV, §909(a)(1), Nov. 14, 1986, 100 Stat. 3921, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §5(3)(A), Apr. 21, 1987, 101 Stat. 274; Pub. L. 100–456, div. A, title VIII, §802, Sept. 29, 1988, 102 Stat. 2008, required use of competitive prototype program strategy in development of major weapons systems, prior to repeal by Pub. L. 102–484, div. A, title VIII, §821(c)(1), Oct. 23, 1992, 106 Stat. 2460.
2011—Subsec. (a). Pub. L. 111–383, §901(j)(3)(A), substituted “Assistant Secretary” for “Director of Defense Research and Engineering”.
Subsec. (d)(1). Pub. L. 111–383, §901(j)(3)(B), substituted “Assistant Secretary” for “Director”.
Subsec. (d)(2). Pub. L. 111–383, §901(j)(3)(C), substituted “Assistant Secretary of Defense for Research and Engineering” for “Director of Defense Research and Engineering” and “Assistant Secretary may” for “Director may”.
Subsec. (e). Pub. L. 111–383, §901(j)(3)(D), substituted “Assistant Secretary” for “Director”.
2009—Subsec. (d)(3). Pub. L. 111–84, §211(a), added par. (3).
Subsec. (f). Pub. L. 111–84, §211(b), substituted “2015” for “2011”.
2006—Subsec. (f). Pub. L. 109–364 substituted “2011” for “2006”.
Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.
1 So in original. Probably should be “Assistant Secretary of Defense for Research and Engineering”.
2 So in original. Probably should be “Assistant Secretary”.
(a)
(A) a covered system may not proceed beyond low-rate initial production until realistic survivability testing of the system is completed in accordance with this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection; and
(B) a major munition program or a missile program may not proceed beyond low-rate initial production until realistic lethality testing of the program is completed in accordance with this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection.
(2) The Secretary of Defense shall provide that a covered product improvement program may not proceed beyond low-rate initial production until—
(A) in the case of a product improvement to a covered system, realistic survivability testing is completed in accordance with this section; and
(B) in the case of a product improvement to a major munitions program or a missile program, realistic lethality testing is completed in accordance with this section.
(b)
(2) The costs of all tests required under that subsection shall be paid from funds available for the system being tested.
(c)
(A) before Milestone B approval for the system or program; or
(B) in the case of a system or program initiated at—
(i) Milestone B, as soon as is practicable after the Milestone B approval; or
(ii) Milestone C, as soon as is practicable after the Milestone C approval.
(2) In the case of a covered system (or covered product improvement program for a covered system), the Secretary may waive the application of the survivability and lethality tests of this section to such system or program and instead allow testing of the system or program in combat by firing munitions likely to be encountered in combat at components, subsystems, and subassemblies, together with performing design analyses, modeling and simulation, and analysis of combat data. Such alternative testing may not be carried out in the case of any covered system (or covered product improvement program for a covered system) unless the Secretary certifies to Congress, before the system or program enters system development and demonstration, that the survivability and lethality testing of such system or program otherwise required by this section would be unreasonably expensive and impracticable.
(3) The Secretary shall include with any certification under paragraph (1) or (2) a report explaining how the Secretary plans to evaluate the survivability or the lethality of the system or program and assessing possible alternatives to realistic survivability testing of the system or program.
(4) In time of war or mobilization, the President may suspend the operation of any provision of this section.
(d)
(2) If a decision is made within the Department of Defense to proceed to operational use of a system, or to make procurement funds available for a system, before Milestone C approval of that system, the Secretary of Defense shall submit to the congressional defense committees, as soon as practicable after such decision, the following:
(A) A report describing the status of survivability and live fire testing of that system.
(B) The report required under paragraph (1).
(e)
(1) The term “covered system” means—
(A) a vehicle, weapon platform, or conventional weapon system that—
(i) includes features designed to provide some degree of protection to users in combat; and
(ii) is a major system as defined in section 2302(5) of this title; or
(B) any other system or program designated by the Secretary of Defense for purposes of this section.
(2) The term “major munitions program” means—
(A) a munition program for which more than 1,000,000 rounds are planned to be acquired; or
(B) a conventional munitions program that is a major system within the meaning of that term in section 2302(5) of this title.
(3) The term “realistic survivability testing” means, in the case of a covered system (or a covered product improvement program for a covered system), testing for vulnerability of the system in combat by firing munitions likely to be encountered in combat (or munitions with a capability similar to such munitions) at the system configured for combat, with the primary emphasis on testing vulnerability with respect to potential user casualties and taking into equal consideration the susceptibility to attack and combat performance of the system.
(4) The term “realistic lethality testing” means, in the case of a major munitions program or a missile program (or a covered product improvement program for such a program), testing for lethality by firing the munition or missile concerned at appropriate targets configured for combat.
(5) The term “configured for combat”, with respect to a weapon system, platform, or vehicle, means loaded or equipped with all dangerous materials (including all flammables and explosives) that would normally be on board in combat.
(6) The term “covered product improvement program” means a program under which—
(A) a modification or upgrade will be made to a covered system which (as determined by the Secretary of Defense) is likely to affect significantly the survivability of such system; or
(B) a modification or upgrade will be made to a major munitions program or a missile program which (as determined by the Secretary of Defense) is likely to affect significantly the lethality of the munition or missile produced under the program.
(7) The term “Milestone B approval” means a decision to enter into system development and demonstration pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.
(8) The term “Milestone C approval” means a decision to enter into production and deployment pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.
(Added Pub. L. 99–500, §101(c) [title X, §910(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–143, and Pub. L. 99–591, §101(c) [title X, §910(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–143; Pub. L. 99–661, div. A, title IX, formerly title IV, §910(a)(1), Nov. 14, 1986, 100 Stat. 3923, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–180, div. A, title VIII, §802, title XII, §1231(11), Dec. 4, 1987, 101 Stat. 1123, 1160; Pub. L. 100–456, div. A, title XII, §1233(l)(3), Sept. 29, 1988, 102 Stat. 2058; Pub. L. 101–189, div. A, title VIII, §§802(c)(1)–(4)(A), 804, Nov. 29, 1989, 103 Stat. 1486, 1488; Pub. L. 101–510, div. A, title XIV, §1484(h)(7), Nov. 5, 1990, 104 Stat. 1718; Pub. L. 103–160, div. A, title VIII, §828(d)(2), Nov. 30, 1993, 107 Stat. 1715; Pub. L. 103–355, title III, §3014, Oct. 13, 1994, 108 Stat. 3332; Pub. L. 104–106, div. A, title XV, §1502(a)(18), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title VIII, §821(a), Dec. 28, 2001, 115 Stat. 1181; Pub. L. 107–314, div. A, title VIII, §818, Dec. 2, 2002, 116 Stat. 2611; Pub. L. 108–136, div. A, title X, §1043(b)(13), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 110–417, [div. A], title II, §251(a), (b), Oct. 14, 2008, 122 Stat. 4400.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
2008—Subsec. (d). Pub. L. 110–417, §251(b), designated existing provisions as par. (1) and added par. (2).
Subsec. (e)(1). Pub. L. 110–417, §251(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “The term ‘covered system’ means a vehicle, weapon platform, or conventional weapon system—
“(A) that includes features designed to provide some degree of protection to users in combat; and
“(B) that is a major system within the meaning of that term in section 2302(5) of this title.”
2003—Subsec. (e)(7) to (9). Pub. L. 108–136 redesignated pars. (8) and (9) as (7) and (8), respectively, and struck out former par. (7) which read as follows: “The term ‘congressional defense committees’ means—
“(A) the Committee on Armed Services and the Committee on Appropriations of the Senate; and
“(B) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.”
2002—Subsec. (c)(1). Pub. L. 107–314, §818(a), amended par. (1) generally. Prior to amendment par. (1) read as follows: “The Secretary of Defense may waive the application of the survivability and lethality tests of this section to a covered system, munitions program, missile program, or covered product improvement program if the Secretary, before the system or program enters system development and demonstration, certifies to Congress that live-fire testing of such system or program would be unreasonably expensive and impractical.”
Subsec. (e)(8), (9). Pub. L. 107–314, §818(b), added pars. (8) and (9).
2001—Subsec. (c)(1), (2). Pub. L. 107–107 substituted “system development and demonstration” for “engineering and manufacturing development”.
1999—Subsec. (e)(7)(B). Pub. L. 106–65 substituted “Committee on Armed Services” for “Committee on National Security”.
1996—Subsec. (d). Pub. L. 104–106, §1502(a)(18)(A), substituted “the congressional defense committees” for “the Committees on Armed Services and on Appropriations of the Senate and House of Representatives”.
Subsec. (e)(7). Pub. L. 104–106, §1502(a)(18)(B), added par. (7).
1994—Subsec. (c)(1). Pub. L. 103–355, §3014(a)(2), (b), substituted “engineering and manufacturing development” for “full-scale engineering development” in first sentence and redesignated second sentence as par. (3).
Subsec. (c)(2). Pub. L. 103–355, §3014(a)(1), (3), added par. (2) and redesignated former par. (2) as (4).
Subsec. (c)(3). Pub. L. 103–355, §3014(a)(2), redesignated second sentence of par. (1) as par. (3) and substituted “certification under paragraph (1) or (2)” for “such certification”.
Subsec. (c)(4). Pub. L. 103–355, §3014(a)(1), redesignated par. (2) as (4).
1993—Subsec. (d). Pub. L. 103–160 substituted “to the Committees on Armed Services and on Appropriations of the Senate and House of Representatives” for “to the defense committees of Congress (as defined in section 2362(e)(3) of this title)”.
1990—Subsec. (a)(1)(A), (B). Pub. L. 101–510 made technical correction to directory language of Pub. L. 101–189, §804(a), see 1989 Amendment note below.
1989—Pub. L. 101–189, §802(c)(4)(A), substituted “testing and lethality testing required before full-scale production” for “and lethality testing; operational testing” in section catchline.
Subsec. (a)(1)(A). Pub. L. 101–189, §§802(c)(1)(A), 804(a), as amended by Pub. L. 101–510, substituted “this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection; and” for “this section;”.
Subsec. (a)(1)(B). Pub. L. 101–189, §§802(c)(1)(B), 804(a), as amended by Pub. L. 101–510, substituted “this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection.” for “this section; and”.
Subsec. (a)(1)(C). Pub. L. 101–189, §802(c)(1)(C), struck out subpar. (C) which read as follows: “a major defense acquisition program may not proceed beyond low-rate initial production until initial operational test and evaluation of the program is completed in accordance with this section.”
Subsec. (b)(2), (3). Pub. L. 101–189, §802(c)(2), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “In the case of a major defense acquisition program, no person employed by the contractor for the system being tested may be involved in the conduct of the operational test and evaluation required under subsection (a). The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat.”
Subsec. (d). Pub. L. 101–189, §804(b), inserted at end “Each such report shall describe the results of the survivability or lethality testing and shall give the Secretary's overall assessment of the testing.”
Subsec. (e)(3) to (8). Pub. L. 101–189, §802(c)(3), redesignated pars. (4), (5), (6), and (8) as (3), (4), (5), and (6), respectively, and struck out former par. (3) which defined “major defense acquisition program” and former par. (7) which defined “operational test and evaluation”.
1988—Subsec. (a)(2). Pub. L. 100–456 made technical correction to directory language of Pub. L. 100–180, §802(a)(1)(C). See 1987 Amendment note below.
1987—Subsec. (a). Pub. L. 100–180, §802(a)(1), as amended by Pub. L. 100–456, designated existing provisions as par. (1), redesignated former pars. (1) to (3) as subpars. (A) to (C), and added par. (2).
Subsec. (b)(1). Pub. L. 100–180, §802(a)(2), inserted “(including a covered product improvement program)” after “system or program” and “(or in the product modification or upgrade to the system, munition, or missile)” after “or missile”.
Subsec. (b)(2). Pub. L. 100–180, §802(b), inserted at end “The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat.”
Subsec. (c). Pub. L. 100–180, §802(a)(3), (c), (d)(1), designated existing provisions as par. (1), substituted “missile program, or covered product improvement program” for “or missile program”, and inserted at end “The Secretary shall include with any such certification a report explaining how the Secretary plans to evaluate the survivability or the lethality of the system or program and assessing possible alternatives to realistic survivability testing of the system or program.”
Pub. L. 100–180, §802(d)(2), designated existing provisions of former subsec. (d) as par. (2) of subsec. (c) and struck out heading of former subsec. (d) “Waiver in time of war or mobilization”.
Subsec. (d). Pub. L. 100–180, §802(d)(3), added subsec. (d). Former subsec. (d) redesignated subsec. (c)(2).
Subsec. (e)(1)(B). Pub. L. 100–180, §1231(11), substituted “section 2302(5)” for “section 2303(5)”.
Subsec. (e)(4). Pub. L. 100–180, §802(a)(4)(A), (e), inserted “(or a covered product improvement program for a covered system)” after “covered system”, struck out “and survivability” after “for vulnerability”, and substituted “susceptibility to attack” for “operational requirements”.
Subsec. (e)(5). Pub. L. 100–180, §802(a)(4)(B), inserted “(or a covered product improvement program for such a program)” after “missile program”.
Subsec. (e)(8). Pub. L. 100–180, §802(a)(4)(C), added par. (8).
Section 1233(l)(5) of Pub. L. 100–456 provided that: “The amendments made by this subsection [amending this section and sections 2435 and 8855 of this title and section 301c of Title 37, Pay and Allowances of the Uniformed Services] shall apply as if included in the enactment of Public Law 100–180.”
Section 101(c) [title X, §910(b)] of Pub. L. 99–500 and Pub. L. 99–591, and section 910(b) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “Section 2366 of title 10, United States Code (as added by subsection (a)), shall apply with respect to any decision to proceed with a program beyond low-rate initial production that is made—
“(1) after May 31, 1987, in the case of a decision referred to in subsection (a)(1) or (a)(2) of such section; or
“(2) after the date of the enactment of this Act [Oct. 18, 1986], in the case of a decision referred to in subsection (a)(3) of such section.”
(a)
(1) that the program fulfills an approved initial capabilities document;
(2) that the program is being executed by an entity with a relevant core competency as identified by the Secretary of Defense under section 118b of this title;
(3) if the program duplicates a capability already provided by an existing system, the duplication provided by such program is necessary and appropriate;
(4) that an analysis of alternatives has been performed consistent with study guidance developed by the Director of Cost Assessment and Program Evaluation; and
(5) that a cost estimate for the program has been submitted, with the concurrence of the Director of Cost Assessment and Program Evaluation, and that the level of resources required to develop and procure the program is consistent with the priority level assigned by the Joint Requirements Oversight Council.
(b)
(2) Not later than 30 days after a program manager submits a notification to the Milestone Decision Authority pursuant to paragraph (1) with respect to a major defense acquisition program or designated major subprogram, the Milestone Decision Authority shall submit to the congressional defense committees a report that—
(A) identifies the root causes of the cost or schedule growth in accordance with applicable policies, procedures, and guidance;
(B) identifies appropriate acquisition performance measures for the remainder of the development of the program; and
(C) includes one of the following:
(i) A written certification (with a supporting explanation) stating that—
(I) the program is essential to national security;
(II) there are no alternatives to the program that will provide acceptable military capability at less cost;
(III) new estimates of the development cost or schedule, as appropriate, are reasonable; and
(IV) the management structure for the program is adequate to manage and control program development cost and schedule.
(ii) A plan for terminating the development of the program or withdrawal of Milestone A approval, or Key Decision Point A approval in the case of a space program, if the Milestone Decision Authority determines that such action is in the interest of national defense.
(c)
(1) The term “major defense acquisition program” has the meaning provided in section 2430 of this title.
(2) The term “designated major subprogram” means a major subprogram of a major defense acquisition program designated under section 2430a(a)(1) of this title.
(3) The term “initial capabilities document” means any capabilities requirement document approved by the Joint Requirements Oversight Council that establishes the need for a materiel approach to resolve a capability gap.
(4) The term “technology development program” means a coordinated effort to assess technologies and refine user performance parameters to fulfill a capability gap identified in an initial capabilities document.
(5) The term “entity” means an entity listed in section 118b(c)(3) of this title.
(6) The term “Milestone B approval” has the meaning provided that term in section 2366(e)(7) of this title.
(Added Pub. L. 110–181, div. A, title IX, §943(a)(1), Jan. 28, 2008, 122 Stat. 288, §2366b; renumbered §2366a and amended Pub. L. 110–417, [div. A], title VIII, §813(b), (e)(1), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–23, title I, §101(d)(3), title II, §§201(e), 204(a), (b), May 22, 2009, 123 Stat. 1710, 1720, 1723; Pub. L. 111–383, div. A, title VIII, §814(b), title X, §1075(b)(33), Jan. 7, 2011, 124 Stat. 4266, 4370.)
A prior section 2366a was renumbered section 2366b of this title.
2011—Subsec. (b)(1). Pub. L. 111–383, §814(b)(1)(A), substituted “a major defense acquisition program certified by the Milestone Decision Authority under subsection (a) or a designated major subprogram of such program, if the projected cost of the program or subprogram” for “a major defense acquisition program certified by the Milestone Decision Authority under subsection (a), if the projected cost of the program”.
Subsec. (b)(2). Pub. L. 111–383, §814(b)(1)(B), inserted “or designated major subprogram” after “major defense acquisition program”.
Subsec. (c). Pub. L. 111–383, §1075(b)(33)(A), inserted a space after “(c)”.
Subsec. (c)(2) to (5). Pub. L. 111–383, §814(b)(2), added par. (2) and redesignated former pars. (2) to (4) as (3) to (5), respectively. Former par. (5) redesignated (6).
Pub. L. 111–383, §1075(b)(33)(B), which directed substitution of “section 118b(c)(3) of this title” for “section 125a(a) of this title” in par. (4), was executed by making the substitution in par. (5) to reflect the probable intent of Congress and the amendment by Pub. L. 111–383, §814(b)(2)(A). See above.
Subsec. (c)(6). Pub. L. 111–383, §814(b)(2)(A), redesignated par. (5) as (6).
2009—Subsec. (a). Pub. L. 111–23, §204(a), substituted “may not receive Milestone A approval, or Key Decision Point A approval in the case of a space program, or otherwise be initiated prior to Milestone B approval, or Key Decision Point B approval in the case of a space program,” for “may not receive Milestone A approval, or Key Decision Point A approval in the case of a space program,” in introductory provisions.
Subsec. (a)(3). Pub. L. 111–23, §201(e)(1), struck out “and” at end.
Subsec. (a)(4). Pub. L. 111–23, §201(e)(3), added par. (4). Former par. (4) redesignated (5).
Pub. L. 111–23, §101(d)(3), inserted “, with the concurrence of the Director of Cost Assessment and Program Evaluation,” after “has been submitted”.
Subsec. (a)(5). Pub. L. 111–23, §201(e)(2), redesignated par. (4) as (5).
Subsec. (b). Pub. L. 111–23, §204(b), designated existing provisions as par. (1), substituted “by at least 25 percent, or the program manager determines that the period of time required for the delivery of an initial operational capability is likely to exceed the schedule objective established pursuant to section 181(b)(5) of this title by more than 25 percent,” for “by at least 25 percent,”, and added par. (2).
2008—Pub. L. 110–417, §813(b), renumbered section 2366b of this title as this section.
Subsec. (a)(1), (2). Pub. L. 110–417, §813(e)(1)(A), substituted “program” for “system”.
Subsec. (a)(3). Pub. L. 110–417, §813(e)(1)(B), substituted “if the program” for “if the system” and “such program” for “such system”.
Subsec. (a)(4). Pub. L. 110–417, §813(e)(1)(A), substituted “program” for “system” in two places.
Subsec. (b). Pub. L. 110–417, §813(e)(1)(C), substituted “major defense acquisition program” for “major system”, “cost of the program” for “cost of the system”, “estimate for the program” for “estimate for the system”, “the program concerned” for “the system concerned”, and “procure the program” for “procure the system”.
Subsec. (c)(1). Pub. L. 110–417, §813(e)(1)(D), substituted “ ‘major defense acquisition program’ ” for “ ‘major system’ ” and “2430” for “2302(5)”.
Pub. L. 110–181, div. A, title IX, §943(c), Jan. 28, 2008, 122 Stat. 289, as amended by Pub. L. 110–417, [div. A], title VIII, §813(e)(2)(B), Oct. 14, 2008, 122 Stat. 4528, provided that: “Section 2366b [now 2366a] of title 10, United States Code, as added by subsection (a), shall apply to major defense acquisition programs on and after March 1, 2008. In the case of the certification required by paragraph (2) of subsection (a) of such section, during the period prior to the completion of the first quadrennial roles and missions review required by section 118b of title 10, United States Code, the certification required by that paragraph shall be that the system is being executed by an entity with a relevant core competency as identified by the Secretary of Defense.”
Pub. L. 111–23, title II, §204(c), May 22, 2009, 123 Stat. 1723, as amended by Pub. L. 111–383, div. A, title VIII, §813(c), Jan. 7, 2011, 124 Stat. 4265, provided that:
“(1)
“(2)
“(A) was initiated before the date of the enactment of this Act;
“(B) as of the date of certification under paragraph (1) has not otherwise been certified pursuant to either section 2366a (as so amended) or 2366b of title 10, United States Code; and
“(C) has not yet achieved a Milestone C approval.”
[For definition of “major defense acquisition program” as used in section 204(c) of Pub. L. 111–23, set out above, see section 2(2) of Pub. L. 111–23, set out as a note under section 2430 of this title.]
Pub. L. 110–181, div. A, title IX, §943(b), Jan. 28, 2008, 122 Stat. 289, as amended by Pub. L. 110–417, [div. A], title VIII, §813(e)(2)(A), Oct. 14, 2008, 122 Stat. 4528, provided that: “Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall review Department of Defense Directive 5000.1 and associated guidance, and the manner in which such directive and guidance have been implemented, and take appropriate steps to ensure that the Department does not commence a technology development program for a major defense acquisition program without Milestone A approval (or Key Decision Point A approval in the case of a space program).”
(a)
(1) has received a business case analysis and certifies on the basis of the analysis 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, and performance objectives have been made to ensure that the program is affordable when considering the per unit cost and the total acquisition cost in the context of the total resources available during the period covered by the future-years defense program submitted during the fiscal year in which the certification is made;
(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; and
(D) funding is available to execute the product development and production plan under the program, through the period covered by the future-years defense program submitted during the fiscal year in which the certification is made, consistent with the estimates described in subparagraph (C) for the program;
(2) 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; and
(3) further certifies that—
(A) appropriate market research has been conducted prior to technology development to reduce duplication of existing technology and products;
(B) the Department of Defense has completed an analysis of alternatives with respect to the program;
(C) 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;
(D) 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 assessment by the Assistant Secretary of Defense for Research and Engineering; and
(E) the program complies with all relevant policies, regulations, and directives of the Department of Defense.
(b)
(A) alter the substantive basis for the certification of the milestone decision authority relating to any component of such certification specified in paragraph (1) or (2) 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 certification.
(2) Upon receipt of information under paragraph (1), the milestone decision authority may withdraw the certification concerned or rescind Milestone B approval (or Key Decision Point B approval in the case of a space program) if the milestone decision authority determines that such certification or approval is no longer valid.
(c)
(2) A summary of any information provided to the milestone decision authority pursuant to subsection (b) and a description of the actions taken as a result of such information shall be submitted with the first Selected Acquisition Report submitted under section 2432 of this title after receipt of such information by the milestone decision authority.
(d)
(2) Whenever the milestone decision authority makes such a determination and authorizes such a waiver—
(A) the waiver, the determination, and the reasons for the 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 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 components.
(e)
(f)
(g)
(1) The term “major defense acquisition program” means a Department of Defense acquisition program that is a major defense acquisition program for purposes of section 2430 of this title.
(2) The term “designated major subprogram” means a major subprogram of a major defense acquisition program designated under section 2430a(a)(1) of this title.
(3) The term “milestone decision authority”, with respect to a major defense acquisition program, means the individual within the Department of Defense designated with overall responsibility for the program.
(4) The term “Milestone B approval” has the meaning provided that term in section 2366(e)(7) of this title.
(5) The term “Key Decision Point B” means the official program initiation of a National Security Space program of the Department of Defense, which triggers a formal review to determine maturity of technology and the program's readiness to begin the preliminary system design.
(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.)
A prior section 2366b was renumbered section 2366a of this title.
2011—Subsec. (a)(3)(D). Pub. L. 111–383, §901(j)(4), substituted “Assistant Secretary of Defense for Research and Engineering” for “Director of Defense Research and Engineering”.
Subsec. (b)(1). Pub. L. 111–383, §814(c)(1)(A), substituted “any changes to the program or a designated major subprogram of such program” for “any changes to the program” in introductory provisions.
Subsec. (b)(1)(B). Pub. L. 111–383, §814(c)(1)(B), substituted “otherwise cause the program or subprogram” for “otherwise cause the program”.
Subsec. (d)(1). Pub. L. 111–383, §813(d)(1)(A), substituted “(as specified in paragraph (1), (2), or (3) of subsection (a))” for “(as specified in paragraph (1) or (2) of subsection (a))”.
Subsec. (d)(2)(B). Pub. L. 111–383, §1075(k)(1), which directed amendment of directory language of Pub. L. 111–23, §205(a)(1)(B), resulting in substitution of “paragraphs (1), (2), and (3)” for “paragraphs (1) and (2)” in text, was not executed because of the prior identical amendment by Pub. L. 111–383, §813(d)(1)(B). See below.
Pub. L. 111–383, §813(d)(1)(B), substituted “specified in paragraphs (1), (2), and (3) of subsection (a)” for “specified in paragraphs (1) and (2) of subsection (a)”.
Subsec. (g)(2) to (5). Pub. L. 111–383, §814(c)(2), added par. (2) and redesignated former pars. (2) to (4) as (3) to (5), respectively.
2009—Subsec. (a)(1)(B). Pub. L. 111–23, §201(f), inserted “appropriate trade-offs among cost, schedule, and performance objectives have been made to ensure that” before “the program is affordable”.
Subsec. (a)(1)(C). Pub. L. 111–23, §101(d)(4), inserted “, with the concurrence of the Director of Cost Assessment and Program Evaluation,” before “the product”.
Subsec. (a)(1)(D). Pub. L. 111–23, §205(a)(3)(A), struck out “and” at end.
Subsec. (a)(2), (3). Pub. L. 111–23, §205(a)(3)(B), (C), added par. (2) and redesignated former par. (2) as (3).
Subsec. (a)(3)(D). Pub. L. 111–23, §205(a)(3)(D)(i), substituted “, as determined by the Milestone Decision Authority on the basis of an independent review and assessment by the Director of Defense Research and Engineering; and” for semicolon.
Subsec. (a)(3)(E), (F). Pub. L. 111–23, §205(a)(3)(D)(ii), (iii), redesignated subpar. (F) as (E) and struck out former subpar. (E) which read as follows: “the program demonstrates a high likelihood of accomplishing its intended mission; and”.
Subsec. (d). Pub. L. 111–23, §205(a)(1), designated existing provisions as par. (1) and substituted par. (2) for “Whenever the milestone decision authority makes such a determination and authorizes such a waiver, the waiver, the determination, and the reasons for the determination shall be submitted in writing to the congressional defense committees within 30 days after the waiver is authorized.”
Subsecs. (e) to (g). Pub. L. 111–23, §205(a)(2), added subsec. (e) and redesignated former subsecs. (e) and (f) as (f) and (g), respectively.
2008—Pub. L. 110–417, §813(a), (b), renumbered section 2366a of this title as this section.
Subsec. (a). Pub. L. 110–181, §812(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) consisted of pars. (1) to (10) relating to required certifications by milestone decision authority for major defense acquisition program to receive Milestone B approval, or Key Decision Point B approval in the case of a space program.
Subsec. (b). Pub. L. 110–181, §812(3), added subsec. (b). Former subsec. (b) redesignated (c).
Subsec. (c). Pub. L. 110–181, §812(4), designated existing provisions as par. (1) and added par. (2).
Pub. L. 110–181, §812(2), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 110–181, §812(5), substituted “authority may, at the time of Milestone B approval (or Key Decision Point B approval in the case of a space program) or at the time that such milestone decision authority withdraws a certification or rescinds Milestone B approval (or Key Decision Point B approval in the case of a space program) pursuant to subsection (b)(2), waive” for “authority may waive” and “paragraph (1) or (2)” for “paragraph (1), (2), (3), (4), (5), (6), (7), (8), or (9)”.
Pub. L. 110–181, §812(2), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 110–181, §812(6), substituted “subsection (d)” for “subsection (c)”.
Pub. L. 110–181, §812(2), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (f). Pub. L. 110–181, §812(2), redesignated subsec. (e) as (f).
2006—Subsec. (a)(1) to (7). Pub. L. 109–364, §805(a)(1)–(3), added par. (1) and redesignated former pars. (1) to (6) as (2) to (7), respectively. Former par. (7) redesignated (10).
Subsec. (a)(8), (9). Pub. L. 109–364, §805(a)(4), (5), added pars. (8) and (9).
Subsec. (a)(10). Pub. L. 109–364, §805(a)(1), redesignated par. (7) as (10).
Subsec. (c). Pub. L. 109–364, §805(b), substituted “(5), (6), (7), (8), or (9)” for “(5), or (6)”.
Pub. L. 111–383, div. A, title VIII, §813(d)(1), Jan. 7, 2011, 124 Stat. 4265, provided that the amendment made by section 813(d)(1) is effective as of May 22, 2009.
Amendment by section 901(j)(4) of Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.
Pub. L. 111–383, div. A, title X, §1075(k), Jan. 7, 2011, 124 Stat. 4378, provided that the amendment made by section 1075(k)(1) is effective as of May 22, 2009, and as if included in Pub. L. 111–23 as enacted.
Pub. L. 111–23, title II, §205(b), May 22, 2009, 123 Stat. 1725, as amended by Pub. L. 111–383, div. A, title VIII, §813(d)(2), Jan. 7, 2011, 124 Stat. 4266, provided that:
“(1)
“(2)
“(3)
[Pub. L. 111–383, div. A, title VIII, §813(d)(2), Jan. 7, 2011, 124 Stat. 4266, provided that the amendment made by section 813(d)(2) to section 205(b) of Pub. L. 111–23, set out above, is effective as of May 22, 2009, and as if included in Pub. L. 111–23 as enacted.]
[For definition of “major defense acquisition program” as used in section 205(b) of Pub. L. 111–23, set out above, see section 2(2) of Pub. L. 111–23, set out as a note under section 2430 of this title.]
Pub. L. 110–417, [div. A], title X, §1047(d), Oct. 14, 2008, 122 Stat. 4603, as amended by Pub. L. 111–84, div. A, title X, §1033, Oct. 28, 2009, 123 Stat. 2449, provided that:
“(1)
“(A) the bandwidth requirements needed to support such program are or will be met; and
“(B) a determination will be made with respect to how to meet the bandwidth requirements for such program.
“(2)
(a)
(b)
(c)
(A) the head of the agency submits to Congress a report with respect to such center that describes the purpose, mission, and general scope of effort of the center; and
(B) a period of 60 days beginning on the date such report is received by Congress has elapsed.
(2) In this subsection, the term “head of an agency” has the meaning given such term in section 2302(1) of this title.
(d)
(Added Pub. L. 99–500, §101(c) [title X, §912(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–146, and Pub. L. 99–591, §101(c) [title X, §912(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–146; Pub. L. 99–661, div. A, title IX, formerly title IV, §912(a)(1), Nov. 14, 1986, 100 Stat. 3925, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 102–190, div. A, title II, §256(a)(1), Dec. 5, 1991, 105 Stat. 1330; Pub. L. 104–106, div. A, title XV, §1502(a)(9), Feb. 10, 1996, 110 Stat. 503; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title X, §1041(a)(12), Dec. 2, 2002, 116 Stat. 2645.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
2002—Subsec. (d). Pub. L. 107–314, §1041(a)(12), struck out designations for pars. (1) and (2) and text of par. (1). Prior to amendment par. (1) read as follows: “In the documents provided to Congress by the Secretary of Defense in support of the budget submitted by the President under section 1105 of title 31 for any fiscal year, the Secretary shall set forth the proposed amount of the man-years of effort to be funded by the Department of Defense for each federally funded research and development center for the fiscal year covered by that budget.”
1999—Subsec. (d)(2). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1996—Subsec. (d)(2). Pub. L. 104–106 substituted “the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on National Security and the Committee on Appropriations of the” for “the Committees on Armed Services and the Committees on Appropriations of the Senate and”.
1991—Subsec. (d). Pub. L. 102–190 added subsec. (d).
Section 256(a)(2) of Pub. L. 102–190 provided that:
“(A) Paragraph (1) of subsection (d) of section 2367 of title 10, United States Code, as added by paragraph (1), shall take effect with respect to the budget submitted for fiscal year 1994.
“(B) Paragraph (2) of such subsection shall take effect with respect to fiscal year 1992.”
Section 101(c) [title X, §912(b), (c)] of Pub. L. 99–500 and Pub. L. 99–591, and section 912(b), (c) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, directed Comptroller General to conduct a study of national defense role of federally funded research and development centers and submit a report to Congress not later than one year after Oct. 18, 1986.
Section, added Pub. L. 100–456, div. A, title VIII, §823(a)(1), Sept. 29, 1988, 102 Stat. 2018; amended Pub. L. 101–189, div. A, title VIII, §841(c)(1), Nov. 29, 1989, 103 Stat. 1514; Pub. L. 102–25, title VII, §701(g)(1), Apr. 6, 1991, 105 Stat. 115, authorized studies in fields of research and development essential to development of critical technologies.
Section, added Pub. L. 100–456, div. A, title VIII, §842(a), Sept. 29, 1988, 102 Stat. 2026; amended Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728, related to program for supervision and coordination of product evaluation activities within the Department of Defense.
Section, added Pub. L. 101–510, div. A, title II, §241(a), Nov. 5, 1990, 104 Stat. 1516, required annual report to Congress on Biological Defense Research Program.
Section, added Pub. L. 103–160, div. A, title II, §214(a), Nov. 30, 1993, 107 Stat. 1586, related to medical countermeasures against biowarfare threats and allocation of funding between near-term and other threats.
(a)
(b)
(c)
(d)
(2) The amount of any payment received by the Federal Government pursuant to a requirement imposed under paragraph (1) may be credited, to the extent authorized by the Secretary of Defense, to the appropriate account established under subsection (f). Amounts so credited shall be merged with other funds in the account and shall be available for the same purposes and the same period for which other funds in such account are available.
(e)
(A) to the maximum extent practicable, no cooperative agreement containing a clause under subsection (d) and no transaction entered into under subsection (a) provides for research that duplicates research being conducted under existing programs carried out by the Department of Defense; and
(B) to the extent that the Secretary determines practicable, the funds provided by the Government under a cooperative agreement containing a clause under subsection (d) or a transaction authorized by subsection (a) do not exceed the total amount provided by other parties to the cooperative agreement or other transaction.
(2) A cooperative agreement containing a clause under subsection (d) or a transaction authorized by subsection (a) may be used for a research project when the use of a standard contract, grant, or cooperative agreement for such project is not feasible or appropriate.
(f)
(g)
(h)
(A) cooperative agreements authorized under section 2358 of this title that contain a clause under subsection (d); and
(B) transactions authorized by subsection (a).
(2) The report shall include, with respect to the cooperative agreements and other transactions covered by the report, the following:
(A) The technology areas in which research projects were conducted under such agreements or other transactions.
(B) The extent of the cost-sharing among Federal Government and non-Federal sources.
(C) The extent to which the use of the cooperative agreements and other transactions—
(i) has contributed to a broadening of the technology and industrial base available for meeting Department of Defense needs; and
(ii) has fostered within the technology and industrial base new relationships and practices that support the national security of the United States.
(D) The total amount of payments, if any, that were received by the Federal Government during the fiscal year covered by the report pursuant to a clause described in subsection (d) that was included in the cooperative agreements and other transactions, and the amount of such payments, if any, that were credited to each account established under subsection (f).
(3) No report is required under this subsection for a fiscal year after fiscal year 2006.
(i)
(2)(A) Paragraph (1) applies to information described in subparagraph (B) that is in the records of the Department of Defense if the information was submitted to the Department in a competitive or noncompetitive process having the potential for resulting in an award, to the party submitting the information, of a cooperative agreement for performance of basic, applied, or advanced research authorized by section 2358 of this title or another transaction authorized by subsection (a).
(B) The information referred to in subparagraph (A) is the following:
(i) A proposal, proposal abstract, and supporting documents.
(ii) A business plan submitted on a confidential basis.
(iii) Technical information submitted on a confidential basis.
(Added Pub. L. 101–189, div. A, title II, §251(a)(1), Nov. 29, 1989, 103 Stat. 1403; amended Pub. L. 101–510, div. A, title XIV, §1484(k)(9), Nov. 5, 1990, 104 Stat. 1719; Pub. L. 102–190, div. A, title VIII, §826, Dec. 5, 1991, 105 Stat. 1442; Pub. L. 102–484, div. A, title II, §217, Oct. 23, 1992, 106 Stat. 2352; Pub. L. 103–35, title II, §201(c)(4), May 31, 1993, 107 Stat. 98; Pub. L. 103–160, div. A, title VIII, §827(b), title XI, §1182(a)(6), Nov. 30, 1993, 107 Stat. 1712, 1771; Pub. L. 103–355, title I, §1301(b), Oct. 13, 1994, 108 Stat. 3285; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 104–201, div. A, title II, §267(a)–(c)(1)(A), title X, §1073(e)(1)(B), Sept. 23, 1996, 110 Stat. 2467, 2468, 2658; Pub. L. 105–85, div. A, title VIII, §832, Nov. 18, 1997, 111 Stat. 1842; Pub. L. 105–261, div. A, title VIII, §817, Oct. 17, 1998, 112 Stat. 2089; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–136, div. A, title X, §1031(a)(19), Nov. 24, 2003, 117 Stat. 1597.)
2003—Subsec. (h)(3). Pub. L. 108–136 added par. (3).
1999—Subsec. (h)(1). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security” in introductory provisions.
1998—Subsec. (i)(2)(A). Pub. L. 105–261 substituted “cooperative agreement for performance of basic, applied, or advanced research authorized by section 2358 of this title” for “cooperative agreement that includes a clause described in subsection (d)”.
1997—Subsec. (i). Pub. L. 105–85 added subsec. (i).
1996—Subsec. (b). Pub. L. 104–201, §1073(e)(1)(B), inserted “Defense” before “Advanced Research Projects Agency”.
Subsec. (e). Pub. L. 104–201, §267(a), inserted “(1)” before “The Secretary of Defense”, redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, inserted “and” after semicolon at end of subpar. (A), substituted a period for “; and” at end of subpar. (B), added par. (2), and struck out par. (3) which read as follows: “a cooperative agreement containing a clause under subsection (d) or a transaction authorized under subsection (a) is used for a research project only when the use of a standard contract, grant, or cooperative agreement for such project is not feasible or appropriate.”
Subsec. (f). Pub. L. 104–201, §1073(e)(1)(B), inserted “Defense” before “Advanced Research Projects Agency”.
Subsec. (h). Pub. L. 104–201, §267(b), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Not later than 60 days after the end of each fiscal year, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report on all cooperative agreements entered into under section 2358 of this title during such fiscal year that contain a clause authorized by subsection (d) and on all transactions entered into under subsection (a) during such fiscal year. The report shall contain, with respect to each such cooperative agreement and transaction, the following:
“(1) A general description of the cooperative agreement or other transaction (as the case may be), including the technologies for which research is provided for under such agreement or transaction.
“(2) The potential military and, if any, commercial utility of such technologies.
“(3) The reasons for not using a contract or grant to provide support for such research.
“(4) The amount of the payments, if any, that were received by the Federal Government during the fiscal year covered by the report pursuant to a clause included in such cooperative agreement or other transaction pursuant to subsection (d).
“(5) The amount of the payments reported under paragraph (4), if any, that were credited to each account established under subsection (f).”
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”.
Subsec. (i). Pub. L. 104–201, §1073(e)(1)(B), which directed amendment of subsec. (i) by inserting “Defense” before “Advanced Research Projects Agency”, could not be executed because of the renumbering of subsec. (i) as section 2371a of this title by Pub. L. 104–201, §267(c)(1)(A). See below.
Pub. L. 104–201, §267(c)(1)(A), renumbered subsec. (i) of this section as section 2371a of this title.
1994—Pub. L. 103–355 amended section generally. Prior to amendment section related to cooperative agreements and other transactions for advanced research projects.
1993—Subsec. (a). Pub. L. 103–160, §827(b)(1)(C), substituted “section 2358 of this title” for “subsection (a)” in par. (1) and “subsection (d)” for “subsection (e)” in par. (2).
Pub. L. 103–160, §827(b)(1)(A), (B), redesignated subsec. (b) as (a) and struck out former subsec. (a), as amended by Pub. L. 103–160, §1182(a)(6), (h), which read as follows: “The Secretary of Defense, in carrying out advanced research projects through the Advanced Research Projects Agency, and the Secretary of each military department, in carrying out advanced research projects, may enter into cooperative agreements and other transactions with any person, any agency or instrumentality of the United States, any unit of State or local government, any educational institution, and any other entity.”
Pub. L. 103–160, §1182(a)(6), substituted “Advanced Research Projects Agency” for “Defense Advanced Research Projects Agency”.
Subsec. (b). Pub. L. 103–160, §827(b)(1)(B), redesignated subsec. (c) as (b). Former subsec. (b) redesignated (a).
Subsec. (c). Pub. L. 103–160, §827(b)(1)(B), (2)(A), redesignated subsec. (d) as (c) and inserted “and development” after “research” in two places in par. (1). Former subsec. (c) redesignated (b).
Subsec. (d). Pub. L. 103–160, §827(b)(1)(B), (D), (2)(B), redesignated subsec. (e), as amended by Pub. L. 103–160, §1182(a)(6), (h), as (d) and substituted “section 2358 of this title” for “subsection (a)” and “research and development” for “advanced research”. Former subsec. (d) redesignated (c).
Subsec. (e). Pub. L. 103–160, §827(b)(1)(B), (E), (2)(B), (C), redesignated subsec. (f) as (e), in par. (1) substituted “research and development are” for “advanced research is”, in par. (3) substituted “research and development” for “advanced research”, in par. (4) substituted “subsection (a)” for “subsection (b)”, and in par. (5) substituted “subsection (d)” for “subsection (e)”. Former subsec. (e) redesignated (d).
Pub. L. 103–160, §1182(a)(6), substituted “Advanced Research Projects Agency” for “Defense Advanced Research Projects Agency”.
Subsec. (f). Pub. L. 103–160, §827(b)(1)(B), redesignated subsec. (g), as amended by Pub. L. 103–160, §1182(a)(6), (h), as (f). Former subsec. (f) redesignated (e).
Subsec. (g). Pub. L. 103–160, §827(b)(1)(B), redesignated subsec. (g), as amended by Pub. L. 103–160, §1182(a)(6), (h), as (f).
Pub. L. 103–160, §1182(a)(6), substituted “Advanced Research Projects Agency” for “Defense Advanced Research Projects Agency”.
Pub. L. 103–35 substituted “granted by section 12” for “granted by section 11” and “provisions of sections 11 and 12” for “provisions of sections 10 and 11”.
1992—Subsec. (g). Pub. L. 102–484 added subsec. (g).
1991—Subsec. (a). Pub. L. 102–190, §826(a), inserted “and the Secretary of each military department, in carrying out advanced research projects,”.
Subsec. (b)(1). Pub. L. 102–190, §826(b)(1)(A), struck out “by the Secretary” after “transactions entered into”.
Subsec. (b)(2). Pub. L. 102–190, §826(b)(1)(B), substituted “to the appropriate account” for “to the account”.
Subsec. (d). Pub. L. 102–190, §826(b)(2), substituted “The Secretary of Defense” for “The Secretary” in introductory provisions.
Subsec. (e). Pub. L. 102–190, §826(b)(3), substituted “separate accounts for each of the military departments and the Defense Advanced Research Projects Agency” for “an account” and “those accounts” for “such account”.
Subsec. (f)(5). Pub. L. 102–190, §826(b)(4), substituted “each account” for “the account”.
Subsec. (g). Pub. L. 102–190, §826(c), struck out subsec. (g) which read as follows: “The authority of the Secretary to enter into cooperative agreements and other transactions under this section expires at the close of September 30, 1991.”
1990—Subsec. (f). Pub. L. 101–510 substituted “Committees on” for “Committees of” in introductory provisions.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Pub. L. 103–160, div. A, title VIII, §845, Nov. 30, 1993, 107 Stat. 1721, as amended by Pub. L. 104–201, div. A, title VIII, §804, title X, §1073(e)(1)(D), (2)(A), Sept. 23, 1996, 110 Stat. 2605, 2658; Pub. L. 105–261, div. A, title II, §241, Oct. 17, 1998, 112 Stat. 1954; Pub. L. 106–65, div. A, title VIII, §801, title X, §1066(d)(6), Oct. 5, 1999, 113 Stat. 700, 773; Pub. L. 106–398, §1 [[div. A], title VIII, §§803, 804(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–205, 1654A–206; Pub. L. 107–107, div. A, title VIII, §822, title X, §1048(i)(2), Dec. 28, 2001, 115 Stat. 1182, 1229; Pub. L. 108–136, div. A, title VIII, §847, Nov. 24, 2003, 117 Stat. 1554; Pub. L. 109–163, div. A, title VIII, §823, Jan. 6, 2006, 119 Stat. 3387; Pub. L. 109–364, div. A, title VIII, §855, Oct. 17, 2006, 120 Stat. 2347; Pub. L. 110–181, div. A, title VIII, §823, title X, §1063(h), Jan. 28, 2008, 122 Stat. 226, 324; Pub. L. 110–417, [div. A], title VIII, §824, Oct. 14, 2008, 122 Stat. 4533; Pub. L. 111–383, div. A, title VIII, §§826, 866(g)(2), Jan. 7, 2011, 124 Stat. 4270, 4298, provided that:
“(a)
“(2) The authority of this section—
“(A) may be exercised for a prototype project that is expected to cost the Department of Defense in excess of $20,000,000 but not in excess of $100,000,000 (including all options) only upon a written determination by the senior procurement executive for the agency (as designated for the purpose of section 16(c) of the Office of Federal Procurement Policy Act [former] (41 U.S.C. 414(c)) [now 41 U.S.C. 1702(c)] or, for the Defense Advanced Research Projects Agency or the Missile Defense Agency, the director of the agency that—
“(i) the requirements of subsection (d) will be met; and
“(ii) the use of the authority of this section is essential to promoting the success of the prototype project; and
“(B) may be exercised for a prototype project that is expected to cost the Department of Defense in excess of $100,000,000 (including all options) only if—
“(i) the Under Secretary of Defense for Acquisition, Technology, and Logistics determines in writing that—
“(I) the requirements of subsection (d) will be met; and
“(II) the use of the authority of this section is essential to meet critical national security objectives; and
“(ii) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] are notified in writing at least 30 days before such authority is exercised.
“(3) The authority of a senior procurement executive or director of the Defense Advanced Research Projects Agency or Missile Defense Agency under paragraph (2)(A), and the authority of the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (2)(B), may not be delegated.
“(b)
“(2) To the maximum extent practicable, competitive procedures shall be used when entering into agreements to carry out projects under subsection (a).
“(c)
“(2) The requirement in paragraph (1) shall not apply with respect to a party or entity, or a subordinate element of a party or entity, that has not entered into any other agreement that provides for audit access by a Government entity in the year prior to the date of the agreement.
“(3)(A) The right provided to the Comptroller General in a clause of an agreement under paragraph (1) is limited as provided in subparagraph (B) in the case of a party to the agreement, an entity that participates in the performance of the agreement, or a subordinate element of that party or entity if the only agreements or other transactions that the party, entity, or subordinate element entered into with Government entities in the year prior to the date of that agreement are cooperative agreements or transactions that were entered into under this section or section 2371 of title 10, United States Code.
“(B) The only records of a party, other entity, or subordinate element referred to in subparagraph (A) that the Comptroller General may examine in the exercise of the right referred to in that subparagraph are records of the same type as the records that the Government has had the right to examine under the audit access clauses of the previous agreements or transactions referred to in such subparagraph that were entered into by that particular party, entity, or subordinate element.
“(4) The head of the contracting activity that is carrying out the agreement may waive the applicability of the requirement in paragraph (1) to the agreement if the head of the contracting activity determines that it would not be in the public interest to apply the requirement to the agreement. The waiver shall be effective with respect to the agreement only if the head of the contracting activity transmits a notification of the waiver to Congress and the Comptroller General before entering into the agreement. The notification shall include the rationale for the determination.
“(5) The Comptroller General may not examine records pursuant to a clause included in an agreement under paragraph (1) more than three years after the final payment is made by the United States under the agreement.
“(d)
“(A) there is at least one nontraditional defense contractor participating to a significant extent in the prototype project; or
“(B) no nontraditional defense contractor is participating to a significant extent in the prototype project, but at least one of the following circumstances exists:
“(i) At least one third of the total cost of the prototype project is to be paid out of funds provided by parties to the transaction other than the Federal Government.
“(ii) The senior procurement executive for the agency (as designated for the purposes of section 16(3) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 414(3))) [see 41 U.S.C. 1702(c)] determines in writing that exceptional circumstances justify the use of a transaction that provides for innovative business arrangements or structures that would not be feasible or appropriate under a contract.
“(2)(A) Except as provided in subparagraph (B), the amounts counted for the purposes of this subsection as being provided, or to be provided, by a party to a transaction with respect to a prototype project that is entered into under this section other than the Federal Government do not include costs that were incurred before the date on which the transaction becomes effective.
“(B) Costs that were incurred for a prototype project by a party after the beginning of negotiations resulting in a transaction (other than a contract, grant, or cooperative agreement) with respect to the project before the date on which the transaction becomes effective may be counted for purposes of this subsection as being provided, or to be provided, by the party to the transaction if and to the extent that the official responsible for entering into the transaction determines in writing that—
“(i) the party incurred the costs in anticipation of entering into the transaction; and
“(ii) it was appropriate for the party to incur the costs before the transaction became effective in order to ensure the successful implementation of the transaction.
“(e)
“(2) Under the pilot program—
“(A) a qualifying contract for the procurement of such an item or process, or a qualifying subcontract under a contract for the procurement of such an item or process, may be treated as a contract or subcontract, respectively, for the procurement of commercial items, as defined in section 4(12) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(12)) [see 41 U.S.C. 103]; and
“(B) the item or process may be treated as an item or process, respectively, that is developed in part with Federal funds and in part at private expense for the purposes of section 2320 of title 10, United States Code.
“(3) For the purposes of the pilot program, a qualifying contract or subcontract is a contract or subcontract, respectively, with a nontraditional defense contractor that—
“(A) does not exceed $50,000,000 (including all options); and
“(B) is either—
“(i) a firm, fixed-price contract or subcontract; or
“(ii) a fixed-price contract or subcontract with economic price adjustment.
“(4) The authority to conduct a pilot program under this subsection shall terminate on September 30, 2010. The termination of the authority shall not affect the validity of contracts or subcontracts that are awarded or modified during the period of the pilot program, without regard to whether the contracts or subcontracts are performed during the period.
“(f)
“(g)
“(2) A follow-on production contract provided for in a transaction under paragraph (1) may be awarded to the participants in the transaction without the use of competitive procedures, notwithstanding the requirements of section 2304 of title 10, United States Code, if—
“(A) competitive procedures were used for the selection of parties for participation in the transaction;
“(B) the participants in the transaction successfully completed the prototype project provided for in the transaction;
“(C) the number of units provided for in the follow-on production contract does not exceed the number of units specified in the transaction for such a follow-on production contract; and
“(D) the prices established in the follow-on production contract do not exceed the target prices specified in the transaction for such a follow-on production contract.
“(h)
“(i)
The Secretary of Defense, in carrying out research projects through the Defense Advanced Research Projects Agency, and the Secretary of each military department, in carrying out research projects, may permit the director of any federally funded research and development center to enter into cooperative research and development agreements with any person, any agency or instrumentality of the United States, any unit of State or local government, and any other entity under the authority granted by section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a). Technology may be transferred to a non-Federal party to such an agreement consistent with the provisions of sections 11 and 12 of such Act (15 U.S.C. 3710, 3710a).
(Added and amended Pub. L. 104–201, div. A, title II, §267(c)(1)(A), (B), Sept. 23, 1996, 110 Stat. 2468; Pub. L. 105–85, div. A, title X, §1073(a)(50), Nov. 18, 1997, 111 Stat. 1903.)
The text of section 2371(i) of this title, which was transferred to this section, redesignated as text of section, and amended by Pub. L. 104–201, §267(c)(1)(A), (B), was based on Pub. L. 103–355, title I, §1301(b), Oct. 13, 1994, 108 Stat. 3286.
1997—Pub. L. 105–85 inserted “Defense” before “Advanced Research Projects Agency”.
1996—Pub. L. 104–201 transferred section 2371(i) of this title to this section, added section catchline, and struck out subsec. (i) designation and heading which read as follows: “Cooperative Research and Development Agreements Under Stevenson-Wydler Technology Innovation Act of 1980”. See Codification note above.
(a)
(b)
(c)
(1) A limitation on the allowability of independent research and development and bid and proposal costs to work which the Secretary of Defense determines is of potential interest to the Department of Defense.
(2) For each of fiscal years 1993 through 1995, a limitation in the case of major contractors that the total amount of the independent research and development and bid and proposal costs that are allowable as expenses of the contractor's covered segments may not exceed the contractor's adjusted maximum reimbursement amount.
(3) Implementation of regular methods for transmission—
(A) from the Department of Defense to contractors, in a reasonable manner, of timely and comprehensive information regarding planned or expected Department of Defense future needs; and
(B) from contractors to the Department of Defense, in a reasonable manner, of information regarding progress by the contractor on the contractor's independent research and development programs.
(d)
(1) the total amount of the allowable independent research and development and bid and proposal costs incurred by the contractor during the preceding fiscal year;
(2) 5 percent of the amount referred to in paragraph (1); and
(3) if the projected total amount of the independent research and development and bid and proposal costs incurred by the contractor for such fiscal year is greater than the total amount of the independent research and development and bid and proposal costs incurred by the contractor for the preceding fiscal year, the amount that is determined by multiplying the amount referred to in paragraph (1) by the lesser of—
(A) the percentage by which the projected total amount of such incurred costs for such fiscal year exceeds the total amount of the incurred costs of the contractor for the preceding fiscal year; or
(B) the estimated percentage rate of inflation from the end of the preceding fiscal year to the end of the fiscal year for which the amount of the limitation is being computed.
(e)
(1) is necessary to reimburse such contractor at least to the extent that would have been allowed under regulations as in effect on December 4, 1991; or
(2) is otherwise in the best interest of the Government.
(f)
(g)
(1) Enabling superior performance of future United States weapon systems and components.
(2) Reducing acquisition costs and life-cycle costs of military systems.
(3) Strengthening the defense industrial base and the technology base of the United States.
(4) Enhancing the industrial competitiveness of the United States.
(5) Promoting the development of technologies identified as critical under section 2506 of this title.
(6) Increasing the development and promotion of efficient and effective applications of dual-use technologies.
(7) Providing efficient and effective technologies for achieving such environmental benefits as improved environmental data gathering, environmental cleanup and restoration, pollution reduction in manufacturing, environmental conservation, and environmentally safe management of facilities.
(h)
(i)
(1)
(2)
(Added Pub. L. 101–510, div. A, title VIII, §824(a)(1), Nov. 5, 1990, 104 Stat. 1603; amended Pub. L. 102–25, title VII, §701(c), Apr. 6, 1991, 105 Stat. 113; Pub. L. 102–190, div. A, title VIII, §802(a)(1), Dec. 5, 1991, 105 Stat. 1412; Pub. L. 102–484, div. A, title X, §1052(27), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–35, title II, §201(c)(5), May 31, 1993, 107 Stat. 98; Pub. L. 104–106, div. D, title XLIII, §4321(b)(11), Feb. 10, 1996, 110 Stat. 672.)
1996—Subsec. (i)(1). Pub. L. 104–106 substituted “2324(l)” for “2324(m)”.
1993—Subsec. (g)(5). Pub. L. 103–35 substituted “section 2506” for “section 2522”.
1992—Subsec. (e)(1). Pub. L. 102–484 substituted “on December 4, 1991” for “on the day before the date of the enactment of the National Defense Authorization Act for Fiscal Years 1992 and 1993”.
1991—Pub. L. 102–190 substituted section catchline for one which read “Independent research and development” and amended text generally, substituting present provisions for provisions authorizing payment of independent research and development or bid and proposal costs, encouraging contractors to engage in research and development activities, and authorizing advance agreements regarding the manner and extent in which the Department of Defense may pay independent research and development costs or bid and proposal costs.
Subsec. (d)(2)(B). Pub. L. 102–25 substituted “subsection (b), including” for “subsection (b) or”.
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Section 802(e) of Pub. L. 102–190 provided that: “The amendments made by this section [amending this section and section 2330 of this title] shall take effect on October 1, 1992, and shall apply to independent research and development and bid and proposal costs incurred by a contractor during fiscal years of that contractor that begin on or after that date.”
Section 802(b) of Pub. L. 102–190 provided that: “The Secretary of Defense shall prescribe proposed regulations to implement the amendment made by subsection (a)(1) [amending this section] not later than April 1, 1992, and shall prescribe final regulations for that purpose not later than June 1, 1992.”
Section 802(c) of Pub. L. 102–190 directed Director of the Office of Technology Assessment to conduct a study to determine effect of regulations prescribed under this section on the achievement of policy stated in subsec. (g) of this section and submit a report containing results of such study to Committees on Armed Services of Senate and House of Representatives not later than Dec. 1, 1995, prior to repeal by Pub. L. 103–160, div. A, title II, §266, Nov. 30, 1993, 107 Stat. 1611.
(a)
(b)
(Added Pub. L. 103–160, div. A, title VIII, §822(c)(1), Nov. 30, 1993, 107 Stat. 1706; amended Pub. L. 103–337, div. A, title X, §1070(g), Oct. 5, 1994, 108 Stat. 2859; Pub. L. 104–106, div. A, title VIII, §812, Feb. 10, 1996, 110 Stat. 395.)
Provisions similar to those in this section were contained in sections 4504 and 9504 of this title, prior to repeal by Pub. L. 103–160, §822(c)(2).
1996—Subsec. (b). Pub. L. 104–106 inserted “only” after “applies” in second sentence.
1994—Subsec. (a). Pub. L. 103–337 substituted “chemical activity, and aeronautical supplies,” for “and chemical activity supplies,”.
(a) It is the policy of Congress that an agency named in section 2303(a) of this title should not be required by legislation to award a new grant for research, development, test, or evaluation to a non-Federal Government entity. It is further the policy of Congress that any program, project, or technology identified in legislation be awarded through merit-based selection procedures.
(b) A provision of law may not be construed as requiring a new grant to be awarded to a specified non-Federal Government entity unless that provision of law—
(1) specifically refers to this subsection;
(2) specifically identifies the particular non-Federal Government entity involved; and
(3) specifically states that the award to that entity is required by such provision of law in contravention of the policy set forth in subsection (a).
(c) For purposes of this section, a grant is a new grant unless the work provided for in the grant is a continuation of the work performed by the specified entity under a preceding grant.
(d) This section shall not apply with respect to any grant that calls upon the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an agency named in section 2303(a) of this title and to report on such matters to the Congress or any agency of the Federal Government.
(Added Pub. L. 103–355, title VII, §7203(a)(2), Oct. 13, 1994, 108 Stat. 3380.)
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
(a)
(b)
(c)
(2) No prize competition may result in the award of more than $1,000,000 in cash prizes without the approval of the Under Secretary of Defense for Acquisition, Technology, and Logistics.
(d)
(e)
(1)
(2)
(A) A description of the proposed goals of the competitions established under the program, including the areas of research, technology development, or prototype development to be promoted by such competitions and the relationship of such areas to the military missions of the Department of Defense.
(B) An analysis of why the utilization of the authority in subsection (a) was the preferable method of achieving the goals described in subparagraph (A) as opposed to other authorities available to the Department, such as contracts, grants, and cooperative agreements.
(C) The total amount of cash prizes awarded under the program, including a description of the manner in which the amounts of cash prizes awarded and claimed were allocated among the accounts of the Department for recording as obligations and expenditures.
(D) The methods used for the solicitation and evaluation of submissions under the program, together with an assessment of the effectiveness of such methods.
(E) A description of the resources, including personnel and funding, used in the execution of the program, together with a detailed description of the activities for which such resources were used and an accounting of how funding for execution was allocated among the accounts of the Department for recording as obligations and expenditures.
(F) A description of any plans to transition the technologies or prototypes developed as a result of the program into an acquisition program of the Department.
(3)
(f)
(Added Pub. L. 106–65, div. A, title II, §244(a), Oct. 5, 1999, 113 Stat. 552; amended Pub. L. 107–314, div. A, title II, §248(a), Dec. 2, 2002, 116 Stat. 2502; Pub. L. 108–136, div. A, title X, §1031(a)(20), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 109–163, div. A, title II, §257, Jan. 6, 2006, 119 Stat. 3184; Pub. L. 109–364, div. A, title II, §212, Oct. 17, 2006, 120 Stat. 2119; Pub. L. 111–84, div. A, title II, §253, Oct. 28, 2009, 123 Stat. 2243; Pub. L. 111–383, div. A, title IX, §901(j)(4), Jan. 7, 2011, 124 Stat. 4324.)
2011—Subsec. (a). Pub. L. 111–383 substituted “Assistant Secretary of Defense for Research and Engineering” for “Director of Defense Research and Engineering”.
2009—Subsec. (f). Pub. L. 111–84 substituted “2013” for “2010”.
2006—Subsec. (a). Pub. L. 109–364, §212(a)(1), substituted “Director of Defense Research and Engineering and the service acquisition executive for each military department” for “Director of the Defense Advanced Research Projects Agency” and “programs” for “a program”.
Subsec. (b). Pub. L. 109–364, §212(a)(2)(A), substituted “Each program” for “The program”.
Subsec. (d). Pub. L. 109–364, §212(a)(2)(B), substituted “A program” for “The program” and “an official referred to in that subsection” for “the Director”.
Subsec. (e). Pub. L. 109–364, §212(c), reenacted heading without change and amended text generally. Prior to amendment, subsec. (e) required an annual report, which included the results of consultations between the Director and officials of the military departments, a description of goals, cash prizes, methods used for submissions, a description of resources, and a description of transition plans.
Pub. L. 109–163 reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Promptly after the end of each fiscal year during which one or more prizes are awarded under the program under subsection (a), the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the administration of the program for that fiscal year. The report shall include the following:
“(1) The military applications of the research, technology, or prototypes for which prizes were awarded.
“(2) The total amount of the prizes awarded.
“(3) The methods used for solicitation and evaluation of submissions, together with an assessment of the effectiveness of those methods.”
Subsec. (f). Pub. L. 109–364, §212(b), substituted “2010” for “2007”.
2003—Subsec. (e). Pub. L. 108–136 inserted “during which one or more prizes are awarded under the program under subsection (a)” after “each fiscal year” in introductory provisions.
2002—Subsec. (f). Pub. L. 107–314 substituted “September 30, 2007” for “September 30, 2003”.
Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.
(a)
(b)
(c)
(d)
(e)
(f)
(Added Pub. L. 107–314, div. A, title II, §248(c)(1), Dec. 2, 2002, 116 Stat. 2502.)
2006—Pub. L. 109–163, div. A, title VIII, §803(a)(2), Jan. 6, 2006, 119 Stat. 3371, added item 2379.
1997—Pub. L. 105–85, div. A, title III, §350(b), Nov. 18, 1997, 111 Stat. 1692, added item 2378.
(a)
(b)
(c)
(Added Pub. L. 103–355, title VIII, §8102, Oct. 13, 1994, 108 Stat. 3390; amended Pub. L. 105–85, div. A, title X, §1073(a)(51), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 107–107, div. A, title X, §1048(a)(18), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 111–350, §5(b)(21), Jan. 4, 2011, 124 Stat. 3844.)
2011—Subsec. (b). Pub. L. 111–350 substituted “section 1906 of title 41” for “section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)”.
2001—Subsec. (b). Pub. L. 107–107 inserted “(41 U.S.C. 430)” after “section 34 of the Office of Federal Procurement Policy Act”.
1997—Subsec. (c). Pub. L. 105–85 substituted “a provision relating to an exception” for “provisions relating to exceptions” and “section 2306a(b)” for “section 2306a(d)”.
For effective date and applicability of chapter, see section 10001 of Pub. L. 103–355 set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
Pub. L. 103–355, title VIII, §8304, Oct. 13, 1994, 108 Stat. 3398, provided that: “Nothing in this title [see Tables for classification] shall be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under—
“(1) section 2323 of title 10, United States Code, or section 7102 of the Federal Acquisition Streamlining Act of 1994 [Pub. L. 103–355, 15 U.S.C. 644 note];
“(2) the Brooks Automatic Data Processing Act (section 111 of the Federal Property and Administrative Services Act of 1949 ([former] 40 U.S.C. 759));
“(3) Brooks Architect-Engineers Act (title IX of the Federal Property and Administrative Services Act of 1949 ([former] 40 U.S.C. 541 et seq.) [now 40 U.S.C. 1101–1104]);
“(4) subsections (a) and (d) of section 8 of the Small Business Act (15 U.S.C. 637(a) and (d)); or
“(5) the Javits-Wagner-O'Day Act ([former] 41 U.S.C. 46–48c) [now 41 U.S.C. 8501 et seq.].”
In this chapter:
(1) The terms “commercial item”, “nondevelopmental item”, “component”, and “commercial component” have the meanings provided in chapter 1 of title 41.
(2) The term “head of an agency” means the Secretary of Defense, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration.
(3) The term “agency” means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.
(Added Pub. L. 103–355, title VIII, §8103, Oct. 13, 1994, 108 Stat. 3390; amended Pub. L. 107–107, div. A, title X, §1048(a)(19), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 111–350, §5(b)(22), Jan. 4, 2011, 124 Stat. 3844.)
2011—Par. (1). Pub. L. 111–350 substituted “chapter 1 of title 41” for “section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)”.
2002—Par. (2). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
2001—Par. (1). Pub. L. 107–107 inserted “(41 U.S.C. 403)” after “section 4 of the Office of Federal Procurement Policy Act”.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
(a)
(1) requirements of the agency with respect to a procurement of supplies or services are stated in terms of—
(A) functions to be performed;
(B) performance required; or
(C) essential physical characteristics;
(2) such requirements are defined so that commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items, may be procured to fulfill such requirements; and
(3) offerors of commercial items and nondevelopmental items other than commercial items are provided an opportunity to compete in any procurement to fill such requirements.
(b)
(1) acquire commercial items or nondevelopmental items other than commercial items to meet the needs of the agency;
(2) require prime contractors and subcontractors at all levels under the agency contracts to incorporate commercial items or nondevelopmental items other than commercial items as components of items supplied to the agency;
(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items;
(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items in response to the agency solicitations;
(5) revise the agency's procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial items; and
(6) require training of appropriate personnel in the acquisition of commercial items.
(c)
(A) before developing new specifications for a procurement by that agency;
(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold; and
(C) before awarding a task order or delivery order in excess of the simplified acquisition threshold.
(2) The head of an agency shall use the results of market research to determine whether there are commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items available that—
(A) meet the agency's requirements;
(B) could be modified to meet the agency's requirements; or
(C) could meet the agency's requirements if those requirements were modified to a reasonable extent.
(3) In conducting market research, the head of an agency should not require potential sources to submit more than the minimum information that is necessary to make the determinations required in paragraph (2).
(4) The head of an agency shall take appropriate steps to ensure that any prime contractor of a contract (or task order or delivery order) in an amount in excess of $5,000,000 for the procurement of items other than commercial items engages in such market research as may be necessary to carry out the requirements of subsection (b)(2) before making purchases for or on behalf of the Department of Defense.
(Added Pub. L. 103–355, title VIII, §8104(a), Oct. 13, 1994, 108 Stat. 3390; Pub. L. 110–181, div. A, title VIII, §826(a), Jan. 28, 2008, 122 Stat. 227.)
2008—Subsec. (c)(1)(C). Pub. L. 110–181, §826(a)(1), added subpar. (C).
Subsec. (c)(4). Pub. L. 110–181, §826(a)(2), added par. (4).
Pub. L. 110–417, [div. A], title VIII, §803, Oct. 14, 2008, 122 Stat. 4519, provided that:
“(a)
“(b)
Pub. L. 110–181, div. A, title VIII, §826(b), Jan. 28, 2008, 122 Stat. 228, provided that: “The Secretary of Defense shall develop training to assist contracting officers, and market research tools to assist such officers and prime contractors, in performing appropriate market research as required by subsection (c) of section 2377 of title 10, United States Code, as amended by this section.”
(a)
(2) The percentage of post-consumer recycled content of paper required under paragraph (1) is as follows:
(A) 20 percent as of January 1, 1998.
(B) 30 percent as of January 1, 1999.
(C) 50 percent as of January 1, 2004.
(b)
(1) The cost of procuring copying machine paper satisfying the applicable requirement significantly exceeds the cost of procuring copying machine paper containing a percentage of post-consumer recycled content that does not meet such requirement. The Secretary concerned shall establish the cost differential to be applied under this paragraph.
(2) Copying machine paper containing a percentage of post-consumer recycled content meeting such requirement is not reasonably available within a reasonable period of time.
(3) Copying machine paper containing a percentage of post-consumer recycled content meeting such requirement does not meet performance standards of the department or agency for copying machine paper.
(c)
(2) The Secretary shall submit to Congress written notice of any determination made under paragraph (1) and the reasons for the determination. The Secretary shall submit such notice, if at all, not later than January 1, 2003.
(d)
(Added Pub. L. 105–85, div. A, title III, §350(a), Nov. 18, 1997, 111 Stat. 1691.)
(a)
(1) the Secretary of Defense determines that—
(A) the major weapon system is a commercial item, as defined in section 4(12) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)); and
(B) such treatment is necessary to meet national security objectives;
(2) the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such system; and
(3) the congressional defense committees are notified at least 30 days before such treatment or purchase occurs.
(b)
(1) the subsystem is intended for a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial items in accordance with the requirements of subsection (a); or
(2) the contracting officer determines in writing that—
(A) the subsystem is a commercial item, as defined in section 4(12) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)); and
(B) the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such subsystem.
(c)
(A) the component or spare part is intended for—
(i) a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial items in accordance with the requirements of subsection (a); or
(ii) a subsystem of a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial items in accordance with the requirements of subsection (b); or
(B) the contracting officer determines in writing that—
(i) the component or spare part is a commercial item, as defined in section 4(12) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)); and
(ii) the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such component or spare part.
(2) This subsection shall apply only to components and spare parts that are acquired by the Department of Defense through a prime contract or a modification to a prime contract (or through a subcontract under a prime contract or modification to a prime contract on which the prime contractor adds no, or negligible, value).
(d)
(1) prices paid for the same or similar commercial items under comparable terms and conditions by both government and commercial customers; and
(2) if the contracting officer determines that the information described in paragraph (1) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.
(e)
(f)
(Added Pub. L. 109–163, div. A, title VIII, §803(a)(1), Jan. 6, 2006, 119 Stat. 3370; amended Pub. L. 110–181, div. A, title VIII, §815(a)(1), Jan. 28, 2008, 122 Stat. 222.)
Section 4(12) of the Office of Federal Procurement Policy Act, referred to in subsecs. (a)(1)(A), (b)(2)(A), and (c)(1)(B)(i), means section 4(12) of Pub. L. 93–400, which was classified to section 403(12) of former Title 41, Public Contracts, and was repealed and restated in section 103 of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
Section 35(c) of the Office of Federal Procurement Policy Act, referred to in subsecs. (b) and (c)(1), means section 35(c) of Pub. L. 93–400, which was classified to section 431(c) of former Title 41, Public Contracts, and was repealed and restated as section 104 of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
2008—Subsec. (a)(2), (3). Pub. L. 110–181, §815(a)(1)(A), added par. (2) and redesignated former par. (2) as (3).
Subsec. (b). Pub. L. 110–181, §815(a)(1)(B), added subsec. (b) and struck out former subsec. (b). Former text read as follows: “A subsystem or component of a major weapon system shall be treated as a commercial item and purchased under procedures established for the procurement of commercial items if such subsystem or component otherwise meets the requirements (other than requirements under subsection (a)) for treatment as a commercial item.”
Subsecs. (c) to (f). Pub. L. 110–181, §815(a)(1)(C), (D), added subsecs. (c) and (d) and redesignated former subsecs. (c) and (d) as (e) and (f), respectively.
Pub. L. 109–163, div. A, title VIII, §803(b), Jan. 6, 2006, 119 Stat. 3371, provided that: “The amendments made by subsection (a) [enacting this section] shall take effect on the date of the enactment of this Act [Jan. 6, 2006], and shall apply to contracts entered into on or after such date.”
1 See References in Text note below.
2008—Pub. L. 110–181, div. A, title VIII, §828(b), title X, §1063(a)(11), Jan. 28, 2008, 122 Stat. 229, 322, inserted period at end of item 2410p and added item 2410q.
2006—Pub. L. 109–364, div. A, title VIII, §807(a)(2), div. B, title XXVIII, §2851(c)(2), Oct. 17, 2006, 120 Stat. 2315, 2495, added item 2410p and struck out items 2388 “Liquid fuels and natural gas: contracts for storage, handling, or distribution”, 2394 “Contracts for energy or fuel for military installations”, 2394a “Procurement of energy systems using renewable forms of energy”, 2398 “Procurement of gasohol as motor vehicle fuel”, 2398a “Procurement of fuel derived from coal, oil shale, and tar sands”, 2404 “Acquisition of certain fuel sources: authority to waive contract procedures; acquisition by exchange; sales authority”, and 2410c “Preference for energy efficient electric equipment”.
Pub. L. 109–163, div. A, title VIII, §815(d)(2), Jan. 6, 2006, 119 Stat. 3382, substituted “Requirement for authorization by law of certain contracts relating to vessels, aircraft, and combat vehicles” for “Requirement for authorization by law of certain contracts relating to vessels and aircraft” in item 2401.
2005—Pub. L. 109–58, title III, §369(q)(2), Aug. 8, 2005, 119 Stat. 733, added item 2398a.
2004—Pub. L. 108–375, div. A, title VIII, §804(a)(2), Oct. 28, 2004, 118 Stat. 2008, added item 2383.
2003—Pub. L. 108–136, div. A, title VIII, §801(a)(2), title X, §1005(b)(2), Nov. 24, 2003, 117 Stat. 1540, 1585, added item 2382 and substituted “Contracts for periods crossing fiscal years: severable service contracts; leases of real or personal property” for “Severable service contracts for periods crossing fiscal years” in item 2410a.
2002—Pub. L. 107–314, div. A, title VIII, §826(b), title X, §1062(a)(10)(B), Dec. 2, 2002, 116 Stat. 2617, 2650, transferred item 2410h “Acquisition fellowship program” to subchapter IV of chapter 87 as item 1747 and added item 2410o.
2001—Pub. L. 107–107, div. A, title VIII, §§811(a)(2), 834(a)(2), Dec. 28, 2001, 115 Stat. 1181, 1191, added items 2389 and 2410n.
1999—Pub. L. 106–65, div. A, title VIII, §803(b)(2), Oct. 5, 1999, 113 Stat. 704, substituted “Acquisition of certain fuel sources” for “Acquisition of petroleum and natural gas” in item 2404.
1997—Pub. L. 105–85, div. A, title VIII, §§801(b), 810(a)(2), 831(b), 847(b)(1), title X, §1014(b)(2), Nov. 18, 1997, 111 Stat. 1831, 1839, 1842, 1845, 1875, inserted “public utility services,” after “tuition,” in item 2396, struck out items 2403 “Major weapon systems: contractor guarantees” and 2405 “Limitation on adjustment of shipbuilding contracts”, substituted “Severable service contracts for periods crossing fiscal years” for “Appropriated funds: availability for certain contracts for 12 months” in item 2410a, and added item 2410m.
1996—Pub. L. 104–106, div. A, title VIII, §§803(b), 807(a)(2), div. D, title XLIII, §4304(c)(1), Feb. 10, 1996, 110 Stat. 390, 392, 664, struck out items 2383 “Procurement of critical aircraft and ship spare parts: quality control”, 2397 “Employees or former employees of defense contractors: reports”, 2397a “Requirements relating to private employment contacts between certain Department of Defense procurement officials and defense contractors”, 2397b “Certain former Department of Defense procurement officials: limitations on employment by contractors”, and 2397c “Defense contractors: requirements concerning former Department of Defense officials” and substituted “Lease of vehicles, equipment, vessels, and aircraft” for “Lease of vessels, aircraft, and vehicles” in item 2401a.
1994—Pub. L. 103–355, title II, §§2102(b), 2201(b)(2), 2301(c), title III, §3065(a)(2), title VI, §6005(b)(2), Oct. 13, 1994, 108 Stat. 3309, 3318, 3321, 3337, 3365, added item 2401a, struck out items 2382 “Contract profit controls during emergency periods”, 2406 “Availability of cost and pricing records”, 2409a “Communicating with Government officials: defense contractor requirement to prohibit retaliatory personnel actions”, and 2410e “Contract claims: certification regulations”, and substituted in item 2410 “Requests for equitable adjustment or other relief: certification” for “Contract claims: certification”.
Pub. L. 103–337, div. A, title III, §363(a)(2), Oct. 5, 1994, 108 Stat. 2734, added item 2410l.
1993—Pub. L. 103–160, div. A, title VIII, §828(a)(3), (c)(3), (4), Nov. 30, 1993, 107 Stat. 1713, 1714, substituted “Liquid fuels and natural gas: contracts for storage, handling, or distribution” for “Liquid fuels: contracts for storage, handling, and distribution” in item 2388, struck out item 2389 “Contracts for the procurement of milk: price adjustments; purchases from the Commodity Credit Corporation”, and inserted “and natural gas” and “; acquisition by exchange; sales authority” in item 2404.
Pub. L. 103–35, title II, §202(a)(18)(B), May 31, 1993, 107 Stat. 102, made technical amendment to directory language of Pub. L. 102–484, §4470(a)(2). See 1992 Amendment note below.
Pub. L. 103–35, title II, §201(b)(1)(B), May 31, 1993, 107 Stat. 97, renumbered item 2410c relating to displaced contractor employees as item 2410j and item 2410d relating to defense contractors as item 2410k.
1992—Pub. L. 102–484, div. D, title XLIV, §4470(a)(2), Oct. 23, 1992, 106 Stat. 2753, as amended by Pub. L. 103–35, title II, §202(a)(18)(B), May 31, 1993, 107 Stat. 102, added item 2410d relating to defense contractors.
Pub. L. 102–484, div. D, title XLIV, §4443(b), Oct. 23, 1992, 106 Stat. 2735, 2753, added item 2410c relating to displaced contractor employees.
Pub. L. 102–484, div. A, title III, §384(a)(1)(B), title VIII, §§808(b)(2), 813(a)(2), 834(a)(2), 840(a)(2), 841(b), title XIII, §1332(b), Oct. 23, 1992, 106 Stat. 2393, 2450, 2453, 2461, 2467, 2468, 2555, added items 2410c to 2410i.
1990—Pub. L. 101–510, div. A, title VIII, §837(a)(2), title XIV, §1484(i)(8), Nov. 5, 1990, 104 Stat. 1619, 1718, struck out item 2407 “Acquisition of defense equipment under cooperative projects” and added item 2409a.
1989—Pub. L. 101–189, div. A, title VIII, §§802(a)(2), 803(b), title IX, §933(e), title XVI, §1622(b)(2), Nov. 29, 1989, 103 Stat. 1486, 1488, 1538, 1604, added items 2390, 2399, and 2400 and struck out item 2401a “Procurement of communications support and related supplies and services”.
1988—Pub. L. 100–456, div. A, title VIII, §§805(a)(2), 834(a)(2), Sept. 29, 1988, 102 Stat. 2010, 2025, added items 2383 and 2410b.
Pub. L. 100–370, §§1(h)(3), 3(b)(2), July 19, 1988, 102 Stat. 848, 855, in item 2389 substituted “milk: price adjustments; purchases from the Commodity Credit Corporation” for “milk; price adjustment”, struck out items 2399 “Limitation on availability of appropriations to reimburse a contractor for cost of commercial insurance”, and 2400 “Miscellaneous procurement limitations”, and added items 2410 and 2410a.
1987—Pub. L. 100–180, div. A, title I, §124(b)(2), Dec. 4, 1987, 101 Stat. 1043, substituted “Miscellaneous procurement limitations” for “Limitation on procurement of buses” in item 2400.
1986—Pub. L. 99–661, div. A, title XI, §1103(b)(2)(B), Nov. 14, 1986, 100 Stat. 3963, struck out “North Atlantic Treaty Organization” before “cooperative projects” in item 2407.
Pub. L. 99–500, §101(c) [title X, §§931(a)(2), 941(a)(2), 942(a)(2), 943(a)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–160, 1783–162, 1783–164, and Pub. L. 99–591, §101(c) [title X, §§931(a)(2), 941(a)(2), 942(a)(2), 943(a)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–160, 3341–162, 3341–164; Pub. L. 99–661, div. A, title IX, formerly title IV, §§931(a)(2), 941(a)(2), 942(a)(2), 943(a)(2), Nov. 14, 1986, 100 Stat. 3939, 3941–3943, 3963, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, amended analysis identically, substituting “Availability of cost and pricing records” for “Cost and price management” in item 2406 and adding items 2397b, 2397c, 2408, and 2409.
1985—Pub. L. 99–145, title IX, §§917(b), 923(a)(2), title XI, §1102(b)(2), Nov. 8, 1985, 99 Stat. 690, 697, 712, added items 2397a, 2406, and 2407.
1984—Pub. L. 98–525, title X, §1005(b), title XII, §1235(1), (2), Oct. 19, 1984, 98 Stat. 2579, 2604, substituted in item 2384 “identification of supplier and sources” for “marking with name of contractor” and added items 2401a, 2384a, and 2402 to 2405.
1983—Pub. L. 98–94, title XII, §§1202(a)(2), 1259(b), Sept. 24, 1983, 97 Stat. 681, 703, struck out item 2390 “Suggestions for improving procurement policies”, and added item 2401.
1982—Pub. L. 97–321, title VIII, §801(a)(2), Oct. 15, 1982, 96 Stat. 1570, added item 2394a.
Pub. L. 97–295, §1(29)(B), Oct. 12, 1982, 96 Stat. 1294, struck out item 2394 “Availability of appropriations for procurement of technical military equipment and supplies and the construction of military public works”, added item 2395 “Availability of appropriations for procurement of technical military equipment and supplies”, redesignated former item 2395 as 2396, and added items 2397, 2398, 2399, and 2400.
Pub. L. 97–258, §2(b)(4)(A), Sept. 13, 1982, 96 Stat. 1052, added items 2394 and 2395.
Pub. L. 97–214, §6(a)(2), July 12, 1982, 96 Stat. 172, added item 2394.
1981—Pub. L. 97–86, title IX, §§911(a)(2), 912(a)(2), 913(a)(2), 914(b), Dec. 1, 1981, 95 Stat. 1122, 1123, 1125, substituted “Contract profit controls during emergency periods” for “Aircraft: contract requirements” in item 2382 and added items 2391, 2392, and 2393.
1980—Pub. L. 96–513, title V, §511(79), Dec. 12, 1980, 94 Stat. 2927, struck out item 2383 “Emergency purchases: war material abroad”.
1977—Pub. L. 95–79, title VIII, §815(b), July 30, 1977, 91 Stat. 338, added item 2390.
1966—Pub. L. 89–696, §1(2), Oct. 19, 1966, 80 Stat. 1057, added item 2389.
1958—Pub. L. 85–861, §1(47), Sept. 2, 1958, 72 Stat. 1458, added items 2387 and 2388.
(a) The Secretary of Defense may—
(1) prescribe regulations for the preparation, submission, and opening of bids for contracts; and
(2) require that a bid be accompanied by a written guaranty, signed by one or more responsible persons, undertaking that the bidder, if his bid is accepted, will, within the time prescribed by the Secretary or other officer authorized to make the contract, make a contract and furnish a bond with good and sufficient sureties for the performance of the contract.
(b) If a bidder, after being notified of the acceptance of his bid, fails within the time prescribed under subsection (a)(2) to enter into a contract and furnish the prescribed bond, the Secretary concerned or other authorized officer shall—
(1) contract with another person; and
(2) charge against the defaulting bidder and his guarantors the difference between the amount specified by the bidder in his bid and the amount for which a contract is made with the other person, this difference being immediately recoverable by the United States for the use of the military department concerned in an action against the bidder and his guarantors, jointly or severally.
(c) Proceedings under this section are subject to regulations under section 121 of title 40, unless exempted therefrom under section 501(a)(2) of title 40.
(Aug. 10, 1956, ch. 1041, 70A Stat. 136; Pub. L. 98–525, title XIV, §1405(35), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 103–355, title I, §1507, Oct. 13, 1994, 108 Stat. 3298; Pub. L. 107–217, §3(b)(6), Aug. 21, 2002, 116 Stat. 1295.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2381(a) 2381(b) |
5:218 (1st sentence, less 1st 16 words; and 2d sentence). 5:218 (less 1st and 2d sentences). |
Apr. 10, 1878, ch. 58, 20 Stat. 36; Mar. 3, 1883, ch. 120, 22 Stat. 487; Oct. 31, 1951, ch. 654, §2(4), 65 Stat. 706. |
| 2381(c) | 5:218 (1st 16 words of 1st sentence) [applicability of 5:218 extended to Navy by 5:412b and 41:161 (1st sentence)]. | Feb. 19, 1948, ch. 65, §12 (1st sentence), 62 Stat. 26. |
In subsection (a)(1), the word “may” is substituted for the words “is authorized to”. The words “rules and * * * to be observed” are omitted as surplusage.
In subsection (a)(2), the word “undertaking” is substituted for the words “to the effect that he or they undertake”. The words “make a contract” are inserted for clarity. The words “in the premises” are omitted as surplusage. The words “for the performance of the contract” are substituted for the words “to furnish the supplies proposed or to perform the service required”.
In subsection (b), the word “duly” is omitted as surplusage. The words “with good and sufficient security for the proper fulfillment of its terms” are omitted as covered by subsection (a)(2). The words “the prescribed” are inserted before the word “bond”.
Subsection (b)(1) is substituted for the words “proceed to contract with some other person to furnish the supplies or perform the services required”.
In subsection (b)(2) the word “charge” is substituted for the words “forthwith cause * * * to be charged”. The words “a contract is made with the other person” are substituted for the words “he may have contracted with another party to furnish the supplies or perform the service for the whole period of the proposal”. The words “guarantor or” are omitted as surplusage. The words “this difference being” are substituted for the words “and the sum may be”. The words “of debt” are omitted, since that action no longer exists. The words “the bidder and his guarantors, jointly or severally” are substituted for the words “either or all of such persons”.
In subsection (c), the words “Proceedings under this section are” are inserted for clarity. The words “unless exempted therefrom under section 481(a) of that title” are inserted to preserve the possibility of exemption of proceedings under the revised section from the provisions of the Federal Property and Administrative Services Act of 1949, as amended.
2002—Subsec. (c). Pub. L. 107–217 substituted “section 121 of title 40” for “section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486)” and “section 501(a)(2) of title 40” for “section 201(a) of that Act (40 U.S.C. 481(a))”.
1994—Subsec. (a). Pub. L. 103–355 substituted “The Secretary of Defense may—
“(1) prescribe regulations for the preparation, submission, and opening of bids for contracts; and”
for “The Secretary of a military department may—
“(1) prescribe regulations for the preparation, submission, and opening of bids for contracts with that department; and”.
1984—Subsec. (c). Pub. L. 98–525 substituted “section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486)” for “section 486 of title 40” and “section 201(a) of that Act (40 U.S.C. 481(a))” for “section 481(a) of this title”.
(a)
(b)
(A) conducts market research;
(B) identifies any alternative contracting approaches that would involve a lesser degree of consolidation of contract requirements; and
(C) determines that the consolidation is necessary and justified.
(2) A senior procurement executive may determine that an acquisition strategy involving a consolidation of contract requirements is necessary and justified for the purposes of paragraph (1) if the benefits of the acquisition strategy substantially exceed the benefits of each of the possible alternative contracting approaches identified under subparagraph (B) of that paragraph. However, savings in administrative or personnel costs alone do not constitute, for such purposes, a sufficient justification for a consolidation of contract requirements in a procurement unless the total amount of the cost savings is expected to be substantial in relation to the total cost of the procurement.
(3) Benefits considered for the purposes of paragraphs (1) and (2) may include cost and, regardless of whether quantifiable in dollar amounts—
(A) quality;
(B) acquisition cycle;
(C) terms and conditions; and
(D) any other benefit.
(c)
(1) The terms “consolidation of contract requirements” and “consolidation”, with respect to contract requirements of a military department, Defense Agency, or Department of Defense Field Activity, mean a use of a solicitation to obtain offers for a single contract or a multiple award contract to satisfy two or more requirements of that department, agency, or activity for goods or services that have previously been provided to, or performed for, that department, agency, or activity under two or more separate contracts smaller in cost than the total cost of the contract for which the offers are solicited.
(2) The term “multiple award contract” means—
(A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 2302(2)(C) of this title;
(B) a multiple award task order contract or delivery order contract that is entered into under the authority of sections 2304a through 2304d of this title or sections 303H through 303K 1 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253h through 253k); and
(C) any other indeterminate delivery, indeterminate quantity contract that is entered into by the head of a Federal agency with two or more sources pursuant to the same solicitation.
(3) The term “senior procurement executive concerned” means—
(A) with respect to a military department, the official designated under section 16(c) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c)) as the senior procurement executive for the military department; or
(B) with respect to a Defense Agency or a Department of Defense Field Activity, the official so designated for the Department of Defense.
(4) The term “small business concern” means a business concern that is determined by the Administrator of the Small Business Administration to be a small-business concern by application of the standards prescribed under section 3(a) of the Small Business Act (15 U.S.C. 632(a)).
(Added Pub. L. 108–136, div. A, title VIII, §801(a)(1), Nov. 24, 2003, 117 Stat. 1538; amended Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 111–240, title I, §1313(b), Sept. 27, 2010, 124 Stat. 2539.)
Section 44(c)(4), referred to in subsec. (b)(1), probably means section 2[44(c)(4)] of Pub. L. 85–536, as added by Pub. L. 111–240, title I, §1313(a)(2), Sept. 27, 2010, 124 Stat. 2538, which is classified to section 657q(c)(4) of Title 15, Commerce and Trade.
Sections 303H through 303K of the Federal Property and Administrative Services Act of 1949, referred to in subsec. (c)(2)(B), means sections 303H to 303K of act June 30, 1949, ch. 288, which were classified to sections 253h to 253k, respectively, of former Title 41, Public Contracts, and were repealed and restated as sections 4103, 4105, 4106, and 4101, respectively, of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
Section 16(c) of the Office of Federal Procurement Policy Act, referred to in subsec. (c)(3)(A), means section 16(c) of Pub. L. 93–400, which was classified to section 414(c) of former Title 41, Public Contracts, and was repealed and restated as section 1702(c) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
A prior section 2382, acts Aug. 10, 1956, ch. 1041, 70A Stat. 136; Dec. 1, 1981, Pub. L. 97–86, title IX, §911(a)(1), 95 Stat. 1120; Nov. 5, 1990, Pub. L. 101–510, div. A, title XIV, §1484(b)(3), (f)(2), (g)(2), (h)(3), 104 Stat. 1716, 1717; Oct. 29, 1992, Pub. L. 102–572, title IX, §902(b)(1), 106 Stat. 4516, authorized the President, upon declaration of war by Congress or declaration of national emergency by the President or by Congress, to prescribe regulations to control excessive profits on defense contracts during period of such war or national emergency, prior to repeal by Pub. L. 103–355, title II, §2102(a), Oct. 13, 1994, 108 Stat. 3309.
2010—Subsec. (b)(1). Pub. L. 111–240 substituted “Subject to section 44(c)(4), an official” for “An official” in introductory provisions.
2006—Subsec. (c)(3)(A). Pub. L. 109–364 substituted “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))” for “section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))”.
Pub. L. 108–136, div. A, title VIII, §801(c), Nov. 24, 2003, 117 Stat. 1540, provided that: “This section [enacting this section and provisions set out as a note below] applies with respect to procurements for which solicitations are issued after the date occurring 180 days after the date of the enactment of this Act [Nov. 24, 2003].”
Pub. L. 108–136, div. A, title VIII, §801(b), Nov. 24, 2003, 117 Stat. 1540, provided that:
“(1) The Secretary of Defense shall revise the data collection systems of the Department of Defense to ensure that such systems are capable of identifying each procurement that involves a consolidation of contract requirements within the department with a total value in excess of $5,000,000.
“(2) The Secretary shall ensure that appropriate officials of the Department of Defense periodically review the information collected pursuant to paragraph (1) in cooperation with the Small Business Administration—
“(A) to determine the extent of the consolidation of contract requirements in the Department of Defense; and
“(B) to assess the impact of the consolidation of contract requirements on the availability of opportunities for small business concerns to participate in Department of Defense procurements, both as prime contractors and as subcontractors.
“(3) In this subsection:
“(A) The term ‘consolidation of contract requirements’ has the meaning given that term in section 2382(c)(1) of title 10, United States Code, as added by subsection (a).
“(B) The term ‘small business concern’ means a business concern that is determined by the Administrator of the Small Business Administration to be a small-business concern by application of the standards prescribed under section 3(a) of the Small Business Act (15 U.S.C. 632(a)).”
1 See References in Text note below.
(a)
(1) appropriate military or civilian personnel of the Department of Defense cannot reasonably be made available to perform the functions;
(2) appropriate military or civilian personnel of the Department of Defense are—
(A) to supervise contractor performance of the contract; and
(B) to perform all inherently governmental functions associated with the functions to be performed under the contract; and
(3) the agency addresses any potential organizational conflict of interest of the contractor in the performance of the functions under the contract, consistent with subpart 9.5 of part 9 of the Federal Acquisition Regulation and the best interests of the Department of Defense.
(b)
(1) The term “head of an agency” has the meaning given such term in section 2302(1) of this title, except that such term does not include the Secretary of Homeland Security or the Administrator of the National Oceanic and Atmospheric Administration.
(2) The term “inherently governmental functions” has the meaning given such term in subpart 7.5 of part 7 of the Federal Acquisition Regulation.
(3) The term “functions closely associated with inherently governmental functions” means the functions described in section 7.503(d) of the Federal Acquisition Regulation.
(4) The term “organizational conflict of interest” has the meaning given such term in subpart 9.5 of part 9 of the Federal Acquisition Regulation.
(Added Pub. L. 108–375, div. A, title VIII, §804(a)(1), Oct. 28, 2004, 118 Stat. 2007.)
A prior section 2383, added Pub. L. 100–456, div. A, title VIII, §805(a)(1), Sept. 29, 1988, 102 Stat. 2010; amended Pub. L. 102–190, div. A, title X, §1061(a)(13), Dec. 5, 1991, 105 Stat. 1473; Pub. L. 103–355, title II, §2401, Oct. 13, 1994, 108 Stat. 3324, related to quality control in procurement of critical aircraft and ship spare or repair parts, prior to repeal by Pub. L. 104–106, div. A, title VIII, §803(a), Feb. 10, 1996, 110 Stat. 390.
Another prior section 2383, act Aug. 10, 1956, ch. 1041, 70A Stat. 137, permitted Secretary of a military department to make emergency purchases of war material abroad, and provided that such material may be admitted free of duty, prior to repeal by Pub. L. 87–456, title III, §303(c), May 24, 1962, 76 Stat. 78.
Pub. L. 108–375, div. A, title VIII, §804(b), Oct. 28, 2004, 118 Stat. 2008, provided that: “Section 2383 of title 10, United States Code (as added by subsection (a)), shall apply to contracts entered into on or after the date of the enactment of this Act [Oct. 28, 2004].”
(a) The Secretary of Defense shall require that the contractor under a contract with the Department of Defense for the furnishing of supplies to the United States shall mark or otherwise identify supplies furnished under the contract with the identity of the contractor, the national stock number for the supplies furnished (if there is such a number), and the contractor's identification number for the supplies.
(b)(1) The Secretary of Defense shall prescribe regulations requiring that, whenever practicable, each contract requiring the delivery of supplies (other than a contract described in paragraph (2)) shall require that the contractor identify—
(A) the actual manufacturer or producer of the item or of all sources of supply of the contractor for that item;
(B) the national stock number of the item (if there is such a number) and the identification number of the actual manufacturer or producer of the item or of each source of supply of the contractor for the item; and
(C) the source of any technical data delivered under the contract.
(2) The regulations prescribed pursuant to paragraph (1) do not apply to a contract that requires the delivery of supplies that are commercial items (as defined in section 103 of title 41).
(3) The regulations prescribed pursuant to paragraph (1) do not apply to a contract for an amount not greater than the simplified acquisition threshold (as defined in section 134 of title 41).
(c) Identification of supplies and technical data under this section shall be made in the manner and with respect to the supplies prescribed by the Secretary of Defense.
(Aug. 10, 1956, ch. 1041, 70A Stat. 137; Pub. L. 98–525, title XII, §1231(a), Oct. 19, 1984, 98 Stat. 2599; Pub. L. 99–500, §101(c) [title X, §928(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–156, and Pub. L. 99–591, §101(c) [title X, §928(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–156; Pub. L. 99–661, div. A, title IX, formerly title IV, §928(a), Nov. 14, 1986, 100 Stat. 3936, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 103–355, title IV, §4102(d), title VIII, §8105(b), Oct. 13, 1994, 108 Stat. 3340, 3392; Pub. L. 104–106, div. D, title XLIII, §4321(b)(12), Feb. 10, 1996, 110 Stat. 672; Pub. L. 111–350, §5(b)(23), Jan. 4, 2011, 124 Stat. 3844.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2384 | 10:1207. 34:583. |
R.S. 3731. |
The words “Each contractor” are substituted for the words “Every person”. The word “his” is substituted for the words “the name of the contractor furnishing such supplies”. The words “of any kind” and “and distinguish [distinguished]” are omitted as surplusage. The word “may” is substituted for the word “shall”.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
2011—Subsec. (b)(2). Pub. L. 111–350, §5(b)(23)(A), substituted “section 103 of title 41)” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))”.
Subsec. (b)(3). Pub. L. 111–350, §5(b)(23)(B), substituted “section 134 of title 41)” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))”.
1996—Subsec. (b)(2). Pub. L. 104–106, §4321(b)(12)(A), substituted “items (as” for “items, as” and inserted a closing parenthesis after “403(12))”.
Subsec. (b)(3). Pub. L. 104–106, §4321(b)(12)(B), inserted a closing parenthesis after “403(11))”.
1994—Subsec. (b)(2). Pub. L. 103–355, §8105(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Paragraph (1) does not apply to a contract that requires the delivery of supplies that are commercial items sold in substantial quantities to the general public if the contract—
“(A) provides for the acquisition of such supplies by the Department of Defense at established catalog or market prices; or
“(B) is awarded through the use of competitive procedures.”
Subsec. (b)(3). Pub. L. 103–355, §4102(d), added par. (3).
1986—Subsec. (b). Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661, amended subsec. (b) identically, designating existing provision as par. (1), redesignating former pars. (1) to (3) as subpars. (A) to (C), respectively, and inserting in provision preceding subpar. (A) “(other than a contract described in paragraph (2))”, and adding par. (2).
1984—Pub. L. 98–525 amended section generally, substituting “identification of supplier and sources” for “marking with name of contractor” in section catchline, and, in text, substituting provisions designated subsec. (a) and relating to the marking of supplies, providing the national stock number for the supplies furnished, and the contractor's identification number for requirement that each contractor furnishing supplies to a military department mark the supplies with his name in the manner directed by the Secretary of the Department and prohibition of receipt of supplies unless so marked and adding subsecs. (b) and (c).
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 101(c) [title X, §928(b)] of Pub. L. 99–500 and Pub. L. 99–591, and section 928(b) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “The amendments made by subsection (a) [amending this section] shall apply with respect to contracts entered into after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].”
Section 1231(b) of Pub. L. 98–525 provided that: “The amendment made by subsection (a) [amending this section] shall take effect at the end of the one-year period beginning on the date of the enactment of this Act [Oct. 19, 1984].”
(a)(1) An agency referred to in section 2303(a) of this title shall procure supplies in such quantity as (A) will result in the total cost and unit cost most advantageous to the United States, where practicable, and (B) does not exceed the quantity reasonably expected to be required by the agency.
(2) The Secretary of Defense shall take paragraph (1) into account in approving rates of obligation of appropriations under section 2204 of this title.
(b) Each solicitation for a contract for supplies shall, if practicable, include a provision inviting each offeror responding to the solicitation to state an opinion on whether the quantity of the supplies proposed to be procured is economically advantageous to the United States and, if applicable, to recommend a quantity or quantities which would be more economically advantageous to the United States. Each such recommendation shall include a quotation of the total price and the unit price for supplies procured in each recommended quantity.
(Added Pub. L. 98–525, title XII, §1233(a), Oct. 19, 1984, 98 Stat. 2600.)
Section 1233(b) of Pub. L. 98–525 provided that: “The amendment made by subsection (a) [enacting this section] shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984].”
No tax on the sale or transfer of firearms, pistols, revolvers, shells, or cartridges may be imposed on such articles when bought with funds appropriated for a military department.
(Aug. 10, 1956, ch. 1041, 70A Stat. 137.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2385 | 5:171w. | Jan. 6, 1951, ch. 1213, subch. VII, §706, 64 Stat. 1236. |
The words “No * * * may be” are substituted for the words “None * * * shall be subject to any”. The words “by any Act” are omitted as surplusage.
Funds appropriated for a military department available for making or procuring supplies may be used to acquire any of the following if the acquisition relates to supplies or processes produced or used by or for, or useful to, that department:
(1) Copyrights, patents, and applications for patents.
(2) Licenses under copyrights, patents, and applications for patents.
(3) Design and process data, technical data, and computer software.
(4) Releases for past infringement of patents or copyrights or for unauthorized use of technical data or computer software.
(Aug. 10, 1956, ch. 1041, 70A Stat. 137; Pub. L. 86–726, §3, Sept. 8, 1960, 74 Stat. 855; Pub. L. 103–355, title III, §3063, Oct. 13, 1994, 108 Stat. 3337; Pub. L. 104–106, div. A, title VIII, §813, Feb. 10, 1996, 110 Stat. 395.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2386 | 31:649b. | Aug. 1, 1953, ch. 305, §609, 67 Stat. 350. |
The words “equipment, and materials” are omitted as covered by the word “supplies”. The word “hereafter” is omitted as executed. The words “may be used” are substituted for the words “shall * * * be available”. The words “if the acquisition relates to” are substituted for 31:649b (1st 8 words of last sentence). In clauses (1), (2), and (4), the word “patents” is substituted for the words “letters patent”.
1996—Par. (3). Pub. L. 104–106 amended par. (3) generally, substituting “Design and process data, technical data, and computer software” for “Technical data and computer software”.
1994—Pars. (3), (4). Pub. L. 103–355 added pars. (3) and (4) and struck out former pars. (3) and (4) which read as follows:
“(3) Designs, processes, and manufacturing data.
“(4) Releases, before suit is brought, for past infringement of patents or copyrights.”
1960—Pub. L. 86–726 inserted “or copyrights” after “patents” in cl. (4).
(a) Except under regulations approved by the Secretary of Defense and providing for uniform practices among the armed forces under his jurisdiction, no part of any appropriation of the Department of Defense may be used to supply or replace table linen, dishes, glassware, silver, and kitchen utensils for use in the residences on shore, or quarters on shore, of officers of those armed forces.
(b) This section does not apply to—
(1) field messes;
(2) messes temporarily set up on shore for bachelor officers and officers attached to seagoing or district defense vessels;
(3) aviation units based on seagoing vessels;
(4) fleet air bases;
(5) submarine bases; and
(6) landing forces and expeditions.
(Added Pub. L. 85–861, §1(45), Sept. 2, 1958, 72 Stat. 1458.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2387(a) | 5:174e (less words within parentheses). | July 13, 1955, ch. 358, §614, 69 Stat. 317. |
| 2387(b) | 5:174e (words within parentheses). |
In subsection (a), the words “may be used” are substituted for the words “shall be available”. The words “on account of” are omitted as surplusage. The words “under his jurisdiction” are inserted for clarity, since the Secretary of Defense has no jurisdiction over the Coast Guard when it is not operating as a service in the Navy.
The Secretary of Defense shall ensure, to the extent practicable, that insensitive munitions under development or procurement are safe throughout development and fielding when subject to unplanned stimuli.
(Added Pub. L. 107–107, div. A, title VIII, §834(a)(1), Dec. 28, 2001, 115 Stat. 1191.)
A prior section 2389, added Pub. L. 89–696, §1(1), Oct. 19, 1966, 80 Stat. 1056; amended Pub. L. 100–370, §1(h)(1), July 19, 1988, 102 Stat. 847, related to purchases from Commodity Credit Corporation and price adjustments for contracts for procurement of milk, prior to repeal by Pub. L. 103–160, div. A, title VIII, §821(a)(4), Nov. 30, 1993, 107 Stat. 1704.
Pub. L. 107–107, div. A, title VIII, §834(b), Dec. 28, 2001, 115 Stat. 1191, directed the Secretary of Defense to submit to committees of Congress a report on insensitive munitions at the same time that the budgets for fiscal years 2003 through 2005 were submitted.
(a)(1) Except as provided in subsections (b) and (c), the sale outside the Department of Defense of any defense article designated or otherwise classified as Prepositioned Material Configured to Unit Sets, as decrement stock, or as Prepositioned War Reserve Stocks for United States Forces is prohibited.
(2) In this section, the term “decrement stock” means such stock as is needed to bring the armed forces from a peacetime level of readiness to a combat level of readiness.
(b) The President may authorize the sale outside the Department of Defense of a defense article described in subsection (a) if—
(1) he determines that there is an international crisis affecting the national security of the United States and the sale of such article is in the best interests of the United States; and
(2) he reports to the Congress not later than 60 days after the transfer of such article a plan for the prompt replenishment of the stocks of such article and the planned budget request to begin implementation of that plan.
(c)(1) Nothing in this section shall preclude the sale of stocks which have been designated for replacement, substitution, or elimination or which have been designated for sale to provide funds to procure higher priority stocks.
(2) Nothing in this section shall preclude the transfer or sale of equipment to other members of the North Atlantic Treaty Organization.
(Added Pub. L. 95–485, title VIII, §815(a), Oct. 20, 1978, 92 Stat. 1625, §975; amended Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; renumbered §2390, Pub. L. 101–189, div. A, title XVI, §1622(b)(1), Nov. 29, 1989, 103 Stat. 1604.)
A prior section 2390, added Pub. L. 95–79, title VIII, §815(a), July 30, 1977, 91 Stat. 337; amended Pub. L. 96–470, title I, §104(a), Oct. 19, 1980, 94 Stat. 2238; Pub. L. 96–513, title V, §511(80), Dec. 12, 1980, 94 Stat. 2927, directed Secretary of Defense to request each commissioned officer, and each civilian employee above grade GS–12, who was scheduled for retirement and who was or had been at any time within one year prior to such scheduled retirement, assigned to, or employed in, military procurement to submit suggestions for methods to improve procurement policies, prior to repeal by Pub. L. 98–94, title XII, §1259(a), Sept. 24, 1983, 97 Stat. 703.
1989—Pub. L. 101–189 renumbered section 975 of this title as this section.
1987—Subsec. (a)(2). Pub. L. 100–26 inserted “the term” after “In this section,”.
(a)
(b)
(2) In the case of the establishment or expansion of a military installation, assistance may be made under paragraph (1) only if (A) community impact assistance or special impact assistance is not otherwise available, and (B) the establishment or expansion involves the assignment to the installation of (i) more than 2,000 military, civilian, and contractor Department of Defense personnel, or (ii) more military, civilian, and contractor Department of Defense personnel than the number equal to 10 percent of the number of persons employed in counties or independent municipalities within fifteen miles of the installation, whichever is lesser.
(3) In the case of a publicly announced planned reduction in Department of Defense spending, the closure or realignment of a military installation, the cancellation or termination of a Department of Defense contract, or the failure to proceed with a previously approved major defense acquisition program, assistance may be made under paragraph (1) only if the reduction, closure or realignment, cancellation or termination, or failure will have a direct and significant adverse impact on a community or its residents.
(4)(A) In the case of a State or local government eligible for assistance under paragraph (1), the Secretary of Defense may also make grants, conclude cooperative agreements, and supplement other Federal funds in order to assist the State or local government to carry out a community adjustment and economic diversification program (including State industrial extension or modernization efforts to facilitate the economic diversification of defense contractors and subcontractors) in addition to planning such a program.
(B) The Secretary shall establish criteria for the selection of community adjustment and economic diversification programs to receive assistance under subparagraph (A). Such criteria shall include a requirement that the State or local government agree—
(i) to provide not less than 10 percent of the funding for the program from non-Federal sources;
(ii) to provide business planning and market exploration services under the program to defense contractors and subcontractors that seek modernization or diversification assistance; and
(iii) to provide training, counseling, and placement services for members of the armed forces and dislocated defense workers.
(C) The Secretary shall carry out this paragraph in coordination with the Secretary of Commerce.
(5)(A) The Secretary of Defense may also make grants, conclude cooperative agreements, and supplement other Federal funds in order to assist a State or local government in planning community adjustments and economic diversification even though the State or local government is not currently eligible for assistance under paragraph (1) if the Secretary determines that a substantial portion of the economic activity or population of the geographic area to be subject to the advance planning is dependent on defense expenditures.
(B) The Secretary of Defense may also make grants, conclude cooperative agreements, and supplement other Federal funds in order to assist a State in enhancing its capacities—
(i) to assist communities, businesses, and workers adversely affected by an action described in paragraph (1);
(ii) to support local adjustment and diversification initiatives; and
(iii) to stimulate cooperation between statewide and local adjustment and diversification efforts.
(C) The Secretary of Defense may also make grants, conclude cooperative agreements, and supplement other Federal funds in order to assist a State or local government in enhancing the capabilities of the government to support efforts of the Department of Defense to privatize, contract for, or diversify the performance of military family support services in cases in which the capability of the Department to provide such services is adversely affected by an action described in paragraph (1).
(6) Funds provided to State and local governments and regional organizations under this section may be used as part or all of any required non-Federal contribution to a Federal grant-in-aid program for the purposes stated in paragraph (1).
(7) To the extent practicable, the Secretary of Defense shall inform a State or local government applying for assistance under this subsection of the approval or rejection by the Secretary of the application for such assistance as follows:
(A) Before the end of the 7-day period beginning on the date on which the Secretary receives the application, in the case of an application for a planning grant.
(B) Before the end of the 30-day period beginning on such date, in the case of an application for assistance to carry out a community adjustments and economic diversifications program.
(8)(A) In attempting to complete consideration of applications within the time period specified in paragraph (7), the Secretary of Defense shall give priority to those applications requesting assistance for a community described in subsection (f)(1).
(B) If an application under paragraph (7) is rejected by the Secretary, the Secretary shall promptly inform the State or local government of the reasons for the rejection of the application.
(c)
(d)
(1) The terms “military installation” and “realignment” have the meanings given those terms in section 2687(e) of this title. For purposes of subsection (b)(1)(D), the term “military installation” includes a military facility owned and operated by any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands, even though the facility is not under the jurisdiction of the Department of Defense, if the Secretary of Defense determines that the military facility is subject to significant use for training by the armed forces.
(2) The term “defense facility” means any private facility producing goods or services pursuant to a defense contract.
(3) The terms “community adjustment” and “economic diversification” include the development of feasibility studies and business plans for market diversification within a community adversely affected by an action described in clause (A), (B), (C), or (E) of subsection (b)(1) by adversely affected businesses and labor organizations located in the community.
(e)
(Added Pub. L. 97–86, title IX, §912(a)(1), Dec. 1, 1981, 95 Stat. 1122; amended Pub. L. 98–115, title VIII, §808, Oct. 11, 1983, 97 Stat. 789; Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; Pub. L. 100–456, div. B, title XXVIII, §2805, Sept. 29, 1988, 102 Stat. 2116; Pub. L. 101–510, div. D, title XLI, §4102(b), Nov. 5, 1990, 104 Stat. 1851; Pub. L. 102–25, title VII, §701(j)(3), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102–484, div. A, title X, §1052(28), div. D, title XLIII, §4301(a)–(c), Oct. 23, 1992, 106 Stat. 2500, 2696, 2697; Pub. L. 103–35, title II, §202(a)(15), May 31, 1993, 107 Stat. 101; Pub. L. 103–160, div. B, title XXIX, §2913, Nov. 30, 1993, 107 Stat. 1925; Pub. L. 103–337, div. A, title XI, §§1122(a), 1123(a), (b), Oct. 5, 1994, 108 Stat. 2870, 2871; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 104–201, div. B, title XXVIII, §2814, Sept. 23, 1996, 110 Stat. 2790; Pub. L. 105–85, div. B, title XXVIII, §2822, Nov. 18, 1997, 111 Stat. 1997; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title X, §1041(a)(13), Dec. 2, 2002, 116 Stat. 2645; Pub. L. 109–163, div. B, title XXVIII, §2832, Jan. 6, 2006, 119 Stat. 3520; Pub. L. 109–364, div. B, title XXVIII, §§2861, 2862, Oct. 17, 2006, 120 Stat. 2498; Pub. L. 110–417, div. B, title XXVIII, §2823(b), Oct. 14, 2008, 122 Stat. 4730.)
The National Environmental Policy Act of 1969, referred to in subsec. (a), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, as amended, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.
Executive Order 12788, referred to in subsec. (c), is set out below.
2008—Subsec. (d)(1). Pub. L. 110–417 inserted “the Commonwealth of the Northern Mariana Islands,” after “Guam,”.
2006—Subsec. (b)(3). Pub. L. 109–163, §2832(a), substituted “realignment of a military installation” for “significantly reduced operations of a defense facility”, “closure or realignment, cancellation or” for “cancellation,”, and “community or its residents.” for “community and will result in the loss of—
“(A) 2,500 or more employee positions, in the case of a Metropolitan Statistical Area or similar area (as defined by the Director of the Office of Management and Budget);
“(B) 1,000 or more employee positions, in the case of a labor market area outside of a Metropolitan Statistical Area; or
“(C) one percent of the total number of civilian jobs in that area.”
Subsec. (c). Pub. L. 109–364, §2861, added subsec. (c).
Subsec. (d)(1). Pub. L. 109–364, §2862, inserted at end “For purposes of subsection (b)(1)(D), the term ‘military installation’ includes a military facility owned and operated by any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam, or the Virgin Islands, even though the facility is not under the jurisdiction of the Department of Defense, if the Secretary of Defense determines that the military facility is subject to significant use for training by the armed forces.”
Pub. L. 109–163, §2832(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “The term ‘military installation’ means any camp, post, station, base, yard, or other installation under the jurisdiction of a military department that is located within any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, or Guam.”
2002—Subsec. (c). Pub. L. 107–314 struck out heading and text of subsec. (c). Text read as follows: “The Secretary of Defense shall submit a report not later than December 1 of each year to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives concerning the operation of this section during the preceding fiscal year. Each such report shall identify each State, unit of local government, and regional organization that received a grant under this section during such fiscal year and the total amount granted under this section during such year to each such State, unit of local government, and regional organization.”
1999—Subsec. (c). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1997—Subsec. (b)(5)(C). Pub. L. 105–85 added subpar. (C).
1996—Subsec. (b)(5). Pub. L. 104–201 designated existing provisions as subpar. (A) and added subpar. (B).
Subsec. (c). 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”.
1994—Subsec. (b)(5) to (7). Pub. L. 103–337, §1123(a), added par. (5) and redesignated former pars. (5) and (6) as (6) and (7), respectively. Former par. (7) redesignated (8).
Subsec. (b)(8). Pub. L. 103–337, §1123(a)(1), (b), redesignated par. (7) as (8) and substituted “paragraph (7)” for “paragraph (6)” in subpars. (A) and (B).
Subsec. (d)(3). Pub. L. 103–337, §1122(a), added par. (3).
1993—Subsec. (b)(1). Pub. L. 103–35 made technical amendment to directory language of Pub. L. 102–484, §4301(b)(1)(C). See 1992 Amendment note below.
Subsec. (b)(6), (7). Pub. L. 103–160 added pars. (6) and (7).
1992—Subsec. (a). Pub. L. 102–484, §4301(c)(1), inserted heading.
Subsec. (b). Pub. L. 102–484, §4301(c)(2), inserted heading.
Subsec. (b)(1). Pub. L. 102–484, §4301(b)(1), as amended by Pub. L. 103–35, substituted “, (D)” for “, or (D)”, substituted “(C), or (E)” for “or (C)”, and inserted cl. (E) before first reference to “if the Secretary”.
Pub. L. 102–484, §1052(28), substituted “publicly announced” for “publicly-announced”.
Subsec. (b)(3). Pub. L. 102–484, §4301(b)(2), inserted “the closure or significantly reduced operations of a defense facility,” after “Defense spending,” in introductory provisions.
Subsec. (b)(4), (5). Pub. L. 102–484, §4301(a)(1), (2), added par. (4) and redesignated former par. (4) as (5).
Subsec. (c). Pub. L. 102–484, §4301(c)(3), inserted heading.
Subsec. (d). Pub. L. 102–484, §4301(b)(3), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “In this section, the term ‘military installation’ means any camp, post, station, base, yard, or other installation under the jurisdiction of a military department that is located within any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, or Guam.”
Subsec. (e). Pub. L. 102–484, §4301(c)(4), inserted heading.
1991—Subsec. (b)(3). Pub. L. 102–25 substituted “publicly announced” for “publicly-announced” and inserted a comma after “only if the reduction”.
1990—Subsec. (b)(3) to (6). Pub. L. 101–510 added par. (3), redesignated par. (5) as (4), and struck out former pars. (3), (4), and (6), which read as follows:
“(3) In the case of the cancellation or termination of a Department of Defense contract or the failure to proceed with an approved major weapon system program, assistance may be made under paragraph (1) only if the cancellation, termination, or failure to proceed involves the loss of 2,500 or more full-time Department of Defense and contractor employee positions in the locality of the affected community.
“(4) In the case of a publicly-announced planned major reduction in Department of Defense spending that will directly and adversely affect a community, assistance may be made under paragraph (1) only if the publicly-announced planned major reduction will result in the loss of 1,000 or more full-time Department of Defense and contractor employee positions over a five-year period in the locality of the affected community.
“(6) Not more than $2,000,000 in assistance may be provided under this subsection in any fiscal year.”
1988—Subsec. (b)(1). Pub. L. 100–456, §2805(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “The Secretary of Defense may make grants, conclude cooperative agreements, and supplement funds made available under Federal programs administered by agencies other than the Department of Defense in order to assist State and local governments, and regional organizations composed of State and local governments, in planning community adjustments required (A) by the proposed or actual establishment, realignment, or closure of a military installation, or (B) by the cancellation or termination of a Department of Defense contract or the failure to proceed with an approved major weapon system program, if the Secretary of Defense determines that the action is likely to impose a significant impact on the affected community.”
Subsec. (b)(4) to (6). Pub. L. 100–456, §2805(b), added par. (4) and redesignated former pars. (4) and (5) as (5) and (6), respectively.
1987—Subsec. (d). Pub. L. 100–26 inserted “the term” after “In this section,”.
1983—Subsec. (b)(2). Pub. L. 98–115 substituted “2,000” for “2,500”.
Amendment by Pub. L. 103–35 applicable as if included in the enactment of Pub. L. 102–484, see section 202(b) of Pub. L. 103–35, set out as a note under section 155 of this title.
Section 2702 of title XXVII of div. B of Pub. L. 100–456 provided that: “Except as otherwise specifically provided, this division [amending this section and sections 2662, 2672, 2809, and 2828 of this title and enacting provisions set out as a note under this section] shall take effect on October 1, 1988, or the date of enactment of this Act [Sept. 29, 1988], whichever is later.”
Section 808 of Pub. L. 98–115 provided that the amendment made by that section is effective Oct. 1, 1983.
Section 4301(d) of Pub. L. 102–484 authorized Secretary of Defense, during fiscal year 1993, to make grants and other assistance available under 10 U.S.C. 2391(b) to assist a State or local government in planning community adjustments and economic diversification even though the State or local government currently failed to meet the criteria for assistance under such section if the Secretary determined that a substantial portion of the economic activity or population of the geographic area to be subjected to the adjustment or diversification planning was dependent on Department of Defense expenditures.
Section 4301(f) of Pub. L. 102–484 provided that: “Nothing in this section [amending this section and enacting provisions set out as a note above] is intended to replace the efforts of the economic development program administered by the Economic Development Administration of the Department of Commerce.”
Section 4302 of Pub. L. 102–484, as amended by Pub. L. 103–160, div. A, title XIII, §1323(a), Nov. 30, 1993, 107 Stat. 1790, authorized Secretary of Defense, during fiscal years 1993 and 1994, to conduct a pilot project to examine methods to improve the provision of economic adjustment and diversification assistance under 10 U.S.C. 2391(b)(1) to State and local governments adversely affected by the closure of military installations, the cancellation or completion of defense contracts, or reductions in defense spending.
Pub. L. 102–172, title VIII, §8149, Nov. 26, 1991, 105 Stat. 1214, provided that:
“(a) The Secretary of Defense, during the current fiscal year or at any time thereafter, may make a donation to an entity described in subsection (b) of a parcel of real property (including structures on such property) under the jurisdiction of the Secretary that is not currently required for the needs of the Department and that the Secretary determines is needed and appropriate for the activities of that entity.
“(b) A donation under subsection (a) may be made to a nonprofit entity which provides medical, educational, and emotional support in a recreational setting to children with life-threatening diseases and their families.”
Pub. L. 101–510, div. D, Nov. 5, 1990, 104 Stat. 1848, as amended by Pub. L. 102–190, div. A, title X, §1062(c), Dec. 5, 1991, 105 Stat. 1475; Pub. L. 102–484, div. D, title XLII, §4212(b), Oct. 23, 1992, 106 Stat. 2664; Pub. L. 104–201, div. A, title VIII, §825, Sept. 23, 1996, 110 Stat. 2611; Pub. L. 105–277, div. A, §101(f) [title VIII, §405(d)(6)], Oct. 21, 1998, 112 Stat. 2681–337, 2681–419; Pub. L. 108–136, div. A, title IX, §932, Nov. 24, 2003, 117 Stat. 1581, provided that:
“This division may be cited as the ‘Defense Economic Adjustment, Diversification, Conversion, and Stabilization Act of 1990’.
“(a)
“(1) There are likely to be significant reductions in the programs, projects, and activities of the Department of Defense during the first several fiscal years following fiscal year 1990.
“(2) Such reductions will adversely affect the economies of many communities in the United States and small businesses and civilian workers throughout the United States.
“(b)
“(1) assistance be provided under existing planning assistance programs and economic adjustment assistance programs of the Federal Government to substantially and seriously affected communities, businesses, and workers to the extent necessary to facilitate an orderly transition for such communities, small businesses, and workers from economic reliance on Department of Defense spending to economic reliance on other sources of business, employment, and revenue; and
“(2) funding for such programs be increased by amounts necessary to meet the needs of such communities, small businesses, and workers without reducing the funding that would otherwise be available under those programs by reason of causes unrelated to the reductions referred to in subsection (a)(1).
“For purposes of this division:
“(1) The term ‘major defense contract or subcontract’ means—
“(A) any defense contract in an amount not less than $5,000,000 (without regard to the date on which the contract was awarded); and
“(B) any subcontract which—
“(i) is entered into in connection with a contract (without regard to the effective date of the subcontract); and
“(ii) involves not less than $500,000.
“(2) The term ‘Economic Adjustment Committee’ or ‘Committee’ means the Economic Adjustment Committee established in Executive Order 12049 (10 U.S.C. 111 note).
“(3) The term ‘defense facility’ means any private or government facility producing goods or services pursuant to a defense contract.
“(4) The term ‘military installation’ means a base, camp, post, station, yard, center, or homeport facility for any ship in the United States, or any other facility under the jurisdiction of a military department located in the United States.
“(5) The term ‘substantially and seriously affected’ means—
“(A) when such term is used in conjunction with the term ‘community’, a community—
“(i) which has within its administrative and political jurisdiction one or more military installations or defense facilities or which is economically affected by proximity to a military installation or defense facility;
“(ii) in which the actual or threatened curtailment, completion, elimination, or realignment of a defense contract results in a workforce reduction of—
“(I) 2,500 or more employee positions, in the case of a Metropolitan Statistical Area or similar area (as defined by the Director of the Office of Management and Budget);
“(II) 1,000 or more employee positions, in the case of a labor market area outside of a Metropolitan Statistical Area; or
“(III) one percent of the total number of civilian jobs in that area; and
“(iii) which establishes, by evidence, that any workforce reduction referred to in clause (ii) occurred as a direct result of changes in Department of Defense requirements or programs;
“(B) when such term is used in conjunction with the term ‘businesses’ any business which—
“(i) holds a major defense contract or subcontract (or held such contract or subcontract before a reduction in the defense budget);
“(ii) experiences a reduction, or the threat of a reduction, of—
“(I) 25 percent or more in sales or production; or
“(II) 80 percent or more of the workforce of such business in any division of such business or at any plant or other facility of such business; and
“(iii) establishes, by evidence, that the reductions referred to in clause (ii) occurred as a direct result of a reduction in the defense budget; and
“(C) when such term is used in conjunction with the term ‘group of workers’, any group of 100 or more workers at a defense facility who are (or who are threatened to be), eligible to participate in the defense conversion adjustment program under section 325 of the Job Training Partnership Act [29 U.S.C. 1662d] (as added by section 4202 of this division), as in effect on the day before the date of enactment of the Workforce Investment Act of 1998 [Aug. 7, 1998].
“(a)
“(b)
“(c)
“(d)
“(1) coordinate and facilitate cooperative efforts among Federal agencies represented on the Committee to implement defense economic adjustment programs;
“(2) serve as an information clearinghouse for and between Federal, State, and local entities regarding their defense economic adjustment efforts; and
“(3) submit to the President and Congress, not later than December 1, 1991, and each December 1 thereafter, a report that—
“(A) describes Federal economic adjustment programs available to communities, businesses, and groups of workers;
“(B) describes the implementation of defense economic adjustment assistance during the preceding fiscal year; and
“(C) specifies the number of communities, businesses, and workers affected by defense budget reductions during the preceding fiscal year and such number assisted by Federal economic adjustment programs during that fiscal year.
“(a)
“(b) [Amended section 2391(b) of this title.]
“(a)
“(b)
“[Enacted section 1662d of Title 29, Labor.]
“(a)
“(b)
“Not later than 180 days after the date of the enactment of this Act [Nov. 5, 1990], the President, acting with the assistance of the Committee and after consulting experts in government and the private sector, shall transmit to the Congress recommendations regarding ways that assistance provided pursuant to the business loan program under section 7(a) of the Small Business Act of 1958 [15 U.S.C. 636(a)] may be used to respond to the consequences of defense budget reductions.
“(a)
“(b)
“(a)
“(1)
“(2)
“(3)
“(A) was substantially and seriously affected by defense budget reductions; and
“(B) is in transition from defense to nondefense production.
“(b)
“(1) has been substantially and seriously affected by defense budget reductions; and
“(2) is in transition from defense to nondefense production.
“(c)
“(1) Federal agencies concerned with international trade shall participate in the process of coordination conducted by the Committee pursuant to section 4004(c)(1); and
“(2) such Federal agencies shall attempt, to the maximum extent practicable, to coordinate and integrate the activities and assistance of the agencies in support of exports, including financial assistance in the form of direct loans, loan guarantees, and insurance, general trade promotion, marketing assistance, and marketing and commercial information, in a manner consistent with the purposes of this division (and the amendments made by this division to other provisions of law).
“(d)
“(1) providing financing described in subsections (a)(2) and (b), respectively, to businesses or groups of workers which were substantially and seriously affected by defense budget reductions; and
“(2) coordinating and integrating export support and financing activities with other Federal agencies.
“(a)
“(b)
Section 2819 of Pub. L. 100–456, as amended by Pub. L. 101–510, div. B, title XXIX, §2922(a), Nov. 5, 1990, 104 Stat. 1820, established Commission on Alternative Utilization of Military Facilities and required Commission to submit reports to President and Congress not later than Sept. 1 of every second year through fiscal year 1996, prior to repeal by Pub. L. 105–261, div. A, title X, §1031(b), Oct. 17, 1998, 112 Stat. 2123.
Section 912(c) of Pub. L. 97–86 required the first report under subsec. (c) of this section to be submitted not later than Dec. 1, 1982.
Ex. Ord. No. 12682, July 7, 1989, 54 F.R. 29315, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, including section 2819 of the Military Construction Authorization Act, 1989 (Public Law 100–456) [10 U.S.C. 2391 note], it is hereby ordered as follows:
(b) The Commission shall consist of a representative of the Department of Defense designated by the Secretary of Defense, a representative of the Federal Bureau of Prisons designated by the Attorney General, a representative of the National Institute on Drug Abuse designated by the Secretary of Health and Human Services, a representative of the General Services Administration designated by the Administrator of General Services, a representative of the Department of Housing and Urban Development designated by the Secretary of Housing and Urban Development, and a representative of the Office of National Drug Control Policy designated by the Director of the Office of National Drug Control Policy. The representative of the Department of Defense shall chair the Commission.
(c) The Secretary of Defense shall provide such personnel and support to the Commission as the Secretary determines is necessary to accomplish its mission.
(b) The first such report shall be prepared and submitted as soon as possible for inclusion in the first report of the Commission. The second report shall be prepared and submitted on January 30, 1990, and succeeding reports shall be prepared and submitted every other year commencing on January 30, 1992, and continuing until January 30, 1996.
(1) minimum security facilities for nonviolent prisoners,
(2) drug treatment facilities for nonviolent drug abusers, and
(3) facilities to assist the homeless.
(b) The first report of the Commission shall be submitted to the President and then to the Congress by September 1, 1989. The second, and succeeding reports of the Commission, shall be submitted to the President and then to the Congress no later than September 1, 1990, and every second year through September 1, 1996.
George Bush.
Ex. Ord. No. 12788, Jan. 15, 1992, 57 F.R. 2213, as amended by Ex. Ord. No. 13286, §33, Feb. 28, 2003, 68 F.R. 10625; Ex. Ord. No. 13378, May 12, 2005, 70 F.R. 28413, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including 10 U.S.C. 2391 and the Defense Economic Adjustment, Diversification, Conversion, and Stabilization Act of 1990, enacted as Division D, section 4001 et seq., of the National Defense Authorization Act for Fiscal Year 1991, Public Law 101–510 [set out above], and to provide coordinated Federal economic adjustment assistance necessitated by changes in Department of Defense activities, it is hereby ordered as follows:
(a) Identify problems of States, regions, metropolitan areas, or communities that result from major Defense base closures, realignments, and Defense contract-related adjustments, and the encroachment of the civilian community on the mission of military installations and that require Federal assistance;
(b) Use and maintain a uniform socioeconomic impact analysis to justify the use of Federal economic adjustment resources, prior to particular realignments;
(c) Apply consistent policies, practices, and procedures in the administration of Federal programs that are used to assist Defense-affected States, regions, metropolitan areas, communities, and businesses;
(d) Identify and strengthen existing agency mechanisms to coordinate employment opportunities for displaced agency personnel;
(e) Identify and strengthen existing agency mechanisms to improve reemployment opportunities for dislocated Defense industry personnel;
(f) Assure timely consultation and cooperation with Federal, State, regional, metropolitan, and community officials concerning Defense-related impacts on Defense-affected communities’ problems;
(g) Assure coordinated interagency and intergovernmental adjustment assistance concerning Defense impact problems;
(h) Prepare, facilitate, and implement cost-effective strategies and action plans to coordinate interagency and intergovernmental economic adjustment efforts;
(i) Encourage effective Federal, State, regional, metropolitan, and community cooperation and concerted involvement of public interest groups and private sector organizations in Defense economic adjustment activities;
(j) Serve as a clearinghouse to exchange information among Federal, State, regional, metropolitan, and community officials involved in the resolution of community economic adjustment problems. Such information may include, for example, previous studies, technical information, and sources of public and private financing;
(k) Assist in the diversification of local economies to lessen dependence on Defense activities;
(l) Encourage and facilitate private sector interim use of lands and buildings to generate jobs as military activities diminish;, [sic]
(m) Develop ways to streamline property disposal procedures to enable Defense-impacted communities to acquire base property to generate jobs as military activities diminish; and
(n) Encourage resolution of regulatory issues that impede encroachment prevention and local economic adjustment efforts.
(a) Membership. The Economic Adjustment Committee (“Committee”) shall be composed of the following individuals, or a designated principal deputy of these individuals, and such other individuals from the executive branch as the President may designate. Such individuals shall include the:
(1) Secretary of Agriculture;
(2) Attorney General;
(3) Secretary of Commerce;
(4) Secretary of Defense;
(5) Secretary of Education;
(6) Secretary of Energy;
(7) Secretary of Health and Human Services;
(8) Secretary of Housing and Urban Development;
(9) Secretary of the Interior;
(10) Secretary of Labor;
(11) Secretary of State;
(12) Secretary of Transportation;
(13) Secretary of the Treasury;
(14) Secretary of Veterans Affairs;
(15) Secretary of Homeland Security;
(16) Chairman, Council of Economic Advisers;
(17) Director of the Office of Management and Budget;
(18) Director of the Office of Personnel Management;
(19) Administrator of the Environmental Protection Agency;
(20) Administrator of General Services;
(21) Administrator of the Small Business Administration; and,
(22) Postmaster General.
(b) Chairman. The Secretary of Defense, or the Secretary's designee, shall chair the Committee.
(c) Vice Chairman. The Secretaries of Labor and Commerce shall serve as Vice Chairmen of the Committee. The Vice Chairmen shall co-chair the Committee in the absence of both the Chairman and the Chairman's designee and may also preside over meetings of designated representatives of the concerned executive agencies.
(d) Executive Director. The head of the Department of Defense's Office of Economic Adjustment shall provide all necessary policy and administrative support for the Committee and shall be responsible for coordinating the application of the Defense Economic Adjustment Program to Department of Defense activities.
(e) Duties. The Committee shall:
(1) Advise, assist, and support the Defense Economic Adjustment Program;
(2) Develop procedures for ensuring that State, regional, and community officials and representatives of organized labor in those States, municipalities, localities, or labor organizations that are substantially and seriously affected by changes in Defense expenditures, realignments or closures, or cancellation or curtailment of major Defense contracts, are notified of available Federal economic adjustment programs; and,
(3) Report annually to the President and then to the Congress on the work of the Economic Adjustment Committee during the preceding fiscal year.
(a) The head of each agency represented on the Committee shall designate an agency representative to:
(1) Serve as a liaison with the Secretary of Defense's economic adjustment staff;
(2) Coordinate agency support and participation in economic adjustment assistance projects; and,
(3) Assist in resolving Defense-related impacts on Defense-affected communities.
(b) All executive agencies shall:
(1) Support, to the extent permitted by law, the economic adjustment assistance activities of the Secretary of Defense. Such support may include the use and application of personnel, technical expertise, legal authorities, and available financial resources. This support may be used, to the extent permitted by law, to provide a coordinated Federal response to the needs of individual States, regions, municipalities, and communities adversely affected by necessary Defense changes;
(2) Afford priority consideration to requests from Defense-affected communities for Federal technical assistance, financial resources, excess or surplus property, or other requirements, that are part of a comprehensive plan used by the Committee.
(b) This order shall be effective immediately and shall supersede Executive Order No. 12049.
[Amendment by Ex. Ord. 13378 directing insertion of “and” after “diminish;” in section 3(m) of Ex. Ord. 12788, was executed by substituting “; and” for the comma after “diminish”.]
(a) In order to help avoid the uneconomic use of Department of Defense funds in the procurement of goods and services, the Congress finds that it is necessary to prohibit the use of such funds for certain purposes.
(b) No funds appropriated to or for the use of the Department of Defense may be used to pay, in connection with any contract awarded by the Department of Defense, a price differential for the purpose of relieving economic dislocations.
(Added Pub. L. 97–86, title IX, §913(a)(1), Dec. 1, 1981, 95 Stat. 1123.)
Pub. L. 97–252, title XI, §1109, Sept. 8, 1982, 96 Stat. 746, as amended by Pub. L. 98–94, title XII, §1205, Sept. 24, 1983, 97 Stat. 683; Pub. L. 98–525, title XII, §1254, Oct. 19, 1984, 98 Stat. 2611, authorized the Secretary of Defense to conduct a test program during fiscal years 1983, 1984, and 1985 to test the effect of exempting certain contracts of the Department of Defense from the provisions of this section and paying a price differential under such contracts for the purpose of relieving economic dislocations, provided that the Secretary could exempt any contract (other than a contract for the purchase of fuel) made by the Defense Logistics Agency during fiscal years 1983, 1984, and 1985 if the contract was to be awarded to an individual or firm located in a Labor Surplus Area, and directed the President to submit a report to Congress not later than Apr. 15, 1983, Apr. 15, 1984, and Apr. 15, 1985, on the implementation and results to that date of the program. Similar provisions were contained in Pub. L. 97–86, title IX, §913(b), (c), Dec. 1, 1981, 95 Stat. 1124.
(a)(1) Except as provided in paragraph (2), the Secretary of a military department may not solicit an offer from, award a contract to, extend an existing contract with, or, when approval by the Secretary of the award of a subcontract is required, approve the award of a subcontract to, an offeror or contractor which to the Secretary's knowledge has been debarred or suspended by another Federal agency unless—
(A) in the case of debarment, the debarment of the offeror or contractor by all other agencies has been terminated or the period of time specified for such debarment has expired; and
(B) in the case of a suspension, the period of time specified by all other agencies for the suspension of the offeror or contractor has expired.
(2) Paragraph (1) does not apply in any case in which the Secretary concerned determines that there is a compelling reason to solicit an offer from, award a contract to, extend a contract with, or approve a subcontract with such offeror or contractor.
(b) Whenever the Secretary concerned makes a determination described in subsection (a)(2), he shall, at the time of the determination, transmit a notice to the Administrator of General Services describing the determination. The Administrator of General Services shall maintain each such notice in a file available for public inspection.
(c) In this section:
(1) The term “debar” means to exclude, pursuant to established administrative procedures, from Government contracting and subcontracting for a specified period of time commensurate with the seriousness of the failure or offense or the inadequacy of performance.
(2) The term “suspend” means to disqualify, pursuant to established administrative procedures, from Government contracting and subcontracting for a temporary period of time because a concern or individual is suspected of engaging in criminal, fraudulent, or seriously improper conduct.
(d) The Secretary of Defense shall prescribe in regulations a requirement that each contractor under contract with the Department of Defense shall require each contractor to whom it awards a contract (in this section referred to as a subcontractor) to disclose to the contractor whether the subcontractor is or is not, as of the time of the award of the subcontract, debarred or suspended by the Federal Government from Government contracting or subcontracting. The requirement shall apply to any subcontractor whose subcontract is in an amount greater than the simplified acquisition threshold (as defined in section 134 of title 41). The requirement shall not apply in the case of a subcontract for the acquisition of commercial items (as defined in section 103 of title 41).
(Added Pub. L. 97–86, title IX, §914(a), Dec. 1, 1981, 95 Stat. 1124; amended Pub. L. 100–180, div. A, title XII, §1231(17), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 101–510, div. A, title VIII, §813, Nov. 5, 1990, 104 Stat. 1596; Pub. L. 102–190, div. A, title X, §1061(a)(11), Dec. 5, 1991, 105 Stat. 1473; Pub. L. 103–355, title IV, §4102(e), title VIII, §8105(c), Oct. 13, 1994, 108 Stat. 3340, 3392; Pub. L. 111–350, §5(b)(24), Jan. 4, 2011, 124 Stat. 3844.)
2011—Subsec. (d). Pub. L. 111–350 substituted “section 134 of title 41)” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))” and “section 103 of title 41)” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))”.
1994—Subsec. (d). Pub. L. 103–355 substituted “greater than the simplified acquisition threshold (as defined in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11))).” for “above the small purchase amount established in section 2304(g) of this title.” in second sentence and inserted at end “The requirement shall not apply in the case of a subcontract for the acquisition of commercial items (as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))).”
1991—Subsec. (d). Pub. L. 102–190 substituted “Federal Government” for “Federal government”.
1990—Subsec. (d). Pub. L. 101–510 added subsec. (d).
1987—Subsec. (c). Pub. L. 100–180 inserted “The term” after each par. designation and revised first word in quotes in each par. to make initial letter of such word lowercase.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Another section 2394 was renumbered section 2395 of this title.
Funds appropriated to the Department of Defense for the procurement of technical military equipment and supplies remain available until spent.
(Added Pub. L. 97–258, §2(b)(4)(B), Sept. 13, 1982, 96 Stat. 1052, §2394; renumbered §2395 and amended Pub. L. 97–295, §1(28)(A), Oct. 12, 1982, 96 Stat. 1291.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2394 | 31:649c(1). | Aug. 10, 1956, ch. 1041, §40(1), 70A Stat. 636; Nov. 17, 1971, Pub. L. 92–156, §201(b), 85 Stat. 424. |
The words “Unless otherwise provided in the appropriation Act concerned” are omitted as unnecessary and for consistency. The word “Funds” is substituted for “moneys” for consistency in title 10. The word “military” is added before “public” for clarity. The words “including moneys appropriated to the Department of the Navy for the procurement and construction of guided missiles” are omitted as included in “technical military equipment”.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2395 | 10:2394. | Sept. 13, 1982, Pub. L. 97–258, §2(b)(4)(B), 96 Stat. 1053. |
This redesignates 10:2394 (enacted by Pub. L. 97–258) as 10:2395 because of the enactment of another 10:2394 by Pub. L. 97–214, §6(a)(1), July 12, 1982, 96 Stat. 171, and amends the section generally to eliminate the words “and the construction of military public works” because of section 10(b)(5) of the Military Construction Codification Act (Pub. L. 97–214, July 12, 1982, 96 Stat. 176) which struck corresponding words from the source statute for 10:2394 subsequent to Apr. 15, 1982, the cut-off date prescribed by section 4(a) of Pub. L. 97–258, section 2(b)(4)(B) of which enacted 10:2394.
Another section 2395 was renumbered section 2396 of this title.
1982—Pub. L. 97–295 struck out “and the construction of military public works” after “supplies”.
(a) An advance under an appropriation to the Department of Defense may be made to pay for—
(1) compliance with laws and ministerial regulations of a foreign country;
(2) rent in a foreign country for periods of time determined by local custom;
(3) tuition; and
(4) public service utilities.
(b)(1) Under regulations prescribed by the Secretary of Defense, or by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service of the Navy, an officer of an armed force of the United States accountable for public money may advance amounts to a disbursing official of a friendly foreign country or members of an armed force of a friendly foreign country for—
(A) pay and allowances to members of the armed force of that country; and
(B) necessary supplies and services.
(2) An advance may be made under this subsection only if the President has made an agreement with the foreign country—
(A) requiring reimbursement to the United States for amounts advanced;
(B) requiring the appropriate authority of the country to advance amounts reciprocally to members of the armed forces of the United States; and
(C) containing any other provision the President considers necessary to carry out this subsection and to safeguard the interests of the United States.
(Added Pub. L. 97–258, §2(b)(4)(B), Sept. 13, 1982, 96 Stat. 1053, §2395; renumbered §2396 and amended Pub. L. 97–295, §1(28)(B), Oct. 12, 1982, 96 Stat. 1291; Pub. L. 105–85, div. A, title X, §1014(a), (b)(1), Nov. 18, 1997, 111 Stat. 1875; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2395(a) | 31:529i. | July 13, 1955, ch. 358, §602, 69 Stat. 314. |
| 2395(b) | 31:529j. | Oct. 19, 1965, Pub. L. 89–265, 79 Stat. 989. |
In subsection (a), the words “On and after July 13, 1955” are omitted as executed. The words “An advance” are substituted for “section 529 of this title shall not apply in the case of payments” because of the restatement.
In subsection (b), the words “armed force of the United States” are substituted for “Army, Navy, Air Force, Marine Corps, or Coast Guard” because of 10:101(4) and to avoid confusion with the phrase “armed force of a friendly foreign country”.
In subsection (b)(1), before clause (A), the words “the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy” are substituted for “the Secretary of the Treasury in their respective areas of responsibility” because of 14:3 and 49:1655(b)(1) and (2). The words “disbursing official” are substituted for “cashiers, disbursing officers” for consistency with other titles of the United States Code and to eliminate unnecessary words.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2396 | 10:2395. | Sept. 13, 1982, Pub. L. 97–258, §2(b)(4)(B), 96 Stat. 1053. |
This redesignates 10:2395 as 10:2396 because of the redesignation of 10:2394 (enacted by Pub. L. 97–258) as 10:2395, and substitutes “any other” for “another” in subsec. (b)(2)(C).
2002—Subsec. (b)(1). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation” in introductory provisions.
1997—Pub. L. 105–85, §1014(b)(1), inserted “public utility services,” after “tuition,” in section catchline.
Subsec. (a)(4). Pub. L. 105–85, §1014(a), added par. (4).
1982—Subsec. (b)(2)(C). Pub. L. 97–295 substituted “any other” for “another”.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Section 2397, added Pub. L. 97–295, §1(29)(A), Oct. 12, 1982, 96 Stat. 1291; amended Pub. L. 99–145, title IX, §922, Nov. 8, 1985, 99 Stat. 693; Pub. L. 100–26, §7(j)(5), (k)(2), Apr. 21, 1987, 101 Stat. 283, 284; Pub. L. 102–25, title VII, §701(d)(6), Apr. 6, 1991, 105 Stat. 114; Pub. L. 102–484, div. A, title X, §1052(29), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–355, title IV, §4401(d), title VIII, §8105(d), Oct. 13, 1994, 108 Stat. 3348, 3392, related to filing of certain reports by employees or former employees of defense contractors.
Section 2397a, added Pub. L. 99–145, title IX, §923(a)(1), Nov. 8, 1985, 99 Stat. 695; amended Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 101–280, §10(b), May 4, 1990, 104 Stat. 162, related to requirements relating to private employment contacts between certain Department of Defense procurement officials and defense contractors.
Section 2397b, added Pub. L. 99–500, §101(c) [title X, §931(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–156, and Pub. L. 99–591, §101(c) [title X, §931(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–156; Pub. L. 99–661, div. A, title IX, formerly title IV, §931(a)(1), Nov. 14, 1986, 100 Stat. 3936, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–180, div. A, title VIII, §821, Dec. 4, 1987, 101 Stat. 1132; Pub. L. 103–355, title VIII, §8105(e), Oct. 13, 1994, 108 Stat. 3392, related to limitations on employment by contractors of certain former Department of Defense procurement officials.
Section 2397c, added Pub. L. 99–500, §101(c) [title X, §931(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–159, and Pub. L. 99–591, §101(c) [title X, §931(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–159; Pub. L. 99–661, div. A, title IX, formerly title IV, §931(a)(1), Nov. 14, 1986, 100 Stat. 3938, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 103–355, title VIII, §8105(f), Oct. 13, 1994, 108 Stat. 3392, related to requirements for defense contractors concerning former Department of Defense officials.
For effective date and applicability of repeal, see section 4401 of Pub. L. 104–106, set out as an Effective Date of 1996 Amendment note under section 2302 of this title.
(a)
(2) In this subsection:
(A) The term “covered major defense acquisition program” means a major defense acquisition program that involves the acquisition of a weapon system that is a major system within the meaning of that term in section 2302(5) of this title.
(B) The term “covered designated major subprogram” means a major subprogram designated under section 2430a(a)(1) of this title that is a major subprogram of a covered major defense acquisition program.
(b)
(2) The Director shall analyze the results of the operational test and evaluation conducted for each major defense acquisition program. At the conclusion of such testing, the Director shall prepare a report stating—
(A) the opinion of the Director as to—
(i) whether the test and evaluation performed were adequate; and
(ii) whether the results of such test and evaluation confirm that the items or components actually tested are effective and suitable for combat; and
(B) additional information on the operational capabilities of the items or components that the Director considers appropriate based on the testing conducted.
(3) The Director shall submit each report under paragraph (2) to the Secretary of Defense, the Under Secretary of Defense for Acquisition, Technology, and Logistics, and the congressional defense committees. Each such report shall be submitted to those committees in precisely the same form and with precisely the same content as the report originally was submitted to the Secretary and Under Secretary and shall be accompanied by such comments as the Secretary may wish to make on the report.
(4) A final decision within the Department of Defense to proceed with a major defense acquisition program beyond low-rate initial production may not be made until the Director has submitted to the Secretary of Defense the report with respect to that program under paragraph (2) and the congressional defense committees have received that report.
(5) If, before a final decision described in paragraph (4) is made for a major defense acquisition program, a decision is made within the Department of Defense to proceed to operational use of that program or to make procurement funds available for that program, the Director shall submit to the Secretary of Defense and the congressional defense committees the report with respect to that program under paragraph (2) as soon as practicable after the decision described in this paragraph is made.
(6) In this subsection, the term “major defense acquisition program” has the meaning given that term in section 139(a)(2)(B) of this title.
(c)
(1) the Director of Operational Test and Evaluation of the Department of Defense, in the case of a new system that is a major defense acquisition program (as defined in section 139(a)(2)(B) of this title); or
(2) the operational test and evaluation agency of the military department concerned, in the case of a new system that is not a major defense acquisition program.
(d)
(e)
(2) The Director may waive the limitation under paragraph (1) in any case if the Director determines in writing that sufficient steps have been taken to ensure the impartiality of the contractor in providing the services. The Inspector General of the Department of Defense shall review each such waiver and shall include in the Inspector General's semi-annual report an assessment of those waivers made since the last such report.
(3)(A) A contractor that has participated in (or is participating in) the development, production, or testing of a system for a military department or Defense Agency (or for another contractor of the Department of Defense) may not be involved (in any way) in the establishment of criteria for data collection, performance assessment, or evaluation activities for the operational test and evaluation.
(B) The limitation in subparagraph (A) does not apply to a contractor that has participated in such development, production, or testing solely in testing for the Federal Government.
(f)
(g)
(h)
(1) computer modeling;
(2) simulation; or
(3) an analysis of system requirements, engineering proposals, design specifications, or any other information contained in program documents.
(Added Pub. L. 101–189, div. A, title VIII, §802(a)(1), Nov. 29, 1989, 103 Stat. 1484; amended Pub. L. 102–484, div. A, title VIII, §819, Oct. 23, 1992, 106 Stat. 2458; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–337, div. A, title X, §1070(a)(11), (f), Oct. 5, 1994, 108 Stat. 2856, 2859; Pub. L. 104–106, div. A, title XV, §1502(a)(19), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 107–314, div. A, title X, §1062(a)(9), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 108–136, div. A, title X, §1043(b)(14), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 109–364, div. A, title II, §231(a), Oct. 17, 2006, 120 Stat. 2131; Pub. L. 111–383, div. A, title VIII, §814(d), Jan. 7, 2011, 124 Stat. 4267.)
A prior section 2399, added Pub. L. 97–295, §1(29)(A), Oct. 12, 1982, 96 Stat. 1293, which related to limitation on availability of appropriations to reimburse a contractor for the cost of commercial insurance, was repealed by Pub. L. 100–370, §1(f)(2)(B), July 19, 1988, 102 Stat. 846, and was restated in section 2324(e)(1)(L) of this title by section 1(f)(2)(A) of Pub. L. 100–370.
2011—Subsec. (a). Pub. L. 111–383 amended subsec. (a) generally. Prior to amendment, text read as follows:
“(1) The Secretary of Defense shall provide that a major defense acquisition program may not proceed beyond low-rate initial production until initial operational test and evaluation of the program is completed.
“(2) In this subsection, the term ‘major defense acquisition program’ means a conventional weapons system that—
“(A) is a major system within the meaning of that term in section 2302(5) of this title; and
“(B) is designed for use in combat.”
2006—Subsec. (b)(2). Pub. L. 109–364, §231(a)(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The Director shall analyze the results of the operational test and evaluation conducted for each major defense acquisition program. At the conclusion of such testing, the Director shall prepare a report stating the opinion of the Director as to—
“(A) whether the test and evaluation performed were adequate; and
“(B) whether the results of such test and evaluation confirm that the items or components actually tested are effective and suitable for combat.”
Subsec. (b)(5), (6). Pub. L. 109–364, §231(a)(2), (3), added par. (5) and redesignated former par. (5) as (6).
2003—Subsec. (h). Pub. L. 108–136 substituted “Operational Test and Evaluation Defined” for “Definitions” in heading, struck out introductory provisions which read “In this section:”, substituted “In this section, the term” for “(1) The term”, redesignated subpars. (A) to (C) of former par. (1) as pars. (1) to (3), respectively, realigned margins, and struck out former par. (2) which defined “congressional defense committees” to mean the Committees on Armed Services and Appropriations of the Senate and the House of Representatives.
2002—Subsec. (a)(2). Pub. L. 107–314 substituted “means a conventional weapons system that” for “means” in introductory provisions and struck out “a conventional weapons system that” before “is a major system” in subpar. (A).
2001—Subsec. (b)(3). Pub. L. 107–107 substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
1999—Subsec. (h)(2)(B). Pub. L. 106–65 substituted “Committee on Armed Services” for “Committee on National Security”.
1996—Subsec. (h)(2). Pub. L. 104–106 substituted “means—” and subpars. (A) and (B) for “means the Committees on Armed Services and the Committees on Appropriations of the Senate and House of Representatives.”
1994—Subsecs. (b)(5), (c)(1). Pub. L. 103–337, §1070(a)(11)(A), substituted “139(a)(2)(B)” for “138(a)(2)(B)”.
Subsec. (e)(3)(B). Pub. L. 103–337, §1070(f), substituted “solely in testing for” for “solely as a representative of”.
Subsec. (g). Pub. L. 103–337, §1070(a)(11)(B), substituted “139” for “138”.
Subsec. (h)(1). Pub. L. 103–337, §1070(a)(11)(C), substituted “139(a)(2)(A)” for “138(a)(2)(A)”.
1993—Subsec. (b)(3). Pub. L. 103–160 substituted “Under Secretary of Defense for Acquisition and Technology” for “Under Secretary of Defense for Acquisition”.
1992—Subsec. (e)(3). Pub. L. 102–484 designated existing provisions as subpar. (A) and added subpar. (B).
Pub. L. 101–189, div. A, title VIII, §801, Nov. 29, 1989, 103 Stat. 1483, provided that:
“(a)
“(1) determining the degree of concurrency that is appropriate for the development of major defense acquisition systems; and
“(2) assessing the degree of risk associated with various degrees of concurrency.
“(b)
“(c)
“(2) The report shall include consideration of the following matters with respect to each such program:
“(A) The degree of confidence in the enemy threat assessment for establishing the system's requirements.
“(B) The type of contract involved.
“(C) The degree of stability in program funding.
“(D) The level of maturity of technology involved in the system.
“(E) The availability of adequate test assets, including facilities and ranges.
“(F) The plans for transition from development to production.
“(d)
“(e)
(a)
(A) when the milestone B decision with respect to that system is made; and
(B) by the official of the Department of Defense who makes that decision.
(2) In this section, the term “milestone B decision” means the decision to approve the system development and demonstration of a major system by the official of the Department of Defense designated to have the authority to make that decision.
(3) Any increase from a quantity determined under paragraph (1) may only be made with the approval of the official making the determination.
(4) The quantity of articles of a major system that may be procured for low-rate initial production may not be less than one operationally configured production unit unless another quantity is established at the milestone B decision.
(5) The Secretary of Defense shall include a statement of the quantity determined under paragraph (1) in the first SAR submitted with respect to the program concerned after that quantity is determined. If the quantity exceeds 10 percent of the total number of articles to be produced, as determined at the milestone B decision with respect to that system, the Secretary shall include in the statement the reasons for such quantity. For purposes of this paragraph, the term “SAR” means a Selected Acquisition Report submitted under section 2432 of this title.
(b)
(1) to provide production-configured or representative articles for operational tests pursuant to section 2399 of this title;
(2) to establish an initial production base for the system; and
(3) to permit an orderly increase in the production rate for the system sufficient to lead to full-rate production upon the successful completion of operational testing.
(c)
(Added Pub. L. 101–189, div. A, title VIII, §803(a), Nov. 29, 1989, 103 Stat. 1487; amended Pub. L. 103–355, title III, §3015, Oct. 13, 1994, 108 Stat. 3332; Pub. L. 104–106, div. A, title X, §1062(d), div. D, title XLIII, §4321(b)(13), Feb. 10, 1996, 110 Stat. 444, 673; Pub. L. 107–107, div. A, title VIII, §821(c), Dec. 28, 2001, 115 Stat. 1182.)
A prior section 2400 was renumbered section 2534 of this title.
2001—Subsec. (a)(1)(A). Pub. L. 107–107, §821(c)(1), substituted “milestone B” for “milestone II”.
Subsec. (a)(2). Pub. L. 107–107 substituted “milestone B” for “milestone II” and “system development and demonstration” for “engineering and manufacturing development”.
Subsec. (a)(4), (5). Pub. L. 107–107, §821(c)(1), substituted “milestone B” for “milestone II”.
1996—Subsec. (a)(5). Pub. L. 104–106, §4321(b)(13), substituted “this paragraph” for “the preceding sentence”.
Subsec. (c). Pub. L. 104–106, §1062(d), struck out “(1)” before “With respect to”, redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and (2), respectively, and struck out former par. (2) which read as follows: “For each naval vessel program and military satellite program, the Secretary of Defense shall submit to Congress a report providing—
“(A) an explanation of the rate and quantity prescribed for low-rate initial production and the considerations in establishing that rate and quantity;
“(B) a test and evaluation master plan for that program; and
“(C) an acquisition strategy for that program that has been approved by the Secretary, to include the procurement objectives in terms of total quantity of articles to be procured and annual production rates.”
1994—Subsec. (a)(2). Pub. L. 103–355, §3015(1), substituted “this section” for “paragraph (1)” and “engineering and manufacturing development” for “full-scale engineering development”.
Subsec. (a)(4). Pub. L. 103–355, §3015(2), (3), added par. (4) and redesignated former par. (4) as (5).
Subsec. (a)(5). Pub. L. 103–355, §3015(2), redesignated par. (4) as (5) and inserted after first sentence “If the quantity exceeds 10 percent of the total number of articles to be produced, as determined at the milestone II decision with respect to that system, the Secretary shall include in the statement the reasons for such quantity.”
For effective date and applicability of amendment by section 4321(b)(13) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
(a)(1) The Secretary of a military department may make a contract for the lease of a vessel, aircraft, or combat vehicle or for the provision of a service through use by a contractor of a vessel, aircraft, or combat vehicle only as provided in subsection (b) if—
(A) the contract will be a long-term lease or charter; or
(B) the terms of the contract provide for a substantial termination liability on the part of the United States.
(2) The Secretary of a military department may make a contract that is an agreement to lease or charter or an agreement to provide services and that is (or will be) accompanied by a contract for the actual lease, charter, or provision of services only as provided in subsection (b) if the contract for the actual lease, charter, or provision of services is (or will be) a contract described in paragraph (1).
(b)(1) The Secretary may make a contract described in subsection (a)(1) if—
(A) the Secretary has been specifically authorized by law to make the contract;
(B) before a solicitation for proposals for the contract was issued the Secretary notified the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives of the Secretary's intention to issue such a solicitation;
(C) the Secretary has notified those committees of the proposed contract and provided a detailed description of the terms of the proposed contract and a justification for entering into the proposed contract rather than providing for the lease, charter, or services involved through purchase of the vessel, aircraft, or combat vehicle to be used under the contract, and a period of 30 days of continuous session of Congress has expired following the date on which notice was received by such committees; and
(D) the Secretary has certified to those committees—
(i) that entering into the proposed contract as a means of obtaining the vessel, aircraft, or combat vehicle is the most cost-effective means of obtaining such vessel, aircraft, or combat vehicle; and
(ii) that the Secretary has determined that the lease complies with all applicable laws, Office of Management and Budget circulars, and Department of Defense regulations.
(2) For purposes of paragraph (1)(C), the continuity of a session of Congress is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in a computation of such 30-day period.
(3) Upon receipt of a notice under paragraph (1)(C), a committee identified in paragraph (1)(B) may request the Inspector General of the Department of Defense or the Comptroller General of the United States to conduct a review of the proposed contract to determine whether or not such contract meets the requirements of this section.
(4) If a review is requested under paragraph (3), the Inspector General of the Department of Defense or the Comptroller General of the United States, as the case may be, shall submit to the Secretary and the congressional defense committees a report on such review before the expiration of the period specified in paragraph (1)(C).
(5) In the case of a contract described in subsection (a)(1)(B), the commander of the special operations command may make a contract without regard to this subsection if—
(A) funds are available and obligated for the full cost of the contract (including termination costs) on or before the date the contract is awarded;
(B) the Secretary of Defense submits to the congressional defense committees a certification that there is no alternative for meeting urgent operational requirements other than making the contract; and
(C) a period of 30 days of continuous session of Congress has expired following the date on which the certification was received by such committees.
(c)(1) Funds may not be appropriated for any fiscal year to or for any armed force or obligated or expended for—
(A) the long-term lease or charter of any aircraft, naval vessel, or combat vehicle; or
(B) for the lease or charter of any aircraft, naval vessel, or combat vehicle the terms of which provide for a substantial termination liability on the part of the United States,
unless funds for that purpose have been specifically authorized by law.
(2) Funds appropriated to the Department of Defense may not be used to indemnify any person under the terms of a contract entered into under this section—
(A) for any amount paid or due by any person to the United States for any liability arising under the Internal Revenue Code of 1986; or
(B) to pay any attorneys’ fees in connection with such contract.
(d)(1)(A) In this section, the term “long-term lease or charter” (except as provided in subparagraph (B)) means a lease, charter, service contract, or conditional sale agreement—
(i) the term of which is for a period of five years or longer or more than one-half the useful life of the vessel, aircraft, or combat vehicle; or
(ii) the initial term of which is for a period of less than five years but which contains an option to renew or extend the agreement for a period which, when added to the initial term (or any previous renewal or extension), is five years or longer.
Such term includes the extension or renewal of a lease or charter agreement if the term of the extension or renewal thereof is for a period of five years or longer or if the term of the lease or charter agreement being extended or renewed was for a period of five years or longer.
(B) In the case of an agreement under which the lessor first places the property in service under the agreement or the property has been in service for less than one year and there is allowable to the lessor or charterer an investment tax credit or depreciation for the property leased, chartered, or otherwise provided under the agreement under section 168 of the Internal Revenue Code of 1986 (unless the lessor or charterer has elected depreciation on a straightline method for such property), the term “long-term lease or charter” means a lease, charter, service contract, or conditional sale agreement—
(i) the term of which is for a period of three years or longer; or
(ii) the initial term of which is for a period of less than three years but which contains an option to renew or extend the agreement for a period which, when added to the initial term (or any previous renewal or extension), is three years or longer.
Such term includes the extension or renewal of a lease or charter agreement if the term of the extension or renewal thereof is for a period of three years or longer or if the term of the lease or charter agreement being extended or renewed was for a period of three years or longer.
(2) For the purposes of this section, the United States shall be considered to have a substantial termination liability under a contract—
(A) if there is an agreement by the United States under the contract to pay an amount not less than the amount equal to 25 percent of the value of the vessel, aircraft, or combat vehicle under lease or charter, calculated on the basis of the present value of the termination liability of the United States under such charter or lease (as determined under regulations prescribed by the Secretary of Defense); or
(B) if (as determined under regulations prescribed by the Secretary of Defense) the sum of—
(i) the present value of the amount of the termination liability of the United States under the contract as of the end of the term of the contract (exclusive of any option to extend the contract); and
(ii) the present value of the total of the payments to be made by the United States under the contract (excluding any option to extend the contract) attributable to capital-hire,
is more than one-half the price of the vessel, aircraft, or combat vehicle involved.
(e)(1) Whenever a request is submitted to Congress for the authorization of the long-term lease or charter of aircraft, naval vessels, or combat vehicles or for the authorization of a lease or charter of aircraft, naval vessels, or combat vehicles which provides for a substantial termination liability on the part of the United States, the Secretary of Defense shall submit with that request an analysis of the cost to the United States (including lost tax revenues) of any such lease or charter arrangement compared with the cost to the United States of direct procurement of the aircraft, naval vessels, or combat vehicles by the United States.
(2) Any such analysis shall be reviewed and evaluated by the Director of the Office of Management and Budget and the Secretary of the Treasury within 30 days after the date on which the request and analysis are submitted to Congress. The Director and Secretary shall conduct such review and evaluation on the basis of the guidelines issued pursuant to subsection (f) and shall report to Congress in writing on the results of their review and evaluation at the earliest practicable date, but in no event more than 45 days after the date on which the request and analysis are submitted to the Congress.
(3) Whenever a request is submitted to Congress for the authorization of funds for the Department of Defense for the long-term lease or charter of aircraft, naval vessels, or combat vehicles authorized under this section, the Secretary of Defense—
(A) shall indicate in the request what portion of the requested funds is attributable to capital-hire; and
(B) shall reflect such portion in the appropriate procurement account in the request.
(f)(1) If a lease or charter covered by this section is a capital lease or a lease-purchase—
(A) the lease or charter shall be treated as an acquisition and shall be subject to all applicable statutory and regulatory requirements for the acquisition of aircraft, naval vessels, or combat vehicles; and
(B) funds appropriated to the Department of Defense for operation and maintenance may not be obligated or expended for the lease or charter.
(2) In this subsection, the terms “capital lease” and “lease-purchase” have the meanings given those terms in Appendix B to Office of Management and Budget Circular A–11, as in effect on January 6, 2006.
(g) The Director of the Office of Management and Budget and the Secretary of the Treasury shall jointly issue guidelines for determining under what circumstances the Department of Defense may use lease or charter arrangements for aircraft, naval vessels, and combat vehicles rather than directly procuring such aircraft, vessels, and combat vehicles.
(h) The Secretary of a military department may make a contract for the lease of a vessel or for the provision of a service through use by a contractor of a vessel, the term of which is for a period of greater than two years, but less than five years, only if—
(1) the Secretary has notified the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives of the proposed contract and included in such notification—
(A) a detailed description of the terms of the proposed contract and a justification for entering into the proposed contract rather than obtaining the capability provided for by the lease, charter, or services involved through purchase of the vessel;
(B) a determination that entering into the proposed contract as a means of obtaining the vessel is the most cost-effective means of obtaining such vessel; and
(C) a plan for meeting the requirement provided by the proposed contract upon completion of the term of the lease contract; and
(2) a period of 30 days of continuous session of Congress has expired following the date on which notice was received by such committees.
(Added Pub. L. 98–94, title XII, §1202(a)(1), Sept. 24, 1983, 97 Stat. 679; amended Pub. L. 98–525, title XII, §1232(a), Oct. 19, 1984, 98 Stat. 2600; Pub. L. 100–26, §7(h)(1), Apr. 21, 1987, 101 Stat. 282; Pub. L. 103–35, title II, §201(c)(6), May 31, 1993, 107 Stat. 98; Pub. L. 104–106, div. A, title XV, §§1502(a)(20), 1503(a)(21), Feb. 10, 1996, 110 Stat. 504, 512; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(13)], Oct. 30, 2000, 114 Stat. 1654, 1654A–291; Pub. L. 109–163, div. A, title VIII, §815(a)–(d)(1), Jan. 6, 2006, 119 Stat. 3381, 3382; Pub. L. 110–181, div. A, title VIII, §824, title X, §1011, Jan. 28, 2008, 122 Stat. 227, 303; Pub. L. 111–84, div. A, title X, §1073(a)(24), Oct. 28, 2009, 123 Stat. 2473.)
The Internal Revenue Code of 1986, referred to in subsecs. (c)(2)(A) and (d)(1)(B), is classified generally to Title 26, Internal Revenue Code. Section 168 of the Internal Revenue Code of 1986 is classified to section 168 of Title 26.
2009—Subsec. (f)(2). Pub. L. 111–84 substituted “January 6, 2006” for “the date of the enactment of the National Defense Authorization Act for Fiscal Year 2006”.
2008—Subsec. (b)(5). Pub. L. 110–181, §824, added par. (5).
Subsec. (h). Pub. L. 110–181, §1011, added subsec. (h).
2006—Pub. L. 109–163, §815(d)(1), substituted “Requirement for authorization by law of certain contracts relating to vessels, aircraft, and combat vehicles” for “Requirement for authorization by law of certain contracts relating to vessels and aircraft” in section catchline.
Subsec. (a)(1). Pub. L. 109–163, §815(a)(1), substituted “vessel, aircraft, or combat vehicle” for “vessel or aircraft” in two places in introductory provisions.
Subsec. (b)(1)(C). Pub. L. 109–163, §815(a)(1), substituted “vessel, aircraft, or combat vehicle” for “vessel or aircraft”.
Subsec. (b)(1)(D). Pub. L. 109–163, §815(b)(1), added subpar. (D).
Subsec. (b)(3), (4). Pub. L. 109–163, §815(b)(2), added pars. (3) and (4).
Subsec. (c)(1). Pub. L. 109–163, §815(a)(2), substituted “aircraft, naval vessel, or combat vehicle” for “aircraft or naval vessel” in subpars. (A) and (B).
Subsec. (d)(1)(A)(i), (2)(A), (B). Pub. L. 109–163, §815(a)(1), substituted “vessel, aircraft, or combat vehicle” for “vessel or aircraft”.
Subsec. (e)(1), (3). Pub. L. 109–163, §815(a)(3), substituted “aircraft, naval vessels, or combat vehicles” for “aircraft or naval vessels” wherever appearing.
Subsec. (f). Pub. L. 109–163, §815(c)(2), added subsec. (f). Former subsec. (f) redesignated (g).
Pub. L. 109–163, §815(a)(4), substituted “aircraft, naval vessels, and combat vehicles” for “aircraft and naval vessels” and “such aircraft, vessels, and combat vehicles” for “such aircraft and vessels”.
Subsec. (g). Pub. L. 109–163, §815(c)(1), redesignated subsec. (f) as (g).
2000—Subsec. (b)(1)(B). Pub. L. 106–398 substituted “Committee on Appropriations of the House” for “Committees on Appropriations of the House”.
1999—Subsec. (b)(1)(B). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1996—Subsec. (b)(1)(B). Pub. L. 104–106, §1502(a)(20)(A), substituted “the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on National Security and the Committees on Appropriations of the” for “the Committees on Armed Services and on Appropriations of the Senate and”.
Subsec. (b)(1)(C). Pub. L. 104–106, §1502(a)(20)(B), substituted “those committees” for “the Committees on Armed Services and on Appropriations of the Senate and House of Representatives”.
Subsec. (c)(2). Pub. L. 104–106, §1503(a)(21), struck out “pursuant to an authorization contained in the Department of Defense Authorization Act, 1984 (Public Law 98–94), or in any other law enacted after September 24, 1983,” before “may not be used”.
1993—Subsec. (c)(2)(A). Pub. L. 103–35 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.
1987—Subsec. (d)(1)(B). Pub. L. 100–26 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.
1984—Subsec. (c). Pub. L. 98–525, §1232(a)(1), designated existing provisions as par. (1), redesignated as cls. (A) and (B) former cls. (1) and (2), respectively, and added par. (2).
Subsec. (f). Pub. L. 98–525, §1232(a)(2), struck out at end “Such guidelines shall be issued not later than 90 days after the date of enactment of this section [Sept. 24, 1983].”
Section 1202(a)(3) of Pub. L. 98–94 provided that: “Section 2401 of title 10, United States Code, as added by paragraph (1), shall not apply in the case of any lease or charter agreement entered into by the Department of Defense before December 1, 1983.”
Pub. L. 109–364, div. A, title X, §1018, Oct. 17, 2006, 120 Stat. 2380, as amended by Pub. L. 110–417, div. C, title XXXV, §3504, Oct. 14, 2008, 122 Stat. 4762, provided that:
“(a)
“(1) subject to paragraph (2), allow riding gang members to perform work on the vessel during the effective period of the charter or contract only under terms, conditions, restrictions, and requirements as provided in section 8106 of title 46, United States Code; and
“(2) require that riding gang members hold a merchant mariner's document issued under chapter 73 of title 46, United States Code, or a transportation security card issued under section 70105 of such title.
“(b)
“(1)
“(A) the individual is aboard a vessel that is under charter or contract for the carriage of cargo for the Department of Defense, for purposes other than engaging in the operation or maintenance of the vessel; and
“(B) the individual—
“(i) accompanies, supervises, guards, or maintains unit equipment aboard a ship, commonly referred to as supercargo personnel;
“(ii) is one of the force protection personnel of the vessel;
“(iii) is a specialized repair technician; or
“(iv) is otherwise required by the Secretary of Defense to be aboard the vessel.
“(2)
“(A)
“(i) the name and other necessary identifying information for the individual is submitted to the Secretary for a background check; and
“(ii) except as provided in subparagraph (B), the individual successfully passes a background check by the Secretary prior to going aboard the vessel.
“(B)
“(3)
Pub. L. 103–160, div. A, title I, §126, Nov. 30, 1993, 107 Stat. 1567, as amended by Pub. L. 104–106, div. D, title XLIII, §4321(i)(1)(A), Feb. 10, 1996, 110 Stat. 676, provided that:
“(a)
“(b)
“(1) A statement that the obligation of the United States to make payments under the contract in any fiscal year is subject to appropriations being provided specifically for that fiscal year and specifically for that lease or charter or that kind of vessel lease or charter.
“(2) A commitment to obligate the necessary amount for each fiscal year covered by the contract when and to the extent that funds are appropriated for that lease or charter, or that kind of lease or charter, for that fiscal year.
“(3) A statement that such a commitment given under paragraph (2) does not constitute an obligation of the United States.
“(c)
“(d)
Pub. L. 101–165, title IX, §9081, Nov. 21, 1989, 103 Stat. 1147, directed that no funds available to Department of Defense could be used to enter into any contract with term of eighteen months or more or to extend or renew any contract for term of eighteen months or more, for any vessel, aircraft, or vehicle, through lease, charter, or similar agreement without previously having been submitted to Committees on Appropriations, with further requirement with respect to contractual agreements which imposed certain termination liability on Government, prior to repeal by Pub. L. 103–355, title III, §3065(b), Oct. 13, 1994, 108 Stat. 3337. See section 2401a of this title.
Section 1232(a)(2) of Pub. L. 98–525 provided in part that guidelines required to be issued under subsec. (f) of this section shall be issued not later than Oct. 31, 1984.
Section 1202(d) of Pub. L. 98–94 provided that: “Funds available to the Department of Defense may not be used to enter into any contract during fiscal year 1984 under section 2401 of title 10, United States Code, as added by subsection (a), the term of which is for 3 years or more, inclusive of any option for contract extension or renewal, for any vessels, aircraft, or vehicles, through a lease, charter, or similar agreement, that imposes an estimated termination liability (excluding the estimated value of the leased item at the time of termination) on the United States exceeding 50 percent of the original purchase value of the vessel, aircraft, or vehicle involved for which the Congress has not specifically provided budget authority for the obligation of 10 percent of such termination liability.”
Section 1202(b) of Pub. L. 98–94, as amended by Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that: “Funds appropriated pursuant to an authorization contained in this Act may not be used to indemnify any person under the terms of a contract entered into with the United States under section 2401 of title 10, United States Code (as added by subsection (a))—
“(1) for any amount paid or due by any person to the United States for any liability arising under the Internal Revenue Code of 1986 [Title 26, Internal Revenue Code]; or
“(2) to pay any attorneys’ fees in connection with such contract.”
(a)
(b)
(Added Pub. L. 103–355, title III, §3065(a)(1), Oct. 13, 1994, 108 Stat. 3337; amended Pub. L. 104–106, div. A, title VIII, §807(a)(1), Feb. 10, 1996, 110 Stat. 391; Pub. L. 105–85, div. A, title X, §1073(a)(52), Nov. 18, 1997, 111 Stat. 1903.)
Provisions similar to those in subsec. (b) were contained in Pub. L. 101–165, title IX, §9081, Nov. 21, 1989, 103 Stat. 1147, which was set out as a note under section 2401 of this title, prior to repeal by Pub. L. 103–355, §3065(b).
A prior section 2401a was renumbered section 2350f of this title.
1997—Subsec. (a). Pub. L. 105–85 substituted “such leasing” for “leasing of such vehicles”.
1996—Pub. L. 104–106 substituted “Lease of vehicles, equipment, vessels, and aircraft” for “Lease of vessels, aircraft, and vehicles” as section catchline, designated existing text as subsec. (b), inserted subsec. (b) heading, and added subsec. (a).
Pub. L. 107–314, div. A, title I, §133, Dec. 2, 2002, 116 Stat. 2477, provided that: “The Secretary of the Air Force may not enter into a lease for the acquisition of tanker aircraft for the Air Force under section 8159 of the Department of Defense Appropriations Act, 2002 (division A of Public Law 107–117; 115 Stat. 2284; 10 U.S.C. 2401a note) until—
“(1) the Secretary submits the report specified in subsection (c)(6) of such section; and
“(2) either—
“(A) authorization and appropriation of funds necessary to enter into such lease are provided by law; or
“(B) a new start reprogramming notification for the funds necessary to enter into such lease has been submitted in accordance with established procedures.”
Pub. L. 108–136, div. A, title I, §135, Nov. 24, 2003, 117 Stat. 1413, as amended by Pub. L. 108–375, div. A, title I, §133, Oct. 28, 2004, 118 Stat. 1829, which prohibited the leasing of tanker aircraft pursuant to the multiyear aircraft lease pilot program under Pub. L. 107–117, §8159, set out below, and authorized the Secretary of the Air Force to enter into a multiyear contract for the purchase of such aircraft, was repealed by Pub. L. 110–417, [div. A], title I, §132, Oct. 14, 2008, 122 Stat. 4377.
Pub. L. 107–206, title I, §308, Aug. 2, 2002, 116 Stat. 841, provided that: “During the current fiscal year and hereafter, section 2533a of title 10, United States Code, shall not apply to any transaction entered into to acquire or sustain aircraft under the authority of section 8159 of the Department of Defense Appropriations Act, 2002 (division A of Public Law 107–117; 115 Stat. 2284) [set out below].”
Pub. L. 107–117, div. A, title VIII, §8159, Jan. 10, 2002, 115 Stat. 2284, as amended by Pub. L. 107–248, title VIII, §8117, Oct. 23, 2002, 116 Stat. 1564, provided that:
“(a) The Secretary of the Air Force may, from funds provided in this Act [see Tables for classification] or any future appropriations Act, establish and make payments on a multi-year pilot program for leasing general purpose Boeing 767 aircraft and Boeing 737 aircraft in commercial configuration.
“(b) Sections 2401 and 2401a of title 10, United States Code, shall not apply to any aircraft lease authorized by this section.
“(c) Under the aircraft lease Pilot Program authorized by this section:
“(1) The Secretary may include terms and conditions in lease agreements that are customary in aircraft leases by a non-Government lessor to a non-Government lessee, but only those that are not inconsistent with any of the terms and conditions mandated herein. Notwithstanding the provisions of Section 3324 of Title 31, United States Code, payment for the acquisition of leasehold interests under this section may be made for each annual term up to one year in advance.
“(2) The term of any individual lease agreement into which the Secretary enters under this section shall not exceed 10 years, inclusive of any options to renew or extend the initial lease term.
“(3) The Secretary may provide for special payments in a lessor if the Secretary terminates or cancels the lease prior to the expiration of its term. Such special payments shall not exceed an amount equal to the value of 1 year's lease payment under the lease.
“(4) Subchapter IV of chapter 15 of title 31, United States Code shall apply to the lease transactions under this section, except that the limitation in section 1553(b)(2) shall not apply.
“(5) The Secretary shall lease aircraft under terms and conditions consistent with this section and consistent with the criteria for an operating lease as defined in OMB Circular A–11, as in effect at the time of the lease.
“(6) Lease arrangements authorized by this section may not commence until:
“(A) The Secretary submits a report to the congressional defense committees [Committees on Armed Services of the Senate and House of Representatives and Subcommittees on Defense of the Committees on Appropriations of the Senate and House of Representatives] outlining the plans for implementing the Pilot Program. The report shall describe the terms and conditions of proposed contracts and describe the expected savings, if any, comparing total costs, including operation, support, acquisition, and financing, of the lease, including modification, with the outright purchase of the aircraft as modified.
“(B) A period of not less than 30 calendar days has elapsed after submitting the report.
“(7) Not later than 1 year after the date on which the first aircraft is delivered under this Pilot Program, and yearly thereafter on the anniversary of the first delivery, the Secretary shall submit a report to the congressional defense committees describing the status of the Pilot Program. The Report will be based on at least 6 months of experience in operating the Pilot Program.
“(8) The Air Force shall accept delivery of the aircraft in a general purpose configuration.
“(9) At the conclusion of the lease term, each aircraft obtained under that lease may be returned to the contractor in the same configuration in which the aircraft was delivered.
“(10) The present value of the total payments over the duration of each lease entered into under this authority shall not exceed 90 percent of the fair market value of the aircraft obtained under that lease.
“(d) No lease entered into under this authority shall provide for—
“(1) the modification of the general purpose aircraft from the commercial configuration, unless and until separate authority for such conversion is enacted and only to the extent budget authority is provided in advance in appropriations Acts for that purpose; or
“(2) the purchase of the aircraft by, or the transfer of ownership to, the Air Force.
“(e) The authority granted to the Secretary of the Air Force by this section is separate from and in addition to, and shall not be construed to impair or otherwise affect, the authority of the Secretary to procure transportation or enter into leases under a provision of law other than this section.
“(f) The authority provided under this section may be used to lease not more than a total of 100 Boeing 767 aircraft and 4 Boeing 737 aircraft for the purposes specified herein.
“(g) Notwithstanding any other provision of law, any payments required for a lease entered into under this Section, or any payments made pursuant to subsection (c)(3) above, may be made from appropriations available for operation and maintenance or for lease or procurement of aircraft at the time that the lease takes effect; appropriations available for operation and maintenance or for lease or procurement of aircraft at the time that the payment is due; or funds appropriated for those payments.”
Pub. L. 106–79, title VIII, §8133, Oct. 25, 1999, 113 Stat. 1267, provided that:
“(a) The Secretary of the Air Force may establish a multi-year pilot program for leasing aircraft for operational support purposes, including transportation for the combatant Commanders in Chief, on such terms and conditions as the Secretary may deem appropriate, consistent with this section.
“(b) Sections 2401 and 2401a of title 10, United States Code, shall not apply to any aircraft lease authorized by this section.
“(c) Under the aircraft lease Pilot Program authorized by this section:
“(1) The Secretary may include terms and conditions in lease agreements that are customary in aircraft leases by a non-Government lessor to a non-Government lessee.
“(2) The term of any individual lease agreement into which the Secretary enters under this section shall not exceed 10 years.
“(3) The Secretary may provide for special payments to a lessor if either the Secretary terminates or cancels the lease prior to the expiration of its term or aircraft are damaged or destroyed prior to the expiration of the term of the lease. Such special payments shall not exceed an amount equal to the value of one year's lease payment under the lease. The amount of special payments shall be subject to negotiation between the Air Force and lessors.
“(4) Notwithstanding any other provision of law, any payments required under a lease under this section, and any payments made pursuant to subsection (3) above may be made from:
“(A) appropriations available for the performance of the lease at the time the lease takes effect;
“(B) appropriations for the operation and maintenance available at the time which the payment is due; and
“(C) funds appropriated for those payments.
“(5) The Secretary may lease aircraft, on such terms and conditions as the Secretary may deem appropriate, consistent with this section, through an operating lease consistent with OMB Circular A–11.
“(6) The Secretary may exchange or sell existing aircraft and apply the exchange allowance or sale proceeds in whole or in part toward the cost of leasing replacement aircraft under this section.
“(7) Lease arrangements authorized by this section may not commence until:
“(A) The Secretary submits a report to the congressional defense committees [Committees on Armed Services and Subcommittees on Defense of the Committees on Appropriations of the Senate and the House of Representatives] outlining the plans for implementing the Pilot Program. The report shall describe the terms and conditions of proposed contracts and the savings in operations and support costs expected to be derived from retiring older aircraft as compared to the expected cost of leasing newer replacement aircraft.
“(B) A period of not less than 30 calendar days has elapsed after submitting the report.
“(8) Not later than 1 year after the date on which the first aircraft is delivered under this Pilot Program, and yearly thereafter on the anniversary of the first delivery, the Secretary shall submit a report to the congressional defense committees describing the status of the Pilot Program. The Report will be based on at least 6 months of experience in operating the Pilot Program.
“(9) No lease of operational support aircraft may be entered into under this section after September 30, 2004.
“(d) The authority granted to the Secretary of the Air Force by this section is separate from and in addition to, and shall not be construed to impair or otherwise affect, the authority of the Secretary to procure transportation or enter into leases under a provision of law other than this section.
“(e) The authority provided under this section may be used to lease not more than a total of six aircraft for the purposes of providing operational support.”
Pub. L. 105–262, title VIII, §8126, Oct. 17, 1998, 112 Stat. 2333, provided that:
“(a) The Secretary of the Army and the Secretary of the Air Force may each enter into one or more multiyear leases of nontactical firefighting equipment, nontactical crash rescue equipment, or nontactical snow removal equipment. The period of a lease entered into under this section shall be for any period not in excess of 10 years. Any such lease shall provide that performance under the lease during the second and subsequent years of the contract is contingent upon the appropriation of funds and shall provide for a cancellation payment to be made to the lessor if such appropriations are not made.
“(b) Lease payments made under subsection (a) shall be made from amounts provided in this or future appropriations Acts.
“(c) This section is effective for all fiscal years beginning after September 30, 1998.”
Pub. L. 104–106, div. A, title VIII, §807(c), Feb. 10, 1996, 110 Stat. 392, as amended by Pub. L. 106–65, div. A, title X, §1067(6), Oct. 5, 1999, 113 Stat. 774, authorized the Secretary of the Army to conduct a pilot program for leasing commercial utility cargo vehicles, directed the Secretary to submit to committees of Congress a report prior to commencement of the program containing plans for its implementation and setting forth the savings in operating and support costs expected to be derived from retiring older commercial utility cargo vehicles, as compared to the expected costs of leasing newer commercial utility cargo vehicles, directed the Secretary to submit to committees of Congress a report on the status of the program not later than one year after the date on which the first lease under the program had been entered into, and provided that no lease could be entered into under the program after Sept. 30, 2000.
(a) Each contract for the purchase of supplies or services made by the Department of Defense shall provide that the contractor will not—
(1) enter into any agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the United States of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or
(2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales to the United States described in clause (1).
(b) This section does not prohibit a contractor from asserting rights it otherwise has under law.
(c) This section does not apply to a contract that is for an amount not greater than the simplified acquisition threshold (as defined in section 134 of title 41).
(d)(1) An agreement between the contractor in a contract for the acquisition of commercial items and a subcontractor under such contract that restricts sales by such subcontractor directly to persons other than the contractor may not be considered to unreasonably restrict sales by that subcontractor to the United States in violation of the provision included in such contract pursuant to subsection (a) if the agreement does not result in the United States being treated differently with regard to the restriction than any other prospective purchaser of such commercial items from that subcontractor.
(2) In paragraph (1), the term “commercial item” has the meaning given such term in section 103 of title 41.
(Added Pub. L. 98–525, title XII, §1234(a), Oct. 19, 1984, 98 Stat. 2601; amended Pub. L. 103–355, title IV, §4102(f), title VIII, §8105(g), Oct. 13, 1994, 108 Stat. 3340, 3392; Pub. L. 111–350, §5(b)(25), Jan. 4, 2011, 124 Stat. 3844.)
2011—Subsec. (c). Pub. L. 111–350, §5(b)(25)(A), substituted “section 134 of title 41)” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))”.
Subsec. (d)(2). Pub. L. 111–350, §5(b)(25)(B), substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”.
1994—Subsecs. (c), (d). Pub. L. 103–355 added subsecs. (c) and (d).
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 1234(c) of Pub. L. 98–525 provided that: “Section 2402 of title 10, United States Code (as added by subsection (a)), shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984].”
Section, added Pub. L. 98–525, title XII, §1234(a), Oct. 19, 1984, 98 Stat. 2601; amended Pub. L. 99–433, title I, §110(g)(5), Oct. 1, 1986, 100 Stat. 1004; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 103–355, title II, §2402, Oct. 13, 1994, 108 Stat. 3324; Pub. L. 104–106, div. A, title XV, §1502(a)(21), Feb. 10, 1996, 110 Stat. 505, related to major weapon systems and contractor guarantees.
Section, added Pub. L. 98–525, title XII, §1234(a), Oct. 19, 1984, 98 Stat. 2604; amended Pub. L. 102–484, div. A, title VIII, §813(c), Oct. 23, 1992, 106 Stat. 2453; Pub. L. 103–355, title II, §2302(a), (b), Oct. 13, 1994, 108 Stat. 3321; Pub. L. 104–106, div. D, title XLIII, §4321(b)(14), Feb. 10, 1996, 110 Stat. 673, related to limitation on adjustment of shipbuilding contracts.
Pub. L. 105–85, div. A, title VIII, §810(b), Nov. 18, 1997, 111 Stat. 1839, provided that:
“(1) Except as provided in paragraph (2), the repeal made by subsection (a) [repealing this section] shall be effective with respect to claims, requests for equitable adjustment, and demands for payment under shipbuilding contracts that have been or are submitted before, on, or after the date of the enactment of this Act [Nov. 18, 1997].
“(2) Section 2405 of title 10, United States Code, as in effect immediately before the date of the enactment of this Act, shall continue to apply to a contractor's claim, request for equitable adjustment, or demand for payment under a shipbuilding contract that was submitted before such date if—
“(A) a contracting officer denied the claim, request, or demand, and the period for appealing the decision to a court or board under the Contract Disputes Act of 1978 [see 41 U.S.C. 7101 et seq.] expired before such date;
“(B) a court or board of contract appeals considering the claim, request, or demand (including any appeal of a decision of a contracting officer to deny the claim, request, or demand) denied or dismissed the claim, request, or demand (or the appeal), and the action of the court or board became final and unappealable before such date; or
“(C) the contractor released or releases the claim, request, or demand.”
Section, added Pub. L. 99–145, title IX, §917(a), Nov. 8, 1985, 99 Stat. 689; amended Pub. L. 99–500, §101(c) [title X, §943(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–162, and Pub. L. 99–591, §101(c) [title X, §943(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–162; Pub. L. 99–661, div. A, title IX, formerly title IV, §943(a)(1), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title XII, §1231(13), Dec. 4, 1987, 101 Stat. 1160, required contractor under covered contract with an agency to make cost and pricing data available to agency in timely manner.
For effective date and applicability of repeal, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
Section 1102 of Pub. L. 99–661, div. A, title XI, §1102, Nov. 14, 1986, 100 Stat. 3961, which authorized Secretary of Defense to enter Weapon System Partnership Agreements with one or more governments of other member countries of NATO, was repealed by Pub. L. 101–189, div. A, title IX, §931(d)(2), Nov. 29, 1989, 103 Stat. 1535. See section 2350d of this title.
Section 1103 of Pub. L. 99–145, title XI, §1103, Nov. 8, 1985, 99 Stat. 712, which urged and requested member nations of NATO to cooperate in research and development of defense equipment and munitions and in the production of defense equipment, was repealed by Pub. L. 101–189, div. A, title IX, §931(d)(1), Nov. 29, 1989, 103 Stat. 1535. See section 2350a of this title.
Pub. L. 97–86, title I, §103, Dec. 1, 1981, 95 Stat. 1100, as amended by Pub. L. 97–252, title I, §106, Sept. 8, 1982, 96 Stat. 720; Pub. L. 98–94, title I, §105, Sept. 24, 1983, 97 Stat. 620; Pub. L. 98–525, title I, §106, Oct. 19, 1984, 98 Stat. 2503; Pub. L. 99–145, title I, §106(b), Nov. 8, 1985, 99 Stat. 596; Pub. L. 99–661, title I, §106, Nov. 14, 1986, 100 Stat. 3827; Pub. L. 100–180, title I, §109, Dec. 4, 1987, 101 Stat. 1036, which set forth authority of Secretary of Defense in connection with NATO AWACS Program, was repealed by Pub. L. 101–189, div. A, title IX, §932(b), Nov. 29, 1989, 103 Stat. 1537. See section 2350e of this title. Similar provisions were contained in the following prior authorization acts:
Pub. L. 96–342, title I, §103, Sept. 8, 1980, 94 Stat. 1078.
Pub. L. 96–107, title I, §104, Nov. 9, 1979, 93 Stat. 804.
(a)
(A) Working in a management or supervisory capacity on any defense contract or any first tier subcontract of a defense contract.
(B) Serving on the board of directors of any defense contractor or any subcontractor awarded a contract directly by a defense contractor.
(C) Serving as a consultant to any defense contractor or any subcontractor awarded a contract directly by a defense contractor.
(D) Being involved in any other way, as determined under regulations prescribed by the Secretary of Defense, with a defense contract or first tier subcontract of a defense contract.
(2) Except as provided in paragraph (3), the prohibition in paragraph (1) shall apply for a period, as determined by the Secretary of Defense, of not less than five years after the date of the conviction.
(3) The prohibition in paragraph (1) may apply with respect to an individual for a period of less than five years if the Secretary determines that the five-year period should be waived in the interests of national security.
(4) The prohibition in paragraph (1) does not apply with respect to the following:
(A) A contract referred to in subparagraph (A), (B), (C), or (D) of such paragraph that is not greater than the simplified acquisition threshold (as defined in section 134 of title 41).
(B) A contract referred to in such subparagraph that is for the acquisition of commercial items (as defined in section 103 of title 41).
(C) A subcontract referred to in such subparagraph that is under a contract described in subparagraph (A) or (B).
(b)
(1) employing a person under a prohibition under subsection (a); or
(2) allowing such a person to serve on the board of directors of such contractor or subcontractor.
(c)
(2) The procedure for obtaining such information shall be specified in regulations prescribed by the Secretary of Defense under subsection (a).
(Added Pub. L. 99–500, §101(c) [title X, §941(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–161, and Pub. L. 99–591, §101(c) [title X, §941(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–161; Pub. L. 99–661, div. A, title IX, formerly title IV, §941(a)(1), Nov. 14, 1986, 100 Stat. 3941, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–456, div. A, title VIII, §831(a), Sept. 29, 1988, 102 Stat. 2023; Pub. L. 101–510, div. A, title VIII, §812, Nov. 5, 1990, 104 Stat. 1596; Pub. L. 102–484, div. A, title VIII, §815(a), Oct. 23, 1992, 106 Stat. 2454; Pub. L. 103–355, title IV, §4102(g), title VIII, §8105(h), Oct. 13, 1994, 108 Stat. 3340, 3393; Pub. L. 104–106, div. A, title X, §1062(e), Feb. 10, 1996, 110 Stat. 444; Pub. L. 111–350, §5(b)(26), Jan. 4, 2011, 124 Stat. 3844.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
2011—Subsec. (a)(4)(A). Pub. L. 111–350, §5(b)(26)(A), substituted “section 134 of title 41)” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))”.
Subsec. (a)(4)(B). Pub. L. 111–350, §5(b)(26)(B), substituted “section 103 of title 41)” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))”.
1996—Subsec. (a)(3). Pub. L. 104–106 struck out at end “If the five-year period is waived, the Secretary shall submit to Congress a report stating the reasons for the waiver.”
1994—Subsec. (a)(4). Pub. L. 103–355, §4102(g), added introductory provisions and subpar. (A).
Subsec. (a)(4)(B). Pub. L. 103–355, §8105(h)(1), added subpar. (B).
Subsec. (a)(4)(C). Pub. L. 103–355, §8105(h)(2), inserted “or (B)” before period at end.
Pub. L. 103–355, §4102(g), added subpar. (C).
1992—Subsec. (c). Pub. L. 102–484 added subsec. (c).
1990—Subsec. (a)(1)(A). Pub. L. 101–510, §812(a)(1), inserted before period at end “or any first tier subcontract of a defense contract”.
Subsec. (a)(1)(B). Pub. L. 101–510, §812(a)(2), inserted before period at end “or any subcontractor awarded a contract directly by a defense contractor”.
Subsec. (a)(1)(C). Pub. L. 101–510, §812(a)(3), inserted before period at end “or any subcontractor awarded a contract directly by a defense contractor”.
Subsec. (a)(1)(D). Pub. L. 101–510, §812(a)(4), inserted before period at end “or first tier subcontract of a defense contract”.
Subsec. (b). Pub. L. 101–510, §812(b), inserted “or subcontractor” after “contractor” wherever appearing.
1988—Subsec. (a). Pub. L. 100–456 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “A person who is convicted of fraud or any other felony arising out of a contract with the Department of Defense shall be prohibited from working in a management or supervisory capacity on any defense contract, or serving on the board of directors of any defense contractor, for a period, as determined by the Secretary of Defense, of not less than one year from the date of the conviction.”
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 831(b) of Pub. L. 100–456 provided that: “Section 2408(a) of title 10, United States Code, as amended by subsection (a), shall apply with respect to individuals convicted after the date of the enactment of this Act [Sept. 29, 1988].”
Section 101(c) [title X, §941(c)] of Pub. L. 99–500 and Pub. L. 99–591, and section 941(c) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “Section 2408 of title 10, United States Code (as added by subsection (a)(1)), shall apply with respect to employment or service on a board of directors after the date of the enactment of this Act [Oct. 18, 1986].”
Pub. L. 102–484, div. A, title VIII, §815(b), Oct. 23, 1992, 106 Stat. 2454, directed that the single point of contact required by subsec. (c) of this section be established not later than 120 days after Oct. 23, 1992.
(a)
(b)
(2)(A) Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous or submit a report under paragraph (1) within 180 days after receiving the complaint.
(B) If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period specified in subparagraph (A) and the person submitting the complaint agrees to an extension of time, the Inspector General shall submit a report under paragraph (1) within such additional period of time as shall be agreed upon between the Inspector General and the person submitting the complaint.
(c)
(A) Order the contractor to take affirmative action to abate the reprisal.
(B) Order the contractor to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(C) Order the contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys’ fees and expert witnesses’ fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency.
(2) If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under paragraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the contractor to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury.
(3) An Inspector General determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de novo action at law or equity brought pursuant to this subsection.
(4) Whenever a person fails to comply with an order issued under paragraph (1), the head of the agency shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief and compensatory and exemplary damages.
(5) Any person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order's conformance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Review shall conform to chapter 7 of title 5.
(d)
(e)
(1) The term “agency” means an agency named in section 2303 of this title.
(2) The term “head of an agency” has the meaning provided by section 2302(1) of this title.
(3) The term “contract” means a contract awarded by the head of an agency.
(4) The term “contractor” means a person awarded a contract or a grant with an agency.
(5) The term “Inspector General” means an Inspector General appointed under the Inspector General Act of 1978 and any Inspector General that receives funding from, or has oversight over contracts awarded for or on behalf of, the Secretary of Defense.
(Added Pub. L. 99–500, §101(c) [title X, §942(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–162, and Pub. L. 99–591, §101(c) [title X, §942(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–162; Pub. L. 99–661, div. A, title IX, formerly title IV, §942(a)(1), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 102–25, title VII, §701(k)(1), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102–484, div. A, title X, §1052(30)(A), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–355, title VI, §6005(a), Oct. 13, 1994, 108 Stat. 3364; Pub. L. 104–106, div. D, title XLIII, §4321(a)(10), Feb. 10, 1996, 110 Stat. 671; Pub. L. 110–181, div. A, title VIII, §846, Jan. 28, 2008, 122 Stat. 241.)
The Inspector General Act of 1978, referred to in subsec. (e)(5), is Pub. L. 95–452, Oct. 12, 1978, 92 Stat. 1101, as amended, which is set out in the Appendix to Title 5, Government Organization and Employees.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
2008—Subsec. (a). Pub. L. 110–181, §846(a), substituted “disclosing to a Member of Congress, a representative of a committee of Congress, an Inspector General, the Government Accountability Office, a Department of Defense employee responsible for contract oversight or management,” for “disclosing to a Member of Congress” and “information that the employee reasonably believes is evidence of gross mismanagement of a Department of Defense contract or grant, a gross waste of Department of Defense funds, a substantial and specific danger to public health or safety, or a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant” for “information relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract)”.
Subsec. (b). Pub. L. 110–181, §846(b), designated existing provisions as par. (1), substituted “the Department of Defense, or the Inspector General of the National Aeronautics and Space Administration in the case of a complaint regarding the National Aeronautics and Space Administration” for “an agency”, and added par. (2).
Subsec. (c)(1). Pub. L. 110–181, §846(c)(1), in introductory provisions, substituted “Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the contractor concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall” for “If the head of the agency determines that a contractor has subjected a person to a reprisal prohibited by subsection (a), the head of the agency may”.
Subsec. (c)(2) to (5). Pub. L. 110–181, §846(c)(2), (3), added pars. (2) and (3) and redesignated former pars. (2) and (3) as (4) and (5), respectively.
Subsec. (e)(4). Pub. L. 110–181, §846(d)(1), inserted “or a grant” after “a contract”.
Subsec. (e)(5). Pub. L. 110–181, §846(d)(2), inserted “and any Inspector General that receives funding from, or has oversight over contracts awarded for or on behalf of, the Secretary of Defense” before period at end.
1996—Pub. L. 104–106 made technical correction to Pub. L. 103–355, §6005(a). See 1994 Amendment note below.
1994—Pub. L. 103–355, §6005(a), as amended by Pub. L. 104–106, amended section generally. Prior to amendment, subsec. (a) related to prohibition of reprisals, subsec. (b) to investigation of complaints, subsec. (c) to construction of section, and subsec. (d) to coordination of section with former section 2409a of this title.
1992—Subsec. (d). Pub. L. 102–484 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “
1991—Subsec. (d). Pub. L. 102–25 added subsec. (d).
Section 4321(a) of Pub. L. 104–106 provided that the amendment made by that section is effective as of Oct. 13, 1994, and as if included in Pub. L. 103–355 as enacted.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 1052(30)(B) of Pub. L. 102–484 provided that: “The amendment made by subparagraph (A) [amending this section] shall take effect as if enacted immediately following the enactment of Public Law 102–25 (105 Stat. 75).”
Section 101(c) [title X, §942(b)] of Pub. L. 99–500 and Pub. L. 99–591, and section 942(b) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “Section 2409 of title 10, United States Code (as added by subsection (a)(1)), shall apply with respect to any reprisal action taken on or after the date of the enactment of this Act [Oct. 18, 1986].”
Pub. L. 110–417, [div. A], title VIII, §842, Oct. 14, 2008, 122 Stat. 4539, provided that:
“(a)
“(b)
Section, added Pub. L. 101–510, div. A, title VIII, §837(a)(1), Nov. 5, 1990, 104 Stat. 1616; amended Pub. L. 102–25, title VII, §701(j)(4), (k)(2), Apr. 6, 1991, 105 Stat. 116, 117, required promulgation of regulations prohibiting defense contractor from discharging or discriminating against employee for disclosing to Government official information concerning contract between contractor and Department of Defense evidencing violation of Federal law or regulation and providing certain complaint and investigation provisions and provided procedures for review and enforcement.
For effective date and applicability of repeal, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
(a)
(1) the request is made in good faith, and
(2) the supporting data are accurate and complete to the best of that person's knowledge and belief.
(b)
(1) specifically refers to this subsection; and
(2) specifically states that this subsection does not apply with respect to the payment directed by that provision of law.
(c)
(Added Pub. L. 103–355, title II, §2301(a), Oct. 13, 1994, 108 Stat. 3320; amended Pub. L. 111–350, §5(b)(27), Jan. 4, 2011, 124 Stat. 3845.)
Public Law 85–804, referred to in subsecs. (a) and (b), is Pub. L. 85–804, Aug. 28, 1958, 72 Stat. 972, which is classified generally to chapter 29 (§1431 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Tables.
A prior section, added Pub. L. 100–370, §1(h)(2), July 19, 1988, 102 Stat. 847, provided that contract claims, requests for equitable adjustments, requests for relief under section 1431 et seq. of Title 50, War and National Defense, and other similar requests by contractors exceeding $100,000 were not to be paid unless senior official of contractor certified that claim or request was made in good faith and that data submitted was accurate and complete to the best of such official's knowledge and belief, prior to repeal by Pub. L. 102–484, div. A, title VIII, §813(b), Oct. 23, 1992, 106 Stat. 2453, effective upon promulgation of regulations pursuant to former section 2410e of this title [Interim rules, effective Apr. 30, 1993, were promulgated and published in the Federal Register, 58 F.R. 28458, May 13, 1993, and final rules, effective May 27, 1994, were promulgated and published in the Federal Register, 59 F.R. 27662, May 27, 1994].
2011—Subsec. (c). Pub. L. 111–350 substituted “section 134 of title 41” for “section 4(11) of the Office of Federal Procurement Policy Act”.
For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
(a)
(2) The purpose of a contract described in this paragraph is as follows:
(A) The procurement of severable services.
(B) The lease of real or personal property, including the maintenance of such property when contracted for as part of the lease agreement.
(b)
(Added Pub. L. 100–370, §1(h)(2), July 19, 1988, 102 Stat. 847; amended Pub. L. 102–190, div. A, title III, §342, Dec. 5, 1991, 105 Stat. 1343; Pub. L. 104–324, title II, §214(b), Oct. 19, 1996, 110 Stat. 3915; Pub. L. 105–85, div. A, title VIII, §801(a), Nov. 18, 1997, 111 Stat. 1831; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 108–136, div. A, title X, §1005(a), (b)(1), Nov. 24, 2003, 117 Stat. 1584.)
Section is based on Pub. L. 99–190, §101(b) [title VIII, §8005(e), (h), (l)], Dec. 19, 1985, 99 Stat. 1185, 1202.
2003—Pub. L. 108–136, §1005(b)(1), amended section catchline generally, substituting “Contracts for periods crossing fiscal years: severable service contracts; leases of real or personal property” for “Severable service contracts for periods crossing fiscal years”.
Subsec. (a). Pub. L. 108–136, §1005(a), inserted “(1)” before “The Secretary of Defense”, substituted “for a purpose described in paragraph (2)” for “for procurement of severable services”, and added par. (2).
2002—Subsec. (a). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
1997—Pub. L. 105–85 amended section generally. Prior to amendment, section related to availability of appropriated funds for payments under contracts for various types of maintenance, leases, and operations and authorized Secretary of Transportation to enter into contracts for procurement of severable services.
1996—Pub. L. 104–324 designated existing provisions as subsec. (a) and added subsec. (b).
1991—Par. (1). Pub. L. 102–190, §342(1), inserted “, equipment,” after “tools”.
Par. (4). Pub. L. 102–190, §342(2), added par. (4).
Pub. L. 108–136, div. A, title X, §1005(c), Nov. 24, 2003, 117 Stat. 1585, provided that: “The amendments made by this section [amending this section] shall not apply to funds appropriated for a fiscal year before fiscal year 2004.”
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
(a) The Secretary of Defense shall prescribe in regulations—
(1) standards for inventory accounting systems used by contractors under contract with the Department of Defense; and
(2) appropriate enforcement requirements with respect to such standards.
(b) The regulations prescribed pursuant to subsection (a) shall not apply to a contract that is for an amount not greater than the simplified acquisition threshold.
(c) The regulations prescribed pursuant to subsection (a) shall not apply to a contract for the purchase of commercial items (as defined in section 103 of title 41).
(Added Pub. L. 100–456, div. A, title VIII, §834(a)(1), Sept. 29, 1988, 102 Stat. 2024; amended Pub. L. 103–355, title IV, §4102(h), title VIII, §8105(i), Oct. 13, 1994, 108 Stat. 3341, 3393; Pub. L. 104–106, div. D, title XLIII, §4301(a)(1), Feb. 10, 1996, 110 Stat. 656; Pub. L. 104–201, div. A, title X, §1074(b)(3), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 111–350, §5(b)(28), Jan. 4, 2011, 124 Stat. 3845.)
2011—Subsec. (c). Pub. L. 111–350 substituted “section 103 of title 41)” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))”.
1996—Subsec. (a)(2). Pub. L. 104–106, as amended by Pub. L. 104–201, struck out “certification and” after “appropriate”.
1994—Subsecs. (a), (b). Pub. L. 103–355, §4102(h), designated existing provisions as subsec. (a) and added subsec. (b).
Subsec. (c). Pub. L. 103–355, §8105(i), added subsec. (c).
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 834(b) of Pub. L. 100–456 provided that:
“(1) The Secretary of Defense shall prescribe the regulations required by paragraph (1) of section 2410b of title 10, United States Code, as added by subsection (a), not later than 30 days after the date of the enactment of this Act [Sept. 29, 1988].
“(2) The Secretary of Defense shall prescribe the regulations required by paragraph (2) of section 2410b of title 10, United States Code, as added by subsection (a), not later than 180 days after the date of the enactment of this Act.”
Another section 2410c was renumbered section 2410j of this title.
(a)
(b)
(1) The term “small business subcontracting plan” means a plan negotiated pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)) that establishes a goal for the participation of small business concerns as subcontractors under a contract.
(2) The term “qualified nonprofit agency for the blind or other severely handicapped” means—
(A) a qualified nonprofit agency for the blind, as defined in section 8501(7) of title 41;
(B) a qualified nonprofit agency for other severely disabled, as defined in section 8501(6) of title 41; and
(C) a central nonprofit agency designated by the Committee for Purchase from People Who Are Blind or Severely Disabled under section 8503(c) of title 41.
(Added Pub. L. 102–484, div. A, title VIII, §808(b)(1), Oct. 23, 1992, 106 Stat. 2449; amended Pub. L. 103–337, div. A, title VIII, §804, Oct. 5, 1994, 108 Stat. 2815; Pub. L. 104–106, div. D, title XLIII, §4321(b)(15), Feb. 10, 1996, 110 Stat. 673; Pub. L. 105–85, div. A, title VIII, §835, Nov. 18, 1997, 111 Stat. 1843; Pub. L. 106–65, div. A, title VIII, §807, Oct. 5, 1999, 113 Stat. 705; Pub. L. 111–350, §5(b)(29), Jan. 4, 2011, 124 Stat. 3845.)
Another section 2410d was renumbered section 2410k of this title.
2011—Subsec. (b)(2)(A). Pub. L. 111–350, §5(b)(29)(A), substituted “section 8501(7) of title 41” for “section 5(3) of the Javits-Wagner-O'Day Act (41 U.S.C. 48b(3))”.
Subsec. (b)(2)(B). Pub. L. 111–350, §5(b)(29)(B), substituted “disabled, as defined in section 8501(6) of title 41” for “handicapped, as defined in section 5(4) of such Act (41 U.S.C. 48b(4))”.
Subsec. (b)(2)(C). Pub. L. 111–350, §5(b)(29)(C), substituted “section 8503(c) of title 41” for “section 2(c) of such Act (41 U.S.C. 47(c))”.
1999—Subsec. (c). Pub. L. 106–65 struck out heading and text of subsec. (c). Text read as follows: “Subsection (a) shall cease to be effective at the end of September 30, 1999.”
1997—Subsec. (c). Pub. L. 105–85 substituted “September 30, 1999” for “September 30, 1997”.
1996—Subsec. (b)(3). Pub. L. 104–106 struck out par. (3) which read as follows: “The term ‘Javits-Wagner-O'Day Act’ means the Act entitled ‘An Act to create a Committee on Purchases of Blind-made Products, and for other purposes’, approved June 25, 1938 (41 U.S.C. 46–48c), commonly referred to as the Wagner-O'Day Act, that was revised and reenacted in the Act of June 23, 1971 (85 Stat. 77), commonly referred to as the Javits-Wagner-O'Day Act.”
1994—Subsec. (b)(2)(C). Pub. L. 103–337, §804(1)(A), added subpar. (C).
Subsec. (b)(3), (4). Pub. L. 103–337, §804(1)(B), (C), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: “The terms ‘approved commodity’ and ‘approved service’ mean a commodity and a service, respectively, that has been determined by the Committee for Purchase from the Blind and Other Severely Handicapped under section 2 of such Act (41 U.S.C. 47) to be suitable for procurement by the Federal Government.”
Subsec. (c). Pub. L. 103–337, §804(2), substituted “September 30, 1997” for “September 30, 1994”.
Section 835 of Pub. L. 105–85 provided that the amendment made by that section is effective as of Sept. 30, 1997.
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Section 808(c) of Pub. L. 102–484 provided that: “Sections 2301(d) and 2410d of title 10, United States Code (as added by subsections (a) and (b), respectively), shall take effect on October 1, 1993.”
Pub. L. 108–87, title VIII, §8025, Sept. 30, 2003, 117 Stat. 1077, provided that:
“(a) Of the funds for the procurement of supplies or services appropriated by this Act [see Tables for classification] and hereafter, qualified nonprofit agencies for the blind or other severely handicapped shall be afforded the maximum practicable opportunity to participate as subcontractors and suppliers in the performance of contracts let by the Department of Defense.
“(b) During the current fiscal year and hereafter, a business concern which has negotiated with a military service or defense agency a subcontracting plan for the participation by small business concerns pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)) shall be given credit toward meeting that subcontracting goal for any purchases made from qualified nonprofit agencies for the blind or other severely handicapped.
“(c) For the purpose of this section, the phrase ‘qualified nonprofit agency for the blind or other severely handicapped’ means a nonprofit agency for the blind or other severely handicapped that has been approved by the Committee for the Purchase from the Blind and Other Severely Handicapped under the Javits-Wagner-O'Day Act ([former] 41 U.S.C. 46–48[c]) [now 41 U.S.C. 8501 et seq.].”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 107–248, title VIII, §8025, Oct. 23, 2002, 116 Stat. 1542.
Pub. L. 107–117, div. A, title VIII, §8028, Jan. 10, 2002, 115 Stat. 2253.
Pub. L. 106–259, title VIII, §8028, Aug. 9, 2000, 114 Stat. 680.
Pub. L. 106–79, title VIII, §8030, Oct. 25, 1999, 113 Stat. 1237.
Pub. L. 105–262, title VIII, §8030, Oct. 17, 1998, 112 Stat. 2303.
Pub. L. 105–56, title VIII, §8031, Oct. 8, 1997, 111 Stat. 1226.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8033], Sept. 30, 1996, 110 Stat. 3009–71, 3009–95.
Pub. L. 104–61, title VIII, §8042, Dec. 1, 1995, 109 Stat. 660.
Pub. L. 103–335, title VIII, §8048, Sept. 30, 1994, 108 Stat. 2628.
Pub. L. 103–139, title VIII, §8055, Nov. 11, 1993, 107 Stat. 1452.
Pub. L. 102–396, title IX, §9077, Oct. 6, 1992, 106 Stat. 1918.
Pub. L. 102–172, title VIII, §8082, Nov. 26, 1991, 105 Stat. 1190.
Pub. L. 101–511, title VIII, §8117, Nov. 5, 1990, 104 Stat. 1905.
Section, added Pub. L. 102–484, div. A, title VIII, §813(a)(1), Oct. 23, 1992, 106 Stat. 2452, directed Secretary of Defense to propose, for inclusion in Federal Acquisition Regulation, regulations relating to certification of contract claims, requests for equitable adjustment to contract terms, and requests for relief under section 1431 et seq. of Title 50, War and National Defense, that exceeded $100,000.
For effective date and applicability of repeal, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 2302 of this title.
(a) If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a “Made in America” inscription, or another inscription with the same meaning, to any product sold in or shipped to the United States that is not made in America, the Secretary shall determine, not later than 90 days after determining that the person has been so convicted, whether the person should be debarred from contracting with the Department of Defense.
(b) In this section, the term “debar” has the meaning given that term by section 2393(c) of this title.
(Added Pub. L. 102–484, div. A, title VIII, §834(a)(1), Oct. 23, 1992, 106 Stat. 2461; amended Pub. L. 104–106, div. A, title X, §1062(f), title XV, §1503(a)(22), Feb. 10, 1996, 110 Stat. 444, 512; Pub. L. 107–107, div. A, title X, §1048(a)(20), Dec. 28, 2001, 115 Stat. 1223.)
2001—Subsec. (a). Pub. L. 107–107 inserted “, or another inscription with the same meaning,” after “inscription”.
1996—Subsec. (a). Pub. L. 104–106, §1062(f), struck out at end “If the Secretary determines that the person should not be debarred, the Secretary shall submit to Congress a report on such determination not later than 30 days after the determination is made.”
Subsec. (b). Pub. L. 104–106, §1503(a)(22), substituted “In” for “For purposes of”.
Section 834(b) of Pub. L. 102–484 provided that: “Section 2410f of title 10, United States Code, as added by subsection (a), shall take effect 90 days after the date of the enactment of this Act [Oct. 23, 1992].”
Pub. L. 106–398, §1 [[div. A], title VIII, §825(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–220, provided that: “If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a ‘Made in America’ inscription, or another inscription with the same meaning, to any product sold in or shipped to the United States that is not made in the United States, the Secretary shall determine, in accordance with section 2410f of title 10, United States Code, whether the person should be debarred from contracting with the Department of Defense.”
Similar provisions were contained in the following prior authorization acts:
Pub. L. 106–65, div. A, title VIII, §816(b), Oct. 5, 1999, 113 Stat. 712.
Pub. L. 103–160, div. A, title VIII, §849(b), Nov. 30, 1993, 107 Stat. 1725.
(a)
(2) If a firm submitting a bid or proposal for a Department of Defense contract is required to submit a notification under this subsection, and the firm is aware, at the time it submits its bid or proposal, that the firm intends to perform outside the United States and Canada any part of the contract that exceeds $500,000 in value and could be performed inside the United States or Canada, the firm shall include the notification in its bid or proposal.
(3) The notification by a firm under paragraph (1) with respect to a first-tier subcontractor shall be made, to the maximum extent practicable, at least 30 days before award of the subcontract.
(b)
(1) in the case of a contract of a military department, to such officer or employee of that military department as the Secretary of the military department may direct; and
(2) in the case of any other Department of Defense contract, to such officer or employee of the Department of Defense as the Secretary of Defense may direct.
(c)
(d)
(1) Commercial items (as defined in section 103 of title 41).
(2) Military construction.
(3) Ores.
(4) Natural gas.
(5) Utilities.
(6) Petroleum products and crudes.
(7) Timber.
(8) Subsistence.
(Added Pub. L. 102–484, div. A, title VIII, §840(a)(1), Oct. 23, 1992, 106 Stat. 2466; amended Pub. L. 104–106, div. D, title XLIII, §4321(b)(16), Feb. 10, 1996, 110 Stat. 673; Pub. L. 111–350, §5(b)(30), Jan. 4, 2011, 124 Stat. 3845.)
2011—Subsec. (d)(1). Pub. L. 111–350 substituted “section 103 of title 41)” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))”.
1996—Subsec. (d)(1). Pub. L. 104–106 inserted “(as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))” before period at end.
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Section 840(b) of Pub. L. 102–484 provided that: “Section 2410g of title 10, United States Code (as added by subsection (a)), shall take effect 90 days after the date of the enactment of this Act [Oct. 23, 1992].”
(a)
(b)
(2) In paragraph (1), the term “foreign entity” means a foreign person, a foreign company, or any other foreign entity.
(c)
(d)
(1) to contracts for consumable supplies, provisions, or services that are intended to be used for the support of United States forces or of allied forces in a foreign country; or
(2) to contracts pertaining to the use of any equipment, technology, data, or services for intelligence or classified purposes by the United States Government in the interests of national security or to the acquisition or lease of any such equipment, technology, data, or services by the United States Government in the interests of national security.
(Added Pub. L. 102–484, div. A, title XIII, §1332(a), Oct. 23, 1992, 106 Stat. 2555; amended Pub. L. 111–350, §§4, 5(b)(31), Jan. 4, 2011, 124 Stat. 3841, 3845.)
2011—Subsec. (b)(1). Pub. L. 111–350 substituted “simplified acquisition threshold (as defined in section 134 of title 41)” for “small purchase threshold (as defined in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))”.
(a)
(1) to assist an eligible scientist or engineer employed by the contractor whose employment is terminated to obtain—
(A) certification or licensure as an elementary or secondary school teacher; or
(B) the credentials necessary to serve as a teacher's aide; and
(2) to facilitate the employment of the scientist or engineer by a local educational agency that—
(A) is receiving a grant under title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) as a result of having within its jurisdiction concentrations of children from low-income families; and
(B) is also experiencing a shortage of teachers or teachers’ aides.
(b)
(2) The Secretary shall determine which defense contractors are eligible to participate in the placement program on the basis of applications submitted under subsection (c). The Secretary shall limit participation to those defense contractors or subcontractors that—
(A) produce goods or services for the Department of Defense pursuant to a defense contract or operate nuclear weapons manufacturing facilities for the Department of Energy; and
(B) have recently reduced operations, or are likely to reduce operations, due to the completion or termination of a defense contract or program or by reductions in defense spending.
(3) The Secretary shall give special consideration to defense contractors who are located in areas that have been hit particularly hard by reductions in defense spending.
(c)
(A) Evidence that the contractor has been, or is expected to be, adversely affected by the completion or termination of a defense contract or program or by reductions in defense spending.
(B) An explanation that scientists and engineers employed by the contractor have been terminated, laid off, or retired, or are likely to be terminated, laid off, or retired, as a result of the completion or termination of a defense contract or program or reductions in defense spending.
(C) A description of programs implemented or proposed by the contractor to assist these scientists and engineers.
(D) A commitment to help fund the costs associated with the placement program by paying 50 percent of the stipend provided under subsection (g) to an employee or former employee of the contractor selected to receive assistance under this section.
(2) Once a cooperative agreement is entered into under subsection (a) between the Secretary and the defense contractor, the contractor shall publicize the program and distribute applications to prospective participants, and assist the prospective participants with the State screening process.
(d)
(1) is employed or has been employed for not less than five years as a scientist or engineer with a private defense contractor that has entered into an agreement under subsection (a);
(2) has received—
(A) in the case of an individual applying for assistance for placement as an elementary or secondary school teacher, a baccalaureate or advanced degree from an accredited institution of higher education; or
(B) in the case of an individual applying for assistance for placement as a teacher's aide in an elementary or secondary school, an associate, baccalaureate, or advanced degree from an accredited institution of higher education or a junior or community college; and
(3) has been terminated or laid off (or received notice of termination or lay off) as a result of the completion or termination of a defense contract or program or reductions in defense spending; and
(4) satisfies such other criteria for selection as the Secretary may prescribe.
(e)
(A) have educational, military, or employment experience in science, mathematics, or engineering and agree to seek employment as science, mathematics, or engineering teachers in elementary or secondary schools; or
(B) have educational, military, or employment experience in another subject area identified by the Secretary, in consultation with the Secretary of Education, as important for national educational objectives and agree to seek employment in that subject area in elementary or secondary schools.
(2) The Secretary may not select an individual under this section unless the Secretary has sufficient appropriations to carry out this section available at the time of the selection to satisfy the obligations to be incurred by the United States under this section with respect to that individual.
(f)
(1) to obtain, within such time as the Secretary may require, certification or licensure as an elementary or secondary school teacher or the necessary credentials to serve as a teacher's aide in an elementary or secondary school; and
(2) to accept—
(A) in the case of an individual selected for assistance for placement as a teacher, an offer of full-time employment as an elementary or secondary school teacher for not less than two school years with a local educational agency identified under section 1151(b)(2) of this title, as in effect on October 4, 1999, to begin the school year after obtaining that certification or licensure; or
(B) in the case of an individual selected for assistance for placement as a teacher's aide, an offer of full-time employment as a teacher's aide in an elementary or secondary school for not less than two school years with a local educational agency identified under section 1151(b)(3) of this title, as in effect on October 4, 1999, to begin the school year after obtaining the necessary credentials.
(g)
(A) $5,000; or
(B) the total costs of the type described in paragraphs (1), (2), (3), (8), and (9) of section 472 of the Higher Education Act of 1965 (20 U.S.C. 1087ll) incurred by the participant while obtaining teacher certification or licensure or the necessary credentials to serve as a teacher's aide and employment as an elementary or secondary school teacher or teacher aide.
(2) A stipend provided under this section shall be taken into account in determining the eligibility of the participant for Federal student financial assistance provided under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.).
(h)
(Added Pub. L. 102–484, div. D, title XLIV, §4443(a), Oct. 23, 1992, 106 Stat. 2732, §2410c; renumbered §2410j and amended Pub. L. 103–35, title II, §201(b)(1)(A), (g)(6), May 31, 1993, 107 Stat. 97, 100; Pub. L. 103–160, div. A, title XIII, §1331(c)(3), Nov. 30, 1993, 107 Stat. 1792; Pub. L. 103–382, title III, §391(b)(5), Oct. 20, 1994, 108 Stat. 4022; Pub. L. 104–106, div. A, title XV, §1503(a)(23), Feb. 10, 1996, 110 Stat. 512; Pub. L. 104–201, div. A, title V, §576(c), Sept. 23, 1996, 110 Stat. 2535; Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(14)], Oct. 30, 2000, 114 Stat. 1654, 1654A–291.)
The Elementary and Secondary Education Act of 1965, referred to in subsec. (a)(2)(A), is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27, as amended. Title I of the Act is classified generally to subchapter I (§6301 et seq.) of chapter 70 of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 6301 of Title 20 and Tables.
Section 1151 of this title, referred to in subsecs. (f)(2)(A), (B) and (h), was repealed by Pub. L. 106–65, div. A, title XVII, §1707(a)(1), Oct. 5, 1999, 113 Stat. 823, and a new section 1151 of this title was subsequently added by Pub. L. 109–364, §561(a).
The Higher Education Act of 1965, referred to in subsec. (g)(2), is Pub. L. 89–329, Nov. 8, 1965, 79 Stat. 1219, as amended. Title IV of the Act is classified generally to subchapter IV (§1070 et seq.) of chapter 28 of Title 20 and part C (§2751 et seq.) of subchapter I of chapter 34 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 20 and Tables.
2000—Subsec. (f)(2). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(14)(A)], inserted “as in effect on October 4, 1999,” after “of this title,” in subpars. (A) and (B).
Subsec. (h). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(14)(B)], inserted “, as in effect on October 4, 1999,” after “of this title”.
1996—Subsec. (a)(2)(A). Pub. L. 104–106 substituted “6301” for “2701”.
Subsec. (f)(2)(A), (B). Pub. L. 104–201 substituted “two school years” for “five school years”.
1994—Subsec. (a)(2)(A). Pub. L. 103–382 struck out “chapter 1 of” after “grant under”.
1993—Pub. L. 103–35, §201(b)(1)(A), renumbered section 2410c of this title as this section.
Subsec. (f)(2)(A), (B). Pub. L. 103–160 substituted “five school years” for “two school years”.
Subsec. (f)(2)(B). Pub. L. 103–35, §201(g)(6), substituted “aide” for “aid” after “for placement as a teacher's”.
Amendment by Pub. L. 103–160 not applicable with respect to persons selected by Secretary of Defense before Nov. 30, 1993, to participate in teacher and teacher's aide placement programs established pursuant to sections 1151, 1598, and 2410j of this title or agreements entered into by Secretary before such date with local educational agencies under such sections, see section 1331(h) of Pub. L. 103–160, set out as a note under section 1598 of this title.
Amendments by section 576 of Pub. L. 104–201 not to affect obligations under agreements entered into in accordance with section 1151, 1598, or 2410j of this title before Sept. 23, 1996, see section 576(d) of Pub. L. 104–201, set out as a note under section 1598 of this title.
(a)
(b)
(c)
(Added Pub. L. 102–484, div. D, title XLIV, §4470(a)(1), Oct. 23, 1992, 106 Stat. 2753, §2410d; renumbered §2410k and amended Pub. L. 103–35, title II, §§201(b)(1)(A), 202(a)(18)(A), May 31, 1993, 107 Stat. 97, 102.)
1993—Pub. L. 103–35, §201(b)(1)(A), renumbered section 2410d of this title as this section.
Pub. L. 103–35, §202(a)(18)(A), made technical amendment to directory language of Pub. L. 102–484, which enacted this section.
Amendment by section 202(a)(18)(A) of Pub. L. 103–35 applicable as if included in the enactment of Pub. L. 102–484, see section 202(b) of Pub. L. 103–35, set out as a note under section 155 of this title.
Section 4470(b) of Pub. L. 102–484 provided that: “Section 2410d of title 10, United States Code, as added by subsection (a), shall apply with respect to contracts entered into beginning 120 days after the date of the enactment of this Act [Oct. 23, 1992].”
(a)
(B) Subparagraph (A) applies to any contract of the Department of Defense for advisory and assistance services that is expected to have a value in excess of $100,000.
(2) If the Secretary determines that Department of Defense personnel have the capability to perform the services to be covered by the contract, the Secretary shall conduct a study comparing the cost of performing the services with Department of Defense personnel and the cost of performing the services with contractor personnel.
(b)
(Added Pub. L. 103–337, div. A, title III, §363(a)(1), Oct. 5, 1994, 108 Stat. 2733.)
Section 363(c) of Pub. L. 103–337 provided that: “Section 2410l of title 10, United States Code, as added by subsection (a), shall take effect 180 days after the date of the enactment of this Act [Oct. 5, 1994].”
Section 363(b) of Pub. L. 103–337 provided that: “The Secretary of Defense shall prescribe the following procedures:
“(1) Procedures for carrying out a cost comparison study under subsection (a)(2) of section 2410l of title 10, United States Code, as added by subsection (a), which may contain a requirement that the cost comparison study include consideration of factors that are not related to cost, including the quality of the service required to be performed, the availability of Department of Defense personnel, the duration and recurring nature of the services to be performed, and the consistency of the workload.
“(2) Procedures for reviewing contracts entered into after a waiver under subsection (b) of such section to determine whether the contract is justified and sufficiently documented.”
(a)
(1) any settlement of the claim by the parties;
(2) any judgment rendered in the contractor's favor on an appeal of the decision on that claim to the Armed Services Board of Contract Appeals under section 7104(a) of title 41; or
(3) any judgment rendered in the contractor's favor in an action on that claim in a court of the United States.
(b)
(A) expires 180 days after the expiration of the period for bringing an action on that claim in the United States Court of Federal Claims under section 7104(b) of title 41 if, within that 180-day period—
(i) no appeal on the claim is commenced at the Armed Services Board of Contract Appeals under section 7 of such Act; and
(ii) no action on the claim is commenced in a court of the United States; or
(B) if not expiring under subparagraph (A), expires—
(i) in the case of a settlement of the claim, 180 days after the date of the settlement; or
(ii) in the case of a judgment rendered on the claim in an appeal to the Armed Services Board of Contract Appeals under section 7 1 of the Contract Disputes Act of 1978 or an action in a court of the United States, 180 days after the date on which the judgment becomes final and not appealable.
(2) While available under this section, an amount may be obligated or expended only for a purpose described in subsection (a).
(3) Upon the expiration of the period of availability of an amount under paragraph (1), the amount shall be covered into the Treasury as miscellaneous receipts.
(c)
(1) The total amount available for obligation at the end of such fiscal year.
(2) The total amount collected from contractors under this section during that fiscal year.
(3) The total amount disbursed under this section during that fiscal year and a description of the purpose for each disbursement.
(4) The total amount returned to the Treasury under this section during that fiscal year.
(Added Pub. L. 105–85, div. A, title VIII, §831(a), Nov. 18, 1997, 111 Stat. 1841; amended Pub. L. 108–136, div. A, title X, §1031(a)(21), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 111–350, §5(b)(32), Jan. 4, 2011, 124 Stat. 3845.)
Section 7 of the Contract Disputes Act of 1978, referred to in subsec. (b)(1)(B)(ii), means section 7 of Pub. L. 95–563, which was classified to section 606 of former Title 41, Public Contracts, and was repealed and restated as section 7104(a) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
2011—Subsec. (a). Pub. L. 111–350, §5(b)(32)(A), substituted “chapter 71 of title 41” for “the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.)” in introductory provisions.
Subsec. (a)(2). Pub. L. 111–350, §5(b)(32)(B), substituted “section 7104(a) of title 41” for “section 7 of such Act (41 U.S.C. 606)”.
Subsec. (b)(1)(A). Pub. L. 111–350, §5(b)(32)(C), substituted “section 7104(b) of title 41” for “section 10(a) of the Contract Disputes Act of 1978 (41 U.S.C. 609(a))” in introductory provisions.
2003—Subsec. (c). Pub. L. 108–136, §1031(a)(21)(A), substituted “Annual Report” for “Reporting Requirement” in heading and “Not later than 60 days after the end of each fiscal year” for “Each year” in introductory provisions.
Subsec. (c)(1). Pub. L. 108–136, §1031(a)(21)(B), inserted “at the end of such fiscal year” before period at end.
Subsec. (c)(2). Pub. L. 108–136, §1031(a)(21)(C), substituted “under this section during that fiscal year” for “during the year preceding the year in which the report is submitted”.
Subsec. (c)(3). Pub. L. 108–136, §1031(a)(21)(D), substituted “under this section during that fiscal year” for “in such preceding year”.
Subsec. (c)(4). Pub. L. 108–136, §1031(a)(21)(E), substituted “under this section during that fiscal year” for “in such preceding year”.
1 See References in Text note below.
(a)
(2) If the Secretary determines that a Federal Prison Industries product described in paragraph (1) is not comparable in price, quality, or time of delivery to products of the private sector that best meets the needs of the Department in terms of price, quality, and time of delivery, the Secretary shall use competitive procedures for the procurement of the product, or shall make an individual purchase under a multiple award contract in accordance with the competition requirements applicable to such contract. In conducting such a competition, the Secretary shall consider a timely offer from Federal Prison Industries.
(b)
(2) For purposes of this subsection, Federal Prison Industries shall be treated as having a significant share of the market for a product if the Secretary, in consultation with the Administrator of Federal Procurement Policy, determines that the Federal Prison Industries share of the Department of Defense market for the category of products including such product is greater than 5 percent.
(c)
(1) the Department of Defense does not purchase a Federal Prison Industries product or service unless a contracting officer of the Department determines that the product or service is comparable to products or services available from the private sector that best meet the Department's needs in terms of price, quality, and time of delivery; and
(2) Federal Prison Industries performs its contractual obligations to the same extent as any other contractor for the Department of Defense.
(d)
(e)
(A) a contract solicitation provision requiring a contractor to offer to make use of products or services of Federal Prison Industries in the performance of the contract;
(B) a contract specification requiring the contractor to use specific products or services (or classes of products or services) offered by Federal Prison Industries in the performance of the contract; or
(C) any contract modification directing the use of products or services of Federal Prison Industries in the performance of the contract.
(2) In this subsection, the term “contractor”, with respect to a contract, includes a subcontractor at any tier under the contract.
(f)
(1) any data that is classified;
(2) any geographic data regarding the location of—
(A) surface and subsurface infrastructure providing communications or water or electrical power distribution;
(B) pipelines for the distribution of natural gas, bulk petroleum products, or other commodities; or
(C) other utilities; or
(3) any personal or financial information about any individual private citizen, including information relating to such person's real property however described, without the prior consent of the individual.
(g)
(1) The term “competitive procedures” has the meaning given such term in section 2302(2) of this title.
(2) The term “market research” means obtaining specific information about the price, quality, and time of delivery of products available in the private sector through a variety of means, which may include—
(A) contacting knowledgeable individuals in government and industry;
(B) interactive communication among industry, acquisition personnel, and customers; and
(C) interchange meetings or pre-solicitation conferences with potential offerors.
(Added Pub. L. 107–107, div. A, title VIII, §811(a)(1), Dec. 28, 2001, 115 Stat. 1180; amended Pub. L. 107–314, div. A, title VIII, §819(a)(1), Dec. 2, 2002, 116 Stat. 2612; Pub. L. 109–163, div. A, title X, §1056(c)(4), Jan. 6, 2006, 119 Stat. 3439; Pub. L. 110–181, div. A, title VIII, §827(a)(1), Jan. 28, 2008, 122 Stat. 228.)
2008—Subsecs. (a), (b). Pub. L. 110–181 added subsecs. (a) and (b) and struck out former subsecs. (a) and (b) which read as follows:
“(a)
“(b)
2006—Subsec. (b). Pub. L. 109–163 substituted “competition” for “compeititon” in text.
2002—Subsec. (a). Pub. L. 107–314, §819(a)(1)(A), substituted “Market Research” for “Market Research Before Purchase” in heading and “comparable to products available from the private sector that best meet the Department's needs in terms of price, quality, and time of delivery” for “comparable in price, quality, and time of delivery to products available from the private sector”.
Subsec. (b). Pub. L. 107–314, §819(a)(1)(B), added subsec. (b) and struck out heading and text of former subsec. (b). Text read as follows: “If the Secretary determines that a Federal Prison Industries product is not comparable in price, quality, and time of delivery to products available from the private sector, the Secretary shall use competitive procedures for the procurement of the product. In conducting such a competition, the Secretary shall consider a timely offer from Federal Prison Industries for award in accordance with the specifications and evaluation factors specified in the solicitation.”
Subsec. (c) to (g). Pub. L. 107–314, §819(a)(1)(C), added subsecs. (c) to (g).
Pub. L. 110–181, div. A, title VIII, §827(a)(2), Jan. 28, 2008, 122 Stat. 228, as amended by Pub. L. 111–383, div. A, title X, §1075(f)(4), Jan. 7, 2011, 124 Stat. 4376, provided that: “The amendment made by paragraph (1) [amending this section] shall take effect 60 days after the date of the enactment of this Act [Jan. 28, 2008].”
Pub. L. 107–314, div. A, title VIII, §819(a)(2), Dec. 2, 2002, 116 Stat. 2613, provided that: “Paragraph (1) [amending this section] and the amendments made by such paragraph shall take effect as of October 1, 2001.”
Pub. L. 107–107, div. A, title VIII, §811(b), Dec. 28, 2001, 115 Stat. 1181, provided that: “Section 2410n of title 10, United States Code (as added by subsection (a)), shall apply to purchases initiated on or after October 1, 2001.”
Pub. L. 107–314, div. A, title VIII, §819(b), Dec. 2, 2002, 116 Stat. 2613, provided that:
“(1) Proposed revisions to the Department of Defense Supplement to the Federal Acquisition Regulation to implement this section shall be published not later than 90 days after the date of the enactment of this Act [Dec. 2, 2002], and not less than 60 days shall be provided for public comment on the proposed revisions.
“(2) Final regulations shall be published not later than 180 days after the date of the enactment of this Act and shall be effective on the date that is 30 days after the date of the publication.”
Pub. L. 110–181, div. A, title VIII, §827(b), Jan. 28, 2008, 122 Stat. 228, provided that:
“(1)
“(2)
“(3)
(a)
(b)
(Added Pub. L. 107–314, div. A, title VIII, §826(a), Dec. 2, 2002, 116 Stat. 2617.)
(a)
(b)
(1) the Secretary of Defense certifies to the Committees on Armed Services of the Senate and the House of Representatives that—
(A) the entity was selected by the Department of Defense as a contractor to develop or construct the system or element concerned through the use of competitive procedures; and
(B) the Department took appropriate steps to prevent any organizational conflict of interest in the selection process; or
(2) the entity was selected by a subcontractor to serve as a lower-tier subcontractor, through a process over which the entity exercised no control.
(c)
(Added Pub. L. 109–364, div. A, title VIII, §807(a)(1), Oct. 17, 2006, 120 Stat. 2315.)
Pub. L. 109–364, div. A, title VIII, §807(a)(3), Oct. 17, 2006, 120 Stat. 2316, provided that: “Section 2410p of title 10, United States Code, as added by paragraph (1), shall apply with respect to contracts entered into after December 31, 2006.”
Pub. L. 109–364, div. A, title VIII, §807(b), Oct. 17, 2006, 120 Stat. 2316, provided that: “Not later than December 31, 2006, the Secretary of Defense shall update the acquisition regulations of the Department of Defense in order to specify fully in such regulations the matters with respect to lead system integrators set forth in section 805(b) of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163; 119 Stat. 3372) and the amendments made by subsection (a) [enacting this section].”
Pub. L. 110–181, div. A, title VIII, §802, Jan. 28, 2008, 122 Stat. 206, as amended by Pub. L. 110–417, [div. A], title I, §112, Oct. 14, 2008, 122 Stat. 4374, provided that:
“(a)
“(1)
“(2)
“(A) the major system has not yet proceeded beyond low-rate initial production; or
“(B) the Secretary of Defense determines in writing that it would not be practicable to carry out the acquisition without continuing to use a contractor to perform lead systems integrator functions and that doing so is in the best interest of the Department.
“(3)
“(A) shall specify the reasons why it would not be practicable to carry out the acquisition without continuing to use a contractor to perform lead systems integrator functions (including a discussion of alternatives, such as the use of the Department of Defense workforce, or a system engineering and technical assistance contractor);
“(B) shall include a plan for phasing out the use of contracted lead systems integrator functions over the shortest period of time consistent with the interest of the national defense;
“(C) may not be delegated below the level of the Under Secretary of Defense for Acquisition, Technology, and Logistics; and
“(D) shall be provided to the Committees on Armed Services of the Senate and the House of Representatives at least 45 days before the award of a contract pursuant to the determination.
“(b)
“(1)
“(A) to accomplish inherently governmental functions related to acquisition of major systems; and
“(B) to effectuate the purpose of subsection (a) to minimize and eventually eliminate the use of contractors to perform lead systems integrator functions.
“(2)
“(c)
“(1) The contract prohibits the contractor from performing inherently governmental functions.
“(2) The Department of Defense organization responsible for the development or production of the major system ensures that Federal employees are responsible for—
“(A) determining courses of action to be taken in the best interest of the government; and
“(B) determining best technical performance for the warfighter.
“(3) The contract requires that the prime contractor for the contract may not advise or recommend the award of a contract or subcontract for the development or production of the major system to an entity owned in whole or in part by the prime contractor.
“(d)
“(1)
“(A) a prime contractor for the development or production of a major system, if the prime contractor is not expected at the time of award to perform a substantial portion of the work on the system and the major subsystems; or
“(B) a prime contractor under a contract for the procurement of services the primary purpose of which is to perform acquisition functions closely associated with inherently governmental functions with respect to the development or production of a major system.
“(2)
“(3)
“(e)
“(1)
“(2)
(a)
(b)
(1) the proposed purchase of electricity under such contract is cost effective for the Department of Defense; and
(2) it would not be possible to purchase electricity from the source in an economical manner without the use of a contract for a period in excess of five years.
(c)
(Added Pub. L. 110–181, div. A, title VIII, §828(a), Jan. 28, 2008, 122 Stat. 229.)
1993—Pub. L. 103–35, title II, §201(d)(2), May 31, 1993, 107 Stat. 99, made technical amendment to items 2418 and 2419.
1992—Pub. L. 102–484, div. D, title XLII, §4236(a)(2), Oct. 23, 1992, 106 Stat. 2691, added item 2418 and redesignated former item 2418 as 2419.
1990—Pub. L. 101–510, div. A, title VIII, §814(a)(2), Nov. 5, 1990, 104 Stat. 1597, added item 2417 and redesignated former item 2417 as 2418.
1986—Pub. L. 99–500, §101(c) [title X, §957(a)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–175, and Pub. L. 99–591, §101(c) [title X, §957(a)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–175; Pub. L. 99–661, div. A, title IX, formerly title IV, §957(a)(2), Nov. 14, 1986, 100 Stat. 3955, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, amended analysis identically adding item 2416 and redesignating former item 2416 as 2417.
In this chapter:
(1) The term “eligible entity” means any of the following:
(A) A State.
(B) A local government.
(C) A private, nonprofit organization.
(D) A tribal organization, as defined in section 4(l) of the Indian Self-Determination and Education Assistance Act (Public Law 93–638; 25 U.S.C. 450b(l)), or an economic enterprise, as defined in section 3(e) of the Indian Financing Act of 1974 (Public Law 93–262; 25 U.S.C. 1452(e)), whether or not such economic enterprise is organized for profit purposes or nonprofit purposes.
(2) The term “distressed area” means—
(A) the area of a unit of local government (or such area excluding the area of any defined political jurisdiction within the area of such unit of local government) that—
(i) has a per capita income of 80 percent or less of the State average; or
(ii) has an unemployment rate that is one percent greater than the national average for the most recent 24-month period for which statistics are available; or
(B) a reservation, as defined in section 3(d) of the Indian Financing Act of 1974 (Public Law 93–262; 25 U.S.C. 1452(d)).
(3) The term “Secretary” means the Secretary of Defense acting through the Director of the Defense Logistics Agency.
(4) The terms “State” and “local government” have the meaning given those terms in section 6302 of title 31.
(Added Pub. L. 98–525, title XII, §1241(a)(1), Oct. 19, 1984, 98 Stat. 2605; amended Pub. L. 99–145, title IX, §919(a), Nov. 8, 1985, 99 Stat. 691; Pub. L. 99–500, §101(c) [title X, §956(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–174, and Pub. L. 99–591, §101(c) [title X, §956(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–174; Pub. L. 99–661, div. A, title IX, formerly title IV, §956(a), Nov. 14, 1986, 100 Stat. 3954, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title VIII, §807(b), Dec. 4, 1987, 101 Stat. 1128; Pub. L. 100–456, div. A, title VIII, §841(b)(2), Sept. 29, 1988, 102 Stat. 2025; Pub. L. 101–189, div. A, title VIII, §853(e), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 102–25, title VII, §701(j)(5), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102–484, div. A, title X, §1052(31), Oct. 23, 1992, 106 Stat. 2501.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
1992—Par. (1)(D). Pub. L. 102–484 substituted “organized for profit purposes or nonprofit purposes” for “organized for-profit, or nonprofit purposes”.
1991—Par. (1)(D). Pub. L. 102–25, which directed the substitution of “for profit purposes or nonprofit” for “for-profit and nonprofit”, could not be executed because the words “for-profit and nonprofit” did not appear.
1989—Par. (1)(D). Pub. L. 101–189 substituted “section 4(l)” for “section 4(c)” and “25 U.S.C. 450b(l)” for “25 U.S.C. 450(c)”.
1988—Par. (1)(D). Pub. L. 100–456 inserted “, whether or not such economic enterprise is organized for-profit, or nonprofit purposes” before period at end.
1987—Par. (1)(D). Pub. L. 100–180, §807(b)(1), added subpar. (D).
Par. (2). Pub. L. 100–180, §807(b)(2), substituted “means—” for “means”, designated existing text beginning with “the area of a unit” as subpar. (A), redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, substituted “are available; or” for “are available.”, and added subpar. (B).
1986—Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 amended section generally identically, striking out in par. (1) reference to section 6302(5) and 6302(2) of title 31, in par. (2) substituting “The term ‘distressed area’ means the area of a unit of local government (or such area excluding the area of any defined political jurisdiction within the area of such unit of local government)” for “ ‘Distressed entity’ means an eligible entity (within the meaning of paragraph (1)(B))”, and adding par. (4).
1985—Pub. L. 99–145 amended section generally. Prior to amendment, section read as follows: “In this chapter:
“(1) ‘Eligible entity’ means a State (as defined in section 6302(5) of title 31), a local government (as defined in section 6302(2) of that title), or a private, nonprofit organization that enters into a cooperative agreement with the Secretary under this chapter to furnish procurement technical assistance to business entities and to defray at least one-half of the costs of furnishing such assistance.
“(2) ‘Secretary’ means the Secretary of Defense acting through the Director of the Defense Logistics Agency.”
Section 919(d) of Pub. L. 99–145 provided that: “The amendments made by subsections (a) and (b) [amending this section and sections 2412 to 2415 of this title] shall take effect on October 1, 1985.”
The purposes of the program authorized by this chapter are—
(1) to increase assistance by the Department of Defense to eligible entities furnishing procurement technical assistance to business entities; and
(2) to assist eligible entities in the payment of the costs of establishing and carrying out new procurement technical assistance programs and maintaining existing procurement technical assistance programs.
(Added Pub. L. 98–525, title XII, §1241(a)(1), Oct. 19, 1984, 98 Stat. 2605; amended Pub. L. 99–145, title IX, §919(a), Nov. 8, 1985, 99 Stat. 692.)
1985—Pub. L. 99–145 amended section generally, substituting “assistance by the Department of Defense to eligible entities” for “Department of Defense assistance for eligible entities” in par. (1).
Amendment by Pub. L. 99–145 effective Oct. 1, 1985, see section 919(d) of Pub. L. 99–145, set out as a note under section 2411 of this title.
(a) The Secretary, in accordance with the provisions of this chapter, may enter into cooperative agreements with eligible entities to carry out the purposes of this chapter.
(b) Under any such cooperative agreement, the eligible entity shall agree to sponsor programs to furnish procurement technical assistance to business entities and the Secretary shall agree to defray not more than one-half of the eligible entity's cost of furnishing such assistance under such programs, except that in the case of a program sponsored by such an entity that provides services solely in a distressed area, the Secretary may agree to furnish more than one-half, but not more than three-fourths, of such cost with respect to such program.
(c) In entering into cooperative agreements under subsection (a), the Secretary shall assure that at least one procurement technical assistance program is carried out in each Department of Defense contract administration services district during each fiscal year.
(d) In conducting a competition for the award of a cooperative agreement under subsection (a), and in determining the level of funding to provide under an agreement under subsection (b), the Secretary shall give significant weight to successful past performance of eligible entities under a cooperative agreement under this section.
(Added Pub. L. 98–525, title XII, §1241(a)(1), Oct. 19, 1984, 98 Stat. 2605; amended Pub. L. 99–145, title IX, §919(a), Nov. 8, 1985, 99 Stat. 692; Pub. L. 99–500, §101(c) [title X, §956(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–174, and Pub. L. 99–591, §101(c) [title X, §956(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–174; Pub. L. 99–661, div. A, title IX, formerly title IV, §956(b), Nov. 14, 1986, 100 Stat. 3954, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, and amended Pub. L. 100–180, div. A, title XII, §1233(b), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 105–261, div. A, title VIII, §802(a)(1), Oct. 17, 1998, 112 Stat. 2081; Pub. L. 107–314, div. A, title VIII, §814, Dec. 2, 2002, 116 Stat. 2610.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
2002—Subsec. (d). Pub. L. 107–314 added subsec. (d).
1998—Subsec. (c). Pub. L. 105–261 substituted “district” for “region”.
1987—Subsec. (b). Pub. L. 100–180 made technical amendment to directory language of Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661. See 1986 Amendment note below.
1986—Subsec. (b). Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661, as amended by Pub. L. 100–180, amended subsec. (b) identically, inserting “sponsor programs to” after first reference to “agree to”, “under such programs” after “such assistance”, and “with respect to such program” after “such cost” and substituting “a program sponsored by such an entity that provides services solely in a distressed area” for “an eligible entity that is a distressed entity”.
1985—Pub. L. 99–145 amended section generally, substituting “, in accordance with the provisions of this chapter, may enter” for “may, in accordance with the provisions of this chapter, enter” in subsec. (a), adding subsec. (b), and redesignating former subsec. (b) as (c).
Section 1233(c)(2) of Pub. L. 100–180 provided that: “The amendment made by subsection (b) [amending Public Laws 99–500, 99–591, and 99–661 which amended this section] shall apply as if included in the enactment of Public Laws 99–500, 99–591, and 99–661.”
Amendment by Pub. L. 99–145 effective Oct. 1, 1985, see section 919(d) of Pub. L. 99–145, set out as a note under section 2411 of this title.
(a)
(1) in the case of a program operating on a Statewide basis, other than a program referred to in clause (3) or (4), $600,000;
(2) in the case of a program operating on less than a Statewide basis, other than a program referred to in clause (3) or (4), $300,000;
(3) in the case of a program operated wholly within one service area of the Bureau of Indian Affairs by an eligible entity referred to in section 2411(1)(D) of this title, $150,000; or
(4) in the case of a program operated wholly within more than one service area of the Bureau of Indian Affairs by an eligible entity referred to in section 2411(1)(D) of this title, $600,000.
(b)
(Added Pub. L. 98–525, title XII, §1241(a)(1), Oct. 19, 1984, 98 Stat. 2606; amended Pub. L. 99–145, title IX, §919(a), Nov. 8, 1985, 99 Stat. 692; Pub. L. 100–456, div. A, title VIII, §841(a), Sept. 29, 1988, 102 Stat. 2025; Pub. L. 101–189, div. A, title VIII, §819(c), Nov. 29, 1989, 103 Stat. 1503; Pub. L. 102–25, title VII, §701(f)(7), Apr. 6, 1991, 105 Stat. 115; Pub. L. 107–107, div. A, title VIII, §813, Dec. 28, 2001, 115 Stat. 1181; Pub. L. 107–314, div. A, title VIII, §815, Dec. 2, 2002, 116 Stat. 2610; Pub. L. 109–163, div. A, title VIII, §824, Jan. 6, 2006, 119 Stat. 3387.)
2006—Subsec. (a)(2). Pub. L. 109–163 substituted “$300,000” for “$150,000”.
2002—Subsec. (a)(4). Pub. L. 107–314 substituted “$600,000” for “$300,000”.
2001—Subsec. (a)(1). Pub. L. 107–107 substituted “$600,000” for “$300,000”.
1991—Subsec. (b). Pub. L. 102–25 substituted “section 2411(1)(D)” for “section 2411(a)(1)(D)”.
1989—Subsec. (a). Pub. L. 101–189, §819(c)(1), added pars. (1) to (4) and struck out former pars. (1) and (2) which read as follows:
“(1) in the case of a program operating on a Statewide basis, $300,000; or
“(2) in the case of a program operating on less than a Statewide basis, $150,000.”
Subsec. (b). Pub. L. 101–189, §819(c)(2), inserted “or is operated wholly within one or more service areas of the Bureau of Indian Affairs by an eligible entity referred to in section 2411(a)(1)(D) of this title” after “or on less than a Statewide basis”.
1988—Pub. L. 100–456 amended section generally. Prior to amendment, section read as follows: “The value of the assistance furnished by the Secretary to any eligible entity to carry out a procurement technical assistance program under a cooperative agreement under this chapter during any fiscal year may not exceed $150,000.”
1985—Pub. L. 99–145 amended section generally, substituting “Secretary” for “Department of Defense” and “program under” for “program pursuant to”.
Amendment by Pub. L. 99–145 effective Oct. 1, 1985, see section 919(d) of Pub. L. 99–145, set out as a note under section 2411 of this title.
The Secretary shall allocate funds available for assistance under this chapter equally to each Department of Defense contract administrative services district. If in any such fiscal year there is an insufficient number of satisfactory proposals in a district for cooperative agreements to allow effective use of the funds allocated to that district, the funds remaining with respect to that district shall be reallocated among the remaining districts.
(Added Pub. L. 98–525, title XII, §1241(a)(1), Oct. 19, 1984, 98 Stat. 2606; amended Pub. L. 99–145, title IX, §919(b), Nov. 8, 1985, 99 Stat. 692; Pub. L. 100–180, div. A, title VIII, §807(c), Dec. 4, 1987, 101 Stat. 1128; Pub. L. 105–261, div. A, title VIII, §802(a)(2), (b), Oct. 17, 1998, 112 Stat. 2081; Pub. L. 106–398, §1 [[div. A], title X, §1087(d)(5)], Oct. 30, 2000, 114 Stat. 1654, 1654A–293.)
2000—Pub. L. 106–398 made technical amendment to directory language of Pub. L. 105–261, §802(b). See 1998 Amendment note below.
1998—Pub. L. 105–261, §802(a)(2), substituted “district” for “region” wherever appearing and “districts” for “regions”.
Pub. L. 105–261, §802(b), as amended by Pub. L. 106–398, substituted “Department of Defense contract administrative services” for “Defense Contract Administration Services”.
1987—Pub. L. 100–180, §807(c), struck out subsecs. (a) and (b) relating to requirement by Secretary of Defense to reserve 75% of first $3,000,000 appropriated to carry out this chapter for purpose of assisting cooperative agreements entered into under section 2413 of this title for fiscal years 1986 and 1987, and for fiscal years after 1987 the authority of Secretary to allocate funds in accordance with such cooperative agreements, and substituted “The” for “(c) For any amount appropriated to carry out this chapter for fiscal year 1986 or 1987 in excess of $3,000,000, the”.
1985—Subsec. (a)(2). Pub. L. 99–145, §919(b)(1)(A), substituted “fiscal years 1986 and 1987” for “fiscal year 1985 is 50 percent and during fiscal year 1986”.
Subsec. (a)(3). Pub. L. 99–145, §919(b)(1)(B), added par. (3).
Subsec. (b). Pub. L. 99–145, §919(b)(2), substituted “1987” for “1986”.
Subsec. (c). Pub. L. 99–145, §919(b)(3), added subsec. (c).
Pub. L. 106–398, §1 [[div. A], title X, §1087(d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–292, provided that the amendment made by section 1 [[div. A], title X, §1087(d)(5)] is effective Oct. 17, 1998, and as if included in the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Pub. L. 105–261, as enacted.
Amendment by Pub. L. 99–145 effective Oct. 1, 1985, see section 919(d) of Pub. L. 99–145, set out as a note under section 2411 of this title.
(a) The Secretary of Defense shall require that any defense contractor in any year shall provide to an eligible entity with which the Secretary has entered into a cooperative agreement under this chapter, on the request of such entity, the information specified in subsection (b).
(b) Information to be provided under subsection (a) is a listing of the name of each appropriate employee of the contractor who has responsibilities with respect to entering into contracts on behalf of such contractor that constitute subcontracts of contracts being performed by such contractor, together with the business address and telephone number and area of responsibility of each such employee.
(c) A defense contractor need not provide information under this section to a particular eligible entity more frequently than once a year.
(d) In this section, the term “defense contractor”, for any year, means a person awarded a contract with the Department of Defense in that year for an amount in excess of $1,000,000.
(Added Pub. L. 99–500, §101(c) [title X, §957(a)(1)(B)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–174, and Pub. L. 99–591, §101(c) [title X, §957(a)(1)(B)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–174; Pub. L. 99–661, div. A, title IX, formerly title IV, §957(a)(1)(B), Nov. 14, 1986, 100 Stat. 3954, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 108–375, div. A, title VIII, §816, Oct. 28, 2004, 118 Stat. 2015.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
A prior section 2416 was renumbered section 2419 of this title.
2004—Subsec. (d). Pub. L. 108–375 substituted “$1,000,000” for “$500,000”.
Section 101(c) [title X, §957(b)] of Pub. L. 99–500 and Pub. L. 99–591, and section 957(b) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “Section 2416 of title 10, United States Code, as added by subsection (a), shall take effect on January 1, 1987.”
The Director of the Defense Logistics Agency may use, out of the amount appropriated for a fiscal year for operation and maintenance for the procurement technical assistance program authorized by this chapter, an amount not exceeding three percent of such amount to defray the expenses of administering the provisions of this chapter during such fiscal year.
(Added Pub. L. 101–510, div. A, title VIII, §814(a)(1)(B), Nov. 5, 1990, 104 Stat. 1596.)
A prior section 2417 was renumbered section 2419 of this title.
Section 814(b) of Pub. L. 101–510 provided that: “Section 2417 of title 10, United States Code, as added by subsection (a), shall apply with respect to fiscal year 1991 and each fiscal year thereafter.”
(a) The procurement technical assistance furnished by eligible entities assisted by the Department of Defense under this chapter may include technical assistance relating to contracts entered into with (1) Federal departments and agencies other than the Department of Defense, and (2) State and local governments.
(b) An eligible entity assisted by the Department of Defense under this chapter also may furnish information relating to assistance and other programs available pursuant to the Defense Conversion, Reinvestment, and Transition Assistance Act of 1992.
(Added Pub. L. 102–484, div. D, title XLII, §4236(a)(1)(B), Oct. 23, 1992, 106 Stat. 2691.)
The Defense Conversion, Reinvestment, and Transition Assistance Act of 1992, referred to in subsec. (b), is division D of Pub. L. 102–484, Oct. 23, 1992, 106 Stat. 2658. For complete classification of division D to the Code, see Short Title note set out under section 2500 of this title and Tables.
A prior section 2418 was renumbered section 2419 of this title.
The Secretary of Defense shall prescribe regulations to carry out this chapter.
(Added Pub. L. 98–525, title XII, §1241(a)(1), Oct. 19, 1984, 98 Stat. 2606, §2416; renumbered §2417, Pub. L. 99–500, §101(c) [title X, §957(a)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–174, and Pub. L. 99–591, §101(c) [title X, §957(a)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–174, and Pub. L. 99–661, div. A, title IX, formerly title IV, §957(a)(1)(A), Nov. 14, 1986, 100 Stat. 3954, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; renumbered §2418, Pub. L. 101–510, div. A, title VIII, §814(a)(1)(A), Nov. 5, 1990, 104 Stat. 1596; renumbered §2419, Pub. L. 102–484, div. D, title XLII, §4236(a)(1)(A), Oct. 23, 1992, 106 Stat. 2691.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
1992—Pub. L. 102–484 renumbered section 2418 of this title as this section.
1990—Pub. L. 101–510 renumbered section 2417 of this title as this section.
1986—Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661, renumbered section 2416 of this title as this section.
1989—Pub. L. 101–189, div. A, title III, §§323(b), 324(b), Nov. 29, 1989, 103 Stat. 1414, 1415, added items 2423 and 2424.
1986—Pub. L. 99–661, div. A, title III, §312(b), Nov. 14, 1986, 100 Stat. 3852, added item 2422.
(a) Appropriations for the subsistence of members of the Army, Navy, Air Force, or Marine Corps are available for expenditures necessary in the operation, maintenance, and improvement of any plantation or farm, outside the United States and under the jurisdiction of the Army, Navy, Air Force, or Marine Corps, as the case may be, for furnishing fresh fruits and vegetables to the armed forces. However, no land may be acquired under this subsection.
(b) Fruits and vegetables produced under subsection (a) that are over the amount furnished or sold to the armed forces or to civilians serving with the armed forces may be sold only outside the United States.
(c) Of the persons employed by the United States under subsection (a), only nationals of the United States are entitled to the benefits provided by laws relating to the employment, work, compensation, or other benefits of civilian employees of the United States.
(d) A plantation or farm covered by subsection (a) shall be operated, maintained, and improved by a private contractor or lessee, so far as practicable. Before using members of the Army, Navy, Air Force, or Marine Corps, as the case may be, the Secretary concerned must make a reasonable effort to make a contract or lease with a person in civil life for his services for that operation, maintenance, or improvement, on terms advantageous to the United States. A determination by the Secretary as to the reasonableness of effort to make a contract or lease, and as to the advantageous nature of its terms, is final.
(Aug. 10, 1956, ch. 1041, 70A Stat. 138.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2421(a) 2421(b) |
10:1213 (less 1st and 2d provisos). 34:555a (less 1st and 2d provisos). 10:1213 (2d proviso). 34:555a (2d proviso). |
June 28, 1944, ch. 306; restated July 1, 1947, ch. 188, 61 Stat. 234; Oct. 31, 1951, ch. 654, §3(2), 65 Stat. 708. |
| 2421(c) | 10:1213 (1st proviso). | |
| 34:555a (1st proviso). | ||
| 2421(d) | 10:1214. | |
| 34:555b. |
In subsection (a), the word “management”, in 10:1213 and 34:555a, is omitted as covered by the word “operation”. The word “members” is substituted for the word “personnel”. The word “may” is substituted for the word “shall”. The words “any and all” and “the purpose of” are omitted as surplusage.
In subsections (a) and (b), the word “continental” is omitted, since section 101(1) of this title defines the United States to include the States and the District of Columbia.
In subsection (b), the words “of the United States” are omitted as surplusage. The words “Fruits and vegetables produced under subsection (a)” are substituted for the words “That surplus production”.
In subsection (c), the words “nationals of the United States” are substituted for the words “American nationals”. The words “civil-service laws and other * * * of the United States” and “rights * * * or obligations” are omitted as surplusage.
In subsection (d), the words “after the termination of the present war” are omitted as executed. The word “by” is substituted for the words “through the instrumentality of”. The words “partnership, association” are omitted as covered by the definition of “person” in section 1 of title 1. The words “United States” are substituted for the word “Government”. The words “management”, “for that purpose”, and “or agreement” are omitted as surplusage.
(a) The Secretary of Defense may authorize any element of the Department of Defense that procures bakery and dairy products for use by the armed forces outside the United States to procure any products described in subsection (b) through the use of procedures other than competitive procedures.
(b) The products referred to in subsection (a) are bakery or dairy products produced by the Army and Air Force Exchange Service in a facility outside the United States that began operating before July 1, 1986.
(Added Pub. L. 99–661, div. A, title III, §312(a), Nov. 14, 1986, 100 Stat. 3851.)
(a)
(b)
(Added Pub. L. 101–189, div. A, title III, §323(a), Nov. 29, 1989, 103 Stat. 1414.)
(a)
(b)
(2) Supplies provided under a contract entered into under subsection (a) shall be provided from the stocks of the exchange store on hand as of the date the contract is entered into with that exchange store.
(3) A contract entered into with an exchange store under subsection (a) may not provide for the procurement of services not regularly provided by that exchange store.
(c)
(Added Pub. L. 101–189, div. A, title III, §324(a), Nov. 29, 1989, 103 Stat. 1414; amended Pub. L. 103–355, title III, §3066, Oct. 13, 1994, 108 Stat. 3337; Pub. L. 104–106, div. D, title XLIII, §4321(b)(17), Feb. 10, 1996, 110 Stat. 673; Pub. L. 109–163, div. A, title VI, §671, Jan. 6, 2006, 119 Stat. 3319.)
2006—Subsec. (b). Pub. L. 109–163 substituted “$100,000” for “$50,000”.
1996—Subsec. (c). Pub. L. 104–106 inserted heading and substituted “particular beverage” for “particular drink” and “beverage was” for “drink was”.
1994—Subsec. (c). Pub. L. 103–355 added subsec. (c).
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Section 353 of Pub. L. 103–160 provided that:
“(a)
“(b)
2011—Pub. L. 111–383, div. A, title IX, §901(k)(2)(B), Jan. 7, 2011, 124 Stat. 4326, added item 2438.
2009—Pub. L. 111–23, title II, §206(a)(2), May 22, 2009, 123 Stat. 1728, added item 2433a.
2008—Pub. L. 110–417, [div. A], title VIII, §811(a)(2), Oct. 14, 2008, 122 Stat. 4521, added item 2430a.
2004—Pub. L. 108–375, div. A, title VIII, §805(a)(2), Oct. 28, 2004, 118 Stat. 2009, added item 2437.
2003—Pub. L. 108–136, div. A, title VIII, §822(a)(2), Nov. 24, 2003, 117 Stat. 1547, added item 2436.
1994—Pub. L. 103–355, title III, §§3005(b), 3006(b), 3007(b), Oct. 13, 1994, 108 Stat. 3331, substituted “Baseline description” for “Enhanced program stability” in item 2435 and struck out items 2438 “Major programs: competitive phototyping” and 2439 “Major programs: competitive alternative sources”.
1993—Pub. L. 103–160, div. A, title VIII, §828(a)(4), Nov. 30, 1993, 107 Stat. 1713, struck out items 2436 “Defense enterprise programs” and 2437 “Defense enterprise programs: milestone authorization”.
1992—Pub. L. 102–484, div. A, title VIII, §821(a)(2), div. D, title XLII, §4216(b)(2), Oct. 23, 1992, 106 Stat. 2460, 2670, added items 2438 and 2440 and redesignated former item 2438 as 2439.
1987—Pub. L. 100–26, §7(b)(1), (2)(B), (9)(B), Apr. 21, 1987, 100 Stat. 279, 280, substituted “Major Defense Acquisition Programs” for “Oversight of Cost Growth in Major Programs” in chapter heading, added item 2430, and transferred former item 2305a from chapter 137 and redesignated it as item 2438.
1986—Pub. L. 99–661, div. A, title XII, §1208(c)(2), Nov. 14, 1986, 100 Stat. 3976, inserted “; operational manpower requirements” in item 2434.
Pub. L. 99–500, §101(c) [title X, §§904(a)(2), 905(a)(2), 906(a)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–134, 1783–135, 1783–137, and Pub. L. 99–591, §101(c) [title X, §§904(a)(2), 905(a)(2), 906(a)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–134, 3341–135, 3341–137; Pub. L. 99–661, div. A, title IX, formerly title IV, §§904(a)(2), 905(a)(2), 906(a)(2), Nov. 14, 1986, 100 Stat. 3914–3916, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, added items 2435 to 2437.
Pub. L. 99–433, title I, §101(a)(4), Oct. 1, 1986, 100 Stat. 994, added chapter heading and analysis of sections for chapter 144, consisting of sections 2431 to 2434.
(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, including all planned increments or spirals, 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.
(c) For purposes of subsection (a)(2), the Secretary shall consider, as applicable, the following:
(1) The estimated level of resources required to fulfill the relevant joint military requirement, as determined by the Joint Requirements Oversight Council pursuant to section 181 of this title.
(2) The cost estimate referred to in section 2366a(a)(4) of this title.
(3) The cost estimate referred to in section 2366b(a)(1)(C) of this title.
(4) The cost estimate within a baseline description as required by section 2435 of this title.
(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; Pub. L. 111–23, title II, §206(b), May 22, 2009, 123 Stat. 1728.)
2009—Subsec. (a)(2). Pub. L. 111–23, §206(b)(1), inserted “, including all planned increments or spirals,” after “an eventual total expenditure for procurement”.
Subsec. (c). Pub. L. 111–23, §206(b)(2), added subsec. (c).
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).
Pub. L. 111–383, div. A, title VIII, §812, Jan. 7, 2011, 124 Stat. 4264, provided that:
“(a)
“(b)
“(1) require the use of manufacturing readiness levels as a basis for measuring, assessing, reporting, and communicating manufacturing readiness and risk on major defense acquisition programs throughout the Department of Defense;
“(2) provide guidance on the definition of manufacturing readiness levels and how manufacturing readiness levels should be used to assess manufacturing risk and readiness in major defense acquisition programs;
“(3) specify manufacturing readiness levels that should be achieved at key milestones and decision points for major defense acquisition programs;
“(4) identify tools and models that may be used to assess, manage, and reduce risks that are identified in the course of manufacturing readiness assessments for major defense acquisition programs; and
“(5) require appropriate consideration of the manufacturing readiness and manufacturing readiness processes of potential contractors and subcontractors as a part of the source selection process for major defense acquisition programs.
“(c)
“(1) the acquisition workforce chapter of the annual strategic workforce plan required by section 115b of title 10, United States Code, includes an assessment of the critical manufacturing readiness knowledge and skills needed in the acquisition workforce and a plan of action for addressing any gaps in such knowledge and skills; and
“(2) the need of the Department for manufacturing readiness knowledge and skills is given appropriate consideration, comparable to the consideration given to other program management functions, as the Department identifies areas of need for funding through the Defense Acquisition Workforce Development Fund established in accordance with the requirements of section 1705 of title 10, United States Code.
“(d)
Pub. L. 111–23, title I, §102(b), May 22, 2009, 123 Stat. 1714, as amended by Pub. L. 111–383, div. A, title VIII, §813(a), title IX, §901(l)(1), Jan. 7, 2011, 124 Stat. 4265, 4326, provided that:
“(1)
“(A) Developmental testing organizations with adequate numbers of trained personnel in order to—
“(i) ensure that developmental testing requirements are appropriately addressed in the translation of operational requirements into contract specifications, in the source selection process, and in the preparation of requests for proposals on all major defense acquisition programs;
“(ii) participate in the planning of developmental test and evaluation activities, including the preparation and approval of a developmental test and evaluation plan within the test and evaluation master plan for each major defense acquisition program; and
“(iii) participate in and oversee the conduct of developmental testing, the analysis of data, and the preparation of evaluations and reports based on such testing.
“(B) Development planning and systems engineering organizations with adequate numbers of trained personnel in order to—
“(i) support key requirements, acquisition, and budget decisions made for each major defense acquisition program prior to Milestone A approval and Milestone B approval through a rigorous systems analysis and systems engineering process;
“(ii) include a robust program for improving reliability, availability, maintainability, and sustainability as an integral part of design and development within the systems engineering master plan for each major defense acquisition program; and
“(iii) identify systems engineering requirements, including reliability, availability, maintainability, and lifecycle management and sustainability requirements, during the Joint Capabilities Integration Development System process, and incorporate such systems engineering requirements into contract requirements for each major defense acquisition program.
“(2)
“(A) such military department or Defense Agency has implemented, or is implementing, the plan required by paragraph (1); and
“(B) additional authorities or resources are needed to attract, develop, retain, and reward developmental test and evaluation personnel and systems engineers with appropriate levels of hands-on experience and technical expertise to meet the needs of such military department or Defense Agency.
“(3)
Pub. L. 111–23, title I, §103, May 22, 2009, 123 Stat. 1715, which authorized the Secretary of Defense to designate a senior official as responsible for performance assessments and root cause analyses for major defense acquisition programs, was transferred to chapter 144 of this title and redesignated as section 2438 by Pub. L. 111–383, div. A, title IX, §901(d), Jan. 7, 2011, 124 Stat. 4321.
Pub. L. 111–23, title II, §202, May 22, 2009, 123 Stat. 1720, provided that:
“(a)
“(1) measures to ensure competition, or the option of competition, at both the prime contract level and the subcontract level (at such tier or tiers as are appropriate) of such program throughout the life-cycle of such program as a means to improve contractor performance; and
“(2) adequate documentation of the rationale for the selection of the subcontract tier or tiers under paragraph (1).
“(b)
“(1) Competitive prototyping.
“(2) Dual-sourcing.
“(3) Unbundling of contracts.
“(4) Funding of next-generation prototype systems or subsystems.
“(5) Use of modular, open architectures to enable competition for upgrades.
“(6) Use of build-to-print approaches to enable production through multiple sources.
“(7) Acquisition of complete technical data packages.
“(8) Periodic competitions for subsystem upgrades.
“(9) Licensing of additional suppliers.
“(10) Periodic system or program reviews to address long-term competitive effects of program decisions.
“(c)
“(1) requiring prime contractors to give full and fair consideration to qualified sources other than the prime contractor for the development or construction of major subsystems and components of major weapon systems;
“(2) providing for government surveillance of the process by which prime contractors consider such sources and determine whether to conduct such development or construction in-house or through a subcontract; and
“(3) providing for the assessment of the extent to which a contractor has given full and fair consideration to qualified sources other than the contractor in sourcing decisions as a part of past performance evaluations.
“(d)
“(e)
“(1)
“(2)
Pub. L. 111–23, title II, §203, May 22, 2009, 123 Stat. 1722, as amended by Pub. L. 111–383, div. A, title VIII, §813(b), Jan. 7, 2011, 124 Stat. 4265, provided that:
“(a)
“(1) That the acquisition strategy for each major defense acquisition program provides for competitive prototypes before Milestone B approval (or Key Decision Point B approval in the case of a space program) unless the Milestone Decision Authority for such program waives the requirement pursuant to paragraph (2).
“(2) That the Milestone Decision Authority may waive the requirement in paragraph (1) only—
“(A) on the basis that the cost of producing competitive prototypes exceeds the expected life-cycle benefits (in constant dollars) of producing such prototypes, including the benefits of improved performance and increased technological and design maturity that may be achieved through competitive prototyping; or
“(B) on the basis that, but for such waiver, the Department would be unable to meet critical national security objectives.
“(3) That whenever a Milestone Decision Authority authorizes a waiver pursuant to paragraph (2), the Milestone Decision Authority—
“(A) shall require that the program produce a prototype before Milestone B approval (or Key Decision Point B approval in the case of a space program) if the expected life-cycle benefits (in constant dollars) of producing such prototype exceed its cost and its production is consistent with achieving critical national security objectives; and
“(B) shall notify the congressional defense committees in writing not later than 30 days after the waiver is authorized and include in such notification the rationale for the waiver and the plan, if any, for producing a prototype.
“(4) That prototypes—
“(A) may be required under paragraph (1) or (3) for the system to be acquired or, if prototyping of the system is not feasible, for critical subsystems of the system; and
“(B) may be acquired from commercial, government, or academic sources.
“(b)
“(1)
“(2)
“(A) review the rationale for the waiver; and
“(B) submit to the congressional defense committees a written assessment of the rationale for the waiver.”
Pub. L. 111–23, title II, §207(a)–(c), May 22, 2009, 123 Stat. 1728, 1729, provided that:
“(a)
“(b)
“(1) address organizational conflicts of interest that could arise as a result of—
“(A) lead system integrator contracts on major defense acquisition programs and contracts that follow lead system integrator contracts on such programs, particularly contracts for production;
“(B) the ownership of business units performing systems engineering and technical assistance functions, professional services, or management support services in relation to major defense acquisition programs by contractors who simultaneously own business units competing to perform as either the prime contractor or the supplier of a major subsystem or component for such programs;
“(C) the award of major subsystem contracts by a prime contractor for a major defense acquisition program to business units or other affiliates of the same parent corporate entity, and particularly the award of subcontracts for software integration or the development of a proprietary software system architecture; or
“(D) the performance by, or assistance of, contractors in technical evaluations on major defense acquisition programs;
“(2) ensure that the Department of Defense receives advice on systems architecture and systems engineering matters with respect to major defense acquisition programs from federally funded research and development centers or other sources independent of the prime contractor;
“(3) require that a contract for the performance of systems engineering and technical assistance functions for a major defense acquisition program contains a provision prohibiting the contractor or any affiliate of the contractor from participating as a prime contractor or a major subcontractor in the development or construction of a weapon system under the program; and
“(4) establish such limited exceptions to the requirement in paragraphs (2) and (3) as may be necessary to ensure that the Department of Defense has continued access to advice on systems architecture and systems engineering matters from highly-qualified contractors with domain experience and expertise, while ensuring that such advice comes from sources that are objective and unbiased.
“(c)
“(1)
“(2)
“(A) The recommendations presented by the Panel on Contracting Integrity pursuant to paragraph (1).
“(B) Any findings and recommendations of the Administrator for Federal Procurement Policy and the Director of the Office of Government Ethics pursuant to section 841(b) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417; 122 Stat. 4539) [41 U.S.C. 2303 note].”
Pub. L. 110–417, [div. A], title VIII, §814, Oct. 14, 2008, 122 Stat. 4528, provided that:
“(a)
“(b)
“(1)
“(2)
“(A) The Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics.
“(B) The Chief of Staff of the Armed Force concerned.
“(C) Other Armed Forces, as appropriate.
“(D) The Joint Staff.
“(E) The Comptroller of the military department concerned.
“(F) The military deputy to the service acquisition executive concerned.
“(G) The program executive officer for the major defense acquisition program concerned.
“(H) Other senior representatives of the Office of the Secretary of Defense and the military department concerned, as appropriate.
“(c)
“(1)
“(A) Preventing unnecessary changes to program requirements and system configuration that could have an adverse impact on program cost or schedule.
“(B) Mitigating the adverse cost and schedule impact of any changes to program requirements or system configuration that may be required.
“(C) Ensuring that the program delivers as much planned capability as possible, at or below the relevant program baseline.
“(2)
“(A) review and approve or disapprove any proposed changes to program requirements or system configuration that have the potential to adversely impact program cost or schedule; and
“(B) review and recommend proposals to reduce program requirements that have the potential to improve program cost or schedule in a manner consistent with program objectives.
“(3)
“(4)
“(5)
“(A) increase the cost (including any increase for expected inflation or currency exchange rates) for system development and demonstration by more than 25 percent; or
“(B) extend the schedule for key events by more than 15 percent of the total number of months between the award of the system development and demonstration contract and the scheduled Milestone C approval date,
unless the Under Secretary of Defense for Acquisition, Technology, and Logistics certifies to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], and includes in the certification supporting rationale, that approving such alteration to program requirements or system configuration is in the best interest of the Department of Defense despite the cost and schedule impacts to system development and demonstration of such program.
“(d)
“(1)
“(2)
“(e)
“(1) [Amended section 853(d)(2) of Pub. L. 109–364, set out below.]
“(2)
“(f)
Pub. L. 110–417, [div. A], title VIII, §815, Oct. 14, 2008, 122 Stat. 4530, provided that:
“(a)
“(1) require that the milestone decision authority approve a plan, including the identification of any contract clauses, facilities, and funding required, for the preservation and storage of such tooling prior to Milestone C approval;
“(2) require that the milestone decision authority periodically review the plan required by paragraph (1) prior to the end of the service life of the end item, to ensure that the preservation and storage of such tooling remains adequate and in the best interest of the Department of Defense;
“(3) provide a mechanism for the Secretary to waive the requirement for preservation and storage of unique production tooling, or any category of unique production tooling, if the Secretary—
“(A) makes a written determination that such a waiver is in the best interest of the Department of Defense; and
“(B) notifies the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of the waiver upon making such determination; and
“(4) provide such criteria as necessary to guide a determination made pursuant to paragraph (3)(A).
“(b)
“(1)
“(2)
“(3)
Pub. L. 110–181, div. A, title IX, §908(d), Jan. 28, 2008, 122 Stat. 278, provided that: “Each Principal Military Deputy to a service acquisition executive shall be responsible for keeping the Chief of Staff of the Armed Forces concerned informed of the progress of major defense acquisition programs.”
Pub. L. 109–364, div. A, title VIII, §801, Oct. 17, 2006, 120 Stat. 2312, provided that:
“(a)
“(1)
“(2)
“(b)
“(c)
Pub. L. 109–364, div. A, title VIII, §853, Oct. 17, 2006, 120 Stat. 2342, as amended by Pub. L. 110–417, [div. A], title VIII, §814(e)(1), Oct. 14, 2008, 122 Stat. 4530, provided that:
“(a)
“(b)
“(1) enhanced training and educational opportunities for program managers;
“(2) increased emphasis on the mentoring of current and future program managers by experienced senior executives and program managers within the Department;
“(3) improved career paths and career opportunities for program managers;
“(4) additional incentives for the recruitment and retention of highly qualified individuals to serve as program managers;
“(5) improved resources and support (including systems engineering expertise, cost estimating expertise, and software development expertise) for program managers;
“(6) improved means of collecting and disseminating best practices and lessons learned to enhance program management throughout the Department;
“(7) common templates and tools to support improved data gathering and analysis for program management and oversight purposes;
“(8) increased accountability of program managers for the results of defense acquisition programs; and
“(9) enhanced monetary and nonmonetary awards for successful accomplishment of program objectives by program managers.
“(c)
“(d)
“(1) the need for a performance agreement between a program manager and the milestone decision authority for the program, setting forth expected parameters for cost, schedule, and performance, and appropriate commitments by the program manager and the milestone decision authority to ensure that such parameters are met;
“(2) authorities available to the program manager, including—
“(A) the authority to object to the addition of new program requirements that would be inconsistent with the parameters established at Milestone B (or Key Decision Point B in the case of a space program) and reflected in the performance agreement, unless such requirements are approved by the appropriate Configuration Steering Board; and
“(B) the authority to recommend to the appropriate Configuration Steering Board reduced program requirements that have the potential to improve program cost or schedule in a manner consistent with program objectives; and
“(3) the extent to which a program manager for such period should continue in the position without interruption until the delivery of the first production units of the program.
“(e)
“(1)
“(2)
Pub. L. 108–136, div. A, title IX, §924, Nov. 24, 2003, 117 Stat. 1576, provided that:
“(a)
“(b)
“(2) The Secretary of Defense (acting through the Under Secretary of Defense for Acquisition, Technology, and Logistics) shall designate those projects under the National Security Agency Modernization Program that are to be managed as major defense acquisition programs.
“(c)
“(A) Each project of the National Security Agency Modernization Program that is to be managed as a major defense acquisition program, as designated under subsection (b).
“(B) Each major system under the National Security Agency Modernization Program.
“(2) The limitation in paragraph (1) shall terminate on, and the Under Secretary may delegate the milestone decision authority referred to in paragraph (1) to the Director of the National Security Agency at any time after, the date that is the later of—
“(A) September 30, 2005, or
“(B) the date on which the Under Secretary submits to the appropriate committees of Congress a notification described in paragraph (3).
“(3) A notification described in this paragraph is a notification by the Under Secretary of the Under Secretary's intention to delegate the milestone decision authority referred to in paragraph (1) to the Director of the National Security Agency, together with a detailed discussion of the justification for that delegation. Such a notification may not be submitted until—
“(A) the Under Secretary has determined (after consultation with the Under Secretary of Defense for Intelligence and the Deputy Director of Central Intelligence for Community Management) that the Director has implemented acquisition management policies, procedures, and practices that are sufficient to ensure that acquisitions by the National Security Agency are conducted in a manner consistent with sound, efficient acquisition practices;
“(B) the Under Secretary has consulted with the Under Secretary of Defense for Intelligence and the Deputy Director of Central Intelligence for Community Management on the delegation of such milestone decision authority to the Director; and
“(C) the Secretary of Defense has approved the delegation of such milestone decision authority to the Director.
“(d)
“(1) The Trailblazer project.
“(2) The Groundbreaker project.
“(3) Each cryptological mission management project.
“(4) Each other project of that Agency that—
“(A) meets either of the dollar thresholds in effect under paragraph (2) of section 2430(a) of title 10, United States Code; and
“(B) is determined by the Under Secretary of Defense for Acquisition, Technology, and Logistics as being a major project that is within, or properly should be within, the National Security Agency Modernization Project.
“(e)
“(1)
“(2)
“(A) The Committee on Armed Services and the Select Committee on Intelligence of the Senate.
“(B) The Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.”
Pub. L. 107–314, div. A, title VIII, §803, Dec. 2, 2002, 116 Stat. 2603, provided that:
“(a)
“(b)
“(c)
“(1) A rationale for dividing the research and development program into separate spirals, together with a preliminary identification of the spirals to be included.
“(2) A program strategy, including overall cost, schedule, and performance goals for the total research and development program.
“(3) Specific cost, schedule, and performance parameters, including measurable exit criteria, for the first spiral to be conducted.
“(4) A testing plan to ensure that performance goals, parameters, and exit criteria are met.
“(5) An appropriate limitation on the number of prototype units that may be produced under the research and development program.
“(6) Specific performance parameters, including measurable exit criteria, that must be met before the major defense acquisition program proceeds into production of units in excess of the limitation on the number of prototype units.
“(d)
“(e)
“(f)
“(g)
“(1) The term ‘spiral development program’, with respect to a research and development program, means a program that—
“(A) is conducted in discrete phases or blocks, each of which will result in the development of fieldable prototypes; and
“(B) will not proceed into acquisition until specific performance parameters, including measurable exit criteria, have been met.
“(2) The term ‘spiral’ means one of the discrete phases or blocks of a spiral development program.
“(3) The term ‘major defense acquisition program’ has the meaning given such term in section 139(a)(2)(B) of title 10, United States Code.”
Pub. L. 103–337, div. A, title VIII, §815, Oct. 5, 1994, 108 Stat. 2819, provided that:
“(a)
“(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)
“(c)
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.”
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.”
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)
“(b)
“(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)
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)
“(1)
“(2)
“(3)
“(4)
“(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)
“(b)
“(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)
“(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 2302 of this title]; 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)
“(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)
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)
“(b)
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)
“(b)
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)
“(b)
“(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)
“(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)
“(e)
“(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)
“(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)
Pub. L. 111–23, §2, May 22, 2009, 123 Stat. 1704, provided that: “In this Act [see Short Title of 2009 Amendment note set out under section 101 of this title]:
“(1) The term ‘congressional defense committees’ has the meaning given that term in section 101(a)(16) of title 10, United States Code.
“(2) The term ‘major defense acquisition program’ has the meaning given that term in section 2430 of title 10, United States Code.
“(3) The term ‘major weapon system’ has the meaning given that term in section 2379(d) [probably means section 2379(f)] of title 10, United States Code.”
(a)
(2) The Secretary shall notify the congressional defense committees in writing of any proposed designation pursuant to paragraph (1) not less than 30 days before the date such designation takes effect.
(b)
(A) for the major defense acquisition program as a whole (other than as provided in paragraph (2)); and
(B) for each major subprogram of the major defense acquisition program so designated.
(2) For a major defense acquisition program for which a designation of a major subprogram has been made under subsection (a), unit costs under this chapter shall be submitted in accordance with the definitions in subsection (d).
(c)
(d)
(1) the term “program acquisition unit cost” applies at the level of the subprogram and means the total cost for the development and procurement of, and specific military construction for, the major defense acquisition program that is reasonably allocable to each such major subprogram, divided by the relevant number of fully-configured end items to be produced under such major subprogram;
(2) the term “procurement unit cost” applies at the level of the subprogram and means the total of all funds programmed to be available for obligation for procurement for each such major subprogram, divided by the number of fully-configured end items to be procured under such major subprogram;
(3) the term “major contract”, with respect to a designated major subprogram, means each of the six largest prime, associate, or Government furnished equipment contracts under the subprogram that is in excess of $40,000,000 and that is not a firm-fixed price contract; and
(4) the term “life cycle cost”, with respect to a designated major subprogram, means all costs of development, procurement, military construction, and operations and support, without regard to funding source or management control.
(Added Pub. L. 110–417, [div. A], title VIII, §811(a)(1), Oct. 14, 2008, 122 Stat. 4520; amended Pub. L. 111–383, div. A, title VIII, §814(a), Jan. 7, 2011, 124 Stat. 4266.)
2011—Subsec. (b). Pub. L. 111–383 designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), inserted “(other than as provided in paragraph (2))” before semicolon in subpar. (A), and added par. (2).
(a) The Secretary of Defense shall submit to Congress each calendar year, not later than 45 days after the President submits the budget to Congress under section 1105 of title 31, budget justification documents regarding development and procurement schedules for each weapon system for which fund authorization is required by section 114(a) of this title, and for which any funds for procurement are requested in that budget. The documents shall include data on operational testing and evaluation for each weapon system for which funds for procurement are requested (other than funds requested only for the procurement of units for operational testing and evaluation, or long lead-time items, or both). A weapon system shall also be included in the annual documents required under this subsection in each year thereafter until procurement of that system has been completed or terminated, or the Secretary of Defense certifies, in writing, that such inclusion would not serve any useful purpose and gives his reasons therefor.
(b) Any documents required to be submitted under subsection (a) shall include detailed and summarized information with respect to each weapon system covered and shall specifically include each of the following:
(1) The development schedule, including estimated annual costs until development is completed.
(2) The planned procurement schedule, including the best estimate of the Secretary of Defense of the annual costs and units to be procured until procurement is completed.
(3) To the extent required by the second sentence of subsection (a), the result of all operational testing and evaluation up to the time of the submission of the documents, or, if operational testing and evaluation has not been conducted, a statement of the reasons therefor and the results of such other testing and evaluation as has been conducted.
(4)(A) The most efficient production rate, the most efficient acquisition rate, and the minimum sustaining rate, consistent with the program priority established for such weapon system by the Secretary concerned.
(B) In this paragraph:
(i) The term “most efficient production rate” means the maximum rate for each budget year at which the weapon system can be produced with existing or planned plant capacity and tooling, with one shift a day running for eight hours a day and five days a week.
(ii) The term “minimum sustaining rate” means the production rate for each budget year that is necessary to keep production lines open while maintaining a base of responsive vendors and suppliers.
(c) In the case of any weapon system for which procurement funds have not been previously requested and for which funds are first requested by the President in any fiscal year after the Budget for that fiscal year has been submitted to Congress, the same documentation requirements shall be applicable to that system in the same manner and to the same extent as if funds had been requested for that system in that budget.
(Added Pub. L. 93–155, title VIII, §803(a), Nov. 16, 1973, 87 Stat. 614, §139; amended Pub. L. 94–106, title VIII, §805, Oct. 7, 1975, 89 Stat. 538; Pub. L. 96–513, title V, §511(5), Dec. 12, 1980, 94 Stat. 2920; Pub. L. 97–86, title IX, §909(c), Dec. 1, 1981, 95 Stat. 1120; Pub. L. 97–258, §3(b)(1), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 98–525, title XIV, §1405(3), Oct. 19, 1984, 98 Stat. 2621; renumbered §2431 and amended Pub. L. 99–433, title I, §§101(a)(5), 110(d)(12), (g)(6), Oct. 1, 1986, 100 Stat. 995, 1003, 1004; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–510, div. A, title XIII, §1301(13), title XIV, §1484(f)(3), Nov. 5, 1990, 104 Stat. 1668, 1717; Pub. L. 103–355, title III, §3001, Oct. 13, 1994, 108 Stat. 3327; Pub. L. 104–106, div. D, title XLIII, §4321(b)(18), Feb. 10, 1996, 110 Stat. 673.)
Provisions similar to those in this section were contained in Pub. L. 92–156, title V, §506, Nov. 17, 1971, 85 Stat. 429, prior to repeal by Pub. L. 93–155, §803(b)(2).
1996—Subsec. (b). Pub. L. 104–106, §4321(b)(18)(A)(i), substituted “Any documents” for “Any report” in first sentence.
Subsec. (b)(3). Pub. L. 104–106, §4321(b)(18)(A)(ii), substituted “the documents” for “the report”.
Subsec. (c). Pub. L. 104–106, §4321(b)(18)(B), substituted “documentation” for “reporting”.
1994—Subsec. (a). Pub. L. 103–355, §3001(a), substituted “not later than 45 days after” for “at the same time” and “budget justification documents” for “a written report” in first sentence and “documents” for “report” in second and third sentences.
Subsec. (b). Pub. L. 103–355, §3001(b)(1), substituted “include each of the following:” for “include—” in introductory provisions.
Subsec. (b)(1) to (3). Pub. L. 103–355, §3001(b)(2)–(4), capitalized first letter of first word in pars. (1) to (3) and substituted period for semicolon at end of pars. (1) and (2) and period for “; and” at end of par. (3).
Subsec. (b)(4). Pub. L. 103–355, §3001(b)(5) amended par. (4) generally. Prior to amendment, par. (4) read as follows: “the most efficient production rate and the most efficient acquisition rate consistent with the program priority established for such weapon system by the Secretary concerned.”
1990—Subsec. (b). Pub. L. 101–510, §1484(f)(3), substituted “covered and shall specifically include” for “covered, and specifically include, but not be limited to” in introductory provisions.
Pub. L. 101–510, §1301(13), redesignated subsec. (c) as (b), struck out “or (b)” after “under subsection (a)”, and struck out former subsec. (b) which read as follows: “The Secretary of Defense shall submit a supplemental report to Congress not less than 30, or more than 90, days before the award of any contract, or the exercise of any option in a contract, for the procurement of any such weapon system (other than procurement of units for operational testing and evaluation, or long lead-time items, or both), unless—
“(1) the contractor or contractors for that system have not yet been selected and the Secretary of Defense determines that the submission of that report would adversely affect the source selection process and notifies Congress in writing, prior to such award, of that determination, stating his reasons therefor; or
“(2) the Secretary of Defense determines that the submission of that report would otherwise adversely affect the vital security interests of the United States and notifies Congress in writing of that determination at least 30 days prior to the award, stating his reasons therefor.”
Subsecs. (c), (d). Pub. L. 101–510, §1301(13)(C), redesignated subsecs. (c) and (d) as (b) and (c), respectively.
1987—Pub. L. 100–180 made technical amendment to directory language of Pub. L. 99–433, §101(a)(5). See 1986 Amendment note below.
1986—Pub. L. 99–433, §101(a)(5), as amended by Pub. L. 100–180, §1314(a)(1), renumbered section 139 of this title as this section.
Pub. L. 99–433, §110(d)(12), substituted “Weapons development and procurement schedules” for “Secretary of Defense: weapons development and procurement schedules for armed forces; reports; supplemental reports” in section catchline.
Subsec. (a). Pub. L. 99–433, §110(g)(6), substituted “section 114(a)” for “section 138(a)”.
1984—Subsec. (b). Pub. L. 98–525, §1405(3)(B), substituted “30” for “thirty” and “90” for “ninety” in introductory text.
Subsec. (b)(2). Pub. L. 98–525, §1405(3)(A), substituted “30” for “thirty”.
1982—Subsec. (a). Pub. L. 97–258 substituted “section 1105 of title 31” for “section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11)”.
1981—Subsec. (c)(4). Pub. L. 97–86 added par. (4).
1980—Subsec. (a). Pub. L. 96–513 substituted “section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11)” for “section 11 of title 31”.
1975—Subsec. (b). Pub. L. 94–106 substituted “or more than ninety, days before” for “or more than sixty, days before”.
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Amendment by Pub. L. 100–180 applicable as if included in enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. 99–433, see section 1314(e) of Pub. L. 100–180, set out as a note under section 743 of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Pub. L. 111–383, div. A, title II, §223(a)–(d), Jan. 7, 2011, 124 Stat. 4168, 4169, provided that:
“(a)
“(1) any nation agreeing to host such system has signed and ratified a missile defense basing agreement and a status of forces agreement authorizing the deployment of such interceptors; and
“(2) a period of 45 days has elapsed following the date on which the Secretary of Defense submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] the report on the independent assessment of alternative missile defense systems in Europe required by section 235(c)(2) of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 123 Stat. 2235).
“(b)
“(c)
“(1) the Secretary submits to the congressional defense committees written certification that the waiver is in the urgent national security interests of the United States; and
“(2) a period of seven days has elapsed following the date on which the certification under paragraph (1) is submitted.
“(d)
“(1) research, development, test and evaluation;
“(2) site surveys;
“(3) studies and analyses; and
“(4) site planning and design and construction design.”
Pub. L. 111–84, div. A, title II, §234, Oct. 28, 2009, 123 Stat. 2234, set forth reporting requirements for the use of Department of Defense funds for the acquisition or deployment of operational missiles of a long-range missile defense system in Europe, prior to repeal by Pub. L. 111–383, div. A, title II, §223(e), Jan. 7, 2011, 124 Stat. 4169.
Pub. L. 110–417, [div. A], title II, §233, Oct. 14, 2008, 122 Stat. 4393, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(3), Jan. 7, 2011, 124 Stat. 4374, provided that:
“(a)
“(1) In the case of the proposed midcourse radar element of such missile defense system, the host nation has signed and ratified the missile defense basing agreement and status of forces agreement that allow for the stationing in such nation of the radar and personnel to carry out the proposed deployment.
“(2) In the case of the proposed long-range missile defense interceptor site element of such missile defense system—
“(A) the condition in paragraph (1) has been met; and
“(B) the host nation has signed and ratified the missile defense basing agreement and status of forces agreement that allow for the stationing in such nation of the interceptor site and personnel to carry out the proposed deployment.
“(3) In the case of either element of such missile defense system described in paragraph (1) or (2), 45 days have elapsed following the receipt by the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of the report required by section 226(c)(6) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181; 122 Stat. 43).
“(b)
“(c)
Pub. L. 110–181, div. A, title II, §229, Jan. 28, 2008, 122 Stat. 45, provided that:
“(a)
“(1) pose a threat to—
“(A) the forward-deployed forces of the United States;
“(B) North Atlantic Treaty Organization (NATO) allies in Europe; and
“(C) other allies and friendly foreign countries in the region; and
“(2) eventually could pose a threat to the United States homeland.
“(b)
“(1) to develop, test, and deploy, as soon as technologically feasible, in conjunction with allies and friendly foreign countries whenever possible, an effective defense against the threat from Iran described in subsection (a) that will provide protection—
“(A) for the forward-deployed forces of the United States, NATO allies, and other allies and friendly foreign countries in the region; and
“(B) for the United States homeland;
“(2) to encourage the NATO alliance to accelerate its efforts to—
“(A) protect NATO territory in Europe against the existing threat of Iranian short- and medium-range ballistic missiles; and
“(B) facilitate the ability of NATO allies to acquire the missile defense systems needed to provide a wide-area defense capability against short- and medium-range ballistic missiles; and
“(3) to proceed with the activities specified in paragraphs (1) and (2) in a manner such that any missile defense systems fielded by the United States in Europe are integrated with or complementary to missile defense systems fielded by NATO in Europe.”
Pub. L. 109–364, div. A, title II, §223, Oct. 17, 2006, 120 Stat. 2130, provided that:
“(a)
“(1) In response to the threat posed by ballistic missiles, President George W. Bush in December 2002 directed the Secretary of Defense to proceed with the fielding of an initial set of missile defense capabilities in 2004 and 2005.
“(2) According to assessments by the intelligence community of the United States, North Korea tested in 2005 a new solid propellant short-range ballistic missile, conducted a launch of a Taepodong-2 ballistic missile/space launch vehicle in 2006, and is likely developing intermediate-range and intercontinental ballistic missile capabilities that could someday reach as far as the United States with a nuclear payload.
“(3) According to assessments by the intelligence community of the United States, Iran continued in 2005 to test its medium-range ballistic missile, and the danger that Iran will acquire a nuclear weapon and integrate it with a ballistic missile Iran already possesses is a reason for immediate concern.
“(b)
Pub. L. 109–163, div. A, title II, §234, Jan. 6, 2006, 119 Stat. 3174, as amended by Pub. L. 109–364, div. A, title II, §225, Oct. 17, 2006, 120 Stat. 2130, provided that:
“(a)
“(1)
“(2)
“(A) carried out in coordination with the Missile Defense Agency; and
“(B) subject to the review and approval of the Director of Operational Test and Evaluation.
“(3)
“(b)
“(1) the assessment of the Director as to whether or not the test and evaluation was adequate to evaluate the operational capability of the block; and
“(2) the characterization of the Director as to the operational effectiveness, suitability, and survivability of the block, as appropriate for the level of technological maturity of the block tested.”
Pub. L. 108–375, div. A, title II, §232, Oct. 28, 2004, 118 Stat. 1835, provided that:
“(a)
“(b)
“(c)
“(2) With respect to a proposal by the Secretary of the Army to make a significant change to the procurement quantity (including any quantity in any future block procurement) that, as of the date of such proposal, is planned for the PAC–3/MEADS program, the Secretary of Defense shall establish—
“(A) procedures for a determination of the effect of such change on Ballistic Missile Defense System capabilities and on the cost of the PAC–3/MEADS program; and
“(B) procedures for review of the proposed change by all relevant commands and agencies of the Department of Defense, including determination of the concurrence or nonconcurrence of each such command and agency with respect to such proposed change.
“(d)
“(e)
“(1) The term ‘significant change’ means, with respect to the PAC–3/MEADS program, a change that would substantially alter the role or contribution of that program in the Ballistic Missile Defense System.
“(2) The term ‘baseline technical specifications’ means, with respect to the PAC–3/MEADS program, those technical specifications for that program that have been approved by the configuration control board of the Missile Defense Agency and are in effect as of the date of the review.
“(3) The term ‘baseline schedule’ means, with respect to the PAC–3/MEADS program, the development and production schedule for the PAC–3/MEADS program in effect at the time of a review of such program conducted pursuant to subsection (b) or (c)(2)(B).”
Pub. L. 108–375, div. A, title II, §234, Oct. 28, 2004, 118 Stat. 1837, provided that:
“(a)
“(b)
“(2) The Secretary of Defense shall ensure that each block configuration of the ballistic missile defense system is tested consistent with the criteria prescribed under subsection (a).
“(c)
“(d)
“(2) The Director shall submit to the Secretary of Defense and the congressional defense committees [Committees on Armed Services and Appropriations of Senate and House of Representatives] a report on the evaluation of each test conducted under subsection (a) upon completion of the evaluation of such test under paragraph (1).
“(e)
“(2) The Director shall include the baselines established under paragraph (1) in the first Selected Acquisition Report for the Ballistic Missile Defense System that is submitted to Congress under section 2432 of title 10, United States Code, after the establishment of such baselines.
“(3) The Director shall also include in the Selected Acquisition Report submitted to Congress under paragraph (2) the significant assumptions used in determining the performance baseline under paragraph (1), including any assumptions regarding threat missile countermeasures and decoys.
“(f)
“(g)
Pub. L. 107–314, div. A, title II, §221, Dec. 2, 2002, 116 Stat. 2484, provided that:
“(a)
“(A) for those ballistic missile defense systems under development by the Missile Defense Agency that could be fielded; and
“(B) for any other ballistic missile defense program or project that has been designated by Congress as a special interest item.
“(2) Such performance goals and development baselines shall be provided for each block of each such system.
“(3) The performance goals and development baselines under paragraph (1) shall be included annually with the defense budget justification materials submitted in support of the President's budget submitted to Congress under section 1105 of title 31, United States Code.
“(b)
“(c)
“(2) The Secretary shall include the results of such review with the first annual statement of program goals submitted to the congressional defense committees under section 232(c) of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107–107; 10 U.S.C. 2431 note) after the date of the enactment of this Act [Dec. 2, 2002].”
Pub. L. 107–314, div. A, title II, §224, Dec. 2, 2002, 116 Stat. 2485, provided that:
“(a)
“(b)
“(1) A thorough discussion of the content and objectives of the test.
“(2) For each such test objective, a statement regarding whether or not the objective was achieved.
“(3) For any such test objective not achieved—
“(A) a thorough discussion describing the reasons that the objective was not achieved; and
“(B) a discussion of any plans for future tests to achieve that objective.”
Pub. L. 107–107, div. A, title II, §232(c)–(h), Dec. 28, 2001, 115 Stat. 1037–1039, as amended by Pub. L. 107–314, div. A, title II, §225(b)(2)(A), Dec. 2, 2002, 116 Stat. 2486; Pub. L. 108–136, div. A, title II, §221(b)(2), (c)(2), Nov. 24, 2003, 117 Stat. 1419; Pub. L. 108–375, div. A, title II, §233, Oct. 28, 2004, 118 Stat. 1836; Pub. L. 109–163, div. A, title II, §232, Jan. 6, 2006, 119 Stat. 3174; Pub. L. 109–364, div. A, title II, §224, Oct. 17, 2006, 120 Stat. 2130; Pub. L. 110–181, div. A, title II, §225, Jan. 28, 2008, 122 Stat. 41; Pub. L. 110–417, [div. A], title II, §231(a), (b), Oct. 14, 2008, 122 Stat. 4390, 4391; Pub. L. 111–383, div. A, title X, §1075(e)(2), Jan. 7, 2011, 124 Stat. 4374, provided that:
“(c)
“(2) The statement of goals submitted under paragraph (1) for any year after 2002 shall be an update of the statement submitted under that paragraph for the preceding year.
“(3) Each statement of goals submitted under paragraph (1) shall set forth cost, schedule, testing, and performance goals that pertain to each then-current program element for ballistic missile defense systems in effect pursuant to subsection (a) or (b) of section 223 of title 10, United States Code.
“(d)
“(2) Each program plan under paragraph (1) shall include the following:
“(A) A funding profile that includes an estimate of—
“(i) the total expenditures to be made in the fiscal year in which the plan is submitted and the following fiscal year, together with the estimated total life-cycle costs of the program; and
“(ii) a display of such expenditures (shown for significant procurement, construction, and research and development) for the fiscal year in which the plan is submitted and the following fiscal year.
“(B) A program schedule for the fiscal year in which the plan is submitted and the following fiscal year for each of the following:
“(i) Significant procurement.
“(ii) Construction.
“(iii) Research and development.
“(iv) Flight tests.
“(v) Other significant testing activities.
“(3) Information specified in paragraph (2) need not be included in the plan for any year under paragraph (1) to the extent such information has already been provided, or will be provided in the current fiscal year, in annual budget justification documents of the Department of Defense submitted to Congress or in other required reports to Congress.
“(e)
“(A) review the development of goals under subsection (c) and the annual program plan under subsection (d); and
“(B) provide to the Secretary of Defense and the Director of the Missile Defense Agency any comments on such matters as considered appropriate.
“(2) Paragraph (1) applies with respect to the following:
“(A) The Under Secretary of Defense for Acquisition, Technology, and Logistics.
“(B) The Director of Operational Test and Evaluation.
“(C) The Director of Program Analysis and Evaluation.
“(D) The Joint Requirements Oversight Council.
“(E) The Cost Analysis and Improvement Group.
“(f)
“(2) The Director of Operational Test and Evaluation of the Department of Defense shall monitor the development of the plan under paragraph (1) and shall submit to the Director of the Missile Defense Agency any comments regarding that plan that the Director of Operational Test and Evaluation considers appropriate.
“(g)
“(2) Not later than March 15 of each of 2003 through 2014, the Comptroller General shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of Senate and House of Representatives] a report on the Comptroller General's assessment under paragraph (1) with respect to the preceding fiscal year.
“(h)
“(2) The Director of Operational Test and Evaluation shall also each year characterize the operational effectiveness, suitability, and survivability of the ballistic missile defense system, and its elements, that have been fielded or tested before the end of the preceding fiscal year.
“(3) Not later than February 15 each year the Director shall submit to the congressional defense committees a report on the assessment under paragraph (1) and the characterization under paragraph (2) with respect to the preceding fiscal year.”
[Pub. L. 110–417, [div. A], title II, §231(c), Oct. 14, 2008, 122 Stat. 4391, provided that: “The amendments made by this section [amending Pub. L. 107–107, §232(h), set out above] shall take effect on October 1, 2008, and shall apply with respect to fiscal years beginning on or after that date.”]
Pub. L. 107–107, div. A, title II, §234, Dec. 28, 2001, 115 Stat. 1039, provided that:
“(a)
“(A) is designed to provide for comprehensive testing of ballistic missile defense programs during early stages of development; and
“(B) includes necessary funding to support and improve test infrastructure and provide adequate test assets for the testing of such programs.
“(2) The Secretary shall ensure that ballistic missile defense programs incorporate, to the greatest possible extent, operationally realistic test configurations (referred to as ‘test bed’ configurations) to demonstrate system performance across a broad range of capability and, during final stages of operational testing, to demonstrate reliable performance.
“(3) The Secretary shall ensure that the test infrastructure for ballistic missile defense programs is capable of supporting continued testing of ballistic missile defense systems after deployment.
“(b)
“(1) Pursuit of parallel conceptual approaches and technological paths for all critical problematic components until effective and reliable solutions can be demonstrated.
“(2) Comprehensive ground testing in conjunction with flight-testing for key elements of the proposed system that are considered to present high risk, with such ground testing to make use of existing facilities and combinations of facilities that support testing at the highest possible levels of integration.
“(3) Where appropriate, expenditures to enhance the capabilities of existing test facilities, or to construct new test facilities, to support alternative complementary test methodologies.
“(4) Sufficient funding of test instrumentation to ensure accurate measurement of all critical test events.
“(5) Incorporation into the program of sufficient schedule flexibility and expendable test assets, including missile interceptors and targets, to ensure that failed or aborted tests can be repeated in a prudent, but expeditious manner.
“(6) Incorporation into flight-test planning for the program, where possible, of—
“(A) methods that make the most cost-effective use of test opportunities;
“(B) events to demonstrate engagement of multiple targets, ‘shoot-look-shoot’, and other planned operational concepts; and
“(C) exploitation of opportunities to facilitate early development and demonstration of ‘family of systems’ concepts.
“(c)
Pub. L. 106–38, §2, July 22, 1999, 113 Stat. 205, provided that: “It is the policy of the United States to deploy as soon as is technologically possible an effective National Missile Defense system capable of defending the territory of the United States against limited ballistic missile attack (whether accidental, unauthorized, or deliberate) with funding subject to the annual authorization of appropriations and the annual appropriation of funds for National Missile Defense.”
Pub. L. 105–85, div. A, title II, §231, Nov. 18, 1997, 111 Stat. 1661, provided that the Secretary of Defense was to ensure that the National Missile Defense Program was structured and programmed for funding so as to support a test, in fiscal year 1999, of an integrated national missile defense system that was representative of the national missile defense system architecture that could achieve initial operational capability in fiscal year 2003, and that not later than Feb. 15, 1998, the Secretary was to submit to the congressional defense committees a plan for the development and deployment of a national missile defense system that could achieve initial operational capability in fiscal year 2003.
Pub. L. 106–398, §1 [div. C, title XXXI, §3132], Oct. 30, 2000, 114 Stat. 1654, 1654A–455, as amended by Pub. L. 107–314, div. A, title II, §225(b)(3), Dec. 2, 2002, 116 Stat. 2486, provided that:
“(a)
“(b)
“(1) be carried out by the National Nuclear Security Administration and the Missile Defense Agency; and
“(2) contribute to sustaining—
“(A) the expertise necessary for the viability of such laboratories; and
“(B) the capabilities required to sustain the nuclear stockpile.
“(c)
“(1) Peer reviews of technical efforts.
“(2) Activities of so-called ‘red teams’.”
Pub. L. 105–85, div. C, title XXXI, §3131, Nov. 18, 1997, 111 Stat. 2034, provided that:
“(a)
“(b)
“(c)
“(d)
“(1) the Lawrence Livermore National Laboratory, Livermore, California;
“(2) the Los Alamos National Laboratory, Los Alamos, New Mexico; and
“(3) the Sandia National Laboratories, Albuquerque, New Mexico.”
Subtitle C of title II of div. A of Pub. L. 104–106, as amended by Pub. L. 105–85, div. A, title II, §236, Nov. 18, 1997, 111 Stat. 1665; Pub. L. 106–65, div. A, title X, §1067(6), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title X, §1041(c), Dec. 2, 2002, 116 Stat. 2646, provided that:
“This subtitle may be cited as the ‘Ballistic Missile Defense Act of 1995’.
“Congress makes the following findings:
“(1) The emerging threat that is posed to the national security interests of the United States by the proliferation of ballistic missiles is significant and growing, both in terms of numbers of missiles and in terms of the technical capabilities of those missiles.
“(2) The deployment of ballistic missile defenses is a necessary, but not sufficient, element of a broader strategy to discourage both the proliferation of weapons of mass destruction and the proliferation of the means of their delivery and to defend against the consequences of such proliferation.
“(3) The deployment of effective Theater Missile Defense systems can deter potential adversaries of the United States from escalating a conflict by threatening or attacking United States forces or the forces or territory of coalition partners or allies of the United States with ballistic missiles armed with weapons of mass destruction to offset the operational and technical advantages of the United States and its coalition partners and allies.
“(4) United States intelligence officials have provided intelligence estimates to congressional committees that (A) the trend in missile proliferation is toward longer range and more sophisticated ballistic missiles, (B) North Korea may deploy an intercontinental ballistic missile capable of reaching Alaska or beyond within five years, and (C) although a new, indigenously developed ballistic missile threat to the continental United States is not foreseen within the next ten years, determined countries can acquire intercontinental ballistic missiles in the near future and with little warning by means other than indigenous development.
“(5) The development and deployment by the United States and its allies of effective defenses against ballistic missiles of all ranges will reduce the incentives for countries to acquire such missiles or to augment existing missile capabilities.
“(6) The concept of mutual assured destruction (based upon an offense-only form of deterrence), which is the major philosophical rationale underlying the ABM Treaty, is now questionable as a basis for stability in a multipolar world in which the United States and the states of the former Soviet Union are seeking to normalize relations and eliminate Cold War attitudes and arrangements.
“(7) The development and deployment of a National Missile Defense system against the threat of limited ballistic missile attacks—
“(A) would strengthen deterrence at the levels of forces agreed to by the United States and Russia under the Strategic Arms Reduction Talks Treaty (START–I); and
“(B) would further strengthen deterrence if reductions below the levels permitted under START–I should be agreed to and implemented in the future.
“(8) The distinction made during the Cold War, based upon the technology of the time, between strategic ballistic missiles and nonstrategic ballistic missiles, which resulted in the distinction made in the ABM Treaty between strategic defense and nonstrategic defense, has become obsolete because of technological advancement (including the development by North Korea of long-range Taepo-Dong I and Taepo-Dong II missiles) and, therefore, that distinction in the ABM Treaty should be reviewed.
“It is the policy of the United States—
“(1) to deploy affordable and operationally effective theater missile defenses to protect forward-deployed and expeditionary elements of the Armed Forces of the United States and to complement the missile defense capabilities of forces of coalition partners and of allies of the United States; and
“(2) to seek a cooperative, negotiated transition to a regime that does not feature an offense-only form of deterrence as the basis for strategic stability.
“(a)
“(1) The Patriot PAC–3 system.
“(2) The Navy Area Defense system.
“(3) The Theater High-Altitude Area Defense (THAAD) system.
“(4) The Navy Theater Wide system.
“(b)
“(c)
“(A) the Cooperative Engagement Capability (CEC) system of the Navy;
“(B) airborne sensors; and
“(C) space-based sensors (including, in particular, the Space and Missile Tracking System).
“(d)
“(2) The Secretary may not proceed with the development of a follow-on theater missile defense system beyond the Demonstration/Validation stage of development unless the Secretary designates that system as a part of the core program under this section and submits to the congressional defense committees [Committees on Armed Services and on Appropriations of the Senate and House of Representatives] notice of that designation. The Secretary shall include with any such notification a report describing—
“(A) the requirements for the system and the specific threats that such system is designed to counter;
“(B) how the system will relate to, support, and build upon existing core systems;
“(C) the planned acquisition strategy for the system; and
“(D) a preliminary estimate of total program cost for that system and the effect of development and acquisition of such system on Department of Defense budget projections.
“(e)
“(2) As part of such report, the Secretary shall describe, with respect to each program covered in the report, any variance in the technical milestones, program schedule milestones, and costs for the program compared with the information relating to that program in the report submitted in the previous year and in the report submitted in the first year in which that program was covered.
“(a)
“(A) the finding in [former] section 234(a)(7) of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160; 107 Stat. 1595; 10 U.S.C. 2431 note) that the ABM Treaty was not intended to, and does not, apply to or limit research, development, testing, or deployment of missile defense systems, system upgrades, or system components that are designed to counter modern theater ballistic missiles, regardless of the capabilities of such missiles, unless those systems, system upgrades, or system components are tested against or have demonstrated capabilities to counter modern strategic ballistic missiles; and
“(B) the statement in section 232 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103–337; 108 Stat. 2700) that the United States shall not be bound by any international agreement entered into by the President that would substantively modify the ABM Treaty unless the agreement is entered into pursuant to the treaty making power of the President under the Constitution.
“(2) Congress also finds that the demarcation standard described in subsection (b)(1) for compliance of a missile defense system, system upgrade, or system component with the ABM Treaty is based upon current technology.
“(b)
“(1) unless a missile defense system, system upgrade, or system component (including one that exploits data from space-based or other external sensors) is flight tested in an ABM-qualifying flight test (as defined in subsection (e)), that system, system upgrade, or system component has not, for purposes of the ABM Treaty, been tested in an ABM mode nor been given capabilities to counter strategic ballistic missiles and, therefore, is not subject to any application, limitation, or obligation under the ABM Treaty; and
“(2) any international agreement that would limit the research, development, testing, or deployment of missile defense systems, system upgrades, or system components that are designed to counter modern theater ballistic missiles in a manner that would be more restrictive than the compliance criteria specified in paragraph (1) should be entered into only pursuant to the treaty making powers of the President under the Constitution.
“(c)
“(1) would establish a demarcation between theater missile defense systems and anti-ballistic missile systems for purposes of the ABM Treaty; or
“(2) would restrict the performance, operation, or deployment of United States theater missile defense systems.
“(d)
“(1) to the extent provided by law in an Act enacted after this Act [Pub. L. 104–106, enacted Feb. 10, 1996];
“(2) to expenditures to implement that portion of any such agreement or understanding that implements the policy set forth in subsection (b)(1); or
“(3) to expenditures to implement any such agreement or understanding that is approved as a treaty or by law.
“(e) ABM-
“It is in the interest of the United States to develop its own missile defense capabilities in a manner that will permit the United States to complement the missile defense capabilities developed and deployed by its allies and possible coalition partners. Therefore, the Congress urges the President—
“(1) to pursue high-level discussions with allies of the United States and selected other states on the means and methods by which the parties on a bilateral basis can cooperate in the development, deployment, and operation of ballistic missile defenses;
“(2) to take the initiative within the North Atlantic Treaty Organization to develop consensus in the Alliance for a timely deployment of effective ballistic missile defenses by the Alliance; and
“(3) in the interim, to seek agreement with allies of the United States and selected other states on steps the parties should take, consistent with their national interests, to reduce the risks posed by the threat of limited ballistic missile attacks, such steps to include—
“(A) the sharing of early warning information derived from sensors deployed by the United States and other states;
“(B) the exchange on a reciprocal basis of technical data and technology to support both joint development programs and the sale and purchase of missile defense systems and components; and
“(C) operational level planning to exploit current missile defense capabilities and to help define future requirements.
“For purposes of this subtitle, the term ‘ABM Treaty’ means the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, and signed at Moscow on May 26, 1972, and includes the Protocols to that Treaty, signed at Moscow on July 3, 1974.
“The Missile Defense Act of 1991 [Pub. L. 102–190, div. A, title II, part C] (10 U.S.C. 2431 note) is repealed.”
Pub. L. 103–337, div. A, title II, §231, Oct. 5, 1994, 108 Stat. 2699, provided that:
“(a)
“(1) for any development or testing of anti-ballistic missile systems or components except for development and testing consistent with the interpretation of the ABM Treaty set forth in the enclosure to the July 13, 1993, ACDA letter; or
“(2) for the acquisition of any material or equipment (including long lead materials, components, piece parts, or test equipment, or any modified space launch vehicle) required or to be used for the development or testing of anti-ballistic missile systems or components, except for material or equipment required for development or testing consistent with the interpretation of the ABM Treaty set forth in the enclosure to the July 13, 1993, ACDA letter.
“(b)
“(c)
“(d)
“(2) Of the funds made available to the Department of Defense for fiscal year 1995, not more than $40,000,000 may be obligated for the Navy Upper Tier program before the date on which the Secretary submits to the appropriate congressional committees a report on the compliance of that program with the ABM Treaty, as determined under the compliance review under paragraph (1).
“(e)
“(1) The term ‘July 13, 1993, ACDA letter’ means the letter dated July 13, 1993, from the Acting Director of the Arms Control and Disarmament Agency to the chairman of the Committee on Foreign Relations of the Senate relating to the correct interpretation of the ABM Treaty and accompanied by an enclosure setting forth such interpretation.
“(2) The term ‘ABM Treaty’ means the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missiles, signed in Moscow on May 26, 1972.
“(3) The term ‘appropriate congressional committees’ means—
“(A) the Committee on Armed Services, the Committee on Foreign Affairs, and the Committee on Appropriations of the House of Representatives; and
“(B) the Committee on Armed Services, the Committee on Foreign Relations, and the Committee on Appropriations of the Senate.”
Pub. L. 103–160, div. A, title II, §234, Nov. 30, 1993, 107 Stat. 1595, contained findings of Congress, required compliance review, and limited funding pending submission of report, prior to repeal by Pub. L. 104–106, div. A, title II, §253(6), Feb. 10, 1996, 110 Stat. 235.
Pub. L. 103–160, div. A, title II, §235, Nov. 30, 1993, 107 Stat. 1598, provided that:
“(a)
“(1) seek to maximize the use of existing systems and technologies; and
“(2) seek to promote joint use by the military departments of existing and future ballistic missile defense equipment (rather than each military department developing its own systems that would largely overlap in their capabilities).
The Secretaries of the military departments shall seek the maximum integration and compatibility of their ballistic missile defense systems as well as of the respective roles and missions of those systems.
“(b) TMD
“(1) A description of the mission and scope of Theater Missile Defense.
“(2) A description of the role of each of the Armed Forces in Theater Missile Defense.
“(3) A description of how those roles interact and complement each other.
“(4) An evaluation of the cost and relative effectiveness of each interceptor and sensor under development as part of a Theater Missile Defense system by the Ballistic Missile Defense Organization [now Missile Defense Agency].
“(5) A detailed acquisition strategy which includes an analysis and comparison of the projected acquisition and life-cycle costs of each Theater Missile Defense system intended for production (shown separately for research, development, test, and evaluation, for procurement, for operation and maintenance, and for personnel costs for each system).
“(6) Specification of the baseline production rate for each year of the program through completion of procurement.
“(7) An estimate of the unit cost and capabilities of each system.
“(8) A description of plans for theater and tactical missile defense doctrine, training, tactics, and force structure.
“(c)
“(1) a description of the current and projected testing program for Theater Missile Defense systems and major components; and
“(2) an evaluation of the adequacy of the testing program to simulate conditions similar to those the systems and components would actually be expected to encounter if and when deployed (such as the ability to track and engage multiple targets with multiple interceptors, to discriminate targets from decoys and other incoming objects, and to be employed in a shoot-look-shoot firing mode).
“(d)
“(e)
“(f)
“(1) seek to maximize the use of existing technologies (such as SM–2, AEGIS, Patriot, and THAAD) rather than develop new systems;
“(2) seek to maximize integration and compatibility among the systems, roles, and missions of the military departments; and
“(3) seek to promote cross-service use of existing equipment (such as development of Army equipment for the Marine Corps or ground utilization of an air or sea system).
“(g)
“(2) In conducting the review, the Secretary shall obtain recommendations and advice from—
“(A) the Defense Science Board;
“(B) the faculty of the Industrial College of the Armed Forces; and
“(C) federally funded research and development centers supporting the Office of the Secretary of Defense.
“(3) Not later than May 1, 1994, the Secretary shall submit to the congressional defense committees a report on the Secretary's findings resulting from the review under paragraph (1), together with any recommendations of the Secretary for legislation. The Secretary shall submit the report in unclassified form, but may submit a classified version of the report if necessary to clarify any of the information in the findings or recommendations or any related information. The report may be submitted as part of the next annual report of the Secretary submitted to Congress under section 224 of Public Law 101–189 (10 U.S.C. 2431 note).”
Pub. L. 103–160, div. A, title II, §242(a)–(e), Nov. 30, 1993, 107 Stat. 1603–1605, stated congressional findings, required Secretary of Defense to develop plan to coordinate development and implementation of Theater Missile Defense programs of United States with theater missile defense programs of allies of United States, specified contents of such plan, required Secretary to submit to Congress report on such plan in both classified and unclassified versions, required Secretary to include in each annual Theater Missile Defense Initiative report to Congress report on actions taken to implement such plan, specified contents of such report, related to restriction on funds, stated sense of Congress that whenever United States deployed theater ballistic missile defenses to protect country that had not provided support for development of such defenses United States was to consider seeking reimbursement from such country to cover at least incremental cost of such deployment, and related to congressional encouragement of allies of United States to participate in cooperative Theater Missile Defense programs of United States and encouragement of participation by United States in cooperative theater missile defense efforts of allied nations, prior to repeal by Pub. L. 104–106, div. A, title II, §253(7), Feb. 10, 1996, 110 Stat. 235.
Pub. L. 103–160, div. A, title II, §243, Nov. 30, 1993, 107 Stat. 1605, as amended by Pub. L. 104–201, div. A, title X, §1073(e)(1)(E), Sept. 23, 1996, 110 Stat. 2658; Pub. L. 107–314, div. A, title II, §225(b)(4)(B), Dec. 2, 2002, 116 Stat. 2486, provided that:
“(a)
“(b)
“(c)
“(1) each program, project, and activity with respect to which the Secretary has transferred management and budget responsibility from the Missile Defense Agency in accordance with subsection (a);
“(2) the agency or military department to which each such transfer was made; and
“(3) the date on which each such transfer was made.
“(d)
“(e)
Pub. L. 102–484, div. A, title II, §231, Oct. 23, 1992, 106 Stat. 2354, provided that:
“(a)
“(b)
“(c)
“(1) setting forth the proposed allocation by the Secretary of funds for the Theater Missile Defense Initiative for fiscal year 1994, shown for each program, project, and activity;
“(2) describing an updated master plan for the Theater Missile Defense Initiative that includes (A) a detailed consideration of plans for theater and tactical missile defense doctrine, training, tactics, and force structure, and (B) a detailed acquisition strategy which includes a consideration of acquisition and life-cycle costs through the year 2005 for the programs, projects, and activities associated with the Theater Missile Defense Initiative;
“(3) assessing the possible near-term contribution and cost-effectiveness for theater missile defense of exoatmospheric capabilities, to include at a minimum a consideration of—
“(A) the use of the Navy's Standard missile combined with a kick stage rocket motor and lightweight exoatmospheric projectile (LEAP); and
“(B) the use of the Patriot missile combined with a kick stage rocket motor and LEAP.
“(d)
Pub. L. 102–190, div. A, title II, part C, Dec. 5, 1991, 105 Stat. 1321, as amended by Pub. L. 102–484, div. A, title II, §234(a)–(d)(1), (e), (f), title X, §1053(1), (2), Oct. 23, 1992, 106 Stat. 2356, 2357, 2501; Pub. L. 103–35, title II, §§202(a)(2), 203(b)(1), May 31, 1993, 107 Stat. 101, 102; Pub. L. 103–160, div. A, title II, §§232, 243(e), Nov. 30, 1993, 107 Stat. 1593, 1606; Pub. L. 103–337, div. A, title II, §233, Oct. 5, 1994, 108 Stat. 2700, specified that such provisions could be cited as the “Missile Defense Act of 1991”, and related to missile defense goal of United States, implementation of goal, review of follow-on deployment options, definition of term “ABM Treaty”, and interpretation of such provisions, prior to repeal by Pub. L. 104–106, div. A, title II, §238, Feb. 10, 1996, 110 Stat. 233.
Similar provisions were contained in the following prior authorization act:
Pub. L. 101–510, div. A, title II, §221, Nov. 5, 1990, 104 Stat. 1511.
Pub. L. 100–456, div. A, title I, §117, 102 Stat. 1933, as amended by Pub. L. 104–106, div. D, title XLIII, §4321(i)(3), Feb. 10, 1996, 110 Stat. 676, required Secretary of Defense to submit a stretchout impact statement for certain major defense acquisition programs at same time the budget for any fiscal year is submitted to Congress and to submit to Committees on Armed Services of Senate and House of Representatives, no later than Mar. 15, 1989, a report on feasibility and effect of establishing maximum production rates by December 1990 for certain major defense acquisition programs, prior to repeal by Pub. L. 105–85, div. A, title X, §1041(c), Nov. 18, 1997, 111 Stat. 1885.
Pub. L. 100–180, div. A, title II, §222, Dec. 4, 1987, 101 Stat. 1055, prohibited use of appropriated funds for certain Strategic Defense Initiative program contracts with foreign entities, prior to repeal by Pub. L. 111–383, div. A, title II, §222, Jan. 7, 2011, 124 Stat. 4168.
Section 223 of Pub. L. 100–180, as amended by Pub. L. 103–199, title II, §203(a)(1), Dec. 17, 1993, 107 Stat. 2321, provided that: “Military technology developed with funds appropriated or otherwise made available for the Ballistic Missile Defense Program may not be transferred (or made available for transfer) to Russia or any other independent state of the former Soviet Union by the United States (or with the consent of the United States) unless the President determines, and certifies to the Congress at least 15 days prior to any such transfer, that such transfer is in the national interest of the United States and is to be made for the purpose of maintaining peace.”
Section 224 of Pub. L. 100–180 provided that: “No agency of the Federal Government may plan for, fund, or otherwise support the development of command and control systems for strategic defense in the boost or post-boost phase against ballistic missile threats that would permit such strategic defenses to initiate the directing of damaging or lethal fire except by affirmative human decision at an appropriate level of authority.”
Section 226 of Pub. L. 100–180 prohibited Secretary of Defense from deploying anti-ballistic missile system unless such deployment was specifically authorized by law after Dec. 4, 1987, prior to repeal by Pub. L. 104–106, div. A, title II, §253(3), Feb. 10, 1996, 110 Stat. 234.
Pub. L. 100–180, div. A, title II, §227, Dec. 4, 1987, 101 Stat. 1057, authorized the Secretary of Defense, using funds appropriated to the Department of Defense for the Strategic Defense Initiative program, to enter into a contract not to be awarded before Oct. 1, 1989, to provide for the establishment and operation of a federally funded research and development center (FFRDC) to provide independent and objective technical support to the Strategic Defense Initiative program, and provided that no Federal funds could be provided to the new FFRDC after the end of the five-year period beginning on the date of the award of the first contract awarded.
Pub. L. 99–661, div. A, title II, §213, Nov. 14, 1986, 100 Stat. 3841, prohibited the Secretary of Defense from obligating or expending any funds for the purpose of operating a Federally funded research and development center that was established for the support of the Strategic Defense Initiative Program after Nov. 14, 1986, unless the Secretary submitted to the Committees on Armed Services of the Senate and House of Representatives a report with respect to such proposed center and funds were specifically authorized to be appropriated for such purpose in an Act other than an appropriations Act or a continuing resolution.
Pub. L. 99–145, title IX, §915, Nov. 8, 1985, 99 Stat. 688, as amended by Pub. L. 100–26, §11(a)(2), Apr. 21, 1987, 101 Stat. 288, required Secretary of Defense to submit to Congress an annual report setting forth Secretary's plan for performance during next fiscal year of cost analyses for major defense acquisition programs for purpose of determining how much production of covered systems under such programs should cost, prior to repeal by Pub. L. 101–510, div. A, title XIII, §1322(d)(2), Nov. 5, 1990, 104 Stat. 1672.
Pub. L. 99–145, title II, §222, Nov. 8, 1985, 99 Stat. 613, provided that strategic defense system developed as consequence of research, development, test, and evaluation conducted on Strategic Defense Initiative program could not be deployed in whole or in part unless President made a certain determination and certification to Congress and funding for deployment of such system was specifically authorized by legislation enacted after date of certification, prior to repeal by Pub. L. 104–106, div. A, title II, §253(1), Feb. 10, 1996, 110 Stat. 234.
Pub. L. 101–189, div. A, title II, §224, Nov. 29, 1989, 103 Stat. 1398, as amended by Pub. L. 103–160, div. A, title II, §240, Nov. 30, 1993, 107 Stat. 1603; Pub. L. 104–201, div. A, title II, §244, Sept. 23, 1996, 110 Stat. 2463, provided that not later than March 15 of each year, the Secretary of Defense was to transmit to Congress a report on the programs and projects that constitute the Ballistic Missile Defense program and on any other program or project relating to defense against ballistic missiles, prior to repeal by Pub. L. 106–65, div. A, title X, §1032(b)(1), Oct. 5, 1999, 113 Stat. 751.
Pub. L. 100–180, div. A, title II, §231(a), Dec. 4, 1987, 101 Stat. 1059, provided that not later than Mar. 15, 1988 and Mar. 15, 1989, the Secretary of Defense was to transmit to Congress a report on the programs that constitute the Strategic Defense Initiative and on any other program relating to defense against ballistic missiles.
Pub. L. 98–525, title XI, §1102, Oct. 19, 1984, 98 Stat. 2580, required Secretary of Defense, at time of his annual budget presentation to Congress beginning with fiscal year 1986 and ending with fiscal year 1990, to transmit to Committees on Armed Services and Foreign Affairs of House of Representatives and Committees on Armed Services and Foreign Relations of Senate, a detailed report on programs that constitute SDI, prior to repeal by Pub. L. 100–180, div. A, title II, §231(b), Dec. 4, 1987, 101 Stat. 1060.
Section 1252 of Pub. L. 98–525 directed Secretary of Defense, not later than one year after Oct. 19, 1984, to develop a plan for an improved system for the management of technical data relating to any major system of the Department of Defense and, not later than 5 years after Oct. 19, 1984, to complete implementation of the management plan, directed Comptroller General, not later than 18 months after Oct. 19, 1984, to transmit to Congress a report evaluating the plan developed, and directed Secretary of Defense, not later than 180 days after Oct. 19, 1984, to transmit to Congress a plan to improve substantially the computer capability of each of the military departments and of the Defense Logistics Agency to store and access rapidly data that is needed for the efficient procurement of supplies.
Pub. L. 98–473, title I, §101(h) [title VIII, §8104], Oct. 12, 1984, 98 Stat. 1904, 1942, provided that: “It is the sense of the Congress that—(a) the President shall inform and make every effort to consult with other member nations of the North Atlantic Treaty Organization, Japan, and other appropriate allies concerning the research being conducted in the Strategic Defense Initiative program. (b) The Secretary of Defense, in coordination with the Secretary of State and the Director of the Arms Control and Disarmament Agency, shall at the time of the submission of the annual budget presentation materials for each fiscal year beginning after September 30, 1984, report to the Committees on Appropriations, Armed Services, and Foreign Relations of the Senate and the Committees on Appropriations, Armed Services, and Foreign Affairs of the House of Representatives on the status of the consultations referred to under subsection (a).”
[For abolition, transfer of functions, and treatment of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of Title 22, Foreign Relations and Intercourse.]
Pub. L. 100–180, div. A, title II, §208, Dec. 4, 1986, 101 Stat. 1048, prohibited the Secretary of Defense, until Oct. 1, 1988, from carrying out a test of the Space Defense System (antisatellite weapon) involving the F–15 launched miniature homing vehicle against an object in space until the President certified to Congress that the Soviet Union had conducted, after Dec. 4, 1987, a test against an object in space of a dedicated antisatellite weapon.
Pub. L. 99–661, div. A, title II, §231, Nov. 14, 1986, 100 Stat. 3847, prohibited the Secretary of Defense, until Oct. 1, 1987, from carrying out a test of the Space Defense System (anti-satellite weapon) against an object in space until the President certified to Congress that the Soviet Union had conducted, after Nov. 14, 1986, a test against an object in space of a dedicated anti-satellite weapon.
Similar provisions were contained in the following prior acts:
Pub. L. 99–500, §101(c) [title XI, §1101], Oct. 18, 1986, 100 Stat. 1783–82, 1783–177, and Pub. L. 99–591, §101(c) [title XI, §1101], Oct. 30, 1986, 100 Stat. 3341–82, 3341–177.
Pub. L. 99–190, §101(b) [title VIII, §8097], Dec. 19, 1985, 99 Stat. 1185, 1219.
Pub. L. 99–145, title II, §208(a), (b), Nov. 8, 1985, 99 Stat. 610, provided that:
“(a)
“(b)
Pub. L. 98–473, title I, §101(h) [title VIII, §8100], Oct. 12, 1984, 98 Stat. 1904, 1941, provided that:
“(a) Notwithstanding any other provision of law, none of the funds appropriated or made available in this or any other Act may be obligated or expended to test against an object in space the miniature homing vehicle (MHV) anti-satellite warhead launched from an F–15 aircraft unless the President determines and certifies to Congress—
“(1) that the United States is endeavoring, in good faith, to negotiate with the Soviet Union a mutual and verifiable agreement with the strictest possible limitations on anti-satellite weapons consistent with the national security interests of the United States;
“(2) that, pending agreement on such strict limitations, testing against objects in space of the F–15 launched miniature homing vehicle anti-satellite warhead by the United States is necessary to avert clear and irrevocable harm to the national security;
“(3) that such testing would not constitute an irreversible step that would gravely impair prospects for negotiations on anti-satellite weapons; and
“(4) that such testing is fully consistent with the rights and obligations of the United States under the Anti-Ballistic Missile Treaty of 1972 as those rights and obligations exist at the time of such testing.
“(b) During fiscal year 1985, funds appropriated for the purpose of testing the F–15 launched miniature homing vehicle anti-satellite warhead may not be used to conduct more than three tests of that warhead against objects in space.
“(c) The limitation on the expenditure of funds provided by subsection (a) of this section shall cease to apply fifteen calendar days after the date of the receipt by Congress of the certification referred to in subsection (a) or March 1, 1985, whichever occurs later.”
Similar provisions were contained in the following prior authorization act:
Pub. L. 98–94, title XI, §1235, Sept. 24, 1983, 97 Stat. 695; as amended by Pub. L. 98–525, title II, §205, Oct. 19, 1984, 98 Stat. 2509.
Pub. L. 96–418, title VIII, §802, Oct. 10, 1980, 94 Stat. 1775, as amended by Pub. L. 97–99, title IX, §904(b), Dec. 23, 1981, 95 Stat. 1382; Pub. L. 98–115, title VIII, §805, Oct. 11, 1983, 97 Stat. 785; Pub. L. 101–510, div. A, title XIII, §1322(f), Nov. 5, 1990, 104 Stat. 1672, provided that:
“(a) The Secretary of Defense (hereinafter in this section referred to as the ‘Secretary’) may assist communities located near MX Missile System sites and communities located near the East Coast Trident Base, and the States in which such communities are located, in meeting the costs of providing increased municipal services and facilities to the residents of such communities, if the Secretary determines that there is an immediate and substantial increase in the need for such services and facilities in such communities as a direct result of work being carried out in connection with the construction, installation, or operation of the MX Missile System or the East Coast Trident Base, as the case may be, and that an unfair and excessive financial burden will be incurred by such communities, or the States in which such communities are located, as a result of such increased need for such services and facilities.
“(b)(1) Whenever possible, the Secretary shall carry out the program of assistance authorized under this section through existing Federal programs. In carrying out such program of assistance, the Secretary may—
“(A) supplement funds made available under existing Federal programs through a direct transfer of funds from the Secretary to the department or agency concerned in such amounts as the Secretary considers necessary;
“(B) provide financial assistance to communities described in subsection (a) to help such communities pay their share of the costs under such programs;
“(C) guarantee State or municipal indebtedness, and make interest payments, in whole or in part, for State or municipal indebtedness, for improved public facilities related to the MX Missile System site or the East Coast Trident Base, as the case may be; and
“(D) make direct grants to or on behalf of communities described in subsection (a) in cases in which Federal programs (or funds for such programs) do not exist or are not sufficient to meet the costs of providing increased municipal services and facilities to the residents of such communities.
“(2) The head of each department and agency shall cooperate fully with the Secretary in carrying out the provisions of this section on a priority basis.
“(3) Notwithstanding any other provision of law, the Secretary, in cooperation with the heads of other departments and agencies of the Federal Government, may provide assistance under this section in anticipation of the work to be carried out in connection with the MX Missile System sites or the East Coast Trident Base, as the case may be.
“(c) In determining the amount of financial assistance to be made available under this section to any local community for any community service or facility, the Secretary shall consult with the head of the department or agency concerned with the type of service or facility for which financial assistance is being made available and shall take into consideration—
“(1) the time lag between the initial impact of increased population in any such community and any increase in the local tax base which will result from such increased population;
“(2) the possible temporary nature of the increased population and the long-range cost impact on the permanent residents of any such community;
“(3) the initial capitalization required for municipal sewer and water systems;
“(4) the initial operating cost for upgrading municipal services; and
“(5) such other pertinent factors as the Secretary considers appropriate.
“(d) Funds appropriated to the Department of Defense for carrying out the MX Missile System deployment program and the East Coast Trident Base may, to the extent specifically authorized in Military Construction Authorization Acts, be used by the Secretary to provide assistance under this section.”
Pub. L. 96–342, title II, §202, Sept. 8, 1980, 94 Stat. 1079, provided that:
“(a) The Congress finds that a survivable land-based intercontinental ballistic missile (ICBM) system is vital to the security of the United States and to a stable strategic balance between the United States and the Soviet Union and that timely deployment of a new basing mode is essential to the survivability of this Nation's land-based intercontinental ballistic missiles. It is, therefore, the purpose of this section to commit the Congress to the development and deployment of the MX missile system, consisting of 200 missiles and 4,600 hardened shelters, and to insure that deployment of the entire MX system is carried out as soon as practicable.
“(b) The Secretary of Defense shall proceed immediately with the full-scale engineering development of the MX missile and a Multiple Protective Structure (MPS) basing mode and shall continue such development in a manner that will achieve an Initial Operational Capability of such missile and basing mode not later than December 31, 1986.
“(c) Notwithstanding any other provision of law, the initial phase of construction shall be limited to 2,300 protective shelters for the MX missile in the initial deployment area.
“(d) In accordance with the finding of the Congress expressed in subsection (a), a full system of at least 4,600 protective shelters may be deployed in the initial deployment area if, after completion of a study to be conducted by the Secretary of Defense of an alternate site for a portion of the system, it is determined by the Congress that adverse cost, military considerations, or other reasons preclude split basing.”
Pub. L. 96–29, title II, §202, June 27, 1979, 93 Stat. 79, provided that:
“(a) It is the sense of the Congress that maintaining a survivable land-based intercontinental ballistic missile system is vital to the security of the United States and that development of a new basing mode for land-based intercontinental ballistic missiles is necessary to assure the survivability of the land-based system. To this end, the development of the MX missile, together with a new basing mode for such missile, should proceed so as to achieve Initial Operational Capability (IOC) for both such missile and such basing mode at the earliest practicable date.
“(b) In addition, it is the sense of the Congress that the basing mode for the MX missile should be restricted to location on the least productive land available that is suitable for such purpose.
“(c) In accordance with the sense of Congress expressed in subsection (a), the Secretary of Defense shall proceed immediately with full scale engineering development of the missile basing mode known as the Multiple Protective Structure (MPS) system concurrently with full scale engineering development of the MX missile, unless and until the Secretary of Defense certifies to the Congress that an alternative basing mode is militarily or technologically superior to, and is more cost effective than, the MPS system or the President informs the Congress that in his view the MPS system is not consistent with United States national security interests.
“(d) Nothing in this section shall be construed to prohibit or restrict the study of alternative basing modes for land-based intercontinental ballistic missiles.”
Section 811 of Pub. L. 94–106, as amended by Pub. L. 96–107, title VIII, §809, Nov. 9, 1979, 93 Stat. 815; Pub. L. 97–86, title IX, §917(e), Dec. 1, 1981, 95 Stat. 1131, which required reports to Congress respecting acquisitions of major defense systems, including total program acquisition unit costs, was repealed by Pub. L. 97–252, title XI, §1107(b), Sept. 8, 1982, 96 Stat. 746, effective Jan. 1, 1983, as provided in section 1107(c) of Pub. L. 97–252, set out as an Effective Date note under section 2432 of this title. See sections 2432 and 2433 of this title.
Section 608 of Pub. L. 93–552, title VI, Dec. 27, 1974, 88 Stat. 1763, provided:
“(a) The Secretary of Defense is authorized to assist communities located near the TRIDENT Support Site Bangor, Washington, in meeting the costs of providing increased municipal services and facilities to the residents of such communities, if the Secretary determines that there is an immediate and substantial increase in the need for such services and facilities in such communities as a direct result of work being carried out in connection with the construction, installation, testing, and operation of the TRIDENT Weapon System and that an unfair and excessive financial burden will be incurred by such communities as a result of the increased need for such services and facilities.
“(b) The Secretary of Defense shall carry out the provisions of this section through existing Federal programs. The Secretary is authorized to supplement funds made available under such Federal programs to the extent necessary to carry out the provisions of this section, and is authorized to provide financial assistance to communities described in subsection (a) of this section to help such communities pay their share of the costs under such programs. The heads of all departments and agencies concerned shall cooperate fully with the Secretary of Defense in carrying out the provisions of this section on a priority basis.
“(c) In determining the amount of financial assistance to be made available under this section to any local community for any community service or facility, the Secretary of Defense shall consult with the head of the department or agency of the Federal Government concerned with the type of service or facility for which financial assistance is being made available and shall take into consideration (1) the time lag between the initial impact of increased population in any such community and any increase in the local tax base which will result from such increased population, (2) the possible temporary nature of the increased population and the long-range cost impact on the permanent residents of any such community, and (3) such other pertinent factors as the Secretary of Defense deems appropriate.
“(d) Any funds appropriated to the Department of Defense for the fiscal year beginning July 1, 1974, for carrying out the TRIDENT Weapon System shall be utilized by the Secretary of Defense in carrying out the provisions of this section to the extent that funds are unavailable under other Federal programs. Funds appropriated to the Department of Defense for any fiscal year beginning after June 30, 1975, for carrying out the TRIDENT Weapon System may, to the extent specifically authorized in an annual Military Construction Authorization Act, be utilized by the Secretary of Defense in carrying out the provision of this section to the extent that funds are unavailable under other Federal programs.
“(e) The Secretary shall transmit to the Committees on Armed Services of the Senate and the House of Representatives semiannual reports indicating the total amount expended in the case of each local community which was provided assistance under the authority of this section during the preceding six-month period, the specific projects for which assistance was provided during such period, and the total amount provided for each such project during such period.”
(a) In this section:
(1) The term “program acquisition unit cost”, with respect to a major defense acquisition program, means the amount equal to (A) the total cost for development and procurement of, and system-specific military construction for, the acquisition program, divided by (B) the number of fully-configured end items to be produced for the acquisition program.
(2) The term “procurement unit cost”, with respect to a major defense acquisition program, means the amount equal to (A) the total of all funds programmed to be available for obligation for procurement for the program, divided by (B) the number of fully-configured end items to be procured.
(3) The term “major contract”, with respect to a major defense acquisition program, means each of the six largest prime, associate, or Government-furnished equipment contracts under the program that is in excess of $40,000,000 and that is not a firm, fixed price contract.
(4) The term “full life-cycle cost”, with respect to a major defense acquisition program, means all costs of development, procurement, military construction, and operations and support, without regard to funding source or management control.
(b)(1) The Secretary of Defense shall submit to Congress at the end of each fiscal-year quarter a report on current major defense acquisition programs. Except as provided in paragraphs (2) and (3), each such report shall include a status report on each defense acquisition program that at the end of such quarter is a major defense acquisition program. Reports under this section shall be known as Selected Acquisition Reports.
(2) A status report on a major defense acquisition program need not be included in the Selected Acquisition Report for the second, third, or fourth quarter of a fiscal year if such a report was included in a previous Selected Acquisition Report for that fiscal year and during the period since that report there has been—
(A) less than a 15 percent increase in program acquisition unit cost and current procurement unit cost for the program (or for each designated subprogram under the program); and
(B) less than a six-month delay in any program schedule milestone shown in the Selected Acquisition Report.
(3)(A) The Secretary of Defense may waive the requirement for submission of Selected Acquisition Reports for a program for a fiscal year if—
(i) the program has not entered system development and demonstration;
(ii) a reasonable cost estimate has not been established for such program; and
(iii) the system configuration for such program is not well defined.
(B) The Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of each waiver under subparagraph (A) for a program for a fiscal year not later than 60 days before the President submits the budget to Congress pursuant to section 1105 of title 31 in that fiscal year.
(c)(1) Each Selected Acquisition Report for the first quarter for a fiscal year shall include—
(A) the same information, in detailed and summarized form, as is provided in reports submitted under section 2431 of this title;
(B) the current program acquisition unit cost for each major defense acquisition program or designated major subprogram included in the report and the history of that cost from the date the program or subprogram was first included in a Selected Acquisition Report to the end of the quarter for which the current report is submitted;
(C) the current procurement unit cost for each major defense acquisition program or designated major subprogram included in the report and the history of that cost from the date the program or subprogram was first included in a Selected Acquisition Report to the end of the quarter for which the current report is submitted; and
(D) such other information as the Secretary of Defense considers appropriate.
(2) Each Selected Acquisition Report for the first quarter of a fiscal year shall be designed to provide to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives the information such Committees need to perform their oversight functions. Whenever the Secretary of Defense proposes to make changes in the content of a Selected Acquisition Report, the Secretary shall submit a notice of the proposed changes to such committees. The changes shall be considered approved by the Secretary, and may be incorporated into the report, only after the end of the 60-day period beginning on the date on which the notice is received by those committees.
(3) In addition to the material required by paragraphs (1) and (2), each Selected Acquisition Report for the first quarter of a fiscal year shall include the following:
(A) A full life-cycle cost analysis for each major defense acquisition program and each designated major subprogram included in the report that is in the system development and demonstration stage or has completed that stage. The Secretary of Defense shall ensure that this subparagraph is implemented in a uniform manner, to the extent practicable, throughout the Department of Defense.
(B) If the system that is included in that major defense acquisition program has an antecedent system, a full life-cycle cost analysis for that system.
(4) Selected Acquisition Reports for the first quarter of a fiscal year shall be known as comprehensive annual Selected Acquisition Reports.
(d)(1) Each Selected Acquisition Report for the second, third, and fourth quarters of a fiscal year shall include—
(A) with respect to each major defense acquisition program that was included in the most recent comprehensive annual Selected Acquisition Report, the information described in subsection (e); and
(B) with respect to each major defense acquisition program that was not included in the most recent comprehensive annual Selected Acquisition Report, the information described in subsection (c).
(2) Selected Acquisition Reports for the second, third, and fourth quarters of a fiscal year shall be known as Quarterly Selected Acquisition Reports.
(e) Information to be included under this subsection in a Quarterly Selected Acquisition Report with respect to a major defense acquisition program is as follows:
(1) The quantity of items to be purchased under the program.
(2) The program acquisition cost.
(3) The program acquisition unit cost for the program (or for each designated major subprogram under the program).
(4) The current procurement cost for the program.
(5) The current procurement unit cost for the program (or for each designated major subprogram under the program).
(6) The reasons for any change in program acquisition cost, program acquisition unit cost, procurement cost, or procurement unit cost or in program schedule from the previous Selected Acquisition Report.
(7) The reasons for any significant changes (from the previous Selected Acquisition Report) in the total program cost for development and procurement of the software component of the program or subprogram, schedule milestones for the software component of the program or subprogram, or expected performance for the software component of the program or subprogram that are known, expected, or anticipated by the program manager.
(8) The major contracts under the program and designated major subprograms under the program and the reasons for any cost or schedule variances under those contracts since the last Selected Acquisition Report.
(9) Program highlights since the last Selected Acquisition Report.
(f) Each comprehensive annual Selected Acquisition Report shall be submitted within 60 days after the date on which the President transmits the Budget to Congress for the following fiscal year, and each Quarterly Selected Acquisition Report shall be submitted within 45 days after the end of the fiscal-year quarter.
(g) The requirements of this section with respect to a major defense acquisition program or designated major subprogram shall cease to apply after 90 percent of the items to be delivered to the United States under the program or subprogram (shown as the total quantity of items to be purchased under the program or subprogram in the most recent Selected Acquisition Report) have been delivered or 90 percent of planned expenditures under the program or subprogram have been made.
(h)(1) Total program reporting under this section shall apply to a major defense acquisition program when funds have been appropriated for such program and the Secretary of Defense has decided to proceed to system development and demonstration of such program. Reporting may be limited to the development program as provided in paragraph (2) before a decision is made by the Secretary of Defense to proceed to system development and demonstration if the Secretary notifies the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives of the intention to submit a limited report under this subsection not less than 15 days before a report is due under this section.
(2) A limited report under this subsection shall include the following:
(A) The same information, in detail and summarized form, as is provided in reports submitted under subsections (b)(1) and (b)(3) of section 2431 of this title.
(B) Reasons for any change in the development cost and schedule.
(C) The major contracts under the development program and designated major subprograms under the program and the reasons for any cost or schedule variances under those contracts since the last Selected Acquisition Report.
(D) Program highlights since the last Selected Acquisition Report.
(E) Other information as the Secretary of Defense considers appropriate.
(3) The submission requirements for a limited report under this subsection shall be the same as for quarterly Selected Acquisition Reports for total program reporting.
(Added Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 739, §139a; amended Pub. L. 98–525, title XII, §1242(a), Oct. 19, 1984, 98 Stat. 2606; Pub. L. 99–145, title XII, §1201, Nov. 8, 1985, 99 Stat. 715; renumbered §2432 and amended Pub. L. 99–433, title I, §§101(a)(5), 110(d)(13), (g)(7), Oct. 1, 1986, 100 Stat. 995, 1003, 1004; Pub. L. 99–500, §101(c) [title X, §961(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–175, and Pub. L. 99–591, §101(c) [title X, §961(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–175; Pub. L. 99–661, div. A, title IX, formerly title IV, §961(a), Nov. 14, 1986, 100 Stat. 3955, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §7(b)(3), (k)(2), Apr. 21, 1987, 101 Stat. 279, 284; Pub. L. 100–180, div. A, title XII, §1233(a)(1), title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1161, 1175; Pub. L. 101–189, div. A, title VIII, §811(c), Nov. 29, 1989, 103 Stat. 1493; Pub. L. 101–510, div. A, title XIV, §§1407(a)–(c), 1484(f)(4), Nov. 5, 1990, 104 Stat. 1681, 1717; Pub. L. 102–25, title VII, §701(f)(3), Apr. 6, 1991, 105 Stat. 115; Pub. L. 102–190, div. A, title VIII, §801(b)(2), title X, §1061(a)(14), Dec. 5, 1991, 105 Stat. 1412, 1473; Pub. L. 102–484, div. A, title VIII, §817(c), Oct. 23, 1992, 106 Stat. 2455; Pub. L. 103–355, title III, §3002(a)(1), (b)–(h), Oct. 13, 1994, 108 Stat. 3328, 3329; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 104–201, div. A, title VIII, §806, Sept. 23, 1996, 110 Stat. 2606; Pub. L. 105–85, div. A, title VIII, §841(c), Nov. 18, 1997, 111 Stat. 1843; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title VIII, §821(a), Dec. 28, 2001, 115 Stat. 1181; Pub. L. 108–136, div. A, title X, §1045(a)(6), Nov. 24, 2003, 117 Stat. 1612; Pub. L. 108–375, div. A, title VIII, §801(b)(2), Oct. 28, 2004, 118 Stat. 2004; Pub. L. 109–364, div. A, title X, §1071(g)(10), Oct. 17, 2006, 120 Stat. 2402; Pub. L. 110–417, [div. A], title VIII, §811(b), Oct. 14, 2008, 122 Stat. 4521.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
2008—Subsec. (b)(2)(A). Pub. L. 110–417, §811(b)(1), inserted “for the program (or for each designated subprogram under the program)” after “procurement unit cost”.
Subsec. (c)(1)(B). Pub. L. 110–417, §811(b)(2)(A), inserted “or designated major subprogram” after “for each major defense acquisition program” and “or subprogram” after “the program”.
Subsec. (c)(1)(C). Pub. L. 110–417, §811(b)(2)(B), inserted “or designated major subprogram” after “major defense acquisition program” and “or subprogram” after “the program”.
Subsec. (c)(3)(A). Pub. L. 110–417, §811(b)(2)(C), inserted “and each designated major subprogram” after “for each major defense acquisition program”.
Subsec. (e)(3). Pub. L. 110–417, §811(b)(3)(A), inserted “for the program (or for each designated major subprogram under the program)” before period at end.
Subsec. (e)(5). Pub. L. 110–417, §811(b)(3)(B), inserted “(or for each designated major subprogram under the program)” before period at end.
Subsec. (e)(7). Pub. L. 110–417, §811(b)(3)(C), inserted “or subprogram” after “of the program” wherever appearing.
Subsec. (e)(8). Pub. L. 110–417, §811(b)(3)(D), inserted “and designated major subprograms under the program” after “the program”.
Subsec. (g). Pub. L. 110–417, §811(b)(4), inserted “or designated major subprogram” after “major defense acquisition program” and “or subprogram” after “the program” wherever appearing.
Subsec. (h)(2)(C). Pub. L. 110–417, §811(b)(5), inserted “and designated major subprograms under the program” after “the development program”.
2006—Subsec. (e)(7) to (9). Pub. L. 109–364 made technical correction to directory language of Pub. L. 108–375, §801(b)(2). See 2004 Amendment note below.
2004—Subsec. (e)(7) to (9). Pub. L. 108–375, §801(b)(2), as amended by Pub. L. 109–364, added par. (7) and redesignated former pars. (7) and (8) as (8) and (9), respectively.
2003—Subsec. (h)(1). Pub. L. 108–136 inserted “program” after “for such” in first sentence.
2001—Subsecs. (b)(3)(A)(i), (c)(3)(A), (h)(1). Pub. L. 107–107 substituted “system development and demonstration” for “engineering and manufacturing development” wherever appearing.
1999—Subsecs. (b)(3)(B), (c)(2), (h)(1). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1997—Subsec. (h)(2)(D) to (F). Pub. L. 105–85 redesignated subpars. (E) and (F) as (D) and (E), respectively, and struck out former subpar. (D) which read as follows: “The completion status of the development program expressed—
“(i) as the percentage that the number of years for which funds have been appropriated for the development program is of the number of years for which it is planned that funds will be appropriated for the program; and
“(ii) as the percentage that the amount of funds that have been appropriated for the development program is of the total amount of funds which it is planned will be appropriated for the program.”
1996—Subsec. (b)(3)(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”.
Subsec. (c)(1). Pub. L. 104–201, §806(1), struck out “and” at end of subpar. (B), added subpar. (C), and redesignated former subpar. (C) as (D).
Subsec. (c)(2). 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”.
Subsec. (e)(8), (9). Pub. L. 104–201, §806(2), redesignated par. (9) as (8) and struck out former par. (8) which read as follows: “The completion status of the program (A) expressed as the percentage that the number of years for which funds have been appropriated for the program is of the number of years for which it is planned that funds will be appropriated for the program, and (B) expressed as the percentage that the amount of funds that have been appropriated for the program is of the total amount of funds which it is planned will be appropriated for the program.”
Subsec. (h)(1). 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”.
1994—Subsec. (a)(2). Pub. L. 103–355, §3002(a)(1), struck out “for a fiscal year, reduced by the amount of funds programmed to be available for obligation for such fiscal year for advanced procurement for such program in any subsequent year and increased by any amount appropriated in years before such fiscal year for advanced procurement for such program in such fiscal year” after “procurement for the program” in cl. (A), “with such funds during such fiscal year” after “procured” in cl. (B), and last sentence which read as follows: “If for any fiscal year the funds appropriated, or the number of fully-configured end items to be purchased, differ from those programmed, the procurement unit cost shall be revised to reflect the appropriated amounts and quantities.”
Subsec. (a)(3). Pub. L. 103–355, §3002(b), inserted before period at end “and that is not a firm, fixed price contract”.
Subsec. (a)(4). Pub. L. 103–355, §3002(c), substituted “means all costs of development, procurement, military construction, and operations and support, without regard to funding source or management control.” for “has the meaning given the term ‘cost of the program’ in section 2434(b)(2) of this title.”
Subsec. (b)(3)(A)(i). Pub. L. 103–355, §3002(h)(1), struck out “full scale development or” before “engineering”.
Subsec. (c)(2). Pub. L. 103–355, §3002(d), substituted second sentence for former second sentence which read as follows: “The Secretary of Defense may approve changes in the content of the Selected Acquisition Report if the Secretary provides such Committees with written notification of such changes at least 60 days before the date of the report that incorporates the changes.”
Subsec. (c)(3)(A). Pub. L. 103–355, §3002(f)(2), (h)(2), substituted “engineering and manufacturing” for “full-scale engineering” and inserted at end “The Secretary of Defense shall ensure that this subparagraph is implemented in a uniform manner, to the extent practicable, throughout the Department of Defense.”
Subsec. (c)(3)(C). Pub. L. 103–355, §3002(e), struck out subpar. (C) which required production information for each major defense acquisition program included in report that is produced at rate of six units or more per year.
Subsec. (c)(5). Pub. L. 103–355, §3002(f)(1), struck out par. (5) which read as follows: “The Secretary of Defense shall ensure that paragraph (4) of subsection (a) is implemented in a uniform manner, to the extent practicable, throughout the Department of Defense.”
Subsec. (f). Pub. L. 103–355, §3002(g), struck out last sentence which read as follows: “A preliminary report shall be submitted for each annual Selected Acquisition Report within 30 days of the date on which the President submits the Budget to Congress.”
Subsec. (h)(1). Pub. L. 103–355, §3002(h)(3), substituted “engineering and manufacturing” for “full-scale engineering” in two places.
1992—Subsec. (a)(3). Pub. L. 102–484, §817(c)(1), added par. (3) and struck out former par. (3) which read as follows: “The term ‘major contract’, with respect to a major defense acquisition program, means (A) each prime contract under the program, and (B) each associate or Government-furnished equipment contract under the program that is one of the six largest contracts under the program in dollar amount and that is in excess of $40,000,000.”
Subsec. (b)(3). Pub. L. 102–484, §817(c)(2), added par. (3) and struck out former par. (3) which read as follows: “A status report on a particular major defense acquisition program need not be included in any Selected Acquisition Report with the approval of the Committees on Armed Services of the Senate and House of Representatives.”
Subsec. (c)(2). Pub. L. 102–484, §817(c)(3), added sentence at end and struck out former last sentence which read as follows: “A change in the content of the Selected Acquisition Report for the first quarter of a fiscal year from the content as reported for the first quarter of the previous fiscal year may not be made until appropriate officials of the Department of Defense consult with such Committees regarding the proposed changes.”
Subsec. (c)(3)(C)(i) to (vii). Pub. L. 102–484, §817(c)(4), added cls. (i) to (vii) and struck out former cls. (i) to (vii) which contained similar specification and estimation requirements.
1991—Subsec. (a)(4). Pub. L. 102–190, §801(b)(2), substituted “2434(b)(2)” for “2434(c)(2)”.
Subsec. (c)(5). Pub. L. 102–25 substituted “subsection (a)” for “section 2432(a) of title 10, United States Code, as added by subsection (a)(2),”.
Subsec. (h)(2)(A). Pub. L. 102–190, §1061(a)(14), substituted “(b)(1) and (b)(3)” for “(c)(1) and (c)(3)”.
1990—Subsec. (a)(4). Pub. L. 101–510, §1407(b), added par. (4).
Subsec. (c)(3). Pub. L. 101–510, §1484(f)(4)(A), substituted “include the following:” for “include—” in introductory provisions.
Subsec. (c)(3)(A). Pub. L. 101–510, §1407(a), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “a full life-cycle cost analysis for each major defense acquisition program included in the report that—
“(i) is in the full-scale engineering development stage or has completed that stage; and
“(ii) was first included in a Selected Acquisition Report for a quarter after the first quarter of fiscal year 1985;”.
Subsec. (c)(3)(B). Pub. L. 101–510, §1484(f)(4)(B), (C), substituted “If” for “if” and a period for “; and”.
Subsec. (c)(3)(C). Pub. L. 101–510, §1484(f)(4)(B), (D), substituted “Production” for “production” and “program) the following:” for “program)—” in introductory provisions, “Specification” for “specification” in cls. (i) to (iv), “Estimation” for “estimation” in cls. (v) to (vii), a period for a semicolon in cls. (i) to (v), and a period for “; and” in cl. (vi).
Subsec. (c)(5). Pub. L. 101–510, §1407(c), added par. (5).
1989—Subsec. (b)(2)(A). Pub. L. 101–189 substituted “15 percent increase in program acquisition unit cost and current procurement unit cost” for “5 percent change in total program cost”.
1987—Pub. L. 100–180, §1314(a)(1), made technical amendment to directory language of Pub. L. 99–433, §101(a)(5). See 1986 Amendment note below.
Subsec. (a). Pub. L. 100–26, §7(b)(3)(A), as amended by Pub. L. 100–180, §1233(a)(1), redesignated pars. (2) to (4) as (1) to (3), respectively, and struck out former par. (1) which defined “major defense acquisition program”.
Pub. L. 100–26, §7(k)(2)(A), inserted “The term” after each par. designation and struck out uppercase letter of first word after first quotation marks in each par. and substituted lowercase letter.
Subsec. (a)(2). Pub. L. 100–26, §7(b)(3)(B), substituted “programmed” for “programed” wherever appearing.
1986—Pub. L. 99–433, §101(a)(5), as amended by Pub. L. 100–180, §1314(a)(1), renumbered section 139a of this title as this section.
Pub. L. 99–433, §110(d)(13), struck out “Oversight of cost growth in major programs:” before “Selected Acquisition Reports” in section catchline.
Subsec. (a)(3). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(1)], Pub. L. 99–661, §961(a)(1), amended par. (3) identically, inserting provision that if for any fiscal year the funds appropriated, or the number of fully-configured end items to be purchased, differ from those programmed, the procurement unit cost shall be revised to reflect the appropriated amounts and quantities.
Subsec. (a)(4). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(2)], Pub. L. 99–661, §961(a)(2), amended par. (4) identically, substituting “$40,000,000” for “$2,000,000”.
Subsec. (b)(2)(B). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(3)], Pub. L. 99–661, §961(a)(3), amended subpar. (B) identically, substituting “six-month” for “three-month”.
Subsec. (c)(1). Pub. L. 99–433, §110(g)(7), substituted “section 2431” for “section 139”.
Subsec. (c)(2). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(4)], Pub. L. 99–661, §961(a)(4), amended subsec. (c) identically, enacting a new par. (2) and striking out former par. (2) which read as follows: “Each Selected Acquisition Report for the first quarter of a fiscal year shall be prepared and submitted with the same content as was used for the Selected Acquisition Report for the first quarter of fiscal year 1984.”
Subsec. (c)(3)(C). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(5)], Pub. L. 99–661, §961(a)(5), amended subpar. (C) identically, inserting in provision preceding cl. (i) “that is produced at a rate of six units or more per year” after “report”.
Subsec. (h). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(6)], Pub. L. 99–661, §961(a)(6), amended section identically, adding subsec. (h).
1985—Subsec. (c). Pub. L. 99–145 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “Each Selected Acquisition Report for the first quarter of a fiscal year shall include (1) the same information, in detailed and summarized form, as is provided in reports submitted under section 139 of this title, (2) the current program acquisition unit cost for each major defense acquisition program included in the report and the history of that cost from the date the program was first included in a Selected Acquisition Report to the end of the quarter for which the current report is submitted, and (3) such other information as the Secretary of Defense considers appropriate. Selected Acquisition Reports for the first quarter of a fiscal year shall be known as comprehensive annual Selected Acquisition Reports.”
1984—Subsec. (a)(3). Pub. L. 98–525, §1242(a)(1), substituted “funds programed to be available for obligation for procurement” for “procurement funds appropriated” and “of funds programed to be available for obligation” for “of funds appropriated”.
Subsec. (a)(4). Pub. L. 98–525, §1242(a)(2), inserted “and that is in excess of $2,000,000”.
Subsec. (b)(2). Pub. L. 98–525, §1242(a)(3), substituted “during the period since that report there has been— (A) less than a 5 percent change in total program cost; and (B) less than a three-month delay in any program schedule milestone shown in the Selected Acquisition Report” for “there has been no change in program cost, performance, or schedule since the most recent such report”.
Subsec. (f). Pub. L. 98–525, §1242(a)(4), substituted: “60” for “30”, “45” for “30, and “A preliminary report shall be submitted for each annual Selected Acquisition Report within 30 days of the date on which the President submits the Budget to Congress” for “If a preliminary report is submitted for the comprehensive annual Selected Acquisition Report in any year, the final report shall be submitted within 15 days after the submission of the preliminary report”.
Subsec. (g). Pub. L. 98–525, §1242(a)(5), added subsec. (g).
Pub. L. 109–364, div. A, title X, §1071(g), Oct. 17, 2006, 120 Stat. 2402, provided that the amendment made by section 1071(g)(10) is effective as of Oct. 28, 2004, and as if included in Pub. L. 108–375 as enacted.
Pub. L. 108–375, div. A, title VIII, §801(c), Oct. 28, 2004, 118 Stat. 2004, provided that: “The amendments made by this section [amending this section and section 2433 of this title] shall take effect on the date occurring 60 days after the date of the enactment of this Act [Oct. 28, 2004], and shall apply with respect to reports due to be submitted to Congress on or after such date.”
Section 1407(d) of Pub. L. 101–510, as amended by Pub. L. 102–25, title VII, §704(a)(8), Apr. 6, 1991, 105 Stat. 119, provided that: “The amendments made by subsection (a) [amending this section] shall take effect with respect to Selected Acquisition Reports submitted under section 2432 of title 10, United States Code, after December 31, 1991.”
Amendment by section 1233(a)(1) of Pub. L. 100–180 applicable as if included in enactment of the Defense Technical Corrections Act of 1987, Pub. L. 100–26, see section 1233(c) of Pub. L. 100–180, set out as a note under section 101 of this title.
Amendment by section 1314(a)(1) of Pub. L. 100–180 applicable as if included in enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. 99–433, see section 1314(e) of Pub. L. 100–180, set out as a note under section 743 of this title.
Section 101(c) [title IX, §961(c)] of Pub. L. 99–500 and Pub. L. 99–591, and section 961(c) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “The amendments made by subsections (a) and (b) [amending this section and section 2433 of this title] shall take effect on January 1, 1987.”
Section 1107(c) of Pub. L. 97–252 provided that: “Sections 139a and 139b [now 2432 and 2433] of title 10, United States Code, as added by subsection (a), shall take effect on January 1, 1983, and shall apply beginning with respect to reports for the first quarter of fiscal year 1983. The repeal made by subsection (b) [repealing Pub. L. 94–106, as amended, set out as Reports to Congress of Acquisitions for Major Defense Systems note under section 2431 of this title] shall take effect on January 1, 1983.”
Section 127 of Pub. L. 100–180, as amended by Pub. L. 102–484, div. A, title VIII, §817(a), Oct. 23, 1992, 106 Stat. 2454, provided that:
“(a)
“(b)
“(c)
Section 825 of Pub. L. 100–180 related to the sense of Congress on preparation of certain economic impact and employment information concerning new acquisition programs, prior to repeal by Pub. L. 104–106, div. D, title XLIII, §4321(i)(4), Feb. 10, 1996, 110 Stat. 676.
Section 1243 of Pub. L. 98–525, as amended by Pub. L. 100–26, §11(a)(1), Apr. 21, 1987, 101 Stat. 288, which related to waivable minimum four-year tour of duty of program managers for major defense acquisition programs, was repealed and restated in section 2435(c) of this title by Pub. L. 100–370, §1(i), July 19, 1988, 102 Stat. 848.
(a) In this section:
(1) Except as provided in section 2430a(d) of this title, the terms “program acquisition unit cost”, “procurement unit cost”, and “major contract” have the same meanings as provided in section 2432(a) of this title.
(2) The term “Baseline Estimate”, with respect to a unit cost report that is submitted under this section to the service acquisition executive designated by the Secretary concerned on a major defense acquisition program or designated major subprogram, means the cost estimate included in the baseline description for the program or subprogram under section 2435 of this title.
(3) The term “procurement program” means a program for which funds for procurement are authorized to be appropriated in a fiscal year.
(4) The term “significant cost growth threshold” means the following:
(A) In the case of a major defense acquisition program or designated major defense subprogram, a percentage increase in the program acquisition unit cost for the program or subprogram of—
(i) at least 15 percent over the program acquisition unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or
(ii) at least 30 percent over the program acquisition unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.
(B) In the case of a major defense acquisition program or designated major defense subprogram that is a procurement program, a percentage increase in the procurement unit cost for the program or subprogram of—
(i) at least 15 percent over the procurement unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or
(ii) at least 30 percent over the procurement unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.
(5) The term “critical cost growth threshold” means the following:
(A) In the case of a major defense acquisition program or designated major defense subprogram, a percentage increase in the program acquisition unit cost for the program or subprogram of—
(i) at least 25 percent over the program acquisition unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or
(ii) at least 50 percent over the program acquisition unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.
(B) In the case of a major defense acquisition program or designated major defense subprogram that is a procurement program, a percentage increase in the procurement unit cost for the program or subprogram of—
(i) at least 25 percent over the procurement unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or
(ii) at least 50 percent over the procurement unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.
(6) The term “original Baseline Estimate” has the same meaning as provided in section 2435(d) of this title.
(b) The program manager for a major defense acquisition program (other than a program not required to be included in the Selected Acquisition Report for that quarter under section 2432(b)(3) of this title) shall, on a quarterly basis, submit to the service acquisition executive designated by the Secretary concerned a written report on the unit costs of the program (or of each designated major subprogram under the program). Each report shall be submitted not more than 30 calendar days after the end of that quarter. The program manager shall include in each such unit cost report the following information with respect to the program (as of the last day of the quarter for which the report is made):
(1) The program acquisition unit cost for the program (or for each designated major subprogram under the program).
(2) In the case of a procurement program, the procurement unit cost for the program (or for each designated major subprogram under the program).
(3) Any cost variance or schedule variance in a major contract under the program since the contract was entered into.
(4) Any changes from program schedule milestones or program performances reflected in the baseline description established under section 2435 of this title that are known, expected, or anticipated by the program manager.
(5) Any significant changes in the total program cost for development and procurement of the software component of the program or subprogram, schedule milestones for the software component of the program or subprogram, or expected performance for the software component of the program or subprogram that are known, expected, or anticipated by the program manager.
(c) If the program manager of a major defense acquisition program for which a unit cost report has previously been submitted under subsection (b) determines at any time during a quarter that there is reasonable cause to believe that the program acquisition unit cost for the program (or for a designated major subprogram under the program) or the procurement unit cost for the program (or for such a subprogram), as applicable, has increased by a percentage equal to or greater than the significant cost growth threshold; and if a unit cost report indicating an increase of such percentage or more has not previously been submitted to the service acquisition executive designated by the Secretary concerned, then the program manager shall immediately submit to such service acquisition executive a unit cost report containing the information, determined as of the date of the report, required under subsection (b).
(d)(1) When a unit cost report is submitted to the service acquisition executive designated by the Secretary concerned under this section with respect to a major defense acquisition program or any designated major subprogram under the program, the service acquisition executive shall determine whether the current program acquisition unit cost for the program or subprogram has increased by a percentage equal to or greater than the significant cost growth threshold, or the critical cost growth threshold, for the program or subprogram.
(2) When a unit cost report is submitted to the service acquisition executive designated by the Secretary concerned under this section with respect to a major defense acquisition program or any designated major subprogram under the program that is a procurement program, the service acquisition executive, in addition to the determination under paragraph (1), shall determine whether the procurement unit cost for the program or subprogram has increased by a percentage equal to or greater than the significant cost growth threshold, or the critical cost growth threshold, for the program or subprogram.
(3) If, based upon the service acquisition executive's determination, the Secretary concerned determines that the current program acquisition unit cost has increased by a percentage equal to or greater than the significant cost growth threshold or critical cost growth threshold or that the procurement unit cost has increased by a percentage equal to or greater than the significant cost growth threshold or critical cost growth threshold, the Secretary shall notify Congress in writing of such determination and of the increase with respect to the program or subprogram concerned. In the case of a determination based on a quarterly report submitted in accordance with subsection (b), the Secretary shall submit the notification to Congress within 45 days after the end of the quarter. In the case of a determination based on a report submitted in accordance with subsection (c), the Secretary shall submit the notification to Congress within 45 days after the date of that report. The Secretary shall include in the notification the date on which the determination was made.
(e)(1)(A) Except as provided in subparagraph (B), whenever the Secretary concerned determines under subsection (d) that the program acquisition unit cost or the procurement unit cost of a major defense acquisition program or designated major subprogram has increased by a percentage equal to or greater than the significant cost growth threshold for the program or subprogram, a Selected Acquisition Report shall be submitted to Congress for the first fiscal-year quarter ending on or after the date of the determination or for the fiscal-year quarter which immediately precedes the first fiscal-year quarter ending on or after that date. The report shall include the information described in section 2432(e) of this title and shall be submitted in accordance with section 2432(f) of this title.
(B) Whenever the Secretary makes a determination referred to in subparagraph (A) in the case of a major defense acquisition program or designated major subprogram during the second quarter of a fiscal year and before the date on which the President transmits the budget for the following fiscal year to Congress pursuant to section 1105 of title 31, the Secretary is not required to file a Selected Acquisition Report under subparagraph (A) but shall include the information described in subsection (g) regarding that program or subprogram in the comprehensive annual Selected Acquisition Report submitted in that quarter.
(2) If the program acquisition unit cost or procurement unit cost of a major defense acquisition program or designated major subprogram (as determined by the Secretary under subsection (d)) increases by a percentage equal to or greater than the critical cost growth threshold for the program or subprogram, the Secretary of Defense shall take actions consistent with the requirements of section 2433a of this title.
(3) If a determination of an increase by a percentage equal to or greater than the significant cost growth threshold is made by the Secretary under subsection (d) and a Selected Acquisition Report containing the information described in subsection (g) is not submitted to Congress under paragraph (1), or if a determination of an increase by a percentage equal to or greater than the critical cost growth threshold is made by the Secretary under subsection (d) and the certification of the Secretary of Defense is not submitted to Congress under paragraph (2), funds appropriated for military construction, for research, development, test, and evaluation, and for procurement may not be obligated for a major contract under the program. The prohibition on the obligation of funds for a major defense acquisition program shall cease to apply at the end of a period of 30 days of continuous session of Congress (as determined under section 7307(b)(2) of this title) beginning on the date—
(A) on which Congress receives the Selected Acquisition Report under paragraph (1) or (2)(B) with respect to that program, in the case of a determination of an increase by a percentage equal to or greater than the significant cost growth threshold (as determined in subsection (d)); or
(B) on which Congress has received both the Selected Acquisition Report under paragraph (1) or (2)(B) and the certification of the Secretary of Defense under paragraph (2)(A) with respect to that program, in the case of an increase by a percentage equal to or greater than the critical cost growth threshold (as determined under subsection (d)).
(f) Any determination of a percentage increase under this section shall be stated in terms of constant base year dollars (as described in section 2430 of this title).
(g)(1) Except as provided in paragraph (2), each report under subsection (e) with respect to a major defense acquisition program shall include the following:
(A) The name of the major defense acquisition program.
(B) The date of the preparation of the report.
(C) The program phase as of the date of the preparation of the report.
(D) The estimate of the program acquisition cost for the program (and for each designated major subprogram under the program) as shown in the Selected Acquisition Report in which the program or subprogram was first included, expressed in constant base-year dollars and in current dollars.
(E) The current program acquisition cost for the program (and for each designated major subprogram under the program) in constant base-year dollars and in current dollars.
(F) A statement of the reasons for any increase in program acquisition unit cost or procurement unit cost for the program (or for any designated major subprogram under the program).
(G) The completion status of the program and each designated major subprogram under the program (i) expressed as the percentage that the number of years for which funds have been appropriated for the program or subprogram is of the number of years for which it is planned that funds will be appropriated for the program or subprogram, and (ii) expressed as the percentage that the amount of funds that have been appropriated for the program or subprogram is of the total amount of funds which it is planned will be appropriated for the program or subprogram.
(H) The fiscal year in which information on the program and each designated major subprogram under the program was first included in a Selected Acquisition Report (referred to in this paragraph as the “base year”) and the date of that Selected Acquisition Report in which information on the program or subprogram was first included.
(I) The type of the Baseline Estimate that was included in the baseline description under section 2435 of this title and the date of the Baseline Estimate.
(J) The current change and the total change, in dollars and expressed as a percentage, in the program acquisition unit cost for the program (or for each designated major subprogram under the program), stated both in constant base-year dollars and in current dollars.
(K) The current change and the total change, in dollars and expressed as a percentage, in the procurement unit cost for the program (or for each designated major subprogram under the program), stated both in constant base-year dollars and in current dollars and the procurement unit cost for the program (or for each designated major subprogram under the program) for the succeeding fiscal year expressed in constant base-year dollars and in current year dollars.
(L) The quantity of end items to be acquired under the program and the current change and total change, if any, in that quantity.
(M) The identities of the military and civilian officers responsible for program management and cost control of the program.
(N) The action taken and proposed to be taken to control future cost growth of the program.
(O) Any changes made in the performance or schedule milestones of the program and the extent to which such changes have contributed to the increase in program acquisition unit cost or procurement unit cost for the program (or for any designated major subprogram under the program).
(P) The following contract performance assessment information with respect to each major contract under the program or subprogram:
(i) The name of the contractor.
(ii) The phase that the contract is in at the time of the preparation of the report.
(iii) The percentage of work under the contract that has been completed.
(iv) Any current change and the total change, in dollars and expressed as a percentage, in the contract cost.
(v) The percentage by which the contract is currently ahead of or behind schedule.
(vi) A narrative providing a summary explanation of the most significant occurrences, including cost and schedule variances under major contracts of the program and any designated major subprogram under the program, contributing to the changes identified and a discussion of the effect these occurrences will have on future program costs and the program schedule.
(Q) In any case in which one or more problems with the software component of the program or any designated major subprogram under the program significantly contributed to the increase in program unit costs, the action taken and proposed to be taken to solve such problems.
(2) If a program acquisition unit cost increase or a procurement unit cost increase for a major defense acquisition program or designated major subprogram that results in a report under this subsection is due to termination or cancellation of the entire program or subprogram, only the information specified in clauses (A) through (F) of paragraph (1) and the percentage change in program acquisition unit cost or procurement unit cost that resulted in the report need be included in the report. The certification of the Secretary of Defense under subsection (e) is not required to be submitted for termination or cancellation of a program or subprogram.
(h) Reporting under this section shall not apply if a program has received a limited reporting waiver under section 2432(h) of this title.
(Added Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 741, §139b; amended Pub. L. 98–94, title XII, §1268(1), Sept. 24, 1983, 97 Stat. 705; Pub. L. 98–525, title XII, §1242(b), Oct. 19, 1984, 98 Stat. 2607; Pub. L. 99–145, title XIII, §1303(a)(2), Nov. 8, 1985, 99 Stat. 738; renumbered §2433 and amended Pub. L. 99–433, title I, §§101(a)(5), 110(d)(14), (g)(8), Oct. 1, 1986, 100 Stat. 995, 1003, 1004; Pub. L. 99–500, §101(c) [title X, §961(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–176, and Pub. L. 99–591, §101(c) [title X, §961(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–176; Pub. L. 99–661, div. A, title IX, formerly title IV, §961(b), Nov. 14, 1986, 100 Stat. 3956, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §7(b)(4), (k)(7), Apr. 21, 1987, 101 Stat. 279, 284; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–189, div. A, title VIII, §811(a), Nov. 29, 1989, 103 Stat. 1490; Pub. L. 101–510, div. A, title XIV, §1484(k)(10), Nov. 5, 1990, 104 Stat. 1719; Pub. L. 102–484, div. A, title VIII, §817(d), Oct. 23, 1992, 106 Stat. 2456; Pub. L. 103–35, title II, §201(i)(2), May 31, 1993, 107 Stat. 100; Pub. L. 103–355, title III, §§3002(a)(2), 3003, Oct. 13, 1994, 108 Stat. 3328, 3329; Pub. L. 105–85, div. A, title VIII, §833, Nov. 18, 1997, 111 Stat. 1842; Pub. L. 108–375, div. A, title VIII, §801(a), (b)(1), Oct. 28, 2004, 118 Stat. 2004; Pub. L. 109–163, div. A, title VIII, §802(a)–(c), (d)(2), Jan. 6, 2006, 119 Stat. 3367–3370; Pub. L. 109–364, div. A, title II, §213(a), Oct. 17, 2006, 120 Stat. 2121; Pub. L. 110–181, div. A, title IX, §942(e), Jan. 28, 2008, 122 Stat. 288; Pub. L. 110–417, [div. A], title VIII, §811(c), Oct. 14, 2008, 122 Stat. 4522; Pub. L. 111–23, title II, §206(a)(3), May 22, 2009, 123 Stat. 1728; Pub. L. 111–84, div. A, title X, §1073(c)(4), Oct. 28, 2009, 123 Stat. 2474; Pub. L. 111–383, div. A, title X, §1075(b)(34), Jan. 7, 2011, 124 Stat. 4371.)
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Subsec. (a)(1). Pub. L. 111–383 substituted “section 2430a(d)” for “section 2430a(c)”.
2009—Subsec. (e)(2). Pub. L. 111–23 amended par. (2) generally. Prior to amendment, par. (2) related to cost growths in major defense acquisition programs or designated major subprograms.
Subsec. (g)(1)(G). Pub. L. 111–84 made technical amendment to directory language of Pub. L. 110–417, §811(c)(6)(A)(iv)(I). See 2008 Amendment note below.
2008—Subsec. (a)(1). Pub. L. 110–417, §811(c)(1)(A), substituted “Except as provided in section 2430a(c) of this title, the terms” for “The terms”.
Subsec. (a)(2). Pub. L. 110–417, §811(c)(1)(B), inserted “or designated major subprogram” after “major defense acquisition program” and “or subprogram” after “the program”.
Subsec. (a)(4), (5). Pub. L. 110–417, §811(c)(1)(C), (D), inserted “or designated major defense subprogram” after “major defense acquisition program” wherever appearing and “or subprogram” after “for the program” wherever appearing.
Subsec. (b). Pub. L. 110–417, §811(c)(2)(A), inserted “(or of each designated major subprogram under the program)” after “unit costs of the program” in introductory provisions.
Subsec. (b)(1), (2). Pub. L. 110–417, §811(c)(2)(B), (C), inserted “for the program (or for each designated major subprogram under the program)” before period at end.
Subsec. (b)(5). Pub. L. 110–417, §811(c)(2)(D), inserted “or subprogram” after “software component of the program” wherever appearing.
Subsec. (c). Pub. L. 110–417, §811(c)(3), substituted “the program acquisition unit cost for the program (or for a designated major subprogram under the program) or the procurement unit cost for the program (or for such a subprogram)” for “the program acquisition unit cost for the program or the procurement unit cost for the program” and struck out “for the program” after “significant cost growth threshold”.
Subsec. (d)(1), (2). Pub. L. 110–417, §811(c)(4)(A), (B), inserted “or any designated major subprogram under the program” after “major defense acquisition program” and “or subprogram” after “for the program” wherever appearing.
Subsec. (d)(3). Pub. L. 110–417, §811(c)(4)(C), substituted “the program or subprogram concerned” for “such program”.
Subsec. (e)(1)(A). Pub. L. 110–417, §811(c)(5)(A)(i), inserted “or designated major subprogram” after “major defense acquisition program” and “or subprogram” after “for the program”.
Subsec. (e)(1)(B). Pub. L. 110–417, §811(c)(5)(A)(ii), inserted “or designated major subprogram” after “major defense acquisition program” and “or subprogram” after “that program”.
Subsec. (e)(2). Pub. L. 110–417, §811(c)(5)(B), in introductory provisions, inserted “or designated major subprogram” after “major defense acquisition program” and “or subprogram” after “for the program”.
Pub. L. 110–181 inserted “, after consultation with the Joint Requirements Oversight Council regarding program requirements,” after “Secretary of Defense” in introductory provisions.
Subsec. (g)(1)(D). Pub. L. 110–417, §811(c)(6)(A)(i), inserted “(and for each designated major subprogram under the program)” after “for the program” and “or subprogram” after “in which the program”.
Subsec. (g)(1)(E). Pub. L. 110–417, §811(c)(6)(A)(ii), inserted “for the program (and for each designated major subprogram under the program)” after “program acquisition cost”.
Subsec. (g)(1)(F). Pub. L. 110–417, §811(c)(6)(A)(iii), inserted “for the program (or for any designated major subprogram under the program)” before period at end.
Subsec. (g)(1)(G). Pub. L. 110–417, §811(c)(6)(A)(iv)(I), as amended by Pub. L. 111–84, inserted “and each designated major subprogram under the program” after “of the program”.
Subsec. (g)(1)(G)(i), (ii). Pub. L. 110–417, §811(c)(6)(A)(iv)(II), inserted “or subprogram” after “for the program” in two places.
Subsec. (g)(1)(H). Pub. L. 110–417, §811(c)(6)(A)(v), inserted “and each designated major subprogram under the program” after “year in which information on the program” and “or subprogram” after “Report in which information on the program”.
Subsec. (g)(1)(J). Pub. L. 110–417, §811(c)(6)(A)(vi), inserted “for the program (or for each designated major subprogram under the program)” after “program acquisition unit cost”.
Subsec. (g)(1)(K). Pub. L. 110–417, §811(c)(6)(A)(vii), inserted “for the program (or for each designated major subprogram under the program)” after “procurement unit cost” in two places.
Subsec. (g)(1)(O). Pub. L. 110–417, §811(c)(6)(A)(viii), inserted “for the program (or for any designated major subprogram under the program)” before period at end.
Subsec. (g)(1)(P). Pub. L. 110–417, §811(c)(6)(A)(ix), inserted “or subprogram” after “the program” in introductory provisions and “and any designated major subprogram under the program” after “major contracts of the program” in cl. (vi).
Subsec. (g)(1)(Q). Pub. L. 110–417, §811(c)(6)(A)(x), inserted “or any designated major subprogram under the program” after “the program”.
Subsec. (g)(2). Pub. L. 110–417, §811(c)(6)(B), inserted “or designated major subprogram” after “major defense acquisition program” and “or subprogram” after “the entire program” and after “cancellation of a program”.
2006—Subsec. (a)(4), (5). Pub. L. 109–163, §802(a), added pars. (4) and (5).
Subsec. (a)(6). Pub. L. 109–163, §802(d)(2), added par. (6).
Subsec. (c). Pub. L. 109–163, §802(b)(1), substituted “cause to believe that the program acquisition unit cost for the program or the procurement unit cost for the program, as applicable, has increased by a percentage equal to or greater than the significant cost growth threshold for the program” for “cause to believe—
“(1) that the program acquisition unit cost for the program has increased by at least 15 percent over the program acquisition unit cost for the program as shown in the Baseline Estimate; or
“(2) in the case of a major defense acquisition program that is a procurement program, that the procurement unit cost for the program has increased by at least 15 percent over the procurement unit cost for the program as reflected in the Baseline Estimate”.
Subsec. (d)(1). Pub. L. 109–163, §802(b)(2)(A), substituted “by a percentage equal to or greater than the significant cost growth threshold, or the critical cost growth threshold, for the program” for “by at least 15 percent, or by at least 25 percent, over the program acquisition unit cost for the program as shown in the Baseline Estimate”.
Subsec. (d)(2). Pub. L. 109–163, §802(b)(2)(B), substituted “by a percentage equal to or greater than the significant cost growth threshold, or the critical cost growth threshold, for the program” for “by at least 15 percent, or by at least 25 percent, over the procurement unit cost for the program as reflected in the Baseline Estimate”.
Subsec. (d)(3). Pub. L. 109–163, §802(b)(2)(C), substituted “by a percentage equal to or greater than the significant cost growth threshold or critical cost growth threshold or that” for “by at least 15 percent, or by at least 25 percent, as determined under paragraph (1) or that” and “by a percentage equal to or greater than the significant cost growth threshold or critical cost growth threshold, the Secretary” for “by at least 15 percent, or by at least 25 percent, as determined under paragraph (2), the Secretary”.
Subsec. (e)(1)(A). Pub. L. 109–163, §802(b)(3)(A), substituted “by a percentage equal to or greater than the significant cost growth threshold for the program” for “by at least 15 percent”.
Subsec. (e)(2). Pub. L. 109–163, §802(c), redesignated subpar. (B) as (C) and substituted “the Secretary of Defense shall—”, par. (A) and introductory provisions of par. (B) for “the Secretary of Defense shall submit to Congress, before the end of the 30-day period beginning on the day the Selected Acquisition Report containing the information described in subsection (g) is required to be submitted under section 2432(f) of this title—
“(A) a written certification, stating that—”.
Pub. L. 109–163, §802(b)(3)(B), in introductory provisions, struck out “percentage increase in the” before “program acquisition” and substituted “increases by a percentage equal to or greater than the critical cost growth threshold for the program” for “exceeds 25 percent”.
Subsec. (e)(2)(A). Pub. L. 109–364 added cl. (i) and redesignated former cls. (i) to (iii) as (ii) to (iv), respectively.
Subsec. (e)(3). Pub. L. 109–163, §802(b)(3)(C)(ii), substituted “by a percentage equal to or greater than the critical cost growth threshold” for “of at least 25 percent” in introductory provisions and subpar. (B).
Pub. L. 109–163, §802(b)(3)(C)(i), substituted “by a percentage equal to or greater than the significant cost growth threshold” for “of at least 15 percent” in introductory provisions and subpar. (A).
2004—Subsec. (b)(5). Pub. L. 108–375, §801(a), added par. (5).
Subsec. (g)(1)(Q). Pub. L. 108–375, §801(b)(1), added subpar. (Q).
1997—Subsec. (c). Pub. L. 105–85, §833(a), in concluding provisions, struck out “during the current fiscal year (other than the last quarterly unit cost report under subsection (b) for the preceding fiscal year)” after “designated by the Secretary concerned”.
Subsec. (c)(1) to (3). Pub. L. 105–85, §833(b), inserted “or” at end of par. (1), struck out “or” at end of par. (2), and struck out par. (3), which read as follows: “that cost variances or schedule variances of a major contract under the program have resulted in an increase in the cost of the contract of at least 15 percent over the cost of the contract as of the time the contract was made;”.
Subsec. (d)(3). Pub. L. 105–85, §833(c), struck out “(for the first time since the beginning of the current fiscal year)” after “the Secretary concerned determines”.
1994—Subsec. (a)(2). Pub. L. 103–355, §3003(a)(1)(A), substituted “Baseline Estimate” for “Baseline Selected Acquisition Report” and “cost estimate included in the baseline description for the program under section 2435 of this title.” for “Selected Acquisition Report in which information on the program is first included or the comprehensive annual Selected Acquisition Report for the fiscal year immediately before the fiscal year containing the quarter with respect to which the unit cost report is submitted, whichever is later.”
Subsec. (a)(4). Pub. L. 103–355, §3003(a)(1)(B), struck out par. (4) which defined “Baseline Report”.
Subsec. (b)(3). Pub. L. 103–355, §3003(b), substituted “contract was entered into” for “Baseline Report was submitted”.
Subsec. (c). Pub. L. 103–355, §§3002(a)(2)(A), 3003(a)(2)(A), (c), struck out par. (1) designation and par. (2), redesignated subpars. (A) to (C) as pars. (1) to (3), respectively, substituted “Baseline Estimate” for “Baseline Report” in pars. (1) and (2), and struck out “current” before “procurement unit cost” in par. (2). Prior to amendment, former par. (2) related to submission of unit cost reports by major defense acquisition program manager to service acquisition executive designated by Secretary of Defense in certain circumstances.
Subsec. (d)(1). Pub. L. 103–355, §3003(a)(2)(B), substituted “Baseline Estimate” for “Baseline Report”.
Subsec. (d)(2). Pub. L. 103–355, §§3002(a)(2)(B), 3003(a)(2)(B), struck out “current” before “procurement unit cost” and substituted “Baseline Estimate” for “Baseline Report”.
Subsec. (d)(3). Pub. L. 103–355, §3002(a)(2)(B), struck out “current” before “procurement unit cost”.
Subsec. (e)(1)(A), (2). Pub. L. 103–355, §3002(a)(2)(C), struck out “current” before “procurement unit cost”.
Subsec. (f). Pub. L. 103–355, §3003(d), substituted “be stated in terms of constant base year dollars (as described in section 2430 of this title)” for “include expected inflation”.
Subsec. (g)(1)(I). Pub. L. 103–355, §3003(e), amended subpar. (I) generally. Prior to amendment, subpar. (I) read as follows: “The type of the Baseline Report (under subsection (a)(4)) and the date of the Baseline Report.”
1993—Subsec. (e)(3). Pub. L. 103–35 substituted “an increase of at least 15 percent” for “a at least 15 percent increase” in introductory provisions and in subpar. (A), and substituted “an increase of at least 25 percent” for “a at least 25 percent increase” in introductory provisions and in subpar. (B).
1992—Subsec. (a)(4)(C). Pub. L. 102–484, §817(d)(1), substituted “(e)(2)(B)” for “(e)(2)(B)(ii)”.
Subsec. (b). Pub. L. 102–484, §817(d)(2), substituted “30 calendar days” for “7 days (excluding Saturdays, Sundays, and legal public holidays)” in second sentence.
Subsec. (c)(1)(A), (B), (2)(A), (B). Pub. L. 102–484, §817(d)(3), substituted “at least” for “more than”.
Subsec. (d)(1), (2). Pub. L. 102–484, §817(d)(4)(A), substituted “at least” for “more than” wherever appearing.
Subsec. (d)(3). Pub. L. 102–484, §817(d)(4)(B), substituted “at least” for “more than” wherever appearing and “program. In the case of a determination based on a quarterly report submitted in accordance with subsection (b), the Secretary shall submit the notification to Congress within 45 days after the end of the quarter. In the case of a determination based on a report submitted in accordance with subsection (c), the Secretary shall submit the notification to Congress within 45 days after the date of that report. The Secretary shall include in the notification the date on which the determination was made.” for “program within 30 days after the date on which the service acquisition executive reports his determination of such increase in such unit cost to the Secretary and shall include in such notification the date on which the determination was made.”
Subsec. (e)(1)(A). Pub. L. 102–484, §817(d)(5)(A), added subpar. (A) and struck out former subpar. (A) which read as follows: “Except as provided in subparagraph (B), whenever the Secretary concerned determines under subsection (d) that the current program acquisition cost of a major defense acquisition program has increased by more than 15 percent, a Selected Acquisition Report shall be submitted to Congress for the first fiscal-year quarter ending on or after the date of the determination and such report shall include the information described in section 2432(e) of this title. The report shall be submitted within 45 days after the end of that quarter.”
Subsec. (e)(2). Pub. L. 102–484, §817(d)(5)(B), substituted “program acquisition unit cost or current procurement unit cost” for “current program acquisition cost”.
Subsec. (e)(3). Pub. L. 102–484, §817(d)(5)(C), substituted “at least” for “more than” wherever appearing.
1990—Subsec. (c). Pub. L. 101–510 struck out “the” before “such service acquisition executive” wherever appearing.
1989—Subsec. (a)(2). Pub. L. 101–189, §811(a)(1)(A), inserted “the service acquisition executive designated by” before “the Secretary concerned”.
Subsec. (a)(4). Pub. L. 101–189, §811(a)(1)(B)(i), inserted “the service acquisition executive designated by” before “the Secretary concerned” in introductory provisions.
Subsec. (a)(4)(A). Pub. L. 101–189, §811(a)(1)(B)(ii), substituted “Selected Acquisition Report submitted under subsection (e)(2)(B) that includes information on” for “unit cost report submitted under subsection (e)(2)(B)(ii) with respect to”.
Subsec. (a)(4)(B). Pub. L. 101–189, §811(a)(1)(B)(iii), substituted “subsection (e)(2)(B) with respect to the program during that three-quarter period, the most recent Selected Acquisition Report submitted under subsection (e)(1) that includes information on the program” for “subsection (e)(2)(B)(ii) with respect to the program during that three-quarter period, the most recent unit cost report submitted under subsection (e)(1) with respect to the program”.
Subsec. (b). Pub. L. 101–189, §811(a)(2)(A), amended introductory provisions generally. Prior to amendment, introductory provisions read as follows: “The program manager for a defense acquisition program that as of the end of a fiscal-year quarter is a major defense acquisition program (other than a program not required to be included in the Selected Acquisition Report for that quarter under section 2432(b)(3) of this title) shall, after the end of that quarter, submit to the Secretary concerned a written report on the unit costs of the program. Each report for the first quarter of a fiscal year shall be submitted not more than 7 days (excluding Saturdays, Sundays, and legal public holidays) after the date on which the President transmits the Budget to Congress for the following fiscal year, and each report for other quarters shall be submitted not more than 7 days (excluding Saturdays, Sundays, and legal public holidays) after the end of that quarter. The program manager shall include in each such unit cost report the following information with respect to the program (as of the last day of the quarter for which the report is made):”.
Subsec. (b)(4). Pub. L. 101–189, §811(a)(2)(B), substituted “description established under section 2435 of this title” for “Selected Acquisition Report”.
Subsec. (c)(1). Pub. L. 101–189, §811(a)(3)(A), in introductory provisions, struck out “fiscal-year” after “time during a”, and in concluding provisions, inserted “the service acquisition executive designated by” before “the Secretary concerned during” and substituted “(other than the last quarterly unit cost report under subsection (b) for the preceding fiscal year)” for “(other than the unit cost report under subsection (b) for the last quarter of the preceding fiscal year)” and “such service acquisition executive a unit” for “Secretary concerned a unit”.
Subsec. (c)(2). Pub. L. 101–189, §811(a)(3)(B), in introductory provisions, inserted “the service acquisition executive designated by” before “the Secretary concerned a unit” and substituted “(other than the last quarterly unit cost report under subsection (b) for the preceding fiscal year)” for “(other than the unit cost report under subsection (b) for the last quarter of the preceding fiscal year)”, and in cls. (A), (B), and (C), and concluding provisions, substituted “such service acquisition executive” for “Secretary concerned”.
Subsec. (d)(1). Pub. L. 101–189, §811(a)(4)(A), inserted “the service acquisition executive designated by” before “the Secretary concerned” and substituted “service acquisition executive shall determine” for “Secretary shall determine”.
Subsec. (d)(2). Pub. L. 101–189, §811(a)(4)(B), inserted “the service acquisition executive designated by” before “the Secretary concerned under” and substituted “service acquisition executive, in addition to the determination under paragraph (1), shall determine” for “Secretary concerned shall, in addition to the determination under paragraph (1), determine”.
Subsec. (d)(3). Pub. L. 101–189, §811(a)(4)(C), substituted par. (3) consisting of a single par., for former par. (3) consisting of subpars. (A) and (B).
Subsec. (e)(1), (2). Pub. L. 101–189, §811(a)(5)(A), added pars. (1) and (2) and struck out former pars. (1) and (2) which contained exceptions to the prohibitions in subsec. (d)(3)(B)(i) and (ii).
Subsec. (e)(3). Pub. L. 101–189, §811(a)(5)(B), in introductory provisions, inserted “If a determination of a more than 15 percent increase is made by the Secretary under subsection (d) and a Selected Acquisition Report containing the information described in subsection (g) is not submitted to Congress under paragraph (1), or if a determination of a more than 25 percent increase is made by the Secretary under subsection (d) and the certification of the Secretary of Defense is not submitted to Congress under paragraph (2), funds appropriated for military construction, for research, development, test, and evaluation, and for procurement may not be obligated for a major contract under the program.” and struck out “in subsection (d)(3)(B)” after “prohibition”, in subpar. (A), substituted “Selected Acquisition Report” for “report of the Secretary concerned” and “(2)(B)” for “(2)(B)(ii)”, and in subpar. (B), substituted “Selected Acquisition Report” for “report of the Secretary concerned”, “(2)(B)” for “(2)(B)(ii)”, and “(2)(A)” for “(2)(B)(i)”.
Subsec. (g)(2). Pub. L. 101–189, §811(a)(6), inserted at end “The certification of the Secretary of Defense under subsection (e) is not required to be submitted for termination or cancellation of a program.”
1987—Pub. L. 100–180 made technical amendment to directory language of Pub. L. 99–433, §101(a)(5). See 1986 Amendment note below.
Subsec. (a)(1). Pub. L. 100–26, §7(b)(4), substituted “(1) The terms ‘program’ ” for “(1) ‘Major defense acquisition program’, ‘program’ ”.
Subsec. (a)(2). Pub. L. 100–26, §7(k)(7)(A), inserted “The term” after par. designation.
Subsec. (a)(3). Pub. L. 100–26, §7(k)(7)(B), substituted “The term ‘procurement’ ” for “ ‘Procurement’ ”.
Subsec. (a)(4). Pub. L. 100–26, §7(k)(7)(A), inserted “The term” after par. designation.
1986—Pub. L. 99–433, §101(a)(5), as amended by Pub. L. 100–180, §1314(a)(1), renumbered section 139b of this title as this section.
Pub. L. 99–433, §110(d)(14), substituted “Unit cost reports” for “Oversight of cost growth of major programs: unit cost reports” in section catchline.
Subsec. (a)(1). Pub. L. 99–433, §110(g)(8)(A), substituted “section 2432(a)” for “section 139a(a)”.
Subsec. (b). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(b)(1)], Pub. L. 99–661, §961(b)(1), amended subsec. (b) identically, inserting “(excluding Saturdays, Sundays, and legal public holidays)” in two places in second sentence.
Pub. L. 99–433, §110(g)(8)(B), substituted “section 2432(b)(3)” for “section 139a(b)(3)” in first sentence.
Subsec. (h). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(b)(2)], Pub. L. 99–661, §961(b)(2), amended section identically, adding subsec. (h).
1985—Subsec. (d)(3)(B)(i). Pub. L. 99–145 inserted “percent” after “15”.
1984—Subsec. (a)(4). Pub. L. 98–525, §1242(b)(1), added par. (4).
Subsec. (b). Pub. L. 98–525, §1242(b)(2)(A), (B), struck out “not more than 7 days” before “after the end of that quarter” and inserted “Each report for the first quarter of a fiscal year shall be submitted not more than 7 days after the date on which the President transmits the Budget to Congress for the following fiscal year, and each report for other quarters shall be submitted not more than 7 days after the end of that quarter.”
Subsec. (b)(3). Pub. L. 98–525, §1242(b)(2)(C), substituted “Baseline Report” for “baseline Selected Acquisition Report”.
Subsec. (c)(1)(A), (B). Pub. L. 98–525, §1242(b)(3), substituted “Baseline Report” for “baseline Selected Acquisition Report”.
Subsec. (d)(1), (2). Pub. L. 98–525, §1242(b)(4)(A), substituted “Baseline Report” for “baseline Selected Acquisition Report”.
Subsec. (d)(3)(B). Pub. L. 98–525, §1242(b)(4)(B)(i), substituted “funds appropriated for military construction, for research, development, test, and evaluation, and for procurement may not be obligated for a major contract under the program” for “additional funds may not be obligated in connection with such program”.
Subsec. (d)(3)(B)(i). Pub. L. 98–525, §1242(b)(4)(B)(ii), struck out “but less than 25 percent” after “more than 15”.
Subsec. (e)(1). Pub. L. 98–525, §1242(b)(5)(A), substituted “subsection (d)(3)(B)(i)” for “subsection (d)(3)(B)” and inserted “more than” before “15 percent”.
Subsec. (e)(2). Pub. L. 98–525, §1242(b)(5)(B), substituted “subsection (d)(3)(B)(ii)” for “subsection (d)(3)(B)” and inserted “more than” before “25 percent”.
Subsec. (e)(2)(A). Pub. L. 98–525, §1242(b)(5)(B)(iii), inserted “and the Secretary concerned submits to Congress, before the end of the 30-day period referred to in subsection (d)(3)(B)(i), a report containing the information described in subsection (g)”.
Subsec. (e)(2)(B). Pub. L. 98–525, §1242(b)(5)(B)(iv), substituted “subsection (d)(3)(B)(ii)” for “such subsection”.
Subsec. (e)(3). Pub. L. 98–525, §1242(b)(5)(C), substituted “at the end of a period of 30 days of continuous session of Congress (as determined under section 7307(b)(2) of this title) beginning on the date—
“(A) on which Congress receives the report of the Secretary concerned under paragraph (1) or (2)(B)(ii) with respect to that program, in the case of a determination of a more than 15 percent increase (as determined in subsection (d)); or
“(B) on which Congress has received both the report of the Secretary concerned under paragraph (1) or (2)(B)(ii) and the certification of the Secretary of Defense under paragraph (2)(B)(i) with respect to that program, in the case of a more than 25 percent increase (as determined under subsection (d)).”,
for “in the case of a program to which it would otherwise apply if, after such prohibition has taken effect, the Committees on Armed Services of the Senate and House of Representatives waive the prohibition with respect to such program.”
Subsec. (g)(1)(I). Pub. L. 98–525, §1242(b)(6)(A), substituted “The type of the Baseline Report (under subsection (a)(4)) and the date of the Baseline Report” for “The date of the baseline Selected Acquisition Report”.
Subsec. (g)(1)(K). Pub. L. 98–525, §1242(b)(6)(B), required the report to include the procurement unit cost for the succeeding fiscal year expressed in constant base-year dollars and in current year dollars.
1983—Subsec. (g)(2). Pub. L. 98–94 substituted “procurement” for “procurment”.
Pub. L. 111–84, div. A, title X, §1073(c), Oct. 28, 2009, 123 Stat. 2474, provided that the amendment made by section 1073(c)(4) is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 as enacted.
Pub. L. 109–163, div. A, title VIII, §802(e), Jan. 6, 2006, 119 Stat. 3370, provided that:
“(1)
“(2)
“(A) the current Baseline Estimate for the program as of such date of enactment is deemed to be the original Baseline Estimate for the program for purposes of section 2433 of title 10, United States Code (as amended by this section); and
“(B) each Selected Acquisition Report submitted on the program after the date of the enactment of this Act shall reflect each of the following:
“(i) The original Baseline Estimate, as first established for the program, without adjustment or revision.
“(ii) The Baseline Estimate for the program that is deemed to be the original Baseline Estimate for the program under subparagraph (A).
“(iii) The current original Baseline Estimate for the program as adjusted or revised, if at all, in accordance with subsection (d)(2) of section 2435 of title 10, United States Code (as added by subsection (d) of this section).”
Amendment by Pub. L. 108–375 effective on the date occurring 60 days after Oct. 28, 2004, and applicable with respect to reports due to be submitted to Congress on or after that date, see section 801(c) of Pub. L. 108–375, set out as a note under section 2432 of this title.
Amendment by Pub. L. 100–180 applicable as if included in enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. 99–433, see section 1314(e) of Pub. L. 100–180, set out as a note under section 743 of this title.
Amendment by Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 effective Jan. 1, 1987, see section 101(c) [§961(c)] of Pub. L. 99–500 and Pub. L. 99–591, and section 961(c) of Pub. L. 99–661, set out as a note under section 2432 of this title.
Section effective Jan. 1, 1983, and applicable beginning with respect to reports for first quarter of fiscal year 1983, see section 1107(c) of Pub. L. 97–252, set out as a note under section 2432 of this title.
(a)
(1) determine the root cause or causes of the critical cost growth in accordance with applicable statutory requirements and Department of Defense policies, procedures, and guidance; and
(2) in consultation with the Director of Cost Assessment and Program Evaluation, carry out an assessment of—
(A) the projected cost of completing the program if current requirements are not modified;
(B) the projected cost of completing the program based on reasonable modification of such requirements;
(C) the rough order of magnitude of the costs of any reasonable alternative system or capability; and
(D) the need to reduce funding for other programs due to the growth in cost of the program.
(b)
(2) A certification described by this paragraph with respect to a major defense acquisition program is a written certification that—
(A) the continuation of the program is essential to the national security;
(B) there are no alternatives to the program which will provide acceptable capability to meet the joint military requirement (as defined in section 181(g)(1) of this title) at less cost;
(C) the new estimates of the program acquisition unit cost or procurement unit cost have been determined by the Director of Cost Assessment and Program Evaluation to be reasonable;
(D) the program is a higher priority than programs whose funding must be reduced to accommodate the growth in cost of the program; and
(E) the management structure for the program is adequate to manage and control program acquisition unit cost or procurement unit cost.
(3) A written certification under paragraph (2) shall be accompanied by a report presenting the root cause analysis and assessment carried out pursuant to subsection (a) and the basis for each determination made in accordance with subparagraphs (A) through (E) of paragraph (2), together with supporting documentation.
(c)
(A) restructure the program in a manner that addresses the root cause or causes of the critical cost growth, as identified pursuant to subsection (a), and ensures that the program has an appropriate management structure as set forth in the certification submitted pursuant to subsection (b)(2)(E);
(B) rescind the most recent Milestone approval, or Key Decision Point approval in the case of a space program, for the program and withdraw any associated certification under section 2366a or 2366b of this title;
(C) require a new Milestone approval, or Key Decision Point approval in the case of a space program, for the program before taking any contract action to enter a new contract, exercise an option under an existing contract, or otherwise extend the scope of an existing contract under the program, except to the extent determined necessary by the Milestone Decision Authority, on a non-delegable basis, to ensure that the program can be restructured as intended by the Secretary without unnecessarily wasting resources;
(D) include in the report specified in paragraph (2) a description of all funding changes made as a result of the growth in cost of the program, including reductions made in funding for other programs to accommodate such cost growth; and
(E) conduct regular reviews of the program in accordance with the requirements of section 205 of the Weapon Systems Acquisition Reform Act of 2009.
(2) For purposes of paragraph (1)(D), the report specified in this paragraph is the first Selected Acquisition Report for the program submitted pursuant to section 2432 of this title after the President submits a budget pursuant to section 1105 of title 31, in the calendar year following the year in which the program was restructured.
(d)
(1) an explanation of the reasons for terminating the program;
(2) the alternatives considered to address any problems in the program; and
(3) the course the Department plans to pursue to meet any continuing joint military requirements otherwise intended to be met by the program.
(Added Pub. L. 111–23, title II, §206(a)(1), May 22, 2009, 123 Stat. 1726; amended Pub. L. 111–383, div. A, title X, §1075(b)(35), Jan. 7, 2011, 124 Stat. 4371.)
Section 205 of the Weapon Systems Acquisition Reform Act of 2009, referred to in subsec. (c)(1)(E), is section 205 of Pub. L. 111–23, which amended section 2366b of this title and enacted provisions set out as notes under this section and section 2366b of this title.
2011—Subsec. (b)(2)(B). Pub. L. 111–383 substituted “section 181(g)(1)” for “section 181(g)((1)”.
Pub. L. 111–23, title II, §205(c), May 22, 2009, 123 Stat. 1725, as amended by Pub. L. 111–383, div. A, title VIII, §813(e), title X, §1075(k)(2), Jan. 7, 2011, 124 Stat. 4266, 4378, provided that: “The official designated to perform oversight of performance assessment pursuant to section 103 of this Act [set out as a note under section 2430 of this title], shall assess the performance of each major defense acquisition program that has exceeded critical cost growth thresholds established pursuant to section 2433(e) of title 10, United States Code, but has not been terminated in accordance with section 2433a of such title (as added by section 206(a) of this Act) not less often than semi-annually until one year after the date on which such program receives a new milestone approval, in accordance with section 2433a(c)(1)(C) of such title (as so added). The results of reviews performed under this subsection shall be reported to the Under Secretary of Defense for Acquisition, Technology, and Logistics and summarized in the next annual report of such designated official.”
[Pub. L. 111–383, div. A, title VIII, §813(e), Jan. 7, 2011, 124 Stat. 4266, provided that the amendment made by section 813(e) to section 205(c) of Pub. L. 111–23, set out above, is effective as of May 22, 2009, and as if included in Pub. L. 111–23, as enacted.]
[For definition of “major defense acquisition program” as used in section 205(c) of Pub. L. 111–23, set out above, see section 2(2) of Pub. L. 111–23, set out as a note under section 2430 of this title.]
(a)
(2) The provisions of this section shall apply to any major subprogram of a major defense acquisition program (as designated under section 2430a(a)(1) of this title) in the same manner as those provisions apply to a major defense acquisition program, and any reference in this section to a program shall be treated as including such a subprogram.
(b)
(1) that the independent estimate of the full life-cycle cost of a program—
(A) be prepared or approved by the Director of Cost Assessment and Program Evaluation; and
(B) include all costs of development, procurement, military construction, and operations and support, without regard to funding source or management control; and
(2) that the manpower estimate include an estimate of the total number of personnel required—
(A) to operate, maintain, and support the program upon full operational deployment; and
(B) to train personnel to carry out the activities referred to in subparagraph (A).
(Added Pub. L. 98–94, title XII, §1203(a)(1), Sept. 24, 1983, 97 Stat. 682, §139c; renumbered §2434 and amended Pub. L. 99–433, title I, §§101(a)(5), 110(d)(15), (g)(9), Oct. 1, 1986, 100 Stat. 995, 1003, 1004; Pub. L. 99–661, div. A, title XII, §1208(a)–(c)(1), Nov. 14, 1986, 100 Stat. 3975; Pub. L. 100–26, §7(b)(5), Apr. 21, 1987, 101 Stat. 279; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 100–456, div. A, title V, §525, Sept. 29, 1988, 102 Stat. 1975; Pub. L. 102–190, div. A, title VIII, §801(a), (b)(1), Dec. 5, 1991, 105 Stat. 1412; Pub. L. 103–355, title III, §3004, Oct. 13, 1994, 108 Stat. 3330; Pub. L. 104–106, div. A, title VIII, §814, Feb. 10, 1996, 110 Stat. 395; Pub. L. 107–107, div. A, title VIII, §821(a), Dec. 28, 2001, 115 Stat. 1181; Pub. L. 111–23, title I, §101(d)(5), May 22, 2009, 123 Stat. 1710; Pub. L. 111–383, div. A, title VIII, §814(e), Jan. 7, 2011, 124 Stat. 4267.)
2011—Subsec. (a). Pub. L. 111–383 designated existing provisions as par. (1) and added par. (2).
2009—Subsec. (b)(1)(A). Pub. L. 111–23 amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “be prepared—
“(i) by an office or other entity that is not under the supervision, direction, or control of the military department, Defense Agency, or other component of the Department of Defense that is directly responsible for carrying out the development or acquisition of the program; or
“(ii) if the decision authority for the program has been delegated to an official of a military department, Defense Agency, or other component of the Department of Defense, by an office or other entity that is not directly responsible for carrying out the development or acquisition of the program; and”.
2001—Subsec. (a). Pub. L. 107–107 substituted “system development and demonstration” for “engineering and manufacturing development”.
1996—Subsec. (b)(1)(A). Pub. L. 104–106 amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “be prepared by an office or other entity that is not under the supervision, direction, or control of the military department, Defense Agency, or other component of the Department of Defense that is directly responsible for carrying out the development or acquisition of the program; and”.
1994—Subsec. (a). Pub. L. 103–355, §3004(b), substituted “engineering and manufacturing development” for “full-scale engineering development” and “full life-cycle cost of the program and a manpower estimate for the program have” for “cost of the program, together with a manpower estimate, has”.
Subsec. (b). Pub. L. 103–355, §3004(a), amended subsec. (b) generally. Prior to amendment, subsec. (b) defined “independent estimate”, “cost of the program”, and “manpower estimate”.
1991—Subsec. (a). Pub. L. 102–190, §801(a), substituted “unless an independent estimate of the cost of the program, together with a manpower estimate, has been considered by the Secretary.” for “unless—
“(1) an independent estimate of the cost of the program is first submitted to (and considered by) the Secretary; and
“(2) the Secretary submits a manpower estimate of the program to the Committees on Armed Services of the Senate and the House of Representatives at least 30 days in advance of such approval.”
Subsecs. (b), (c). Pub. L. 102–190, §801(b)(1), redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows:
“(b)
“(2) The 30-day period specified in subsection (a)(2) shall be reduced to 10 days in the case of a major defense acquisition program if the manpower estimate submitted by the Secretary of Defense under subsection (a)(2) with respect to that program indicates that no increase in military or civilian personnel end strengths described in subsection (c)(3)(B) will be required.”
1988—Subsec. (a)(2). Pub. L. 100–456, §525(1), substituted “30 days” for “90 days”.
Subsec. (b). Pub. L. 100–456, §525(3), added subsec. (b). Former subsec. (b) redesignated (c).
Subsec. (c). Pub. L. 100–456, §525(2), redesignated subsec. (b) as (c), and in par. (3)(A), substituted “in total personnel or in” for “both in total personnel and”.
1987—Pub. L. 100–180 made technical amendment to directory language of Pub. L. 99–433, §101(a)(5). See 1986 Amendment note below.
Subsec. (b). Pub. L. 100–26 redesignated pars. (2) to (4) as (1) to (3), respectively, and struck out former par. (1) which defined “major defense acquisition program”.
1986—Pub. L. 99–433, §101(a)(5), as amended by Pub. L. 100–180, §1314(a)(1), renumbered section 139c of this title as this section.
Pub. L. 99–661, §1208(c)(1), substituted “Independent cost estimates; operational manpower requirements” for “Independent cost estimates” in section catchline.
Pub. L. 99–433, §110(d)(15), substituted “Independent cost estimates” for “Major defense acquisition programs: independent cost estimates” in section catchline.
Subsec. (a). Pub. L. 99–661, §1208(a), inserted heading, designated existing provisions as par. (1), and added par. (2).
Subsec. (b). Pub. L. 99–661, §1208(b)(1), inserted heading.
Subsec. (b)(1). Pub. L. 99–661, §1208(b)(2), substituted “The term ‘Major” for “ ‘Major”.
Pub. L. 99–433, §110(g)(9), substituted “section 2432(a)(1)” for “section 139a(a)(1)”.
Subsec. (b)(2). Pub. L. 99–661, §1208(b)(3), substituted “The term ‘independent” for “ ‘Independent”.
Subsec. (b)(3). Pub. L. 99–661, §1208(b)(4), substituted “The term ‘cost” for “ ‘Cost”.
Subsec. (b)(4). Pub. L. 99–661, §1208(b)(5), added par. (4).
Amendment by Pub. L. 100–180 applicable as if included in enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. 99–433, see section 1314(e) of Pub. L. 100–180, set out as a note under section 743 of this title.
Section 1208(d) of Pub. L. 99–661 provided that: “The amendments made by this section [amending this section] shall apply to approvals of full-scale engineering development and to approvals of production and deployment of major defense acquisition programs made after December 31, 1986.”
Section 1203(b) of Pub. L. 98–94 provided that: “Section 139c [now 2434] of title 10, United States Code, as added by subsection (a), shall take effect on October 1, 1983.”
Pub. L. 99–145, title IX, §952, Nov. 8, 1985, 99 Stat. 701, directed Secretary of Defense, not later than Apr. 1, 1986, to submit to Congress a report on the continued use of independent cost estimates in the planning, programing, budgeting, and selection process for major defense acquisition programs of the Department.
Section 1203(c) of Pub. L. 98–94 directed Secretary of Defense, not later than May 1, 1984, to submit a written report to Congress on use of independent cost estimates in planning, programing, budgeting, and selection process for major defense acquisition programs in Department, such report to include an overall assessment of extent to which such estimates were adopted by Department in making decisions on the FY 1985 budget and a general explanation of why such estimates might have been modified or rejected, and a discussion of current and future initiatives to make greater or more productive use of independent cost estimates in the Department.
Section 1203(d) of Pub. L. 98–94 provided that: “It is the sense of the Congress that the Secretary of Defense should ensure that adequate personnel and financial resources are allocated at all levels of the Department of Defense to those organizations or offices charged with developing or assessing independent estimates of the costs of major defense acquisition programs.”
(a)
(2) The baseline shall include sufficient parameters to describe the cost estimate (referred to as the “Baseline Estimate” in section 2433 of this title), schedule, performance, supportability, and any other factor of such major defense acquisition program or designated major subprogram.
(b)
(c)
(1) before the program or subprogram enters system development and demonstration;
(2) before the program or subprogram enters production and deployment; and
(3) before the program or subprogram enters full rate production.
(d)
(2) An adjustment or revision of the original baseline description of a major defense acquisition program or any designated major subprogram under the program may be treated as the original Baseline Estimate for the program or subprogram for purposes of this chapter only if the percentage increase in the program acquisition unit cost or procurement unit cost under such adjustment or revision exceeds the critical cost growth threshold for the program or subprogram under section 2433 of this title, as determined by the Secretary of the military department concerned under subsection (d) of such section.
(3) In the event of an adjustment or revision of the original baseline description of a major defense acquisition program or any designated major subprogram under the program, the Secretary of Defense shall include in the next Selected Acquisition Report to be submitted under section 2432 of this title after such adjustment or revision a notification to the congressional defense committees of such adjustment or revision, together with the reasons for such adjustment or revision.
(e)
(1) The content of baseline descriptions under this section.
(2) The submission to the Secretary of the military department concerned and the Under Secretary of Defense for Acquisition, Technology, and Logistics by the program manager for a program for which there is an approved baseline description (or in the case of a major defense acquisition program with one or more designated major subprograms, approved baseline descriptions for such subprograms) under this section of reports of deviations from any such baseline description of the cost, schedule, performance, supportability, or any other factor of the program or subprogram.
(3) Procedures for review of such deviation reports within the Department of Defense.
(4) Procedures for submission to, and approval by, the Secretary of Defense of revised baseline descriptions.
(Added Pub. L. 99–500, §101(c) [title X, §904(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–133, and Pub. L. 99–591, §101(c) [title X, §904(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–133; Pub. L. 99–661, div. A, title IX, formerly title IV, §904(a)(1), Nov. 14, 1986, 100 Stat. 3912, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, §7(b)(6), Apr. 21, 1987, 101 Stat. 280; Pub. L. 100–180, div. A, title VIII, §803(a), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 100–370, §1(i)(1), July 19, 1988, 102 Stat. 848; Pub. L. 100–456, div. A, title XII, §1233(l)(4), Sept. 29, 1988, 102 Stat. 2058; Pub. L. 101–189, div. A, title VIII, §811(b), Nov. 29, 1989, 103 Stat. 1493; Pub. L. 101–510, div. A, title XII, §1207(b), title XIV, §1484(k)(11), Nov. 5, 1990, 104 Stat. 1665, 1719; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–355, title III, §3005(a), Oct. 13, 1994, 108 Stat. 3330; Pub. L. 107–107, div. A, title VIII, §821(d), title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1182, 1225; Pub. L. 109–163, div. A, title VIII, §802(d)(1), Jan. 6, 2006, 119 Stat. 3369; Pub. L. 109–364, div. A, title VIII, §806, Oct. 17, 2006, 120 Stat. 2315; Pub. L. 110–417, [div. A], title VIII, §811(d), Oct. 14, 2008, 122 Stat. 4524.)
Subsection (c) is based on Pub. L. 98–525, title XII, §1243, Oct. 19, 1984, 98 Stat. 2609, as amended by Pub. L. 100–26, §110(a)(1), Apr. 21, 1987, 101 Stat. 288.
Pub. L. 110–417, §811(d)(2)(B), (3)(B), (4)(B)(i), which directed amendment of this section by inserting “or subprogram” after “the program” in subsec. (b) and after “the program” each place it appeared in subsecs. (c) and (d), was executed by making the insertions after “the program” each place it appeared in those subsecs. except after “designated major subprogram under the program”, to reflect the probable intent of Congress.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.
2008—Subsec. (a). Pub. L. 110–417, §811(d)(1), inserted “and for each designated major subprogram under the program” after “major defense acquisition program” in par. (1) and “or designated major subprogram” after “major defense acquisition program” in par. (2).
Subsec. (b). Pub. L. 110–417, §811(d)(2), inserted “or any designated major subprogram under the program” after “major defense acquisition program” and “or subprogram” after “after the program”. See Codification note above.
Subsec. (c). Pub. L. 110–417, §811(d)(3), inserted “or any designated major subprogram under the program” after “major defense acquisition program” in introductory provisions and “or subprogram” after “the program” in pars. (1) to (3). See Codification note above.
Subsec. (d). Pub. L. 110–417, §811(d)(4), inserted “or any designated major subprogram under the program” after “major defense acquisition program” wherever appearing, in par. (1), inserted “or subprogram” after “to the program”, “before the program”, and “at program”, and, in par. (2), inserted “or subprogram” after “for the program” in two places. See Codification note above.
Subsec. (e)(2). Pub. L. 110–417, §811(d)(5), inserted “(or in the case of a major defense acquisition program with one or more designated major subprograms, approved baseline descriptions for such subprograms)” after “baseline description” and “or subprogram” before period at end and substituted “any such baseline description” for “the baseline”.
2006—Subsec. (d). Pub. L. 109–163 added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (d)(1). Pub. L. 109–364 inserted “prepared before the program enters system development and demonstration, or at program initiation, whichever occurs later” after “program under subsection (a)”.
Subsec. (e). Pub. L. 109–163 redesignated subsec. (d) as (e).
2001—Subsec. (b). Pub. L. 107–107, §§821(d)(1), 1048(b)(2), substituted “system development and demonstration” for “engineering and manufacturing development” and “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
Subsec. (c)(1). Pub. L. 107–107, §821(d)(2)(A), substituted “system development and demonstration” for “demonstration and validation”.
Subsec. (c)(2). Pub. L. 107–107, §821(d)(2)(B), substituted “production and deployment” for “engineering and manufacturing development”.
Subsec. (c)(3). Pub. L. 107–107, §821(d)(2)(C), substituted “full rate production” for “production and deployment”.
Subsec. (d)(2). Pub. L. 107–107, §1048(b)(2), substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
1994—Pub. L. 103–355 amended section generally. Prior to amendment, section related to enhanced program stability.
1993—Subsec. (b)(2)(B). Pub. L. 103–160 substituted “Under Secretary of Defense for Acquisition and Technology” for “Under Secretary of Defense for Acquisition”.
1990—Subsec. (b)(1). Pub. L. 101–510, §1484(k)(11), struck out closing parenthesis after “such Secretary” in introductory provisions.
Subsec. (c). Pub. L. 101–510, §1207(b), struck out subsec. (c) which read as follows: “
“(2) The Secretary of the military department concerned may waive the length of the tour of duty prescribed in paragraph (1). The authority under the preceding sentence may not be delegated.”
1989—Subsec. (a)(2)(B)(iv). Pub. L. 101–189, §811(b)(1), substituted “production” for “development”.
Subsec. (b)(1). Pub. L. 101–189, §811(b)(2)(A), substituted “service acquisition executive designated by such Secretary” for “senior procurement executive of such military department (designated pursuant to section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))”.
Subsec. (b)(2). Pub. L. 101–189, §811(b)(2)(B), substituted “180 days” for “90 days” in introductory provisions.
1988—Subsec. (b)(2). Pub. L. 100–456 clarified amendment by Pub. L. 100–180, §803(a). See 1987 Amendment note below.
Subsec. (c). Pub. L. 100–370 added subsec. (c).
1987—Subsec. (b)(2). Pub. L. 100–180, as amended by Pub. L. 100–456, substituted “under paragraph (1), and for which the total cost of completion of the stage will exceed by 15 percent or more, in the case of a development stage, or by 5 percent or more, in the case of a production stage, the amount specified in the baseline description established under subsection (a) for such stage; or any milestone specified in such baseline description will be missed by more than 90 days” for first reference to “under paragraph (1)”.
Subsec. (c). Pub. L. 100–26, §7(b)(6), struck out subsec. (c) which defined “major defense acquisition program”.
Amendment by Pub. L. 109–163 effective on Jan. 6, 2006, and applicable with respect to any major defense acquisition program for which an original Baseline Estimate is first established before, on, or after Jan. 6, 2006, see section 802(e) of Pub. L. 109–163, set out as a note under section 2433 of this title.
Section 1207(b) of Pub. L. 101–510 provided that the amendment made by that section is effective Oct. 1, 1991.
Amendment by Pub. L. 100–456 applicable as if included in the enactment of Pub. L. 100–180, see section 1233(l)(5) of Pub. L. 100–456 set out as a note under section 2366 of this title.
Section 101(c) [title IX, §904(b)] of Pub. L. 99–500 and Pub. L. 99–591, and section 904(b) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “Section 2435 of title 10, United States Code (as added by subsection (a)(1)), shall apply to major defense acquisition programs that enter full-scale engineering development or full-rate production after the date of the enactment of this Act [Oct. 18, 1986].”
Section 5002(a) of Pub. L. 103–355 provided that: “The Secretary of Defense shall review the regulations of the Department of Defense to ensure that acquisition program cycle procedures are focused on achieving the goals that are consistent with the program baseline description established pursuant to section 2435 of title 10, United States Code.”
(a)
(b)
(c)
(d)
(Added Pub. L. 108–136, div. A, title VIII, §822(a)(1), Nov. 24, 2003, 117 Stat. 1546.)
Section 814 of the National Defense Authorization Act for Fiscal Year 2004, referred to in subsec. (b), is section 814 of Pub. L. 108–136, which is set out in a note under section 2501 of this title.
A prior section 2436, added Pub. L. 99–500, §101(c) [title X, §905(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–134, and Pub. L. 99–591, §101(c) [title X, §905(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–134; Pub. L. 99–661, div. A, title IX, formerly title IV, §905(a)(1), Nov. 14, 1986, 100 Stat. 3914; renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, §7(b)(7), Apr. 21, 1987, 101 Stat. 280; Pub. L. 100–180, div. A, title VIII, §803(c), title XII, §1231(14), Dec. 4, 1987, 101 Stat. 1125, 1160; Pub. L. 101–510, div. A, title XIV, §1484(h)(4), Nov. 5, 1990, 104 Stat. 1718, related to establishment and conduct of the defense enterprise program, prior to repeal by Pub. L. 103–160, div. A, title VIII, §821(a)(5), Nov. 30, 1993, 107 Stat. 1704.
Pub. L. 108–136, div. A, title VIII, §822(c), Nov. 24, 2003, 117 Stat. 1547, provided that: “Section 2436 of title 10, United States Code, as added by subsection (a), shall apply with respect to contracts entered into after the expiration of the 18-month period beginning on the date of the enactment of this Act [Nov. 24, 2003].”
Pub. L. 108–136, div. A, title VIII, §822(b), Nov. 24, 2003, 117 Stat. 1547, provided that:
“(1) The Secretary of Defense shall prescribe regulations as necessary to carry out section 2436 of title 10, United States Code, as added by this section.
“(2) The Secretary may prescribe interim regulations as necessary to carry out such section. For this purpose, the Secretary is excepted from compliance with the notice and comment requirements of section 553 of title 5, United States Code. All interim rules prescribed under the authority of this paragraph that are not earlier superseded by final rules shall expire no later than 270 days after the effective date of section 2436 of title 10, United States Code [see Effective Date note above], as added by this section.”
(a)
(2) In this section, the term “defense acquisition authority” means the Secretary of a military department or the commander of the United States Special Operations Command.
(b)
(1) The milestone schedule for the development of the major defense acquisition program, including the scheduled dates for low-rate initial production, initial operational capability, full-rate production, and full operational capability and the date as of when the replacement system is scheduled to assume the majority of responsibility for the mission of the existing system.
(2) An analysis of the existing system to assess the following:
(A) Anticipated funding levels necessary to—
(i) ensure acceptable reliability and availability rates for the existing system; and
(ii) maintain mission capability of the existing system against the relevant threats.
(B) The extent to which it is necessary and appropriate to—
(i) transfer mature technologies from the new system or other systems to enhance the mission capability of the existing system against relevant threats; and
(ii) provide interoperability with the new system during the period from initial fielding until the new system assumes the majority of responsibility for the mission of the existing system.
(c)
(1) the existing system is no longer relevant to the mission;
(2) the mission has been eliminated;
(3) the mission has been consolidated with another mission in such a manner that another existing system can adequately meet the mission requirements; or
(4) the duration of time until the new system assumes the majority of responsibility for the existing system's mission is sufficiently short so that mission availability, capability, interoperability, and force protection requirements are maintained.
(d)
(Added Pub. L. 108–375, div. A, title VIII, §805(a)(1), Oct. 28, 2004, 118 Stat. 2008.)
A prior section 2437, added Pub. L. 99–500, §101(c) [title X, §906(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–135, and Pub. L. 99–591, §101(c) [title X, §906(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–135; Pub. L. 99–661, div. A, title IX, formerly title IV, §906(a)(1), Nov. 14, 1986, 100 Stat. 3915; renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, §7(b)(8), Apr. 21, 1987, 101 Stat. 280; Pub. L. 100–180, div. A, title VIII, §803(b), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 100–224, §5(a)(3), Dec. 30, 1987, 101 Stat. 1538, related to designation of defense enterprise programs for milestone authorization, prior to repeal by Pub. L. 103–160, div. A, title VIII, §821(a)(5), Nov. 30, 1993, 107 Stat. 1704.
Pub. L. 108–375, div. A, title VIII, §805(b), Oct. 28, 2004, 118 Stat. 2009, provided that: “Section 2437 of title 10, United States Code, as added by subsection (a), shall apply with respect to a major defense acquisition program for a system that is under development as of the date of the enactment of this Act [Oct. 28, 2004] and is not expected to reach initial operational capability before October 1, 2008. The Secretary of Defense shall require that a sustainment plan under that section be developed not later than one year after the date of the enactment of this Act for the existing system that the system under development is intended to replace.”
(a)
(1)
(2)
(3)
(b)
(1) Carrying out performance assessments of major defense acquisition programs in accordance with the requirements of subsection (c) periodically or when requested by the Secretary of Defense, the Under Secretary of Defense for Acquisition, Technology and Logistics, the Secretary of a military department, or the head of a Defense Agency.
(2) Conducting root cause analyses for major defense acquisition programs in accordance with the requirements of subsection (d) when required by section 2433a(a)(1) of this title, or when requested by the Secretary of Defense, the Under Secretary of Defense for Acquisition, Technology and Logistics, the Secretary of a military department, or the head of a Defense Agency.
(3) Issuing policies, procedures, and guidance governing the conduct of performance assessments and root cause analyses by the military departments and the Defense Agencies.
(4) Evaluating the utility of performance metrics used to measure the cost, schedule, and performance of major defense acquisition programs, and making such recommendations to the Secretary of Defense as the official considers appropriate to improve such metrics.
(5) Advising acquisition officials on performance issues regarding a major defense acquisition program that may arise—
(A) before certification under section 2433a of this title;
(B) before entry into full-rate production; or
(C) in the course of consideration of any decision to request authorization of a multiyear procurement contract for the program.
(c)
(1) The cost, schedule, and performance of the program, relative to current metrics, including performance requirements and baseline descriptions.
(2) The extent to which the level of program cost, schedule, and performance predicted relative to such metrics is likely to result in the timely delivery of a level of capability to the warfighter that is consistent with the level of resources to be expended and provides superior value to alternative approaches that may be available to meet the same military requirement.
(d)
(1) unrealistic performance expectations;
(2) unrealistic baseline estimates for cost or schedule;
(3) immature technologies or excessive manufacturing or integration risk;
(4) unanticipated design, engineering, manufacturing, or technology integration issues arising during program performance;
(5) changes in procurement quantities;
(6) inadequate program funding or funding instability;
(7) poor performance by government or contractor personnel responsible for program management; or
(8) any other matters.
(e)
(f)
(Added and amended Pub. L. 111–383, div. A, title IX, §901(d), (k)(1)(F), Jan. 7, 2011, 124 Stat. 4321, 4325.)
Section 103 of Pub. L. 111–23, formerly set out as a note under section 2430 of this title, which was transferred to this chapter, renumbered as this section, and amended by Pub. L. 111–383, §901(d), (k)(1)(F), was based on Pub. L. 111–23, title I, §103, May 22, 2009, 123 Stat. 1715.
A prior section 2438, added Pub. L. 102–484, div. A, title VIII, §821(a)(1)(B), Oct. 23, 1992, 106 Stat. 2459; amended Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728, required competitive prototyping of major weapon systems and subsystems prior to development under major defense acquisition program, prior to repeal by Pub. L. 103–355, title III, §3006(a), Oct. 13, 1994, 108 Stat. 3331.
Another prior section 2438 was renumbered section 2439 of this title.
2011—Pub. L. 111–383, §901(k)(1)(F), substituted “Performance assessments and root cause analyses” for “
Pub. L. 111–383, §901(d), transferred section 103 of Pub. L. 111–23 to this chapter and renumbered it as this section. See Codification note above.
Subsec. (b)(2). Pub. L. 111–383, §901(d)(1), substituted “section 2433a(a)(1) of this title” for “section 2433a(a)(1) of title 10, United States Code (as added by section 206(a) of this Act)”.
Subsec. (b)(5)(A). Pub. L. 111–383, §901(d)(2), substituted “before” for “prior to” and “section 2433a of this title” for “section 2433a of title 10, United States Code (as so added)”.
Subsec. (b)(5)(B). Pub. L. 111–383, §901(d)(2)(B), substituted “before” for “prior to”.
Subsec. (d). Pub. L. 111–383, §901(d)(3), substituted “section 2433a of this title” for “section 2433a of title 10, United States Code (as so added)” in introductory provisions.
Subsec. (f). Pub. L. 111–383, §901(d)(4), struck out “beginning in 2010,” after “each year,”.
Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as an Effective Date of 2011 Amendment note under section 131 of this title.
1 So in original. Probably should be preceded by “the”.
Section 2439, added Pub. L. 99–145, title IX, §912(a)(1), Nov. 8, 1985, 99 Stat. 685, §2305a; amended Pub. L. 99–433, title I, §110(g)(3), Oct. 1, 1986, 100 Stat. 1004; renumbered §2438 and amended Pub. L. 100–26, §7(b)(9)(A), (k)(2), Apr. 21, 1987, 101 Stat. 280, 284; Pub. L. 101–510, div. A, title VIII, §805, Nov. 5, 1990, 104 Stat. 1591; renumbered §2439, Pub. L. 102–484, div. A, title VIII, §821(a)(1)(A), Oct. 23, 1992, 106 Stat. 2459, directed Secretary of Defense, before full-scale development under major program began, to prepare acquisition strategy which ensured that contracts for each major program, including each major subsystem under program, were awarded in accordance with acquisition strategy, and granted Secretary option of using competitive alternative sources for major programs and major subsystems throughout period.
The Secretary of Defense shall prescribe regulations requiring consideration of the national technology and industrial base in the development and implementation of acquisition plans for each major defense acquisition program.
(Added Pub. L. 102–484, div. D, title XLII, §4216(b)(1), Oct. 23, 1992, 106 Stat. 2669; amended Pub. L. 109–364, div. A, title X, §1071(a)(17), Oct. 17, 2006, 120 Stat. 2399.)
2006—Pub. L. 109–364 substituted “industrial base plans” for “Industrial Base Plans” in section catchline.
2008—Pub. L. 110–417, [div. A], title VIII, §812(a)(3), Oct. 14, 2008, 122 Stat. 4525, added item 2445a and struck out former item 2445a “Major automated information system program defined”.
(a)
(1) the program is designated by the Secretary of Defense, or a designee of the Secretary, as a major automated information system program; or
(2) the dollar value of the program is estimated to exceed—
(A) $32,000,000 in fiscal year 2000 constant dollars for all program costs in a single fiscal year;
(B) $126,000,000 in fiscal year 2000 constant dollars for all program acquisition costs for the entire program; or
(C) $378,000,000 in fiscal year 2000 constant dollars for the total life-cycle costs of the program (including operation and maintenance costs).
(b)
(c)
(d)
(1) An investment that is designated by the Secretary of Defense, or a designee of the Secretary, as a “pre-Major Automated Information System” or “pre-MAIS” program.
(2) Any other investment in automated information system products or services that is expected to exceed the thresholds established in subsection (a), as adjusted under subsection (b), but is not considered to be a major automated information system program because a formal acquisition decision has not yet been made with respect to such investment.
(e)
(f)
(Added Pub. L. 109–364, div. A, title VIII, §816(a)(1), Oct. 17, 2006, 120 Stat. 2323; amended Pub. L. 110–417, [div. A], title VIII, §812(a)(1), (2), Oct. 14, 2008, 122 Stat. 4525; Pub. L. 111–84, div. A, title VIII, §841(c), Oct. 28, 2009, 123 Stat. 2418.)
2009—Subsecs. (e), (f). Pub. L. 111–84 added subsecs. (e) and (f).
2008—Pub. L. 110–417, §812(a)(2), substituted “Definitions” for “Major automated information system program defined” in section catchline.
Subsec. (a). Pub. L. 110–417, §812(a)(1)(A), substituted “Major Automated Information System Program” for “In General” in heading.
Subsec. (d). Pub. L. 110–417, §812(a)(1)(B), added subsec. (d).
Pub. L. 109–364, div. A, title VIII, §816(c), Oct. 17, 2006, 120 Stat. 2326, provided that:
“(1)
“(2)
(a)
(b)
(1) The development schedule, including major milestones.
(2) The implementation schedule, including estimates of milestone dates, full deployment decision, and full deployment.
(3) Estimates of development costs and full life-cycle costs.
(4) A summary of key performance parameters.
(5) For each major automated information system program for which such information has not been provided in a previous annual report—
(A) a description of the business case analysis (if any) that has been prepared for the program and key functional requirements for the program;
(B) a description of the analysis of alternatives conducted with regard to the program;
(C) an assessment of the extent to which the program, or portions of the program, have technical requirements of sufficient clarity that the program, or portions of the program, may be feasibly procured under firm, fixed-price contracts;
(D) the most recent independent cost estimate or cost analysis for the program provided by the Director of Cost Assessment and Program Evaluation in accordance with section 2334(a)(6) of this title;
(E) a certification by a Department of Defense acquisition official with responsibility for the program that all technical and business requirements have been reviewed and validated to ensure alignment with the business case; and
(F) an explanation of the basis for the certification described in subparagraph (E).
(6) For each major automated information system program for which the information required under paragraph (5) has been provided in a previous annual report, a summary of any significant changes to the information previously provided.
(c)
(2) An adjustment or revision of the original estimate or information originally submitted on a program may be treated as the original estimate or information originally submitted on the program if the adjustment or revision is the result of a critical change in the program covered by section 2445c(d) of this title.
(3) In the event of an adjustment or revision to the original estimate or information originally submitted on a program under paragraph (2), the Secretary of Defense shall include in the next budget justification documents submitted under subsection (a) after such adjustment or revision a notification to the congressional defense committees of such adjustment or revision, together with the reasons for such adjustment or revision.
(d)
(Added Pub. L. 109–364, div. A, title VIII, §816(a)(1), Oct. 17, 2006, 120 Stat. 2323; amended Pub. L. 110–417, [div. A], title VIII, §812(b), Oct. 14, 2008, 122 Stat. 4525; Pub. L. 111–84, div. A, title VIII, §841(a), Oct. 28, 2009, 123 Stat. 2418; Pub. L. 111–383, div. A, title VIII, §805(b), Jan. 7, 2011, 124 Stat. 4259.)
2011—Subsec. (b)(5), (6). Pub. L. 111–383 added pars. (5) and (6).
2009—Subsec. (b)(2). Pub. L. 111–84 substituted “full deployment decision, and full deployment” for “initial operational capability, and full operational capability”.
2008—Subsec. (a). Pub. L. 110–417, §812(b)(1), inserted “and each other major information technology investment program” after “each major automated information system program”.
Subsec. (b). Pub. L. 110–417, §812(b)(2), inserted “Regarding Major Automated Information System Programs” after “Elements” in heading.
Subsec. (d). Pub. L. 110–417, §812(b)(3), added subsec. (d).
(a)
(b)
(1) in the case of an automated information system or information technology investment to be acquired for a military department, the senior acquisition executive for the military department; or
(2) in the case of any other automated information system or information technology investment to be acquired for the Department of Defense or any component of the Department of Defense, the Under Secretary of Defense for Acquisition, Technology, and Logistics.
(c)
(1)
(2)
(A) there has been a schedule change that will cause a delay of more than six months but less than a year in any program schedule milestone or significant event from the schedule originally submitted to Congress under paragraph (1) or (2) of section 2445b(b) of this title;
(B) the estimated program development cost or full life-cycle cost for the program has increased by at least 15 percent, but less than 25 percent, over the original estimate submitted to Congress under paragraph (3) of section 2445b(b) of this title; or
(C) there has been a significant, adverse change in the expected performance of the major automated information system to be acquired under the program from the parameters originally submitted to Congress under paragraph (4) of section 2445b(b) of this title.
(d)
(1)
(A) carry out an evaluation of the program under subsection (e); and
(B) submit, through the Secretary of Defense, to the congressional defense committees a report meeting the requirements of subsection (f).
(2)
(A) the automated information system or information technology investment failed to achieve a full deployment decision within five years after funds were first obligated for the program;
(B) there has been a schedule change that will cause a delay of one year or more in any program schedule milestone or significant event from the schedule originally submitted to Congress under paragraph (1) or (2) of section 2445b(b) of this title or section 2445b(d) of this title, as applicable;
(C) the estimated program development cost or full life-cycle cost for the program has increased by 25 percent or more over the original estimate submitted to Congress under paragraph (3) of section 2445b(b) of this title or section 2445b(d) of this title, as applicable; or
(D) there has been a change in the expected performance of the major automated information system or major information technology investment to be acquired under the program that will undermine the ability of the system to perform the functions anticipated at the time information on the program was originally submitted to Congress under section 2445b(b) of this title or section 2445b(d) of this title, as applicable.
(e)
(1) the projected cost and schedule for completing the program if current requirements are not modified;
(2) the projected cost and schedule for completing the program based on reasonable modification of such requirements; and
(3) the rough order of magnitude of the cost and schedule for any reasonable alternative system or capability.
(f)
(1) the automated information system or information technology investment to be acquired under the program is essential to the national security or to the efficient management of the Department of Defense;
(2) there is no alternative to the system or information technology investment which will provide equal or greater capability at less cost;
(3) the new estimates of the costs, schedule, and performance parameters with respect to the program and system or information technology investment, as applicable, have been determined, with the concurrence of the Director of Cost Assessment and Program Evaluation, to be reasonable; and
(4) the management structure for the program is adequate to manage and control program costs.
(g)
(2) The prohibition on the obligation of funds for a program under paragraph (1) shall cease to apply on the date on which Congress has received a report in compliance with the requirements of subsection (d)(2).
(Added Pub. L. 109–364, div. A, title VIII, §816(a)(1), Oct. 17, 2006, 120 Stat. 2324; amended Pub. L. 110–417, [div. A], title VIII, §812(c), Oct. 14, 2008, 122 Stat. 4526; Pub. L. 111–23, title I, §101(d)(6), May 22, 2009, 123 Stat. 1710; Pub. L. 111–84, div. A, title VIII, §841(b), Oct. 28, 2009, 123 Stat. 2418.)
2009—Subsec. (d)(2)(A). Pub. L. 111–84 substituted “a full deployment decision” for “initial operational capability”.
Subsec. (f)(3). Pub. L. 111–23 substituted “have been determined, with the concurrence of the Director of Cost Assessment and Program Evaluation, to be reasonable” for “are reasonable”.
2008—Subsec. (a). Pub. L. 110–417, §812(c)(1), inserted “or other major information technology investment program” after “major automated information system program” and “or information technology investment” after “the major automated information system”.
Subsec. (b). Pub. L. 110–417, §812(c)(2), inserted “or other major information technology investment program” after “major automated information system program” in introductory provisions and “or information technology investment” after “automated information system” in pars. (1) and (2).
Subsec. (d)(1), (2). Pub. L. 110–417, §812(c)(3)(A), inserted “or other major information technology investment program” after “major automated information system program” in introductory provisions.
Subsec. (d)(2)(A). Pub. L. 110–417, §812(c)(3)(B)(i), added subpar. (A) and struck out former subpar. (A) which read as follows: “the system failed to achieve initial operational capability within five years of milestone A approval;”.
Subsec. (d)(2)(B), (C). Pub. L. 110–417, §812(c)(3)(B)(ii), (iii), inserted “or section 2445b(d) of this title, as applicable” before semicolon at end.
Subsec. (d)(2)(D). Pub. L. 110–417, §812(c)(3)(B)(iv), inserted “or major information technology investment” after “major automated information system” and “or section 2445b(d) of this title, as applicable” before period at end.
Subsec. (e). Pub. L. 110–417, §812(c)(4), inserted “or other major information technology investment program” after “major automated information system program” in introductory provisions.
Subsec. (f). Pub. L. 110–417, §812(c)(5)(A), inserted “or other major information technology investment program” after “major automated information system program” in introductory provisions.
Subsec. (f)(1). Pub. L. 110–417, §812(c)(5)(B), inserted “or information technology investment” after “automated information system”.
Subsec. (f)(2). Pub. L. 110–417, §812(c)(5)(C), inserted “or information technology investment” after “the system”.
Subsec. (f)(3). Pub. L. 110–417, §812(c)(5)(D), inserted “or information technology investment, as applicable,” after “the program and system”.
In the case of a major automated information system program covered by this chapter that is also treatable as a major defense acquisition program for which reports would be required under chapter 144 of this title, the Secretary may designate the program to be treated only as a major automated information system program covered by this chapter or to be treated only as a major defense acquisition program covered by such chapter 144.
(Added Pub. L. 109–364, div. A, title VIII, §816(a)(1), Oct. 17, 2006, 120 Stat. 2326; amended Pub. L. 111–84, div. A, title VIII, §817(a), Oct. 28, 2009, 123 Stat. 2408.)
2009—Pub. L. 111–84 substituted “of this title, the Secretary may designate the program to be treated only as a major automated information system program covered by this chapter or to be treated only as a major defense acquisition program covered by such chapter 144.” for “of this title, no reports on the program are required under such chapter if the requirements of this chapter with respect to the program are met.”
Pub. L. 111–84, div. A, title VIII, §817(b), Oct. 28, 2009, 123 Stat. 2408, provided that: “Not later than 180 days after the date of the enactment of this Act [Oct. 28, 2009], the Secretary of Defense shall issue guidance on the implementation of section 2445d of title 10, United States Code (as amended by subsection (a)). The guidance shall provide that, as a general rule—
“(1) a program covered by such section that requires the development of customized hardware shall be treated only as a major defense acquisition program under chapter 144 of title 10, United States Code; and
“(2) a program covered by such section that does not require the development of customized hardware shall be treated only as a major automated information system program under chapter 144A of title 10, United States Code.”
1990—Pub. L. 101–510, div. A, title III, §323(a)(2), title XIII, §1331(6), Nov. 5, 1990, 104 Stat. 1530, 1673, struck out item 2455 “Reports to Congress” and added item 2458.
1982—Pub. L. 97–295, §1(30)(B), Oct. 12, 1982, 96 Stat. 1296, added item 2457.
(a) The Secretary of Defense shall develop a single catalog system and related program of standardizing supplies for the Department of Defense.
(b) In cataloging, the Secretary shall name, describe, classify, and number each item recurrently used, bought, stocked, or distributed by the Department of Defense, so that only one distinctive combination of letters or numerals, or both, identifies the same item throughout the Department of Defense. Only one identification may be used for each item for all supply functions from purchase to final disposal in the field or other area. The catalog may consist of a number of volumes, sections, or supplements. It shall include all items of supply and, for each item, information needed for supply operations, such as descriptive and performance data, size, weight, cubage, packaging and packing data, a standard quantitative unit of measurement, and other related data that the Secretary determines to be desirable.
(c) In standardizing supplies the Secretary shall, to the highest degree practicable—
(1) standardize items used throughout the Department of Defense by developing and using single specifications, eliminating overlapping and duplicate specifications, and reducing the number of sizes and kinds of items that are generally similar;
(2) standardize the methods of packing, packaging, and preserving such items; and
(3) make efficient use of the services and facilities for inspecting, testing, and accepting such items.
(d) The Secretary shall coordinate with the Administrator of General Services to enable the use of commercial identifiers for commercial items within the Federal cataloging system.
(Aug. 10, 1956, ch. 1041, 70A Stat. 138; Pub. L. 85–861, §33(a)(13), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 108–136, div. A, title III, §341, Nov. 24, 2003, 117 Stat. 1448.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2451(a) 2451(b) 2451(c) |
5:173. 5:173b(a). 5:173b(b). |
July 1, 1952, ch. 539, §§2, 4, 66 Stat. 318, 319; 1953 Reorg. Plan No. 6, §1(a) (as applicable to Defense Supply Management Agency), eff. June 30, 1953, 67 Stat. 638. |
In subsection (a), the words “for the Department of Defense” are inserted for clarity. 5:173 (1st sentence) is omitted as impliedly repealed by section 2 of 1953 Reorganization Plan No. 6, effective June 30, 1953, 67 Stat. 638.
In subsection (b), the words “or any of the departments thereof”, “in such manner”, “original”, and “necessary or” are omitted as surplusage. The words “throughout the Department of Defense” are substituted for the words “either within a bureau or service, between bureaus or services, or between the departments”. The word “recurrently” is substituted for the word “repetitively”. The words “Only one identification may” are substituted for the words “The single item identification shall”.
In subsection (c), the words “the most” are omitted as surplusage. The words “to the highest degree practicable” are substituted for the words “achieve the highest practicable degree possible” and “The greatest practicable degree of standardization * * * shall be achieved”.
The change makes clear that clauses (2) and (3) apply to all items, whether or not standardized, used throughout the Department of Defense.
2003—Subsec. (d). Pub. L. 108–136 added subsec. (d).
1958—Subsec. (c). Pub. L. 85–861 substituted “such” for “standardized” in cl. (2), and “such” for “those” in cl. (3).
Amendment of section by Pub. L. 85–861 effective Aug. 10, 1956, see section 33(g) of Pub. L. 85–861, set out as a note under section 101 of this title.
Pub. L. 105–261, div. A, title III, §332, Oct. 17, 1998, 112 Stat. 1968, provided that:
“(a)
“(b)
“(2) The Defense Logistics Agency, under the direction of the Joint Electronic Commerce Program Office, shall be responsible for maintaining the defense-wide electronic mall system developed under paragraph (1).
“(c)
“(1) overseeing the elimination of duplication and overlap among Department of Defense electronic catalogs; and
“(2) ensuring that such catalogs utilize technologies and formats compliant with the requirements of subsection (b).
“(d)
“(1) an inventory of all existing and planned electronic mall systems in the Department of Defense; and
“(2) a schedule for ensuring that each such system is compliant with the requirements of subsection (b).”
Pub. L. 94–361, title VIII, §803, July 14, 1976, 90 Stat. 930, which expressed the sense of Congress that the weapons systems of the NATO Allies be standardized and interoperable, that this goal would be facilitated by inter-allied procurement of arms and closer intra-European collaboration in arms procurement, and directed the Secretary of Defense to negotiate with the Allies toward these ends and to report to Congress on actions and programs undertaken to achieve them, was repealed and restated in section 2457 of this title by Pub. L. 97–295, §§1(30)(A), 6(b), Oct. 12, 1982, 96 Stat. 1294, 1314.
Pub. L. 94–106, title VIII, §814(a), (b), Oct. 7, 1975, 89 Stat. 540, as amended by Pub. L. 94–361, title VIII, §802, July 14, 1976, 90 Stat. 930, which had provided that it was the policy of the United States that the equipment of our armed forces in Europe be standardized or at least interoperable with that of our NATO Allies, directed the Secretary of Defense to carry out procurement policies toward this end and to report to Congress on any agreements with the Allies involving exchange of equipment manufactured in the United States for equipment manufactured outside it, authorized the Secretary to find such agreements contrary to the public interest and required him to report on the procurement of any major weapons system not in accord with these policies, was repealed and restated in section 2457 of this title by Pub. L. 97–295, §§1(30)(A), 6(b), Oct. 12, 1982, 96 Stat. 1294, 1314.
Pub. L. 93–365, title III, §302(c), Aug. 5, 1974, 88 Stat. 402, as amended by Pub. L. 94–106, title VIII, §814(c), Oct. 7, 1975, 89 Stat. 540; Pub. L. 97–252, title XI, §1121, Sept. 8, 1982, 96 Stat. 754, which had directed the Secretary of Defense to assess the costs and possible loss of effectiveness from the failure of the NATO Allies to standardize equipment, to suggest standardization actions, and to report these matters to the Allies and Congress and to Congress annually on them and results obtained with the Allies, was repealed and restated in section 2457 of this title by Pub. L. 97–295, §§1(30)(A), 6(b), Oct. 12, 1982, 96 Stat. 1294, 1314.
The Secretary of Defense shall—
(1) develop and maintain the supply catalog, and the standardization program, described in section 2451 of this title;
(2) direct and coordinate progressive use of the supply catalog in all supply functions within the Department of Defense from the determination of requirements through final disposal;
(3) direct, review, and approve—
(A) the naming, description, and pattern of description of all items;
(B) the screening, consolidation, classification, and numbering of descriptions of all items; and
(C) the publication and distribution of the supply catalog;
(4) maintain liaison with industry advisory groups to coordinate the development of the supply catalog and the standardization program with the best practices of industry and to obtain the fullest practicable cooperation and participation of industry in developing the supply catalog and the standardization program;
(5) establish, publish, review, and revise, within the Department of Defense, military specifications, standards, and lists of qualified products, and resolve differences between the military departments, bureaus, and services with respect to them;
(6) assign responsibility for parts of the cataloging and the standardization programs to the military departments, bureaus, and services within the Department of Defense, when practical and consistent with their capacity and interest in those supplies;
(7) establish time schedules for assignments made under clause (6); and
(8) make final decisions in all matters concerned with the cataloging and standardization programs.
(Aug. 10, 1956, ch. 1041, 70A Stat. 139.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2452 | 5:173c. | July 1, 1952, ch. 539, §5, 66 Stat. 319; 1953 Reorg. Plan No. 6, §1(a) (as applicable to Defense Supply Management Agency), eff. June 30, 1953, 67 Stat. 638. |
In clause (1), the word “establish” is omitted as surplusage.
In clause (2), the words “provided for herein” and “its departments, bureaus, and services” are omitted as surplusage.
In clauses (2) and (3), the words “provide for” are omitted as surplusage.
In clause (4), the words “establish and” and “established by sections 173–173i of this title” are omitted as surplusage.
In clause (5), the words “amend” and “promulgate” are omitted as surplusage.
In clause (6), the words “established by sections 173–173i of this title” are omitted as surplusage.
Clause (7) is substituted for 5:173c(f) (last 11 words).
In clause (8), the word “programs” is substituted for the words “authority established in sections 173–173i of this title”. The words “subject to review and modification by the Secretary of Defense” are omitted as surplusage.
Pub. L. 98–94, title XII, §1215, Sept. 24, 1983, 97 Stat. 688, as amended by Pub. L. 98–525, title XII, §1244, Oct. 19, 1984, 98 Stat. 2609; Pub. L. 103–35, title II, §204(b), May 31, 1993, 107 Stat. 102, provided that:
“(a) Not later than 120 days after the date of the enactment of this Act [Sept. 24, 1983], the Secretary of Defense shall issue regulations which—
“(1) except as provided in clause (2), prohibit the purchase of any spare part or replacement equipment when the price of such part or equipment, since a time in the past specified by the Secretary (in terms of days or months) or since the most recent purchase of such part or equipment by the Department of Defense, has increased in price by a percentage in excess of a percentage threshold specified by the Secretary in such regulations, and
“(2) permit the purchase of such spare part or equipment (notwithstanding the prohibition contained in clause (1)) if the contracting officer for such part or equipment certifies in writing to the head of the procuring activity before the purchase is made that—
“(A) such officer has evaluated the price of such part or equipment and concluded that the increase in the price of such part or equipment is fair and reasonable, or
“(B) the national security interests of the United States require that such part or equipment be purchased despite the increase in price of such part or equipment.
“(b)(1) The Secretary shall publish the regulations issued under this section in the Federal Register.
“(2) The Secretary may provide in such regulations for the waiver of the prohibition in subsection (a)(1) and compliance with the requirements of subsection (a)(2) in the case of a purchase of any spare part or replacement equipment made or to be made through competitive procedures.
“(c) Not less than 30 days before the Secretary publishes such regulations in accordance with subsection (b), the Secretary shall submit the text of the proposed regulations to the Committees on Armed Services of the Senate and House of Representatives.”
Pub. L. 98–94, title XII, §1216, Sept. 24, 1983, 97 Stat. 688, directed Secretary of Defense to submit to Congress, by June 1, 1984, a comprehensive report on management by Department of Defense of acquisition of initial and replenishment spare parts and on status of efforts within Department (including particularly the Defense Logistics Agency and the military departments) to correct problems associated with increased costs of such parts, directed Secretary, not later than Dec. 1, 1983, to submit to Congress an interim report stating briefly the actions being taken by the Department to improve acquisition and management of spare parts, and directed Secretary to put into effect at the earliest practicable date policies and procedures to achieve a long-term solution to problems relating to excessive costs of, and long lead times in the acquisition of, initial and replenishment spare parts.
The Secretary of Defense shall distribute the parts of the supply catalog described in section 2451 of this title as they are completed. Existing catalogs shall be replaced according to schedules established by the Secretary. After replacement no other supply catalog may be used within the Department of Defense with respect to the kinds of items covered by that part. All property reports and records shall use the nomenclature, item numbers, and descriptive data of the supply catalog.
(Aug. 10, 1956, ch. 1041, 70A Stat. 139.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2453 | 5:173d. | July 1, 1952, ch. 539, §6, 66 Stat. 320; 1953 Reorg. Plan No. 6, §1(a) (as applicable to Defense Supply Management Agency), eff. June 30, 1953, 67 Stat. 638. |
The words “and ready for use” and “all departments, bureaus, and services” are omitted as surplusage. The words “After replacement” are substituted for the word “Thereafter”. The words “with respect to the kinds of items covered by that part” are inserted for clarity.
(a) After any part of the supply catalog described in section 2451 of this title is distributed, and with respect to the kinds of items covered by that part, only the items listed in it may be procured for recurrent use in the Department of Defense. However, a military department may acquire any new item that is necessary to carry out its mission. As soon as such an item is acquired, it shall be submitted to the Secretary for inclusion in the catalog and the standardization program.
(b) Obsolete items may be deleted from the catalog at any time.
(Aug. 10, 1956, ch. 1041, 70A Stat. 140.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2454(a) 2454(b) |
5:173e (less last 5 words of 1st proviso). 5:173e (last 5 words of 1st proviso). |
July 1, 1952, ch. 539, §7, 66 Stat. 320; 1953 Reorg. Plan No. 6, §1(a) (as applicable to Defense Supply Management Agency), eff. June 30, 1953, 67 Stat. 638. |
In subsection (a), the words “After any part * * * is distributed” are substituted for the words “Following the publication and promulgation * * * or portions thereof”. The words “and with respect to the kinds of items covered by that part” are inserted for clarity. The word “recurrent” is substituted for the word “repetitive”. The words “the departments, bureaus, and services of” are omitted as surplusage. The second sentence of the revised subsection is substituted for 5:173e (1st proviso, less last 5 words; and 2d proviso).
In subsection (b), the words “at any time” are inserted for clarity.
Section, acts Aug. 10, 1956, ch. 1041, 70A Stat. 140; Jan. 2, 1975, Pub. L. 93–608, §2(2), 88 Stat. 1971; Dec. 21, 1982, Pub. L. 97–375, title II, §203(c), 96 Stat. 1823, related to reports on cataloging supplies for Department of Defense.
To avoid unnecessary duplication, the Administrator of General Services and the Secretary of Defense shall coordinate the cataloging and standardization activities of the General Services Administration and the Department of Defense.
(Aug. 10, 1956, ch. 1041, 70A Stat. 140.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2456 | 5:173i. | July 1, 1952, ch. 539, §11, 66 Stat. 320. |
(a) It is the policy of the United States to standardize equipment, including weapons systems, ammunition, and fuel, procured for the use of the armed forces of the United States stationed in Europe under the North Atlantic Treaty or at least to make that equipment interoperable with equipment of other members of the North Atlantic Treaty Organization. To carry out this policy, the Secretary of Defense shall—
(1) assess the costs and possible loss of nonnuclear combat effectiveness of the military forces of the members of the Organization caused by the failure of the members to standardize equipment;
(2) maintain a list of actions to be taken, including an evaluation of the priority and effect of the action, to standardize equipment that may improve the overall nonnuclear defense capability of the Organization or save resources for the Organization; and
(3) initiate and carry out, to the maximum extent feasible, procurement procedures to acquire standardized or interoperable equipment, considering the cost, function, quality, and availability of the equipment.
(b) Progress in realizing the objectives of standardization and interoperability would be enhanced by expanded inter-Allied procurement of arms and equipment within the North Atlantic Treaty Organization. Expanded inter-Allied procurement would be made easier by greater reliance on licensing and coproduction cooperative agreements among the signatories of the North Atlantic Treaty. If constructed to preserve the efficiencies associated with economies of scale, the agreements could minimize potential economic hardship to parties to the agreements and increase the survivability, in time of war, of the North Atlantic Alliance's armaments production base by dispersing manufacturing facilities. In conjunction with other members of the Organization and to the maximum extent feasible, the Secretary shall—
(1) identify areas in which those cooperative agreements may be made with members of the Alliance; and
(2) negotiate those agreements.
(c)(1) It is the sense of Congress that weapons systems being developed wholly or primarily for employment in the North Atlantic Treaty Organization theater should conform to a common Organization requirement in order to proceed toward joint doctrine and planning and to facilitate maximum feasible standardization and interoperability of equipment, and that a common Organization requirement should be understood to include a common definition of the military threat to the members of the Organization.
(2) It is further the sense of Congress that standardization of weapons and equipment within the Organization on the basis of a “two-way street” concept of cooperation in defense procurement between Europe and North America can only work in a realistic sense if the European nations operate on a united and collective basis. Therefore, the governments of Europe are encouraged to accelerate their present efforts to achieve European armaments collaboration among all European members of the Organization.
[(d) Repealed. Pub. L. 108–136, div. A, title X, §1031(a)(22), Nov. 24, 2003, 117 Stat. 1598.]
(e) If the Secretary decides that procurement of equipment manufactured outside the United States is necessary to carry out the policy of subsection (a), the Secretary may determine under section 8302 of title 41 that acquiring that equipment manufactured in the United States is inconsistent with the public interest.
(f) The Secretary shall submit the results of each assessment and evaluation made under subsection (a)(1) and (2) to the appropriate North Atlantic Treaty Organization body to become an integral part of the overall Organization review of force goals and development of force plans.
(Added Pub. L. 97–295, §1(30)(A), Oct. 12, 1982, 96 Stat. 1294; amended Pub. L. 101–510, div. A, title XIII, §1311(5), Nov. 5, 1990, 104 Stat. 1670; Pub. L. 104–106, div. A, title XV, §1503(a)(24), Feb. 10, 1996, 110 Stat. 512; Pub. L. 108–136, div. A, title X, §1031(a)(22), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 111–350, §5(b)(33), Jan. 4, 2011, 124 Stat. 3845.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2457(a) | 10:2451 (note). | Aug. 5, 1974, Pub. L. 93–365, §302(c) (1st–3d sentences), 88 Stat. 402. |
| Oct. 7, 1975, Pub. L. 94–106, §814(a)(1), 89 Stat. 540; restated July 14, 1976, Pub. L. 94–361, §802, 90 Stat. 930. | ||
| 2457(b) | 10:2451 (note). | July 14, 1976, Pub. L. 94–361, §803(b) (1st–4th sentences), 90 Stat. 931. |
| 2457(c) | 10:2451 (note). | July 14, 1976, Pub. L. 94–361, §803(a) (1st, 2d sentences), (c), 90 Stat. 930, 931. |
| 2457(d) (words before (1)), (1) (related to (a)(1) and (2)) | 10:2451 (note). | Aug. 5, 1974, Pub. L. 93–365, §302(c) (5th sentence), 88 Stat. 402; Oct. 7, 1975, Pub. L. 94–106, §814(c), 89 Stat. 540. |
| 2457(d)(1) (related to (a)(3)) | 10:2451 (note). | July 14, 1976, Pub. L. 94–361, §803(b) (last sentence), 90 Stat. 931. |
| 2457(d)(2) | 10:2451 (note). | Oct. 7, 1975, Pub. L. 94–106, §814(b), 89 Stat. 540. |
| 2457(d)(3) | 10:2451 (note). | Oct. 7, 1975, Pub. L. 94–106, §814(a)(3), 89 Stat. 540; restated July 14, 1976, Pub. L. 94–361, §802, 90 Stat. 930. |
| 2457(d) (4)–(6) | 10:2451 (note). | July 14, 1976, Pub. L. 94–361, §803(a) (3d–last sentences), 90 Stat. 930. |
| 2457(d)(7), (8) | 10:2451 (note). | Aug. 5, 1974, Pub. L. 93–365, 88 Stat. 399, §302(c) (6th, last sentences); added Sept. 8, 1982, Pub. L. 97–252, §1121, 96 Stat. 754. |
| 2457(e) | 10:2451 (note). | Oct. 7, 1975, Pub. L. 94–106, §814(a)(2), 89 Stat. 540; restated July 14, 1976, Pub. L. 94–361, §802, 90 Stat. 930. |
| 2457(f) | 10:2451 (note). | Aug. 5, 1974, Pub. L. 93–365, §302(c) (4th sentence), 88 Stat. 402. |
In the introductory matter of subsection (a), before clause (1), the word “equipment” is substituted for “impedimenta” in section 302(c) of the Department of Defense Appropriation Authorization Act, 1975 (Pub. L. 93–365, Aug. 5, 1974, 88 Stat. 402), for clarity and for consistency with section 814(a)(1) of the Department of Defense Appropriation Authorization Act, 1976 (Pub. L. 94–106, Oct. 7, 1975, 89 Stat. 540), which is restated as part of this subsection.
In subsection (a)(1), the word “undertake” is omitted as surplus. The word “members” is substituted for “countries” for consistency. The words “including the United States” are omitted as unnecessary.
In subsection (a)(2), the words “The Secretary of Defense shall also” are omitted as unnecessary. The word “maintain” is substituted for “develop” because it is more appropriate.
In subsection (a)(3), the words “of other members of the North Atlantic Treaty Organization whenever such equipment is to be used by personnel of the Armed Forces of the United States stationed in Europe under the terms of the North Atlantic Treaty” are omitted as unnecessary because of the restatement. The words “Such procedures shall also take into . . . to be procured” are omitted as unnecessary. The text of section 814(a)(1) (4th, last sentences) is omitted as executed.
In subsection (b), the words “It is the sense of the Congress”, “It is further the sense of Congress”, “It is the Congress’ considered judgment”, “properly”, “Accordingly”, and “pursuant to these ends” are omitted as unnecessary.
In subsection (c)(1), the word “should” is substituted for “shall” for clarity.
In subsection (d)(1), the word “members” is substituted for “allies” for consistency. The words “The Secretary of Defense shall include in the report to the Congress required by section 302(c) of Public Law 93–365, as amended” are omitted as unnecessary because of the restatement.
In subsection (d)(2), the words “The report required under section 302(c) of Public Law 93–365 shall include” are omitted as unnecessary because of the restatement.
In subsection (d)(3), the words “he shall report that fact to the Congress in the annual report required under section 302(c) of Public Law 93–365, as amended” are omitted as unnecessary because of the restatement.
In subsection (d)(4), the words “The Secretary of Defense shall, in the reports required by section 302(c) of Public Law 93–365, as amended” are omitted as unnecessary because of the restatement.
In subsection (d)(5), the words “if none exist” are substituted for “In the absence of such common requirements” to eliminate unnecessary words. The words “the Secretary shall include a discussion of the” are omitted as unnecessary because of the restatement.
In subsection (d)(6), the words “The Secretary of Defense shall also report on” are omitted as unnecessary because of the restatement.
In subsection (d)(7), the words “those programs” are substituted for “all such existing and planned programs” and “all such programs” to eliminate unnecessary words.
In subsection (f), the words “The Secretary shall submit the results of these . . . to Congress” are omitted as unnecessary because of the source provisions restated in subsection (d)(1). The word “submit” is substituted for “cause to be brought” to eliminate unnecessary words. The words “in order that the suggested actions and recommendations can” are omitted as unnecessary because of the restatement.
2011—Subsec. (e). Pub. L. 111–350 substituted “section 8302 of title 41” for “section 2 of the Buy American Act (41 U.S.C. 10a)”.
2003—Subsec. (d). Pub. L. 108–136 struck out subsec. (d) which related to Secretary's biennial submission of report to Congress.
1996—Subsec. (e). Pub. L. 104–106 substituted “the Buy American Act (41 U.S.C. 10a)” for “title III of the Act of March 3, 1933 (41 U.S.C. 10a),”.
1990—Subsec. (d). Pub. L. 101–510 substituted “Before February 1, 1989, and biennially thereafter” for “Before February 1 of each year”.
(a)
(1) establish maximum levels for inventory items sufficient to achieve and maintain only those levels for inventory items necessary for the national defense;
(2) provide guidance to item managers and other appropriate officials on how effectively to eliminate wasteful practices in the acquisition and management of inventory items; and
(3) set forth a uniform system for the valuation of inventory items by the military departments and Defense Agencies.
(b)
(Added Pub. L. 101–510, div. A, title III, §323(a)(1), Nov. 5, 1990, 104 Stat. 1530; amended Pub. L. 102–190, div. A, title III, §347(a), Dec. 5, 1991, 105 Stat. 1347.)
1991—Subsec. (a)(3). Pub. L. 102–190 added par. (3).
Secretary of Defense to establish uniform system of valuation described in subsec. (a)(3) of this section not later than 180 days after Dec. 5, 1991, see section 347(c) of Pub. L. 102–190, set out as a note under section 2721 of this title.
Pub. L. 111–84, div. A, title III, §328, Oct. 28, 2009, 123 Stat. 2255, provided that:
“(a)
“(b)
“(1) A plan for a comprehensive review of demand-forecasting procedures to identify and correct any systematic weaknesses in such procedures, including the development of metrics to identify bias toward over-forecasting and adjust forecasting methods accordingly.
“(2) A plan to accelerate the efforts of the Department of Defense to achieve total asset visibility, including efforts to link wholesale and retail inventory levels through multi-echelon modeling.
“(3) A plan to reduce the average level of on-order secondary inventory that is excess to requirements, including a requirement for the systemic review of such inventory for possible contract termination.
“(4) A plan for the review and validation of methods used by the military departments and the Defense Logistics Agency to establish economic retention requirements.
“(5) A plan for an independent review of methods used by the military departments and the Defense Logistics Agency to establish contingency retention requirements.
“(6) A plan to identify items stored in secondary inventory that require substantial amounts of storage space and shift such items, where practicable, to direct vendor delivery.
“(7) A plan for a comprehensive assessment of inventory items on hand that have no recurring demands, including the development of—
“(A) metrics to track years of no demand for items in stock; and
“(B) procedures for ensuring the systemic review of such items for potential reutilization or disposal.
“(8) A plan to more aggressively pursue disposal reviews and actions on stocks identified for potential reutilization or disposal.
“(c) GAO
“(1)
“(2)
“(d)
“(1) is excess to the approved acquisition objective concerned; and
“(2) is not needed for the purposes of economic retention or contingency retention.”
Pub. L. 106–65, div. A, title III, §363, Oct. 5, 1999, 113 Stat. 576, provided that not later than Aug. 31, 2000, the Secretary of Defense was to submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the inventory and control of the military equipment of the Department of Defense as of the end of fiscal year 1999, and that not later than Nov. 30, 2000, the Inspector General of the Department of Defense was to review the report and submit comments to the committees.
Pub. L. 105–261, div. A, title III, §347, Oct. 17, 1998, 112 Stat. 1980, provided that:
“(a)
“(b)
“(c)
“(2) Not later than 18 months after the date on which the Director of the Defense Logistics Agency submits to Congress a schedule for implementing best commercial inventory practices under section 395 of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105–85; 111 Stat. 1718; 10 U.S.C. 2458 note), the Comptroller General shall submit to Congress an evaluation of the extent to which best commercial inventory practices are being implemented in the Defense Logistics Agency in accordance with that schedule.”
Pub. L. 105–261, div. A, title III, §349, Oct. 17, 1998, 112 Stat. 1981, as amended by Pub. L. 106–398, §1 [[div. A], title III, §386], Oct. 30, 2000, 114 Stat. 1654, 1654A–88, provided that:
“(a)
“(b)
“(c)
“(1) The vulnerability of in-transit secondary items to loss through fraud, waste, and abuse.
“(2) Loss of oversight of in-transit secondary items, including any loss of oversight when items are being transported by commercial carriers.
“(3) Loss of accountability for in-transit secondary items due to either a delay of delivery of the items or a lack of notification of a delivery of the items.
“(d)
“(1) The actions to be taken by the Department, including specific actions to address underlying weaknesses in the controls over items being shipped.
“(2) Statements of objectives.
“(3) Performance measures and schedules.
“(4) An identification of any resources necessary for implementing the required actions, together with an estimate of the annual costs.
“(5) The key management elements for monitoring, and for measuring the progress achieved in, the implementation of the plan, including—
“(A) the assignment of oversight responsibility for each action identified pursuant to paragraph (1);
“(B) a description of the resources required for oversight; and
“(C) an estimate of the annual cost of oversight.
“(e)
“(2) The Comptroller General shall monitor any implementation of the plan and, not later than 1 year after the date referred to in paragraph (1), submit to Congress an assessment of the extent to which the plan has been implemented.
“(f)
Pub. L. 105–85, div. A, title III, §395, Nov. 18, 1997, 111 Stat. 1718, provided that:
“(a)
“(b)
“(1) Medical and pharmaceutical.
“(2) Subsistence.
“(3) Clothing and textiles.
“(4) Commercially available electronics.
“(5) Construction.
“(6) Industrial.
“(7) Automotive.
“(8) Fuel.
“(9) Facilities maintenance.
“(c)
“(d)
Pub. L. 104–106, div. A, title III, §352, Feb. 10, 1996, 110 Stat. 266, provided that:
“(a)
“(b)
“(1) Food and clothing.
“(2) Medical and pharmaceutical supplies.
“(3) Automotive, electrical, fuel, and construction supplies.
“(4) Other consumable inventory items the Secretary considers appropriate.”
Section 323(b) of Pub. L. 101–510 provided that: “The policy required by section 2458(a) of title 10, United States Code (as added by subsection (a)), shall be issued not later than 180 days after the date of the enactment of this Act [Nov. 5, 1990].”
2011—Pub. L. 111–383, div. A, title VIII, §822(b), Jan. 7, 2011, 124 Stat. 4268, struck out item 2473 “Procurements from the small arms production industrial base”.
2008—Pub. L. 110–181, div. A, title III, §§322(d), 324(a)(2), Jan. 28, 2008, 122 Stat. 60, 61, added item 2463 and struck out item 2467 “Cost comparisons: inclusion of retirement costs; consultation with employees; waiver of comparison”.
2006—Pub. L. 109–364, div. A, title III, §332(b), Oct. 17, 2006, 120 Stat. 2150, added item 2476.
Pub. L. 109–163, div. A, title III, §341(g)(4), Jan. 6, 2006, 119 Stat. 3200, substituted “Public-private competition required” for “Commercial or industrial type functions: required studies and reports” in item 2461, “Development and implementation of system for monitoring cost saving resulting from public-private competitions” for “Development of system for monitoring cost savings resulting from workforce reductions” in item 2461a, and “Reports on public-private competition” for “Contracting for certain supplies and services required when cost is lower” in item 2462 and struck out item 2463 “Collection and retention of cost information data on converted services and functions”.
2004—Pub. L. 108–375, div. A, title III, §322(b)(2), Oct. 28, 2004, 118 Stat. 1846, substituted “Prohibition on management of depot employees by end strength” for “Management of depot employees” in item 2472.
2002—Pub. L. 107–314, div. A, title III, §333(b), Dec. 2, 2002, 116 Stat. 2514, struck out item 2469a “Use of competitive procedures in contracting for performance of depot-level maintenance and repair workloads formerly performed at certain military installations”.
2001—Pub. L. 107–107, div. A, title X, §1048(e)(10)(B), Dec. 28, 2001, 115 Stat. 1228, struck out item 2468 “Military installations: authority of base commanders over contracting for commercial activities”.
2000—Pub. L. 106–398, §1 [[div. A], title III, §§341(g)(2), 353(b), 354(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–64, 1654A–73, 1654A–75, added items 2461a and 2475 and struck out item 2471 “Persons outside the Department of Defense: lease of excess depot-level equipment and facilities by”.
1999—Pub. L. 106–65, div. A, title III, §342(b)(2), Oct. 5, 1999, 113 Stat. 569, added item 2467 and struck former item 2467 “Cost comparisons: requirements with respect to retirement costs and consultation with employees”.
1997—Pub. L. 105–85, div. A, title III, §§355(c)(1), 356(b), 359(a)(2), 361(a)(2), 385(b), Nov. 18, 1997, 111 Stat. 1694, 1695, 1699, 1701, 1712, added item 2460, substituted “Collection and retention of cost information data on converted services and functions” for “Reports on savings or costs from increased use of DOD civilian personnel” in item 2463 and “capabilities” for “functions” in item 2464, and added items 2469a and 2474.
1996—Pub. L. 104–201, div. A, title VIII, §832(b), Sept. 23, 1996, 110 Stat. 2616, added item 2473.
Pub. L. 104–106, div. A, title III, §312(d), Feb. 10, 1996, 110 Stat. 251, added item 2472.
Pub. L. 104–106, div. A, title III, §311(f)(2), Feb. 10, 1996, 110 Stat. 248, which directed striking out items 2466 and 2469, was repealed by Pub. L. 105–85, div. A, title III, §363, Nov. 18, 1997, 111 Stat. 1702.
1994—Pub. L. 103–337, div. A, title III, §§335(b), 336(b), Oct. 5, 1994, 108 Stat. 2717, added items 2470 and 2471.
1992—Pub. L. 102–484, div. A, title III, §353(b), Oct. 23, 1992, 106 Stat. 2379, added item 2469.
1991—Pub. L. 102–190, div. A, title III, §314(a)(2), Dec. 5, 1991, 105 Stat. 1337, substituted “Limitations on the performance of depot-level maintenance of materiel” for “Prohibition on certain depot maintenance workload competitions” in item 2466.
1989—Pub. L. 101–189, div. A, title XI, §1131(a)(2), Nov. 29, 1989, 103 Stat. 1561, added item 2468.
1988—Pub. L. 100–456, div. A, title III, §§326(b), 331(b), Sept. 29, 1988, 102 Stat. 1956, 1958, added items 2466 and 2467.
(a)
(b)
(2) The term also does not include the procurement of parts for safety modifications. However, the term does include the installation of parts for that purpose.
(Added Pub. L. 105–85, div. A, title III, §355(a), Nov. 18, 1997, 111 Stat. 1693; amended Pub. L. 105–261, div. A, title III, §341, Oct. 17, 1998, 112 Stat. 1973.)
1998—Subsec. (a). Pub. L. 105–261 inserted “or the location at which the maintenance or repair is performed” before period at end of first sentence.
(a)
(A) formally compares the cost of performance of the function by Department of Defense civilian employees with the cost of performance by a contractor;
(B) creates an agency tender, including a most efficient organization plan, in accordance with Office of Management and Budget Circular A–76, as implemented on May 29, 2003, or any successor circular;
(C) includes the issuance of a solicitation;
(D) determines whether the submitted offers meet the needs of the Department of Defense with respect to factors other than cost, including quality, reliability, and timeliness;
(E) examines the cost of performance of the function by Department of Defense civilian employees and the cost of performance of the function by one or more contractors to demonstrate whether converting to performance by a contractor will result in savings to the Government over the life of the contract, including—
(i) the estimated cost to the Government (based on offers received) for performance of the function by a contractor;
(ii) the estimated cost to the Government for performance of the function by Department of Defense civilian employees; and
(iii) an estimate of all other costs and expenditures that the Government would incur because of the award of such a contract;
(F) requires continued performance of the function by Department of Defense civilian employees unless the difference in the cost of performance of the function by a contractor compared to the cost of performance of the function by Department of Defense civilian employees would, over all performance periods required by the solicitation, be equal to or exceed the lesser of—
(i) 10 percent of the personnel-related costs for performance of that function in the agency tender; or
(ii) $10,000,000;
(G) requires that the contractor shall not receive an advantage for a proposal that would reduce costs for the Department of Defense by—
(i) not making an employer-sponsored health insurance plan (or payment that could be used in lieu of such a plan), health savings account, or medical savings account available to the workers who are to be employed to perform the function under the contract;
(ii) offering to such workers an employer-sponsored health benefits plan that requires the employer to contribute less towards the premium or subscription share than the amount that is paid by the Department of Defense for health benefits for civilian employees of the Department under chapter 89 of title 5; or
(iii) offering to such workers a retirement benefit that, in any year, costs less than the annual retirement cost factor applicable to civilian employees of the Department of Defense under chapter 84 of title 5; and
(H) examines the effect of performance of the function by a contractor on the military mission associated with the performance of the function.
(2) A function that is performed by the Department of Defense and is reengineered, reorganized, modernized, upgraded, expanded, or changed to become more efficient, but still essentially provides the same service, shall not be considered a new requirement.
(3) In no case may a function being performed by Department of Defense personnel be—
(A) modified, reorganized, divided, or in any way changed for the purpose of exempting the conversion of the function from the requirements of this section; or
(B) converted to performance by a contractor to circumvent a civilian personnel ceiling.
(4) A military department or Defense Agency may not be required to conduct a public-private competition under Office of Management and Budget Circular A–76 or any other provision of law at the end of the performance period specified in a letter of obligation or other agreement entered into with Department of Defense civilian employees pursuant to a public-private competition for any function of the Department of Defense performed by Department of Defense civilian employees.
(5)(A) Except as provided in subparagraph (B), the duration of a public-private competition conducted pursuant to Office of Management and Budget Circular A–76 or any other provision of law for any function of the Department of Defense performed by Department of Defense civilian employees may not exceed a period of 24 months, commencing on the date on which the preliminary planning for the public-private competition begins and ending on the date on which a performance decision is rendered with respect to the function.
(B)(i) The Secretary of Defense may specify an alternative period of time for a public-private competition, which may not exceed 33 months, if the Secretary—
(I) determines that the competition is of such complexity that it cannot be completed within 24 months; and
(II) submits to Congress, as part of the formal congressional notification of a public-private competition pursuant to subsection (c), written notification that explains the basis of such determination.
(ii) The notification under clause (i)(II) shall also address each of the following:
(I) Any efforts of the Secretary to break up the study geographically or functionally.
(II) The Secretary's justification for undertaking a public-private competition instead of using internal reengineering alternatives.
(III) The cost savings that the Secretary expects to achieve as a result of the public-private competition.
(iii) If the Secretary specifies an alternative time period under this subparagraph, the alternative time period shall be binding on the Department in the same manner and to the same extent as the limitation provided in subparagraph (A).
(C) The time period specified in subparagraph (A) for a public-private competition does not include any day during which the public-private competition is delayed by reason of the filing of a protest before the Government Accountability Office or a complaint in the United States Court of Federal Claims up until the day the decision or recommendation of either authority becomes final. In the case of a protest before the Government Accountability Office, the recommendation becomes final after the period of time for filing a request for reconsideration, or if a request for reconsideration is filed, on the day the Government Accountability Office issues a decision on the reconsideration.
(D) If a protest with respect to a public-private competition before the Government Accountability Office or the United States Court of Federal Claims is sustained, and the recommendation is final as described in subparagraph (C), and if such protest and recommendation result in an unforeseen delay in implementing a final performance decision, the Secretary of Defense may terminate the public-private competition or extend the period of time specified for the public-private competition under subparagraph (A) or subparagraph (B). If the Secretary decides not to terminate a competition, the Secretary shall submit to Congress written notice of such decision. Any such notification shall include a justification for the Secretary's decision and a new time limitation for the competition, which shall not exceed 12 months from the final decision and shall be binding on the Department.
(E) For the purposes of this paragraph, preliminary planning with respect to a public-private competition, begins on the date on which the Department of Defense obligates funds for the acquisition of contract support, or formally assigns Department of Defense personnel, to carry out any of the following activities:
(i) Determining the scope of the competition.
(ii) Conducting research to determine the appropriate grouping of functions for the competition.
(iii) Assessing the availability of workload data, quantifiable outputs of functions, and agency or industry performance standards applicable to the competition.
(iv) Determining the baseline cost of any function for which the competition is conducted.
(F) To effectively establish the date that is the first day of preliminary planning for a public-private competition, the head of a military department shall submit to Congress written notice of such date and shall provide public notice by announcing such date on an appropriate Internet website. Such date is the first day of preliminary planning for a public-private competition for the purpose of computing the duration of the public private competition for purposes of this section.
(G) The Secretary of Defense shall submit to the congressional defense committees an annual report on the use, during the year covered by the report, of alternative time periods for public-private competitions under this section, and the explanations of the Secretary for such alternative time periods.
(b)
(A) shall, at least monthly during the development and preparation of the performance work statement and the management efficiency study used in making that determination, consult with civilian employees who will be affected by that determination and consider the views of such employees on the development and preparation of that statement and that study; and
(B) may consult with such employees on other matters relating to that determination.
(2)(A) In the case of employees represented by a labor organization accorded exclusive recognition under section 7111 of title 5, consultation with representatives of that labor organization shall satisfy the consultation requirement in paragraph (1).
(B) In the case of employees other than employees referred to in subparagraph (A), consultation with appropriate representatives of those employees shall satisfy the consultation requirement in paragraph (1).
(C) The Secretary of Defense shall prescribe regulations to carry out this subsection. The regulations shall include provisions for the selection or designation of appropriate representatives of employees referred to in subparagraph (B) for purposes of the consultation required by paragraph (1).
(c)
(A) The function for which such public-private competition is to be conducted.
(B) The location at which the function is performed by Department of Defense civilian employees.
(C) The number of Department of Defense civilian employee positions potentially affected.
(D) The anticipated length and cost of the public-private competition, and a specific identification of the budgetary line item from which funds will be used to cover the cost of the public-private competition.
(E) A certification that a proposed performance of the function by a contractor is not a result of a decision by an official of a military department or Defense Agency to impose predetermined constraints or limitations on such employees in terms of man years, end strengths, full-time equivalent positions, or maximum number of employees.
(2) The report required under paragraph (1) shall include an examination of the potential economic effect of performance of the function by a contractor on—
(A) Department of Defense civilian employees who would be affected by such a conversion in performance; and
(B) the local community and the Government, if more than 50 Department of Defense civilian employees perform the function.
(3)(A) A representative individual or entity at a facility where a public-private competition is conducted may submit to the Secretary of Defense an objection to the public-private competition on the grounds that the report required by paragraph (1) has not been submitted or that the certification required by paragraph (1)(E) is not included in the report submitted as a condition for the public-private competition. The objection shall be in writing and shall be submitted within 90 days after the following date:
(i) In the case of a failure to submit the report when required, the date on which the representative individual or an official of the representative entity authorized to pose the objection first knew or should have known of that failure.
(ii) In the case of a failure to include the certification in a submitted report, the date on which the report was submitted to Congress.
(B) If the Secretary determines that the report required by paragraph (1) was not submitted or that the required certification was not included in the submitted report, the function for which the public-private competition was conducted for which the objection was submitted may not be the subject of a solicitation of offers for, or award of, a contract until, respectively, the report is submitted or a report containing the certification in full compliance with the certification requirement is submitted.
(d)
(1) is included on the procurement list established pursuant to section 8503 of title 41; or
(2) is planned to be changed to performance by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely handicapped persons in accordance with that Act.1
(e)
(Added Pub. L. 100–370, §2(a)(1), July 19, 1988, 102 Stat. 851; amended Pub. L. 101–189, div. A, title XI, §1132, Nov. 29, 1989, 103 Stat. 1561; Pub. L. 104–106, div. D, title XLIII, §4321(b)(19), Feb. 10, 1996, 110 Stat. 673; Pub. L. 105–85, div. A, title III, §384, Nov. 18, 1997, 111 Stat. 1711; Pub. L. 105–261, div. A, title III, §342(a)–(c), Oct. 17, 1998, 112 Stat. 1974–1976; Pub. L. 106–65, div. A, title III, §341, Oct. 5, 1999, 113 Stat. 568; Pub. L. 106–398, §1 [[div. A], title III, §§351, 352], Oct. 30, 2000, 114 Stat. 1654, 1654A–71, 1654A–72; Pub. L. 107–107, div. A, title III, §344, Dec. 28, 2001, 115 Stat. 1061; Pub. L. 107–314, div. A, title III, §331, Dec. 2, 2002, 116 Stat. 2512; Pub. L. 109–163, div. A, title III, §341(a), (b), (c)(2), (3), (g)(1)–(2)(B), Jan. 6, 2006, 119 Stat. 3195, 3196, 3199, 3200; Pub. L. 110–181, div. A, title III, §§322(a), (b)(2), (c), 323, Jan. 28, 2008, 122 Stat. 58–60; Pub. L. 111–84, div. A, title III, §§321(a), 322(a), title X, §1073(a)(25), Oct. 28, 2009, 123 Stat. 2250, 2251, 2474; Pub. L. 111–350, §5(b)(34), Jan. 4, 2011, 124 Stat. 3845.)
Section is based on Pub. L. 96–342, title V, §502, Sept. 8, 1980, 94 Stat. 1086, as amended by Pub. L. 97–252, title XI, §1112(a), Sept. 8, 1982, 96 Stat. 747; Pub. L. 99–145, title XII, §1234(a), Nov. 8, 1985, 99 Stat. 734; Pub. L. 99–661, div. A, title XII, §1221, Nov. 14, 1986, 100 Stat. 3976.
That Act, referred to in subsec. (d)(2), is a reference to the Javits-Wagner-O'Day Act, which is act June 25, 1938, ch. 697, 52 Stat. 1196, and was classified to sections 46 to 48c of former Title 41, Public Contracts, prior to being repealed and restated as chapter 85 (§8501 et seq.) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
2011—Subsec. (d)(1). Pub. L. 111–350, which directed substitution of “section 8503 of title 41” for “section 2 of the Javits-Wagner-O'Day Act (41 U.S.C. 47)” in subsec. (c)(1), was executed by making the substitution in subsec. (d)(1) to reflect the probable intent of Congress and the amendment by Pub. L. 110–181, §322(b)(2). See 2008 Amendment note below.
2009—Subsec. (a)(1). Pub. L. 111–84, §321(a), in introductory provisions, substituted “No function” for “A function” and “may be converted” for “may not be converted” and struck out “10 or more” before “Department of Defense civilian employees”.
Subsec. (a)(5). Pub. L. 111–84, §322(a), added par. (5).
Subsec. (c)(3)(A). Pub. L. 111–84, §1073(a)(25), substituted “the public-private competition” for “the public private competition” in two places in introductory provisions.
2008—Subsec. (a)(1)(B). Pub. L. 110–181, §322(c)(1)(A), inserted “, or any successor circular” after “2003”.
Subsec. (a)(1)(D). Pub. L. 110–181, §322(c)(1)(B), substituted “, reliability, and timeliness” for “and reliability”.
Subsec. (a)(1)(G), (H). Pub. L. 110–181, §322(a), added subpar. (G) and redesignated former subpar. (G) as (H).
Subsec. (a)(4). Pub. L. 110–181, §323, added par. (4).
Subsecs. (b), (c). Pub. L. 110–181, §322(b)(2), added subsec. (b) and redesignated former subsec. (b) as (c). Former subsec. (c) redesignated (d).
Subsec. (c)(2). Pub. L. 110–181, §322(c)(2), inserted “of” after “examination” in introductory provisions.
Subsecs. (d), (e). Pub. L. 110–181, §322(b)(2), redesignated subsecs. (c) and (d) as (d) and (e), respectively.
2006—Pub. L. 109–163, §341(g)(2)(A), substituted “Public-private competition required” for “Commercial or industrial type functions: required studies and reports” in section catchline.
Subsec. (a). Pub. L. 109–163, §341(a), amended heading and text of subsec. (a) generally. Prior to amendment, text read as follows: “A commercial or industrial type function of the Department of Defense that, as of October 1, 1980, was being performed by Department of Defense civilian employees may not be changed to performance by the private sector until the Secretary of Defense fully complies with the reporting and analysis requirements specified in subsections (b) and (c).”
Subsec. (b). Pub. L. 109–163, §341(g)(2)(B), substituted “Congressional Notification” for “Notification and Elements of Analysis” in heading.
Subsec. (b)(1). Pub. L. 109–163, §341(b)(1)(A), in introductory provisions, substituted “a public-private competition under subsection (a)” for “to analyze a commercial or industrial type function described in subsection (a) for possible change to performance by the private sector”.
Subsec. (b)(1)(A). Pub. L. 109–163, §341(b)(1)(B), substituted “for which such public-private competition is to be conducted” for “to be analyzed for possible change”.
Subsec. (b)(1)(C). Pub. L. 109–163, §341(b)(1)(C), inserted “Department of Defense” before “civilian employee”.
Subsec. (b)(1)(D). Pub. L. 109–163, §341(b)(1)(D), substituted “the public-private competition” for “the analysis” in two places.
Subsec. (b)(1)(E). Pub. L. 109–163, §341(b)(1)(E), struck out “commercial or industrial type” before “function” and substituted “a contractor” for “persons who are not civilian employees of the Department of Defense”.
Subsec. (b)(2). Pub. L. 109–163, §341(b)(2), added par. (2) and struck out former par. (2) which read as follows: “The duty to prepare a report under paragraph (1) may be delegated. A report prepared below the major command or claimant level of a military department, or below the equivalent level in a Defense Agency, pursuant to any such delegation shall be reviewed at the major command, claimant level, or equivalent level, as the case may be, before submission to Congress.”
Subsec. (b)(3). Pub. L. 109–163, §341(b)(2), (3), redesignated par. (4) as (3) and struck out former par. (3) which related to analysis of a commercial or industrial type function for possible change to performance by the private sector.
Subsec. (b)(3)(A). Pub. L. 109–163, §341(b)(4)(A), in introductory provisions, substituted “where a public-private competition is conducted” for “where a commercial or industrial type function is analyzed for possible change in performance” and “the public private competition” for “the analysis” in two places.
Subsec. (b)(3)(B). Pub. L. 109–163, §341(b)(4)(B), substituted “the function for which the public-private competition was conducted for which the objection was submitted” for “the commercial or industrial type function covered by the analysis to which objected”.
Subsec. (b)(4). Pub. L. 109–163, §341(b)(3), redesignated par. (4) as (3).
Subsec. (c). Pub. L. 109–163, §341(g)(1), substituted “This section” for “Subsections (a) through (c) and subsection (g)”.
Pub. L. 109–163, §341(c)(3), substituted “Exemption” for “Waiver” in heading.
Pub. L. 109–163, §341(c)(2), redesignated subsec. (e) as (c) and struck out former subsec. (c) which related to submission of analysis results by the Secretary of Defense.
Subsecs. (d) to (h). Pub. L. 109–163, §341(c)(2), redesignated subsecs. (e) and (h) as (c) and (d), respectively, and struck out former subsecs. (d), (f), and (g) which related, respectively, to waiver for small functions, additional limitations, and annual reports.
2002—Subsec. (c). Pub. L. 107–314 amended heading and text of subsec. (c) generally. Prior to amendment, text related to the report to Congress by the Secretary of Defense upon a decision to change the commercial or industrial type function that was the subject of the analysis to performance by the private sector, with requirements for contents of the report and submission of the report prior to the change of the function to contractor performance.
2001—Subsec. (g). Pub. L. 107–107 substituted “June 30” for “February 1”.
2000—Subsec. (b)(1)(D). Pub. L. 106–398, §1 [[div. A], title III, §351(a)], inserted before period “, and a specific identification of the budgetary line item from which funds will be used to cover the cost of the analysis”.
Subsec. (c)(1). Pub. L. 106–398, §1 [[div. A], title III, §351(b)], added subpars. (A), (D), (E), and (G) and redesignated former subpars. (A), (B), (C), (D), and (E) as (B), (C), (F), (H), and (I), respectively.
Subsec. (c)(2), (3). Pub. L. 106–398, §1 [[div. A], title III, §352], added par. (2) and redesignated former par. (2) as (3).
1999—Subsec. (b)(3)(B)(ii). Pub. L. 106–65 substituted “50 employees” for “75 employees”.
1998—Subsec. (a). Pub. L. 105–261, §342(a)(2), added subsec. (a) and struck out former subsec. (a) which provided that commercial or industrial type functions of the Department of Defense that on Oct. 1, 1980, were being performed by Department of Defense civilian employees could not be converted to performance by private contractors unless the Secretary of Defense provided certain notices, information, certifications, and reports to Congress.
Subsec. (b). Pub. L. 105–261, §342(a)(2), added subsec. (b) and struck out heading and text of former subsec. (b). Text read as follows: “If, after completion of the studies required for completion of the certification and report required by paragraphs (3) and (4) of subsection (a), a decision is made to convert the function to contractor performance, the Secretary of Defense shall notify Congress of such decision. The notification shall include the timetable for completing conversion of the function to contractor performance.”
Subsec. (c). Pub. L. 105–261, §342(a)(2), added subsec. (c). Former subsec. (c) redesignated (g).
Subsec. (d). Pub. L. 105–261, §342(b), (c)(1), substituted “50” for “20” and inserted “and subsection (g)” after “Subsections (a) through (c)”.
Subsec. (e). Pub. L. 105–261, §342(c)(1), (2), inserted “and subsection (g)” after “Subsections (a) through (c)” in introductory provisions and substituted “changed” for “converted” in par. (2).
Subsec. (f). Pub. L. 105–261, §342(c)(2), (3), substituted “changed” for “converted” in par. (1) and “change” for “conversion” in par. (2).
Subsecs. (g), (h). Pub. L. 105–261, §342(a)(1), redesignated subsecs. (c) and (g) as (g) and (h), respectively.
1997—Subsec. (a)(1). Pub. L. 105–85, §384(a), inserted “and the anticipated length and cost of the study” before semicolon at end.
Subsec. (b). Pub. L. 105–85, §384(b), inserted at end “The notification shall include the timetable for completing conversion of the function to contractor performance.”
Subsec. (d). Pub. L. 105–85, §384(c), substituted “20 or fewer” for “45 or fewer”.
1996—Subsec. (e)(1). Pub. L. 104–106 substituted “the Javits-Wagner-O'Day Act (41 U.S.C. 47)” for “the Act of June 25, 1938 (41 U.S.C. 47), popularly referred to as the Wagner-O'Day Act”.
1989—Subsecs. (e) to (g). Pub. L. 101–189 added subsec. (e) and redesignated former subsecs. (e) and (f) as (f) and (g), respectively.
Pub. L. 111–84, div. A, title III, §321(b), Oct. 28, 2009, 123 Stat. 2250, provided that: “The amendments made by subsection (a) [amending this section] shall apply with respect to a function for which a public-private competition is commenced on or after the date of the enactment of this Act [Oct. 28, 2009].”
Pub. L. 111–84, div. A, title III, §322(b), Oct. 28, 2009, 123 Stat. 2252, provided that: “Paragraph (5) of section 2461(a) of title 10, United States Code, as added by subsection (a), shall apply with respect to a public-private competition covered by such section that is initiated on or after the date of the enactment of this Act [Oct. 28, 2009].”
Pub. L. 105–261, div. A, title III, §342(d), Oct. 17, 1998, 112 Stat. 1976, provided that: “The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Oct. 17, 1998], but the amendments shall not apply with respect to a conversion of a function of the Department of Defense to performance by a private contractor concerning which the Secretary of Defense provided to Congress, before the date of the enactment of this Act, a notification under paragraph (1) of section 2461(a) of title 10, United States Code, as in effect on the day before the date of the enactment of this Act.”
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Pub. L. 110–181, div. A, title III, §325, Jan. 28, 2008, 122 Stat. 61, provided that:
“(a)
“(b)
“(c)
“(1)
“(A) An interim report, to be submitted by not later than 90 days after the date of the enactment of this Act [Jan. 28, 2008].
“(B) A final report, to be submitted by not later than December 31, 2008.
“(2)
Pub. L. 111–84, div. A, title X, §1082, Oct. 28, 2009, 123 Stat. 2481, provided that:
“(a)
“(b)
“(1) the term of the contract may not be more than 8 years; and
“(2) notwithstanding section 2306c(b) of such title, the authority under section 2306c(a) of such title shall apply to the fee-for-service air refueling pilot program.
“(c)
“(1) the Secretary shall not be required to certify to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that the contract is the most cost-effective means of obtaining commercial fee-for-service air refueling tanker aircraft for Air Force operations; and
“(2) the Secretary shall not be required to certify to the congressional defense committees that there is no alternative for meeting urgent operational requirements other than making the contract.
“(d)
“(e)
Pub. L. 110–181, div. A, title X, §1081, Jan. 28, 2008, 122 Stat. 335, as amended by Pub. L. 111–84, div. A, title X, §1081, Oct. 28, 2009, 123 Stat. 2481, provided that:
“(a)
“(b)
“(1)
“(2)
“(A) demonstrate and validate a comprehensive strategy for air refueling on a fee-for-service basis by evaluating all mission areas, including testing support, training support to receiving aircraft, homeland defense support, deployment support, air bridge support, aeromedical evacuation, and emergency air refueling; and
“(B) integrate fee-for-service air refueling described in paragraph (1) into Air Mobility Command operations during the evaluation and execution phases of the pilot program.
“(c)
“(1) information with respect to—
“(A) missions flown;
“(B) mission areas supported;
“(C) aircraft number, type, model series supported;
“(D) fuel dispensed;
“(E) departure reliability rates; and
“(F) the annual and cumulative cost to the Government for the program, including a comparison of costs of the same service provided by the Air Force;
“(2) an assessment of the impact of outsourcing air refueling on the Air Force's flying hour program and aircrew training; and
“(3) any other data that the Secretary determines is appropriate for evaluating the performance of the commercial air refueling providers participating in the pilot program.
“(d)
“(1) an annual review of the conduct of the pilot program under this section and any recommendations of the Comptroller General for improving the program; and
“(2) not later than 90 days after the completion of the pilot program, a final assessment of the results of the pilot program and the recommendations of the Comptroller General for whether the Secretary of the Air Force should continue to utilize fee-for-service air refueling.”
Pub. L. 109–163, div. A, title III, §341(e), Jan. 6, 2006, 119 Stat. 3199, as amended by Pub. L. 109–364, div. A, title X, §1071(e)(1), Oct. 17, 2006, 120 Stat. 2401, provided that: “Subsection (a)(1)(F) of section 2461 of title 10, United States Code, as amended by subsection (a), shall not apply with respect to the pilot program for best-value source selection for performance of information technology services authorized by section 336 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136; 117 Stat. 1444; 10 U.S.C. 2461 note).”
Pub. L. 109–163, div. A, title III, §343, Jan. 6, 2006, 119 Stat. 3200, which provided that the Secretary of Defense was to prescribe guidelines and procedures for ensuring that consideration be given to using Federal Government employees for work that was currently performed or would otherwise be performed under Department of Defense contracts, and that the Secretary was to include the use of the flexible hiring authority available through the National Security Personnel System in order to facilitate performance by Federal Government employees of new requirements and work that was performed under Department of Defense contracts, was repealed and restated in section 2463 of this title by Pub. L. 110–181, div. A, title III, §324(a)(1), (c), Jan. 28, 2008, 122 Stat. 60, 61.
Pub. L. 108–375, div. A, title III, §325, Oct. 28, 2004, 118 Stat. 1847, as amended by Pub. L. 110–181, div. B, title XXVIII, §2826, Jan. 28, 2008, 122 Stat. 546; Pub. L. 110–417, [div. A], title X, §1061(b)(16), Oct. 14, 2008, 122 Stat. 4613, provided that:
“(a)
“(b)
“(1) Refuse collection.
“(2) Refuse disposal.
“(3) Library services.
“(4) Recreation services.
“(5) Facility maintenance and repair.
“(6) Utilities.
“(c)
“(d)
“(e)
Pub. L. 108–375, div. A, title III, §327, Oct. 28, 2004, 118 Stat. 1849, which generally required the Secretary of Defense to maintain the continued performance of certain activities and functions by civilian employees unless the competitive sourcing official determined that the cost of performance of the activity or function by a contractor would be less costly by an amount that equaled or exceeded the lesser of $10,000,000 or 10 percent of the most efficient organization's personnel-related costs for performance of the activity or function by civilian employees, was repealed by Pub. L. 109–163, div. A, title III, §341(g)(3), Jan. 6, 2006, 119 Stat. 3200.
Pub. L. 108–136, div. A, title III, §335, Nov. 24, 2003, 117 Stat. 1443, provided that:
“(a)
“(b)
“(1) The extent to which the revised circular will ensure that employees of the Department of Defense have the opportunity to compete to retain their jobs.
“(2) The extent to which the revised circular will provide appeal and protest rights to employees of the Department of Defense.
“(3) Identify safeguards in the revised circular to ensure that all public-private competitions are fair, appropriate, and comply with requirements of full and open competition.
“(4) The plans of the Department to ensure an appropriate phase-in period for the revised circular, as recommended by the Commercial Activities Panel of the Government [General] Accounting Office [now Government Accountability Office] in its April 2002 report to Congress, including recommendations for any legislative changes that may be required to ensure a smooth and efficient phase-in period.
“(5) The plans of the Department to provide training to employees of the Department of Defense regarding the revised circular, including how the training will be funded, how employees will be selected to receive the training, and the number of employees likely to receive the training.
“(6) The plans of the Department to collect and analyze data on the costs and quality of work contracted out or retained in-house as a result of a sourcing process conducted under the revised circular.”
Pub. L. 108–136, div. A, title III, §336, Nov. 24, 2003, 117 Stat. 1444, provided that:
“(a)
“(b)
“(1) a change to performance by the private sector will result in the best value to the Government over the life of the contract, as determined in accordance with the competition requirements of Office of Management and Budget Circular A–76; and
“(2) certain benefits exist, in addition to price, that warrant performance of the function by a private sector source at a cost higher than that of performance by Department of Defense civilian employees.
“(c)
“(d)
“(2) The expiration of the pilot program shall not affect the selection of the source for the performance of an information technology services function for the Department of Defense for which the analysis required by section 2461(b)(3) [now 2461(c)(3)] of title 10, United States Code, has been commenced before the expiration date or for which a solicitation has been issued before the expiration date.
“(e) GAO
“(1) a review of the pilot program to assess the extent to which the pilot program is effective and is equitable for the potential public sources and the potential private sources of information technology services for the Department of Defense; and
“(2) any other conclusions of the Comptroller General resulting from the review.
“(f)
Pub. L. 107–107, div. A, title III, §345(a)–(c), Dec. 28, 2001, 115 Stat. 1061, 1062, provided that, not later than Mar. 1 of each of the fiscal years 2002 through 2004, the Secretary of the Army was to submit to Congress a report describing the use during the previous fiscal year of non-Federal entities to provide services to the Department of the Army.
Pub. L. 106–65, div. A, title VIII, §814, Oct. 5, 1999, 113 Stat. 711, authorized the Secretary of Defense to carry out a pilot program to treat procurements of commercial services as procurements of commercial items, required the Secretary to issue guidance to procurement officials not later than 90 days after Oct. 5, 1999, and provided that the pilot program was to begin on the date that the Secretary issued the guidance and that it could continue for a period, not in excess of five years.
Pub. L. 105–261, div. A, title III, §379, Oct. 17, 1998, 112 Stat. 1995, provided that: “With respect to an agreement between the commander of a military installation in the United States (or the designee of such an installation commander) and a financial institution that permits, allows, or otherwise authorizes the provision of financial services by the financial institution on the military installation, nothing in the terms or nature of such an agreement shall be construed to exempt the agreement from the provisions of sections 552 and 552a of title 5, United States Code.”
Section 389 of Pub. L. 105–85, as amended by Pub. L. 105–261, div. A, title X, §1069(b)(1), Oct. 17, 1998, 112 Stat. 2136, provided that:
“(a)
“(b)
“(c)
“(d)
“(e)
“(f)
“(g)
“(h)
[Pub. L. 105–261, div. A, title X, §1069(b), Oct. 17, 1998, 112 Stat. 2136, provided that the amendment made by that section to section 389 of Pub. L. 105–85, set out above, is effective as of Nov. 18, 1997, and as if included in the National Defense Authorization Act for Fiscal Year 1998, Pub. L. 105–85, as enacted.]
Section 353(a) of Pub. L. 104–106 provided that:
“(1) Not later than October 1, 1996, the Secretary of Defense shall submit to Congress a plan for the performance by private-sector sources of payroll functions for civilian employees of the Department of Defense other than employees paid from nonappropriated funds.
“(2)(A) The Secretary shall implement the plan referred to in paragraph (1) if the Secretary determines that the cost of performance by private-sector sources of the functions referred to in that paragraph does not exceed the cost of performance of those functions by employees of the Federal Government.
“(B) In computing the total cost of performance of such functions by employees of the Federal Government, the Secretary shall include the following:
“(i) Managerial and administrative costs.
“(ii) Personnel costs, including the cost of providing retirement benefits for such personnel.
“(iii) Costs associated with the provision of facilities and other support by Federal agencies.
“(C) The Defense Contract Audit Agency shall verify the costs computed for the Secretary under this paragraph by others.
“(3) At the same time the Secretary submits the plan required by paragraph (1), the Secretary shall submit to Congress a report on other accounting and finance functions of the Department that are appropriate for performance by private-sector sources.”
Section 353(b) of Pub. L. 104–106 provided that:
“(1) The Secretary shall carry out a pilot program to test the performance by private-sector sources of payroll and other accounting and finance functions of nonappropriated fund instrumentalities and to evaluate the extent to which cost savings and efficiencies would result from the performance of such functions by those sources.
“(2) The payroll and other accounting and finance functions designated by the Secretary for performance by private-sector sources under the pilot program shall include at least one major payroll, accounting, or finance function.
“(3) To carry out the pilot program, the Secretary shall enter into discussions with private-sector sources for the purpose of developing a request for proposals to be issued for performance by those sources of functions designated by the Secretary under paragraph (2). The discussions shall be conducted on a schedule that accommodates issuance of a request for proposals within 60 days after the date of the enactment of this Act [Feb. 10, 1996].
“(4) A goal of the pilot program is to reduce by at least 25 percent the total costs incurred by the Department annually for the performance of a function referred to in paragraph (2) through the performance of that function by a private-sector source.
“(5) Before conducting the pilot program, the Secretary shall develop a plan for the program that addresses the following:
“(A) The purposes of the program.
“(B) The methodology, duration, and anticipated costs of the program, including the cost of an arrangement pursuant to which a private-sector source would receive an agreed-upon payment plus an additional negotiated amount not to exceed 50 percent of the dollar savings achieved in excess of the goal specified in paragraph (4).
“(C) A specific citation to any provisions of law, rule, or regulation that, if not waived, would prohibit the conduct of the program or any part of the program.
“(D) A mechanism to evaluate the program.
“(E) A provision for all payroll, accounting, and finance functions of nonappropriated fund instrumentalities of the Department of Defense to be performed by private-sector sources, if determined advisable on the basis of a final assessment of the results of the program.
“(6) The Secretary shall act through the Under Secretary of Defense (Comptroller) in the performance of the Secretary's responsibilities under this subsection.”
Pub. L. 105–85, div. A, title III, §388(c), Nov. 18, 1997, 111 Stat. 1714, provided that, not later than Dec. 31, 1998, the Comptroller General was to submit to Congress a report containing the results of a review by the Comptroller General of the demonstration program conducted under section 354 of Pub. L. 104–106, set out below.
Section 354 of Pub. L. 104–106, as amended by Pub. L. 105–85, div. A, title III, §388(a), (b), Nov. 18, 1997, 111 Stat. 1713, 1714, provided that:
“(a)
“(b)
“(2) A contract under the demonstration program shall require the contractor to use data processing techniques that are generally used in audits of private-sector records similar to the records audited under the contract.
“(c)
“(1) Any payments to the vendor for costs that are not allowable under the terms of the purchase agreement or by law.
“(2) Any amounts not deducted from the total amount paid to the vendor under the purchase agreement that should have been deducted from that amount on account of goods and services provided to the vendor by the Department.
“(3) Duplicate payments.
“(4) Unauthorized charges.
“(5) Other discrepancies between the amount paid to the vendor and the amount actually due the vendor under the purchase agreement.
“(d)
“(2) The Secretary of Defense shall be solely responsible for notifying a vendor of an overpayment made to the vendor and identified under the demonstration program and for recovering the amount of the overpayment (and any applicable interest and penalties) from the vendor.
“(e)
Section 356 of Pub. L. 104–106, as amended by Pub. L. 105–85, div. A, title X, §1073(d)(1)(B), Nov. 18, 1997, 111 Stat. 1905, provided that:
“(a)
“(2) The program shall be conducted at not less than three and not more than six military installations, except that an installation may be the subject of only one test conducted under the program.
“(3) The Secretary shall act through the Under Secretary of Defense (Comptroller) in the performance of the Secretary's responsibilities under this section.
“(b)
“(A) implements the changes proposed to be made with respect to the Department of Defense travel process by the task force on travel management that was established by the Secretary in July 1994;
“(B) manages and uniformly applies that travel process (including the implemented changes) throughout the Department; and
“(C) provides opportunities for private-sector sources to provide travel reservation services and credit card services to facilitate that travel process.
“(2) The Secretary shall conduct a test at an installation referred to in subsection (a)(2) under which the Secretary—
“(A) enters into one or more contracts with a private-sector source pursuant to which the private-sector source manages the Department of Defense travel process (except for functions referred to in subparagraph (B)), provides for responsive, reasonably priced services as part of the travel process, and uniformly applies the travel process throughout the Department; and
“(B) provides for the performance by employees of the Department of only those travel functions, such as travel authorization, that the Secretary considers to be necessary to be performed by such employees.
“(3) Each test required by this subsection shall begin not later than 60 days after the date of the enactment of this Act [Feb. 10, 1996] and end two years after the date on which it began. Each such test shall also be conducted in accordance with the guidelines for travel management issued for the Department by the Under Secretary of Defense (Comptroller).
“(c)
“(1) The coordination, at the time of a travel reservation, of travel policy and cost estimates with the mission which necessitates the travel.
“(2) The use of fully integrated travel solutions envisioned by the travel reengineering report of the Department of Defense dated January 1995.
“(3) The coordination of credit card data and travel reservation data with cost estimate data.
“(4) The elimination of the need for multiple travel approvals through the coordination of such data with proposed travel plans.
“(5) A responsive and flexible management information system that enables the Under Secretary of Defense (Comptroller) to monitor travel expenses throughout the year, accurately plan travel budgets for future years, and assess, in the case of travel of an employee on temporary duty, the relationship between the cost of the travel and the value of the travel to the accomplishment of the mission which necessitates the travel.
“(d)
“(1) The purposes of the program, including the achievement of an objective of reducing by at least 50 percent the total cost incurred by the Department annually to manage the Department of Defense travel process.
“(2) The methodology and anticipated cost of the program, including the cost of an arrangement pursuant to which a private-sector source would receive an agreed-upon payment plus an additional negotiated amount that does not exceed 50 percent of the total amount saved in excess of the objective specified in paragraph (1).
“(3) A specific citation to any provision of law, rule, or regulation that, if not waived, would prohibit the conduct of the program or any part of the program.
“(4) The evaluation criteria established pursuant to subsection (c).
“(5) A provision for implementing throughout the Department the travel process determined to be the better option to effectively manage travel of Department personnel on the basis of a final assessment of the results of the program.
“(e)
Section 357 of Pub. L. 104–106 provided that:
“(a)
“(1) the product or service can be provided adequately through such a source; and
“(2) an adequate competitive environment exists to provide for economical performance of the activity by such a source.
“(b)
“(2) A determination under paragraph (1) shall be made in accordance with regulations prescribed under subsection (c).
“(c)
“(d)
“(2) Not later than April 15, 1996, the Secretary shall transmit to the congressional defense committees [Committees on Armed Services and on Appropriations of the Senate and Committees on National Security and Appropriations of the House of Representatives] a report on opportunities for increased use of private-sector sources to provide commercial products and services for the Department.
“(3) The report required by paragraph (2) shall include the following:
“(A) A list of activities identified under paragraph (1) indicating, for each activity, whether the Secretary proposes to convert the performance of that activity to performance by private-sector sources and, if not, the reasons why.
“(B) An assessment of the advantages and disadvantages of using private-sector sources, rather than employees of the Department, to provide commercial products and services for the Department that are not essential to the warfighting mission of the Armed Forces.
“(C) A specification of all legislative and regulatory impediments to converting the performance of activities identified under paragraph (1) to performance by private-sector sources.
“(D) The views of the Secretary on the desirability of terminating the applicability of OMB Circular A–76 to the Department.
“(4) The Secretary shall carry out paragraph (1) in consultation with the Director of the Office of Management and Budget and the Comptroller General of the United States. In carrying out that paragraph, the Secretary shall consult with, and seek the views of, representatives of the private sector, including organizations representing small businesses.”
1 See References in Text note below.
(a)
(2) In carrying out paragraph (1), the Secretary shall—
(A) compare the cost of performing the function before the public-private competition to the cost of performing the function after the implementation of the results of the public-private competition; and
(B) identify any actual savings of the Department of Defense after the implementation of the results of the public-private competition and compare such savings to the estimated savings identified pursuant to section 2461(a)(1)(E) of this title for that public-private competition;
(3) The monitoring of a function shall continue under this section for at least five years after the conversion, reorganization, or reengineering of the function pursuant to such a public-private competition.
(b)
(Added Pub. L. 106–398, §1 [[div. A], title III, §354(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–73; amended Pub. L. 107–107, div. A, title X, §1048(a)(21), (c)(11), Dec. 28, 2001, 115 Stat. 1224, 1226; Pub. L. 109–163, div. A, title III, §341(d), (g)(2)(C), Jan. 6, 2006, 119 Stat. 3199, 3200.)
2006—Pub. L. 109–163, §341(g)(2)(C), substituted “Development and implementation of system for monitoring cost saving resulting from public-private competitions” for “Development of system for monitoring cost savings resulting from workforce reductions” in section catchline.
Subsec. (a). Pub. L. 109–163, §341(d)(1), (2), redesignated subsec. (b) as (a) and struck out former subsec. (a) which defined “workforce review”.
Subsec. (a)(1). Pub. L. 109–163, §341(d)(3)(A), substituted “monitor” for “establish a system for monitoring” and “a public-private competition conducted under section 2461 of this title” for “a workforce review”.
Subsec. (a)(2). Pub. L. 109–163, §341(d)(3)(B), added par. (2) and struck out former par. (2) which established requirements for the monitoring system.
Subsec. (a)(3). Pub. L. 109–163, §341(d)(3)(C), inserted “pursuant to such a public-private competition” after “reengineering of the function”.
Subsec. (b). Pub. L. 109–163, §341(d)(4), substituted “public-private competitions conducted under section 2461 of this title” for “workforce reviews”.
Pub. L. 109–163, §341(d)(2), redesignated subsec. (e) as (b). Former subsec. (b) redesignated (a).
Subsecs. (c) to (e). Pub. L. 109–163, §341(d)(1), (2), redesignated subsec. (e) as (b) and struck out former subsecs. (c) and (d) which related to waiver for certain workforce reviews and annual report, respectively.
2001—Subsec. (a)(2). Pub. L. 107–107, §1048(a)(21), substituted “efficiency” for “effeciency”.
Subsec. (b)(1). Pub. L. 107–107, §1048(c)(11), substituted “October 30, 2000,” for “the date of the enactment of this section,”.
(a)
(2) Each report under this subsection shall include the following:
(A) The date on which the public-private competition was commenced.
(B) The number of Department of Defense civilian employees who were performing the function when the public-private competition was commenced and the number of such employees whose employment was or will be terminated or otherwise affected by converting to performance of the function by a contractor or by implementation of the most efficient organization of the function.
(C) The Secretary's certification that the Government's calculation of the cost of performance of the function by Department of Defense civilian employees is based on an estimate of the most cost effective manner for performance of the function by Department of Defense civilian employees that meets the needs of the Department with respect to factors other than cost, including quality and reliability.
(D) The Secretary's certification that the public-private competition did not include any predetermined personnel constraint or limitation in terms of man years, end strength, full-time equivalent positions, or maximum number of employees.
(E) The Secretary's certification that the entire public-private competition is available for examination.
(F) In the case of a function performed at a Center of Industrial and Technical Excellence designated under section 2474(a) of this title or an Army ammunition plant, a description of the effect that the manner of performance of the function, and administration of the resulting contract if any, will have on the overhead costs of the center or ammunition plant, as the case may be.
(G) A schedule for implementing the results of the public-private competition.
(3)(A) No decision made on the basis of a public-private competition under section 2461 of this title may be implemented until after the submission of a report under paragraph (1).
(B) Notwithstanding subparagraph (A), in the case of function performed at a Center of Industrial and Technical Excellence designated under section 2474(a) of this title or an Army ammunition plant, the conversion of the function to performance by a contractor may not begin until at least 60 days after the submission of a report under paragraph (1).
(b)
(1) An estimate of the percentage of functions (other than functions that are inherently governmental) that Department of Defense civilian employees will perform and an estimate of the percentage of such functions that contractors will perform during the fiscal year during which the report is submitted.
(2) The results of public-private competitions conducted under section 2461 of this title that were completed during the preceding fiscal year, including each of the following:
(A) The number of such competitions completed during such fiscal year and the number of Department of Defense civilian employees performing functions for which such a competition was conducted.
(B) The percentage of such competitions that resulted in the continued performance of a function by Department of Defense civilian employees.
(C) The percentage of such competitions that resulted in the conversion of a function to performance by a contractor.
(D) The percentage of the Department of Defense civilian employees identified pursuant to subparagraph (A) whose positions will be converted to performance by contractors or eliminated as a result of implementing the results of such competitions.
(3) The results of monitoring the performance of Department functions under section 2461a of this title, including for each function subject to monitoring, each of the following:
(A) The cost of the public-private competition conducted under section 2461 of this title.
(B) The cost of performing the function before such competition compared to the costs incurred after implementing the conversion, reorganization, or reengineering actions recommended pursuant to the competition.
(C) The actual savings derived from the implementation of the recommendations made pursuant to such competition, if any, compared to the anticipated savings that were to result from the conversion, reorganization, or reengineering actions.
(Added Pub. L. 100–370, §2(a)(1), July 19, 1988, 102 Stat. 853; amended Pub. L. 109–163, div. A, title III, §341(c)(1), Jan. 6, 2006, 119 Stat. 3197.)
Section is based on Pub. L. 99–661, div. A, title XII, §1223, Nov. 14, 1986, 100 Stat. 3977.
2006—Pub. L. 109–163, amended section catchline and text generally. Prior to amendment, section required the Secretary of Defense to contract for certain supplies and services when cost was lower than cost at which Department of Defense could provide same.
(a)
(2) The guidelines and procedures required under paragraph (1) may not include any specific limitation or restriction on the number of functions or activities that may be converted to performance by Department of Defense civilian employees.
(b)
(1) is performed by a contractor and—
(A) has been performed by Department of Defense civilian employees at any time during the previous 10 years;
(B) is a function closely associated with the performance of an inherently governmental function;
(C) has been performed pursuant to a contract awarded on a non-competitive basis; or
(D) has been performed poorly, as determined by a contracting officer during the 5-year period preceding the date of such determination, because of excessive costs or inferior quality; or
(2) is a new requirement, with particular emphasis given to a new requirement that is similar to a function previously performed by Department of Defense civilian employees or is a function closely associated with the performance of an inherently governmental function.
(c)
(1) in the case of a new Department of Defense function, assigning the performance of the function to Department of Defense civilian employees;
(2) in the case of any Department of Defense function described in subsection (b), converting the function to performance by Department of Defense civilian employees; or
(3) in the case of a Department of Defense function performed by Department of Defense civilian employees, expanding the scope of the function.
(d)
(2) The Secretary shall make use of the inventory required by section 2330a(c) of this title for the purpose of identifying functions that should be considered for performance by Department of Defense civilian employees pursuant to subsection (b).
(e)
(Added Pub. L. 110–181, div. A, title III, §324(a)(1), Jan. 28, 2008, 122 Stat. 60; amended Pub. L. 111–383, div. A, title III, §353, Jan. 7, 2011, 124 Stat. 4194.)
Provisions similar to those in this section were contained in Pub. L. 109–163, div. A, title III, §343, Jan. 6, 2006, 119 Stat. 3200, which was set out as a note under section 2461 of this title, prior to repeal by Pub. L. 110–181, div. A, title III, §324(c), Jan. 28, 2008, 122 Stat. 61.
A prior section 2463, added Pub. L. 100–370, §2(a)(1), July 19, 1988, 102 Stat. 853; amended Pub. L. 101–189, div. A, title XVI, §1622(c)(7), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 101–510, div. A, title XIII, §1301(14), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 105–85, div. A, title III, §385(a), Nov. 18, 1997, 111 Stat. 1712, related to collection and retention of cost information data on the conversion of services and functions of the Department of Defense to or from contractor performance, prior to repeal by Pub. L. 109–163, div. A, title III, §341(f), Jan. 6, 2006, 119 Stat. 3199.
2011—Subsec. (d)(1). Pub. L. 111–383 struck out “under the National Security Personnel System, as established” before “pursuant to section 9902 of title 5”.
Pub. L. 111–383, div. A, title III, §323, Jan. 7, 2011, 124 Stat. 4184, provided that:
“(a)
“(b)
“(c)
“(1)
“(A) the agency or service of the Department involved in the decision;
“(B) the basis and rationale for the decision; and
“(C) the number of contractor employees whose functions were converted to performance by Department of Defense civilian employees.
“(2)
“(d)
“(1) to preclude the Secretary of Defense from establishing, applying, and enforcing goals for the conversion of acquisition functions and other critical functions to performance by Department of Defense civilian employees, where such goals are based on considered research and analysis; or
“(2) to require the Secretary of Defense to conduct a cost comparison before making a decision to convert any acquisition function or other critical function to performance by Department of Defense civilian employees, where factors other than cost serve as a basis for the Secretary's decision.”
Pub. L. 110–181, div. A, title III, §324(a)(3), Jan. 28, 2008, 122 Stat. 61, provided that: “The Secretary of Defense shall implement the guidelines and procedures required under section 2463 of title 10, United States Code, as added by paragraph (1), by not later than 60 days after the date of the enactment of this Act [Jan. 28, 2008].”
(a)
(2) The Secretary of Defense shall identify the core logistics capabilities described in paragraph (1) and the workload required to maintain those capabilities.
(3) The core logistics capabilities identified under paragraphs (1) and (2) shall include those capabilities that are necessary to maintain and repair the weapon systems and other military equipment (including mission-essential weapon systems or materiel not later than four years after achieving initial operational capability, but excluding systems and equipment under special access programs, nuclear aircraft carriers, and commercial items described in paragraph (5)) that are identified by the Secretary, in consultation with the Chairman of the Joint Chiefs of Staff, as necessary to enable the armed forces to fulfill the strategic and contingency plans prepared by the Chairman of the Joint Chiefs of Staff under section 153(a) of this title.
(4) The Secretary of Defense shall require the performance of core logistics workloads necessary to maintain the core logistics capabilities identified under paragraphs (1), (2), and (3) at Government-owned, Government-operated facilities of the Department of Defense (including Government-owned, Government-operated facilities of a military department) and shall assign such facilities sufficient workload to ensure cost efficiency and technical competence in peacetime while preserving the surge capacity and reconstitution capabilities necessary to support fully the strategic and contingency plans referred to in paragraph (3).
(5) The commercial items covered by paragraph (3) are commercial items that have been sold or leased in substantial quantities to the general public and are purchased without modification in the same form that they are sold in the commercial marketplace, or with minor modifications to meet Federal Government requirements.
(b)
(2) The Secretary of Defense may waive paragraph (1) in the case of any such logistics capability and provide that performance of the workload needed to maintain that capability shall be considered for conversion to contractor performance in accordance with OMB Circular A–76. Any such waiver shall be made under regulations prescribed by the Secretary and shall be based on a determination by the Secretary that Government performance of the workload is no longer required for national defense reasons. Such regulations shall include criteria for determining whether Government performance of any such workload is no longer required for national defense reasons.
(3)(A) A waiver under paragraph (2) may not take effect until the expiration of the first period of 30 days of continuous session of Congress that begins on or after the date on which the Secretary submits a report on the waiver to the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.
(B) For the purposes of subparagraph (A)—
(i) continuity of session is broken only by an adjournment of Congress sine die; and
(ii) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of any period of time in which Congress is in continuous session.
(c)
(1) The estimated percentage of commonality of parts of the version of the item that is sold or leased in the commercial marketplace and the Government's version of the item.
(2) The value of any unique support and test equipment and tools that are necessary to support the military requirements if the item were maintained by the Government.
(3) A comparison of the estimated life cycle logistics support costs that would be incurred by the Government if the item were maintained by the private sector with the estimated life cycle logistics support costs that would be incurred by the Government if the item were maintained by the Government.
(Added Pub. L. 100–370, §2(a)(1), July 19, 1988, 102 Stat. 853; amended Pub. L. 101–189, div. A, title XVI, §1622(c)(7), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 104–106, div. A, title III, §314, Feb. 10, 1996, 110 Stat. 251; Pub. L. 105–85, div. A, title III, §356(a), Nov. 18, 1997, 111 Stat. 1694; Pub. L. 105–261, div. A, title III, §343(a), Oct. 17, 1998, 112 Stat. 1976; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774.)
Section is based on Pub. L. 98–525, title III, §307, Oct. 19, 1984, 98 Stat. 2514, as amended by Pub. L. 99–145, title XII, §1231(f), Nov. 8, 1985, 99 Stat. 733.
1999—Subsec. (b)(3)(A). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1998—Subsec. (c). Pub. L. 105–261 added subsec. (c).
1997—Pub. L. 105–85 substituted “capabilities” for “functions” in section catchline and amended text generally. Prior to amendment, text related to necessity for core logistics capabilities and restricted contracting out of certain logistics activities and functions of the Department of Defense to non-Government personnel.
1996—Subsec. (b)(3), (4). Pub. L. 104–106 added par. (3) and struck out former pars. (3) and (4) which read as follows:
“(3) A waiver under paragraph (2) may not take effect until—
“(A) the Secretary submits a report on the waiver to the Committees on Armed Services and the Committees on Appropriations of the Senate and House of Representatives; and
“(B) a period of 20 days of continuous session of Congress or 40 calendar days has passed after the receipt of the report by those committees.
“(4) For purposes of paragraph (3)(B), the continuity of a session of Congress is broken only by an adjournment sine die, and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of such 20-day period.”
1989—Subsec. (b)(3)(A). Pub. L. 101–189 substituted “Committees on Appropriations” for “Committee on Appropriations”.
Pub. L. 105–261, div. A, title III, §343(b), Oct. 17, 1998, 112 Stat. 1976, provided that: “Subsection (c) of section 2464 of title 10, United States Code (as added by subsection (a)), shall apply with respect to determinations made after the date of the enactment of this Act [Oct. 17, 1998].”
Pub. L. 105–261, div. A, title III, §346, Oct. 17, 1998, 112 Stat. 1979, as amended by Pub. L. 106–65, div. A, title III, §336, Oct. 5, 1999, 113 Stat. 568, prohibited the Secretary of Defense or of a military department from entering into a prime vendor contract for depot-level maintenance and repair of certain military equipment before completing reporting requirements, prior to repeal by Pub. L. 111–383, div. A, title III, §322, Jan. 7, 2011, 124 Stat. 4184.
Pub. L. 104–106, div. A, title III, §311, Feb. 10, 1996, 110 Stat. 246, as amended by Pub. L. 105–85, div. A, title III, §363, Nov. 18, 1997, 111 Stat. 1702, required the Secretary of Defense, not later than Mar. 31, 1996, to develop and submit to Congress a comprehensive policy on the performance of depot-level maintenance and repair for the Department of Defense that maintains the capability described in this section and to submit to Congress a report on the depot-level maintenance and repair workload of the Department of Defense and required the Comptroller General to transmit to Congress reports containing a detailed analysis of the Secretary's proposed policy and report.
(a) Except as provided in subsection (b), funds appropriated to the Department of Defense may not be obligated or expended for the purpose of entering into a contract for the performance of firefighting or security-guard functions at any military installation or facility.
(b) The prohibition in subsection (a) does not apply to the following contracts:
(1) A contract to be carried out at a location outside the United States (including its commonwealths, territories, and possessions) at which members of the armed forces would have to be used for the performance of a function described in subsection (a) at the expense of unit readiness.
(2) A contract to be carried out on a Government-owned but privately operated installation.
(3) A contract (or the renewal of a contract) for the performance of a function under contract on September 24, 1983.
(4) A contract for the performance of firefighting functions if the contract is—
(A) for a period of one year or less; and
(B) covers only the performance of firefighting functions that, in the absence of the contract, would have to be performed by members of the armed forces who are not readily available to perform such functions by reason of a deployment.
(Added Pub. L. 99–661, div. A, title XII, §1222(a)(1), Nov. 14, 1986, 100 Stat. 3976, §2693; amended Pub. L. 100–180, div. A, title XI, §1112(a)–(b)(2), Dec. 4, 1987, 101 Stat. 1147; renumbered §2465, Pub. L. 100–370, §2(b)(1), July 19, 1988, 102 Stat. 854; Pub. L. 104–106, div. A, title XV, §1503(a)(25), Feb. 10, 1996, 110 Stat. 512; Pub. L. 108–136, div. A, title III, §331, Nov. 24, 2003, 117 Stat. 1442.)
2003—Subsec. (b). Pub. L. 108–136 substituted “apply to the following contracts:” for “apply—” in introductory provisions, “A” for “to a” at beginning of pars. (1) to (3), period for semicolon at end of par. (1), and period for “; or” at end of par. (2), and added par. (4).
1996—Subsec. (b)(3). Pub. L. 104–106 substituted “under contract on September 24, 1983” for “under contract or September 24, 1983”.
1988—Pub. L. 100–370 renumbered section 2693 of this title as this section.
1987—Pub. L. 100–180 inserted “or security-guard” before “functions” in section catchline and subsec. (a), and substituted “a function” for “the function” in subsec. (b)(1).
Pub. L. 107–56, title X, §1010, Oct. 26, 2001, 115 Stat. 395, provided that:
“(a)
“(b)
“(c)
Pub. L. 106–398, §1 [[div. A], title III, §355], Oct. 30, 2000, 114 Stat. 1654, 1654A–75, provided that:
“(a)
“(b)
“(c)
“(1) is consistent with the recommendation contained in General Accounting Office [now Government Accountability Office] Report NSIAD–00–88, entitled ‘DoD Competitive Sourcing’, dated March 2000;
“(2) provides for a transition to contractor performance of emergency response functions which ensures an adequate transfer of the relevant knowledge and expertise regarding chemical weapon emergency response to the contractor personnel; and
“(3) complies with section 2465 of title 10, United States Code.”
(a)
(b)
(1) the Secretary determines that the waiver is necessary for reasons of national security; and
(2) the Secretary submits to Congress a notification of the waiver together with the reasons for the waiver.
(c)
(d)
(2) Each report required under paragraph (1) shall include as a separate item any expenditure covered by section 2474(f) of this title that was made during the fiscal year covered by the report and shall specify the amount and nature of each such expenditure.
(Added Pub. L. 100–456, div. A, title III, §326(a), Sept. 29, 1988, 102 Stat. 1955; amended Pub. L. 101–189, div. A, title III, §313, Nov. 29, 1989, 103 Stat. 1412; Pub. L. 102–190, div. A, title III, §314(a)(1), Dec. 5, 1991, 105 Stat. 1336; Pub. L. 102–484, div. A, title III, §352(a)–(c), Oct. 23, 1992, 106 Stat. 2378; Pub. L. 103–337, div. A, title III, §332, Oct. 5, 1994, 108 Stat. 2715; Pub. L. 104–106, div. A, title III, §§311(f)(1), 312(b), Feb. 10, 1996, 110 Stat. 248, 250; Pub. L. 105–85, div. A, title III, §§357, 358, 363, Nov. 18, 1997, 111 Stat. 1695, 1702; Pub. L. 106–65, div. A, title III, §333, Oct. 5, 1999, 113 Stat. 567; Pub. L. 107–107, div. A, title III, §341, Dec. 28, 2001, 115 Stat. 1060; Pub. L. 108–136, div. A, title III, §332, Nov. 24, 2003, 117 Stat. 1442; Pub. L. 108–375, div. A, title III, §321, Oct. 28, 2004, 118 Stat. 1845; Pub. L. 109–364, div. A, title III, §331(b), Oct. 17, 2006, 120 Stat. 2149; Pub. L. 111–84, div. A, title III, §329, Oct. 28, 2009, 123 Stat. 2256.)
2009—Subsec. (d)(1). Pub. L. 111–84 substituted “90 days after the date on which the budget of the President for a fiscal year is submitted to Congress pursuant to section 1105 of title 31” for “April 1 of each year”.
2006—Subsec. (d). Pub. L. 109–364, §331(b)(2), struck out “and Review” after “Annual Report” in heading.
Subsec. (d)(2). Pub. L. 109–364, §331(b)(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Not later than 90 days after the date on which the Secretary submits a report under paragraph (1), the Comptroller General shall submit to Congress the Comptroller General's views on whether—
“(A) the Department of Defense complied with the requirements of subsection (a) during the preceding fiscal year covered by the report; and
“(B) the expenditure projections for the current fiscal year and the ensuing fiscal year are reasonable.”
2004—Subsec. (d). Pub. L. 108–375 amended heading and text of subsec. (d) generally. Prior to amendment, text read as follows:
“(1) Not later than February 1 of each year, the Secretary of Defense shall submit to Congress a report identifying, for each of the armed forces (other than the Coast Guard) and each Defense Agency, the percentage of the funds referred to in subsection (a) that were expended during the preceding two fiscal years for performance of depot-level maintenance and repair workloads by the public and private sectors, as required by this section.
“(2) Not later than April 1 of each year, the Secretary of Defense shall submit to Congress a report identifying, for each of the armed forces (other than the Coast Guard) and each Defense Agency, the percentage of the funds referred to in subsection (a) that are projected to be expended during each of the next five fiscal years for performance of depot-level maintenance and repair workloads by the public and private sectors, as required by this section.
“(3) Not later than 60 days after the date on which the Secretary submits a report under this subsection, the Comptroller General shall submit to Congress the Comptroller General's views on whether—
“(A) in the case of a report under paragraph (1), the Department of Defense has complied with the requirements of subsection (a) for the fiscal years covered by the report; and
“(B) in the case of a report under paragraph (2), the expenditure projections for future fiscal years are reasonable.”
2003—Subsecs. (d), (e). Pub. L. 108–136 redesignated subsec. (e) as (d) and struck out heading and text of former subsec. (d). Text read as follows: “Subsection (a) shall not apply with respect to the Sacramento Army Depot, Sacramento, California.”
2001—Subsecs. (b), (c). Pub. L. 107–107 added subsecs. (b) and (c) and struck out heading and text of former subsec. (c). Text read as follows: “The Secretary of the military department concerned and, with respect to a Defense Agency, the Secretary of Defense may waive the applicability of subsection (a) for a fiscal year, to a particular workload, or to a particular depot-level activity if the Secretary determines that the waiver is necessary for reasons of national security and notifies Congress regarding the reasons for the waiver.”
1999—Subsec. (e). Pub. L. 106–65 amended heading and text of subsec. (e) generally. Text read as follows:
“(1) Not later than February 1 of each year, the Secretary of Defense shall submit to Congress a report identifying, for each military department and Defense Agency, the percentage of the funds referred to in subsection (a) that were expended during the preceding fiscal year for performance of depot-level maintenance and repair workloads by the public and private sectors as required by section 2466 of this title.
“(2) Not later than 90 days after the date on which the Secretary submits the annual report under paragraph (1), the Comptroller General shall submit to Congress the Comptroller General's views on whether the Department of Defense has complied with the requirements of subsection (a) for the fiscal year covered by the report.”
1997—Pub. L. 105–85, §363, repealed Pub. L. 104–106, §311(f)(1). See 1996 Amendment note below.
Subsec. (a). Pub. L. 105–85, §357, substituted “50 percent” for “40 percent”.
Subsec. (e). Pub. L. 105–85, §358, reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Not later than January 15, 1995, the Secretary of Defense shall submit to Congress a report identifying, for each military department and Defense Agency, the percentage of funds referred to in subsection (a) that was used during fiscal year 1994 to contract for the performance by non-Federal Government personnel of depot-level maintenance and repair workload.”
1996—Pub. L. 104–106, §311(f)(1), which directed repeal of this section, was repealed by Pub. L. 105–85, §363.
Subsec. (b). Pub. L. 104–106, §312(b), redesignated subsec. (b) as section 2472(a) of this title.
1994—Subsec. (a). Pub. L. 103–337, §332(a), amended heading and text of subsec. (a) generally. Prior to amendment, text read as follows:
“(1) Except as provided in paragraph (2), the Secretary of a military department and, with respect to a Defense Agency, the Secretary of Defense, may not contract for the performance by non-Federal Government personnel of more than 40 percent of the depot-level maintenance workload for the military department or the Defense Agency.
“(2) The Secretary of the Army shall provide for the performance by employees of the Department of Defense of not less than the following percentages of Army aviation depot-level maintenance workload:
“(A) For fiscal year 1993, 50 percent.
“(B) For fiscal year 1994, 55 percent.
“(C) For fiscal year 1995, 60 percent.”
Subsec. (b). Pub. L. 103–337, §332(b), inserted “and repair” after “maintenance” in two places.
Subsec. (e). Pub. L. 103–337, §332(c), amended heading and text of subsec. (e) generally. Prior to amendment, text read as follows:
“(1) Not later than January 15, 1992, and January 15, 1993, the Secretary of the Army and the Secretary of the Air Force shall jointly submit to Congress a report describing the progress during the preceding fiscal year to achieve and maintain the percentage of depot-level maintenance required to be performed by employees of the Department of Defense pursuant to subsection (a).
“(2) Not later than January 15, 1994, the Secretary of each military department and the Secretary of Defense, with respect to the Defense Agencies, shall jointly submit to Congress a report described in paragraph (1).”
1992—Subsec. (a). Pub. L. 102–484, §352(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “
Subsec. (c). Pub. L. 102–484, §352(b), substituted “The Secretary of the military department concerned and, with respect to a Defense Agency, the Secretary of Defense” for “The Secretary of the Army, with respect to the Department of the Army, and the Secretary of the Air Force, with respect to the Department of the Air Force,”.
Subsec. (e). Pub. L. 102–484, §352(c), designated existing provisions as par. (1) and added par. (2).
1991—Pub. L. 102–190 substituted section catchline for one which read “Prohibition on certain depot maintenance workload competitions” and amended text generally. Prior to amendment, text read as follows: “The Secretary of Defense shall prohibit the Secretary of the Army and the Secretary of the Air Force, in selecting an entity to perform any depot maintenance workload, from carrying out a competition for such selection—
“(1) between or among maintenance activities of the Department of the Army and the Department of the Air Force; or
“(2) between a maintenance activity of either such department and a private contractor.”
1989—Pub. L. 101–189, in introductory provisions, substituted “shall prohibit” for “may not require”, “Army and” for “Army or”, and “from carrying out” for “to carry out”.
Section 331 of Pub. L. 103–337 provided that: “Congress makes the following findings:
“(1) By providing the Armed Forces with a critical capacity to respond to the needs of the Armed Forces for depot-level maintenance and repair of weapon systems and equipment, the depot-level maintenance and repair activities of the Department of Defense play an essential role in maintaining the readiness of the Armed Forces.
“(2) It is appropriate for the capability of the depot-level maintenance and repair activities of the Department of Defense to perform maintenance and repair of weapon systems and equipment to be based on policies that take into consideration the readiness, mobilization, and deployment requirements of the military departments.
“(3) It is appropriate for the management of employees of the depot-level maintenance and repair activities of the Department of Defense to be based on the amount of workload necessary to be performed by such activities to maintain the readiness of the weapon systems and equipment of the military departments and on the funds made available for the performance of such workload.”
Section 337 of Pub. L. 103–337 provided that:
“(a)
“(1) demonstrating commercial uses of the depot-level activities that are related to the principal mission of the depot-level activities;
“(2) preserving employment and skills of employees currently employed by the depot-level activities or providing for the reemployment and retraining of employees who, as the result of the closure, realignment, or reduced in-house workload of such activities, may become unemployed; and
“(3) supporting the goals of other defense conversion, reinvestment, and transition assistance programs while also allowing the depot-level activities to remain in operation to continue to perform their defense readiness mission.
“(b)
“(1) do not interfere with the closure or realignment of a depot-level activity of the military departments under a base closure law; and
“(2) do not adversely affect the readiness or primary mission of a participating depot-level activity.”
Pub. L. 103–160, div. A, title III, §343, Nov. 30, 1993, 107 Stat. 1624, provided that: “The Secretary of Defense shall ensure that the percentage limitations applicable to the depot-level maintenance workload performed by non-Federal Government personnel set forth in section 2466 of title 10, United States Code, are adhered to.”
Section 352(d) of Pub. L. 102–484 provided that: “The Secretary of a military department and the Secretary of Defense, with respect to the Defense Agencies, may not cancel a depot-level maintenance contract in effect on the date of the enactment of this Act [Oct. 23, 1992] in order to comply with the requirements of section 2466(a) of title 10, United States Code, as amended by subsection (a).”
Section 314(a)(3) of Pub. L. 102–190 provided that: “The Secretary of the Army and the Secretary of the Air Force may not cancel a depot-level maintenance contract in effect on the date of the enactment of this Act [Dec. 5, 1991] in order to comply with the requirements of section 2466(a) of such title, as amended by subsection (a).”
Pub. L. 102–190, div. A, title III, §314(b)–(d), Dec. 5, 1991, 105 Stat. 1337, as amended by Pub. L. 102–484, div. A, title III, §354, Oct. 23, 1992, 106 Stat. 2379, required the Comptroller General to submit to Congress, not later than Feb. 1, 1994, an evaluation of all depot maintenance workloads of the Department of Defense that were performed by an entity selected pursuant to competitive procedures, and required the Secretary of Defense to submit to Congress, not later than Dec. 1, 1993, a report containing a five-year strategy of the Department of Defense to use competitive procedures for the selection of entities to perform depot maintenance workloads and describing the cost savings anticipated.
Pub. L. 101–510, div. A, title IX, §922, Nov. 5, 1990, 104 Stat. 1627, authorized a depot maintenance workload competition pilot program during fiscal year 1991, outlined elements of the program, and provided for a report not later than Mar. 31, 1992, to congressional defense committees, prior to repeal by Pub. L. 102–190, div. A, title III, §314(b)(2), Dec. 5, 1991, 105 Stat. 1337.
Section, added Pub. L. 100–456, div. A, title III, §331(a), Sept. 29, 1988, 102 Stat. 1957; amended Pub. L. 106–65, div. A, title III, §342(a), (b)(1), Oct. 5, 1999, 113 Stat. 569; Pub. L. 107–107, div. A, title X, §1048(a)(22), Dec. 28, 2001, 115 Stat. 1224, related to cost comparisons: inclusion of retirement costs; consultation with employees; waiver of comparison.
Section, added Pub. L. 101–189, div. A, title XI, §1131(a)(1), Nov. 29, 1989, 103 Stat. 1560; amended Pub. L. 101–510, div. A, title IX, §921, Nov. 5, 1990, 104 Stat. 1627; Pub. L. 102–190, div. A, title III, §315(a), Dec. 5, 1991, 105 Stat. 1337; Pub. L. 103–160, div. A, title III, §370(c), Nov. 30, 1993, 107 Stat. 1634; Pub. L. 103–337, div. A, title III, §386(c), Oct. 5, 1994, 108 Stat. 2742, related to authority of military base commanders over contracting for commercial activities.
(a)
(1) merit-based selection procedures for competitions among all depot-level activities of the Department of Defense; or
(2) competitive procedures for competitions among private and public sector entities.
(b)
(c)
(d)
(Added Pub. L. 102–484, div. A, title III, §353(a), Oct. 23, 1992, 106 Stat. 2378; amended Pub. L. 103–160, div. A, title III, §346, title XI, §1182(a)(7), Nov. 30, 1993, 107 Stat. 1625, 1771; Pub. L. 103–337, div. A, title III, §338, Oct. 5, 1994, 108 Stat. 2718; Pub. L. 104–106, div. A, title III, §311(f)(1), Feb. 10, 1996, 110 Stat. 248; Pub. L. 105–85, div. A, title III, §§355(b), 363, Nov. 18, 1997, 111 Stat. 1694, 1702; Pub. L. 106–65, div. A, title III, §334, Oct. 5, 1999, 113 Stat. 568; Pub. L. 108–136, div. A, title III, §333, Nov. 24, 2003, 117 Stat. 1442.)
2003—Subsec. (b). Pub. L. 108–136, §333(1), substituted “Except as provided in subsection (c), subsection” for “Subsection”.
Subsecs. (c), (d). Pub. L. 108–136, §333(2), (3), added subsec. (c) and redesignated former subsec. (c) as (d).
1999—Subsec. (b). Pub. L. 106–65 inserted “(including the cost of labor and materials)” after “$3,000,000”.
1997—Pub. L. 105–85, §363, repealed Pub. L. 104–106, §311(f)(1). See 1996 Amendment note below.
Subsecs. (a), (b). Pub. L. 105–85, §355(b), substituted “maintenance and repair” for “maintenance or repair”.
1996—Pub. L. 104–106, §311(f)(1), which directed repeal of this section, was repealed by Pub. L. 105–85, §363.
1994—Pub. L. 103–337 amended section generally. Prior to amendment, section read as follows:
“(a)
“(b)
1993—Pub. L. 103–160, §346, amended section, as amended by Pub. L. 103–160, §1182(a)(7), (h), by designating existing provisions as subsec. (a), inserting heading, striking out “threshold” before “value”, substituting “to performance by a contractor unless the Secretary uses competitive procedures for the selection of the contractor to perform such workload” for “unless the Secretary uses competitive procedures to make the change”, and adding subsec. (b).
Pub. L. 103–160, §1182(a)(7), struck out “, prior to any such change,” after “Department of Defense unless”.
Section, added Pub. L. 105–85, div. A, title III, §359(a)(1), Nov. 18, 1997, 111 Stat. 1696; amended Pub. L. 106–65, div. A, title III, §335, title X, §1066(a)(20), Oct. 5, 1999, 113 Stat. 568, 771, related to use of competitive procedures in contracting for performance of depot-level maintenance and repair workloads formerly performed at closed or realigned military installations.
A depot-level activity of the Department of Defense shall be eligible to compete for the performance of any depot-level maintenance and repair workload of a Federal agency for which competitive procedures are used to select the entity to perform the workload.
(Added Pub. L. 103–337, div. A, title III, §335(a), Oct. 5, 1994, 108 Stat. 2716.)
Section, added Pub. L. 103–337, div. A, title III, §336(a), Oct. 5, 1994, 108 Stat. 2717; amended Pub. L. 104–106, div. A, title XV, §1503(a)(26), Feb. 10, 1996, 110 Stat. 512; Pub. L. 105–85, div. A, title III, §361(b)(1), Nov. 18, 1997, 111 Stat. 1701, related to lease of excess depot-level equipment and facilities by persons outside the Department of Defense.
The civilian employees of the Department of Defense, including the civilian employees of the military departments and the Defense Agencies, who perform, or are involved in the performance of, depot-level maintenance and repair workloads may not be managed on the basis of any constraint or limitation in terms of man years, end strength, full-time equivalent positions, or maximum number of employees. Such employees shall be managed solely on the basis of the available workload and the funds made available for such depot-level maintenance and repair.
(Added and amended Pub. L. 104–106, div. A, title III, §312(a), (b), Feb. 10, 1996, 110 Stat. 250; Pub. L. 105–85, div. A, title III, §360, Nov. 18, 1997, 111 Stat. 1700; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–375, div. A, title III, §322(a), (b)(1), Oct. 28, 2004, 118 Stat. 1846.)
The text of section 2466(b) of this title, which was transferred to this section and redesignated subsec. (a) by Pub. L. 104–106, §312(b), was based on Pub. L. 102–190, div. A, title III, §314(a)(1), Dec. 5, 1991, 105 Stat. 1336; Pub. L. 103–337, div. A, title III, §332(b), Oct. 5, 1994, 108 Stat. 2715.
2004—Pub. L. 108–375 substituted “Prohibition on management of depot employees by end strength” for “Management of depot employees” in section catchline, struck out subsec. (a) designation and heading before “The civilian”, and struck out heading and text of subsec. (b). Text read as follows: “Not later than December 1 of each fiscal year, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the number of employees employed and expected to be employed by the Department of Defense during that fiscal year to perform depot-level maintenance and repair of materiel. The report shall indicate whether that number is sufficient to perform the depot-level maintenance and repair functions for which funds are expected to be provided for that fiscal year for performance by Department of Defense employees.”
1999—Subsec. (b). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1997—Subsec. (a). Pub. L. 105–85 inserted first sentence and struck out former first sentence which read as follows: “The civilian employees of the Department of Defense involved in the depot-level maintenance and repair of materiel may not be managed on the basis of any end-strength constraint or limitation on the number of such employees who may be employed on the last day of a fiscal year.”
1996—Subsec. (a). Pub. L. 104–106, §312(b), renumbered section 2466(b) of this title as subsec. (a) of this section.
Pub. L. 104–106, div. A, title III, §312(c), Feb. 10, 1996, 110 Stat. 250, required the report under subsec. (b) of this section for fiscal year 1996 to be submitted not later than Mar. 15, 1996.
Section, added Pub. L. 104–201, div. A, title VIII, §832(a), Sept. 23, 1996, 110 Stat. 2616; amended Pub. L. 105–261, div. A, title VIII, §809(a)–(d), Oct. 17, 1998, 112 Stat. 2085, 2086; Pub. L. 106–65, div. A, title VIII, §815(b), Oct. 5, 1999, 113 Stat. 712; Pub. L. 111–84, div. A, title VIII, §818(a), Oct. 28, 2009, 123 Stat. 2408, required the Secretary of Defense to place conditions on the procurement of property or services in order to preserve the small arms production industrial base.
(a)
(2) The Secretary of Defense shall establish a policy to encourage the Secretary of each military department and the head of each Defense Agency to reengineer industrial processes and adopt best-business practices at their Centers of Industrial and Technical Excellence in connection with their core competency requirements, so as to serve as recognized leaders in their core competencies throughout the Department of Defense and in the national technology and industrial base (as defined in section 2500(1) of this title).
(3) The Secretary of a military department may conduct a pilot program, consistent with applicable requirements of law, to test any practices referred to in paragraph (2) that the Secretary determines could improve the efficiency and effectiveness of operations at Centers of Industrial and Technical Excellence, improve the support provided by the Centers for the armed forces user of the services of the Centers, and enhance readiness by reducing the time that it takes to repair equipment.
(b)
(A) For employees of the Center, private industry, or other entities outside the Department of Defense to perform (under contract, subcontract, or otherwise) work related to the core competencies of the Center, including any depot-level maintenance and repair work that involves one or more core competencies of the Center.
(B) For private industry or other entities outside the Department of Defense to use, for any period of time determined to be consistent with the needs of the Department of Defense, any facilities or equipment of the Center that are not fully utilized for a military department's own production or maintenance requirements.
(2) The objectives for exercising the authority provided in paragraph (1) are as follows:
(A) To maximize the utilization of the capacity of a Center of Industrial and Technical Excellence.
(B) To reduce or eliminate the cost of ownership of a Center by the Department of Defense in such areas of responsibility as operations and maintenance and environmental remediation.
(C) To reduce the cost of products of the Department of Defense produced or maintained at a Center.
(D) To leverage private sector investment in—
(i) such efforts as plant and equipment recapitalization for a Center; and
(ii) the promotion of the undertaking of commercial business ventures at a Center.
(E) To foster cooperation between the armed forces and private industry.
(3) If the Secretary concerned, or the Secretary of Defense in the case of a Defense Agency, authorizes the use of public-private partnerships under this subsection, the Secretary shall submit to Congress a report evaluating the need for loan guarantee authority, similar to the ARMS Initiative loan guarantee program under section 4555 of this title, to facilitate the establishment of public-private partnerships and the achievement of the objectives set forth in paragraph (2).
(c)
(d)
(e)
(1) the use of the equipment or facilities will not have a significant adverse effect on the readiness of the armed forces, as determined by the Secretary concerned or, in the case of a Center in a Defense Agency, by the Secretary of Defense; and
(2) the private-sector entity agrees—
(A) to reimburse the Department of Defense for the direct and indirect costs (including any rental costs) that are attributable to the entity's use of the equipment or facilities, as determined by that Secretary; and
(B) to hold harmless and indemnify the United States from—
(i) any claim for damages or injury to any person or property arising out of the use of the equipment or facilities, except under the circumstances described in section 2563(c)(3) of this title; and
(ii) any liability or claim for damages or injury to any person or property arising out of a decision by the Secretary concerned or the Secretary of Defense to suspend or terminate that use of equipment or facilities during a war or national emergency.
(f)
(g)
(Added Pub. L. 105–85, div. A, title III, §361(a)(1), Nov. 18, 1997, 111 Stat. 1700; amended Pub. L. 106–398, §1 [[div. A], title III, §341(a)–(e)], Oct. 30, 2000, 114 Stat. 1654, 1654A–61 to 1654A–63; Pub. L. 107–107, div. A, title III, §§342, 343(b), Dec. 28, 2001, 115 Stat. 1060, 1061; Pub. L. 107–314, div. A, title III, §334, Dec. 2, 2002, 116 Stat. 2514; Pub. L. 108–375, div. A, title III, §323, title X, §1084(d)(20), Oct. 28, 2004, 118 Stat. 1846, 2062; Pub. L. 109–364, div. A, title III, §331(a), Oct. 17, 2006, 120 Stat. 2149.)
Subsection (d) of section 2667 of this title, referred to in subsec. (d), was redesignated subsec. (e) and a new subsec. (d) was added by Pub. L. 109–364, div. A, title VI, §662(b), Oct. 17, 2006, 120 Stat. 2263.
2006—Subsec. (f). Pub. L. 109–364 struck out “(1)” before “Amounts”, “entered into during fiscal years 2003 through 2009” before “shall not be counted”, and par. (2) which read as follows: “All funds covered by paragraph (1) shall be included as a separate item in the reports required under paragraphs (1), (2), and (3) of section 2466(d) of this title.”
2004—Subsec. (f)(1). Pub. L. 108–375, §323, substituted “through 2009” for “through 2006”.
Subsec. (f)(2). Pub. L. 108–375, §1084(d)(20), substituted “section 2466(d)” for “section 2466(e)”.
2002—Subsec. (f)(1). Pub. L. 107–314, §334(1), substituted “Amounts expended for the performance of a depot-level maintenance and repair workload by non-Federal Government personnel at a Center of Industrial and Technical Excellence under any contract entered into during fiscal years 2003 through 2006” for “Amounts expended out of funds described in paragraph (2) for the performance of a depot-level maintenance and repair workload by non-Federal Government personnel at a Center of Industrial and Technical Excellence”.
Subsec. (f)(2), (3). Pub. L. 107–314, §334(2), (3), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “The funds referred to in paragraph (1) are funds available to the military departments and Defense Agencies for depot-level maintenance and repair workloads for fiscal years 2002 through 2005.”
2001—Subsec. (e)(2)(B)(i). Pub. L. 107–107, §343(b), substituted “under the circumstances described in section 2563(c)(3) of this title” for “in a case of willful conduct or gross negligence”.
Subsecs. (f), (g). Pub. L. 107–107, §342, added subsec. (f) and redesignated former subsec. (f) as (g).
2000—Subsec. (a)(1). Pub. L. 106–398, §1 [[div. A], title III, §341(a)(1)], substituted “The Secretary concerned, or the Secretary of Defense in the case of a Defense Agency,” for “The Secretary of Defense” and “of the designee” for “of the activity”.
Subsec. (a)(2). Pub. L. 106–398, §1 [[div. A], title III, §341(a)(2)], inserted “of Defense” after “The Secretary” and substituted “Centers of Industrial and Technical Excellence” for “depot-level activities”.
Subsec. (a)(3). Pub. L. 106–398, §1 [[div. A], title III, §341(a)(3)], substituted “operations at Centers of Industrial and Technical Excellence” for “depot-level operations”, “by the Centers” for “by depot-level activities”, and “of the Centers” for “of such activities”.
Subsec. (b). Pub. L. 106–398, §1 [[div. A], title III, §341(b)], amended heading and text of subsec. (b) generally. Prior to amendment, text read as follows: “The Secretary of Defense shall enable Centers of Industrial and Technical Excellence to enter into public-private cooperative arrangements for the performance of depot-level maintenance and repair at such Centers and shall encourage the use of such arrangements to maximize the utilization of the capacity at such Centers. A public-private cooperative arrangement under this subsection shall be known as a ‘public-private partnership’.”
Subsec. (c). Pub. L. 106–398, §1 [[div. A], title III, §341(c)(3)], added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 106–398, §1 [[div. A], title III, §341(d)], inserted at end “Consideration in the form of rental payments or (notwithstanding section 3302(b) of title 31) in other forms may be accepted for a use of property accountable under a contract performed pursuant to this section. Notwithstanding section 2667(d) of this title, revenues generated pursuant to this section shall be available for facility operations, maintenance, and environmental restoration at the Center where the leased property is located.”
Pub. L. 106–398, §1 [[div. A], title III, §341(c)(1), (2)], redesignated subsec. (c) as (d) and struck out heading and text of former subsec. (d). Text read as follows: “The policy required under subsection (a) shall include measures to enable a private sector entity that enters into a partnership arrangement under subsection (b) or leases excess equipment and facilities at a Center of Industrial and Technical Excellence pursuant to section 2471 of this title to perform additional work at the Center, subject to the limitations outlined in subsection (b) of such section, outside of the types of work normally assigned to the Center.”
Subsecs. (e), (f). Pub. L. 106–398, §1 [[div. A], title III, §341(e)], added subsecs. (e) and (f).
Pub. L. 105–85, div. A, title III, §361(c), Nov. 18, 1997, 111 Stat. 1701, provided that, not later than Mar. 1, 1999, the Secretary of Defense was to submit to Congress a report on the policies established by the Secretary pursuant to this section to implement the requirements of this section.
1 See References in Text note below.
(a)
(b)
(1) the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report describing that decision, including—
(A) a projection of the savings that will be realized as a result of the consolidation, restructuring, or reengineering, compared with the cost incurred by the Department of Defense to perform the function or to operate the organization or activity prior to such proposed consolidation, restructuring, or reengineering;
(B) a description of all missions, duties, or military requirements that will be affected as a result of the decision to consolidate, restructure, or reengineer the organization, function, or activity that was analyzed;
(C) the Secretary's certification that the consolidation, restructuring, or reengineering will not result in any diminution of military readiness;
(D) a schedule for performing the consolidation, restructuring, or reengineering; and
(E) the Secretary's certification that the entire analysis for the consolidation, restructuring, or reengineering is available for examination; and
(2) the head of the Defense Agency or the Secretary of the military department concerned may not implement the plan until 30 days after the date that the agency head or Secretary submits notification to the Committees on Armed Services of the Senate and House of Representatives of the intent to carry out such plan.
(Added Pub. L. 106–398, §1 [[div. A], title III, §353(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–72.)
(a)
(b)
(c)
(d)
(2) Each report submitted under paragraph (1) shall include the following:
(A) A specification of any statutory, regulatory, or operational impediments to achieving the requirement under subsection (a) with respect to each military department.
(B) A description of the benchmarks for capital investment established for each covered depot and military department and the relationship of the benchmarks to applicable performance measurement methods used in the private sector.
(C) If the requirement under subsection (a) is not met for a military department for the fiscal year covered by the report, a statement of the reasons why the requirement was not met and a plan of actions for meeting the requirement for the fiscal year beginning in the year in which such report is submitted.
(D) Separate consideration and reporting of Navy depots and Marine Corps depots.
(e)
(1) With respect to the Department of the Army:
(A) Anniston Army Depot, Alabama.
(B) Letterkenny Army Depot, Pennsylvania.
(C) Tobyhanna Army Depot, Pennsylvania.
(D) Corpus Christi Army Depot, Texas.
(E) Red River Army Depot, Texas.
(F) Watervliet Arsenal, New York.
(G) Rock Island Arsenal, Illinois.
(H) Pine Bluff Arsenal, Arkansas.
(2) With respect to the Department of the Navy:
(A) The following Navy depots:
(i) Fleet Readiness Center East Site, Cherry Point, North Carolina.
(ii) Fleet Readiness Center Southwest Site, North Island, California.
(iii) Fleet Readiness Center Southeast Site, Jacksonville, Florida.
(iv) Portsmouth Naval Shipyard, Maine.
(v) Pearl Harbor Naval Shipyard, Hawaii.
(vi) Puget Sound Naval Shipyard, Washington.
(vii) Norfolk Naval Shipyard, Virginia.
(B) The following Marine Corps depots:
(i) Marine Corps Logistics Base, Albany, Georgia.
(ii) Marine Corps Logistics Base, Barstow, California.
(3) With respect to the Department of the Air Force:
(A) Warner-Robins Air Logistics Center, Georgia.
(B) Ogden Air Logistics Center, Utah.
(C) Oklahoma City Air Logistics Center, Oklahoma.
(Added Pub. L. 109–364, div. A, title III, §332(a), Oct. 17, 2006, 120 Stat. 2149; amended Pub. L. 110–417, [div. A], title III, §327, Oct. 14, 2008, 122 Stat. 4418; Pub. L. 111–383, div. A, title X, §1075(b)(36), Jan. 7, 2011, 124 Stat. 4371.)
2011—Subsec. (d)(2)(D). Pub. L. 111–383 substituted “Navy depots” for “Navy Depots”.
2008—Subsec. (d)(2)(D). Pub. L. 110–417, §327(b)(1), added subpar. (D).
Subsec. (e)(1)(F) to (H). Pub. L. 110–417, §327(a), added subpars. (F) to (H).
Subsec. (e)(2). Pub. L. 110–417, §327(b)(2), inserted introductory provisions for subpars. (A) and (B), redesignated former subpars. (A) to (G) as cls. (i) to (vii), respectively, of subpar. (A) and realigned margins, and redesignated former subpars. (H) and (I) as cls. (i) and (ii), respectively, of subpar. (B) and realigned margins.
Pub. L. 109–364, div. A, title III, §332(c), Oct. 17, 2006, 120 Stat. 2150, provided that: “Section 2476 of title 10, United States Code, as added by subsection (a), shall take effect on October 1, 2006.”
Pub. L. 109–364, div. A, title III, §332(d), Oct. 17, 2006, 120 Stat. 2150, provided that:
“(1)
“(A) for fiscal year 2007, by substituting ‘four percent’ for ‘six percent’; and
“(B) for fiscal year 2008, by substituting ‘five percent’ for ‘six percent’.
“(2)
2004—Pub. L. 108–375, div. A, title VI, §651(a)(1), (3), Oct. 28, 2004, 118 Stat. 1964, added items for subchapters I to III and struck out items 2481 “Existence of defense commissary system and exchange stores system”, 2482 “Commissary stores: operation”, 2482a “Nonappropriated fund instrumentalities: contracts with other agencies and instrumentalities to provide and obtain goods and services”, 2483 “Commissary stores: reimbursement for use of commissary facilities by military departments”, 2484 “Commissary stores: use of appropriated funds to cover operating expenses”, 2485 “Donation of unusable food: commissary stores and other activities”, 2486 “Commissary stores: merchandise that may be sold; uniform surcharges and pricing”, 2487 “Commissary stores: release of certain commercially valuable information to the public”, 2488 “Nonappropriated fund instrumentalities: purchase of alcoholic beverages”, 2489 “Overseas package stores: treatment of United States wines”, 2489a “Sale or rental of sexually explicit material prohibited”, 2490a “Combined exchange and commissary stores”, 2492 “Overseas commissary and exchange stores: access and purchase restrictions”, 2493 “Fisher Houses: administration as nonappropriated fund instrumentality”, and 2494 “Uniform funding and management of morale, welfare, and recreation programs”.
2003—Pub. L. 108–136, div. A, title VI, §652(b), Nov. 24, 2003, 117 Stat. 1522, added item 2481.
2002—Pub. L. 107–314, div. A, title III, §323(b), Dec. 2, 2002, 116 Stat. 2511, added item 2494.
2001—Pub. L. 107–107, div. A, title III, §§332(b), 333(b), Dec. 28, 2001, 115 Stat. 1058, 1059, added item 2483 and substituted “Commissary stores: release of certain commercially valuable information to the public” for “Commissary stores: limitations on release of sales information” in item 2487.
2000—Pub. L. 106–398, §1 [[div. A], title III, §331(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–59, added item 2484 and struck out former item 2484 “Commissary stores: expenses”.
1998—Pub. L. 105–261, div. A, title III, §365(b), title IX, §906(a)(2), Oct. 17, 1998, 112 Stat. 1987, 2095, added items 2492 and 2493.
1997—Pub. L. 105–85, div. A, title III, §371(a)(1), (c)(1), Nov. 18, 1997, 111 Stat. 1705, substituted “COMMISSARIES AND EXCHANGES AND OTHER MORALE, WELFARE, AND RECREATION ACTIVITIES” for “UTILITIES AND SERVICES” as chapter heading and struck out items 2481 “Utilities and services: sale; expansion and extension of systems and facilities”, 2483 “Sale of electricity from alternate energy and cogeneration production facilities”, and 2490 “Utility services: furnishing for certain buildings”.
1996—Pub. L. 104–201, div. A, title III, §§341(a)(2), 343(a)(2), Sept. 23, 1996, 110 Stat. 2489, 2490, added items 2482a and 2489a.
Pub. L. 104–106, div. A, title III, §§331(b), 336(a)(2), Feb. 10, 1996, 110 Stat. 260, 264, substituted “Commissary stores: operation” for “Commissary stores: private operation” in item 2482 and added item 2490a.
1993—Pub. L. 103–160, div. A, title XI, §1182(a)(8)(B), Nov. 30, 1993, 107 Stat. 1771, struck out item 2490a “Nonappropriated fund instrumentalities: financial management and use of nonappropriated funds”.
1992—Pub. L. 102–484, div. A, title III, §§362(b), 364(b)(1), Oct. 23, 1992, 106 Stat. 2380, 2382, substituted “limitations” for “limitation” in item 2487 and added item 2490a.
1990—Pub. L. 101–510, div. A, title III, §324(b)(2), Nov. 5, 1990, 104 Stat. 1531, amended item 2485 generally, substituting “Donation of unusable food: commissary stores and other activities” for “Commissary stores: donation of unmarketable food”.
1988—Pub. L. 100–370, §1(j)(2), July 19, 1988, 102 Stat. 848, added item 2490.
1987—Pub. L. 100–180, div. A, title III, §§311(a)(2), 313(a)(3), Dec. 4, 1987, 101 Stat. 1073, 1074, inserted “and pricing” in item 2486 and added item 2489.
1986—Pub. L. 99–661, div. A, title III, §313(c), Nov. 14, 1986, 100 Stat. 3853, added items 2486, 2487, and 2488.
1985—Pub. L. 99–145, title XIV, §1460(b), Nov. 8, 1985, 99 Stat. 765, added item 2485.
1984—Pub. L. 98–525, title XIV, §1401(i)(2), Oct. 19, 1984, 98 Stat. 2620, added item 2484.
Pub. L. 98–407, title VIII, §810(b), Aug. 28, 1984, 98 Stat. 1523, added item 2483.
2006—Pub. L. 109–364, div. A, title X, §1071(a)(18), Oct. 17, 2006, 120 Stat. 2399, inserted period at end of item 2481.
2004—Pub. L. 108–375, div. A, title VI, §651(a)(3), Oct. 28, 2004, 118 Stat. 1964, added subchapter heading and items 2481 to 2485.
(a)
(b)
(c)
(2) The Secretary of Defense shall establish an executive governing body to provide advice to the senior official designated under paragraph (1) regarding the operation of the defense commissary and exchange systems and to ensure the complementary operation of the systems.
(d)
(Added Pub. L. 108–375, div. A, title VI, §651(a)(3), Oct. 28, 2004, 118 Stat. 1965.)
A prior section 2481, added Pub. L. 108–136, div. A, title VI, §652(a), Nov. 24, 2003, 117 Stat. 1522, related to the existence of defense commissary system and exchange stores system, prior to repeal by Pub. L. 108–375, div. A, title VI, §651(a)(1), Oct. 28, 2004, 118 Stat. 1964.
Another prior section 2481 was renumbered section 2686 of this title.
(a)
(1) assesses the need to establish a commissary store; and
(2) selects the actual location for the store.
(b)
(c)
(2) Whenever assessing whether to close a commissary store, the Secretary of Defense shall also consider the effect of the closure on the quality of life of members of the reserve components of the armed forces.
(d)
(2) Paragraph (1) shall not apply in the case of the closure of a commissary store as part of the closure of a military installation under a base closure law.
(Added Pub. L. 108–375, div. A, title VI, §651(a)(3), Oct. 28, 2004, 118 Stat. 1965.)
A prior section 2482 was renumbered section 2485 of this title.
A prior section 2482a was renumbered section 2492 of this title.
Pub. L. 105–261, div. A, title III, §367, Oct. 17, 1998, 112 Stat. 1987, which provided that the operation and administration of the defense retail systems could not be consolidated or otherwise merged unless the consolidation or merger was specifically authorized by a law enacted after Oct. 17, 1998, was repealed by Pub. L. 108–375, div. A, title VI, §651(e)(3), Oct. 28, 2004, 118 Stat. 1972.
(a)
(b)
(1) Salaries and wages of employees of the United States, host nations, and contractors supporting commissary store operations.
(2) Utilities.
(3) Communications.
(4) Operating supplies and services.
(5) Second destination transportation costs within or outside the United States.
(6) Any cost associated with above-store-level management or other indirect support of a commissary store or a central product processing facility, including equipment maintenance and information technology costs.
(c)
(Added Pub. L. 98–525, title XIV, §1401(i)(1), Oct. 19, 1984, 98 Stat. 2619, §2484; amended Pub. L. 106–398, §1 [[div. A], title III, §331(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–59; Pub. L. 108–136, div. A, title VI, §654, Nov. 24, 2003, 117 Stat. 1523; renumbered §2483, Pub. L. 108–375, div. A, title VI, §651(a)(2), (4), Oct. 28, 2004, 118 Stat. 1964, 1966.)
A prior section 2483, added Pub. L. 107–107, div. A, title III, §332(a), Dec. 28, 2001, 115 Stat. 1058, related to reimbursement for use of commissary facilities by military departments, prior to repeal by Pub. L. 108–375, div. A, title VI, §651(a)(1), Oct. 28, 2004, 118 Stat. 1964.
Another prior section 2483 was renumbered section 2916 of this title.
Provisions similar to those in this section were contained in the following appropriation acts:
Oct. 12, 1984, Pub. L. 98–473, title I, §101(h) [title VIII, §8010], 98 Stat. 1904, 1924.
Dec. 8, 1983, Pub. L. 98–212, title VII, §713, 97 Stat. 1440.
Dec. 21, 1982, Pub. L. 97–377, title I, §101(c) [title VII, §714], 96 Stat. 1833, 1852.
Dec. 29, 1981, Pub. L. 97–114, title VII, §714, 95 Stat. 1580.
Dec. 15, 1980, Pub. L. 96–527, title VII, §715, 94 Stat. 3083.
Dec. 21, 1979, Pub. L. 96–154, title VII, §715, 93 Stat. 1155.
Oct. 13, 1978, Pub. L. 95–457, title VIII, §815, 92 Stat. 1246.
Sept. 21, 1977, Pub. L. 95–111, title VIII, §814, 91 Stat. 902.
Sept. 22, 1976, Pub. L. 94–419, title VII, §714, 90 Stat. 1293.
Feb. 9, 1976, Pub. L. 94–212, title VII, §714, 90 Stat. 171.
Oct. 8, 1974, Pub. L. 93–437, title VIII, §814, 88 Stat. 1227.
Jan. 2, 1974, Pub. L. 93–238, title VII, §714, 87 Stat. 1040.
Oct. 26, 1972, Pub. L. 92–570, title VII, §714, 86 Stat. 1198.
Dec. 18, 1971, Pub. L. 92–204, title VII, §714, 85 Stat. 729.
Jan. 11, 1971, Pub. L. 91–668, title VIII, §814, 84 Stat. 2032.
Dec. 29, 1969, Pub. L. 91–171, title VI, §614, 83 Stat. 482.
Oct. 17, 1968, Pub. L. 90–580, title V, §513, 82 Stat. 1132.
Sept. 29, 1967, Pub. L. 90–96, title VI, §613, 81 Stat. 244.
Oct. 15, 1966, Pub. L. 89–687, title VI, §613, 80 Stat. 993.
Sept. 29, 1965, Pub. L. 89–213, title VI, §613, 79 Stat. 875.
Aug. 19, 1964, Pub. L. 88–446, title V, §513, 78 Stat. 477.
Oct. 17, 1963, Pub. L. 88–149, title V, §513, 77 Stat. 266.
Aug. 9, 1962, Pub. L. 87–577, title V, §513, 76 Stat. 330.
Aug. 17, 1961, Pub. L. 87–144, title VI, §613, 75 Stat. 377.
July 7, 1960, Pub. L. 86–601, title V, §513, 74 Stat. 351.
Aug. 18, 1959, Pub. L. 86–166, title V, §613, 73 Stat. 380.
Aug. 22, 1958, Pub. L. 85–724, title VI, §613, 72 Stat. 725.
Aug. 2, 1957, Pub. L. 85–117, title VI, §614, 71 Stat. 325.
July 2, 1956, ch. 488, title VI, §614, 70 Stat. 469.
July 13, 1955, ch. 358, title VI, §617, 69 Stat. 317.
June 30, 1954, ch. 432, title VII, §717, 68 Stat. 353.
Aug. 1, 1953, ch. 305, title VI, §624, 67 Stat. 353.
July 10, 1952, ch. 630, title VI, §627, 66 Stat. 535.
Oct. 18, 1951, ch. 512, title VI, §628, 65 Stat. 449.
2004—Pub. L. 108–375 renumbered section 2484 of this title as this section.
2003—Subsec. (a). Pub. L. 108–136, §654(a)(1), substituted “shall” for “may”.
Subsec. (b). Pub. L. 108–136, §654(a)(2), substituted “shall” for “may” in introductory provisions.
Subsec. (c). Pub. L. 108–136, §654(b), added subsec. (c).
2000—Pub. L. 106–398 amended section catchline and text generally. Prior to amendment, text consisted of subsecs. (a) to (d) providing that funds available to the Department of Defense could be used to pay for certain costs in connection with the operation of commissary stores only on a reimbursable basis and allowed transportation and utilities to be furnished for the operation of those stores outside of the United States or in Alaska and Hawaii.
Pub. L. 106–398, §1 [[div. A], title III, §331(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–59, provided that: “The amendments made by this section [amending this section] shall take effect on October 1, 2001.”
Section effective Oct. 1, 1985, see section 1404 of Pub. L. 98–525, set out as a note under section 520b of this title.
(a)
(b)
(1) Meat, poultry, seafood, and fresh-water fish.
(2) Nonalcoholic beverages.
(3) Produce.
(4) Grocery food, whether stored chilled, frozen, or at room temperature.
(5) Dairy products.
(6) Bakery and delicatessen items.
(7) Nonfood grocery items.
(8) Tobacco products.
(9) Health and beauty aids.
(10) Magazines and periodicals.
(c)
(2) Notwithstanding paragraph (1), the Department of Defense military resale system shall continue to maintain the exclusive right to operate convenience stores, shopettes, and troop stores, including such stores established to support contingency operations.
(3)(A) A military exchange shall be the vendor for the sale of tobacco products in commissary stores and may be the vendor for such merchandise as may be authorized for sale in commissary stores under paragraph (1). Except as provided in subparagraph (B), subsections (d) and (e) shall not apply to the pricing of such an item when a military exchange serves as the vendor of the item. Commissary store and exchange prices shall be comparable for such an item.
(B) When a military exchange is the vendor of tobacco products or other merchandise authorized for sale in a commissary store under paragraph (1), any revenue above the cost of procuring the merchandise shall be allocated as if the revenue were a uniform sales price surcharge described in subsection (d).
(d)
(e)
(2) Any change in the pricing policies for merchandise sold in, at, or by commissary stores shall not take effect until the Secretary of Defense submits written notice of the proposed change to Congress and a period of 90 days of continuous session of Congress expires following the date on which notice was received. For purposes of this paragraph, the continuity of a session of Congress is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment or recess of more than three days to a day certain are excluded in a computation of such 90-day period.
(3) The sales price of merchandise and services sold in, at, or by commissary stores shall be adjusted to cover the following:
(A) The cost of first destination commercial transportation of the merchandise in the United States to the place of sale.
(B) The actual or estimated cost of shrinkage, spoilage, and pilferage of merchandise under the control of commissary stores.
(f)
(g)
(2) When tobacco products are authorized for sale in a commissary store as noncommissary store inventory, any revenue above the cost of procuring the tobacco products shall be allocated as if the revenue were a uniform sales price surcharge described in subsection (d).
(h)
(i) to acquire (including acquisition by lease), construct, convert, expand, improve, repair, maintain, and equip the physical infrastructure of commissary stores and central product processing facilities of the defense commissary system; and
(ii) to cover environmental evaluation and construction costs related to activities described in clause (i), including costs for surveys, administration, overhead, planning, and design.
(B) In subparagraph (A), the term “physical infrastructure” includes real property, utilities, and equipment (installed and free standing and including computer equipment), necessary to provide a complete and usable commissary store or central product processing facility.
(2)(A) The Secretary of Defense may authorize a nonappropriated fund instrumentality of the United States to enter into a contract for construction of a shopping mall or similar facility for a commissary store and one or more nonappropriated fund instrumentality activities. The Secretary may use the proceeds of surcharges under subsection (d) to reimburse the nonappropriated fund instrumentality for the portion of the cost of the contract that is attributable to construction of the commissary store or to pay the contractor directly for that portion of such cost.
(B) In subparagraph (A), the term “construction”, with respect to a facility, includes acquisition, conversion, expansion, installation, or other improvement of the facility.
(3)(A) The Secretary of Defense may use the proceeds derived from surcharges imposed under subsection (d) in connection with sales of commissary merchandise through initiatives described in subparagraph (B) to offset the cost of such initiatives.
(B) Subparagraph (A) applies with respect to initiatives, utilizing temporary and mobile equipment, intended to provide members of reserve components, retired members, and other persons eligible for commissary benefits, but without reasonable access to commissary stores, improved access to commissary merchandise.
(4) The Secretary of Defense, with the approval of the Director of the Office of Management and Budget, may obligate anticipated proceeds from the surcharges under subsection (d) for any use specified in paragraph (1), (2), or (3), without regard to fiscal year limitations, if the Secretary determines that such obligation is necessary to carry out any use of such adjustments or surcharges specified in such paragraph.
(5) Revenues received by the Secretary of Defense from the following sources or activities of commissary store facilities shall be available for the purposes set forth in paragraphs (1), (2), and (3):
(A) Sale of recyclable materials.
(B) Sale of excess and surplus property.
(C) License fees.
(D) Royalties.
(E) Fees paid by sources of products in order to obtain favorable display of the products for resale, known as business related management fees.
(Added Pub. L. 99–661, div. A, title III, §313(a), Nov. 14, 1986, 100 Stat. 3852, §2486; amended Pub. L. 100–180, div. A, title III, §313(a)(1), (2), Dec. 4, 1987, 101 Stat. 1073, 1074; Pub. L. 104–201, div. A, title III, §342(a), Sept. 23, 1996, 110 Stat. 2489; Pub. L. 105–85, div. A, title III, §§372(a)–(e), 373, Nov. 18, 1997, 111 Stat. 1706, 1707; Pub. L. 105–261, div. A, title III, §364, Oct. 17, 1998, 112 Stat. 1986; Pub. L. 106–65, div. A, title X, §1066(a)(21), Oct. 5, 1999, 113 Stat. 771; Pub. L. 106–398, §1 [[div. A], title III, §§332(a), 334], Oct. 30, 2000, 114 Stat. 1654, 1654A–59, 1654A–60; Pub. L. 107–314, div. A, title X, §1041(a)(14), Dec. 2, 2002, 116 Stat. 2645; renumbered §2484 and amended Pub. L. 108–375, div. A, title VI, §651(a)(2), (4), (5), Oct. 28, 2004, 118 Stat. 1964, 1966; Pub. L. 109–364, div. A, title VI, §661, title X, §1071(g)(6), Oct. 17, 2006, 120 Stat. 2262, 2402; Pub. L. 110–417, [div. A], title VI, §641, Oct. 14, 2008, 122 Stat. 4493.)
A prior section 2484 was renumbered section 2483 of this title.
2008—Subsec. (h)(3) to (5). Pub. L. 110–417 added par. (3), redesignated former pars. (3) and (4) as (4) and (5), respectively, and substituted “paragraph (1), (2), or (3)” for “paragraph (1) or (2)” in par. (4).
2006—Pub. L. 109–364, §1071(g)(6), made technical correction to directory language of Pub. L. 108–375, §651(a)(5)(C). See 2004 Amendment notes for subsecs. (a) to (d) below.
Subsec. (c)(3). Pub. L. 109–364, §661(a), designated existing provisions as subpar. (A), substituted “Except as provided in subparagraph (B), subsections” for “Subsections”, and added subpar. (B).
Subsec. (g). Pub. L. 109–364, §661(b), designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), subsections” for “Subsections”, and added par. (2).
2004—Pub. L. 108–375, §651(a)(2), (4), renumbered section 2486 of this title as this section.
Subsecs. (a) to (c). Pub. L. 108–375, §651(a)(5)(C), as amended by Pub. L. 109–364, §1071(g)(6), added subsecs. (a) to (c).
Pub. L. 108–375, §651(a)(5)(A), struck out subsecs. (a) to (c) which related to operation of the Defense Commissary Agency and the defense commissary system, use of funds to cover expenses of operating commissary stores and central product processing facilities, and supplemental funds for commissary operations, respectively.
Subsec. (d). Pub. L. 108–375, §651(a)(5)(C), as amended by Pub. L. 109–364, §1071(g)(6), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 108–375, §651(a)(5)(B), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(1). Pub. L. 108–375, §651(a)(5)(D), struck out “(consistent with this section and section 2685 of this title)” before period at end.
Subsec. (f). Pub. L. 108–375, §651(a)(5)(B), redesignated subsec. (e) as (f). Former subsec. (f) redesignated (g).
Subsec. (g). Pub. L. 108–375, §651(a)(5)(E), substituted “Subsections (d) and (e)” for “Subsections (c) and (d)” before “shall not apply to the pricing”.
Pub. L. 108–375, §651(a)(5)(A), (B), redesignated subsec. (f) as (g) and struck out heading and text of former subsec. (g), which related to the imposition of charges by the Secretary of Defense for the collection of dishonored checks.
Subsec. (h). Pub. L. 108–375, §651(a)(5)(F), added subsec. (h).
2002—Subsec. (b)(12). Pub. L. 107–314 substituted “, except that the Secretary shall notify Congress of any addition of, or change in, a merchandise category under this paragraph.” for “, except that the Secretary shall submit to Congress, not later than March 1 of each year, a report describing—
“(A) any addition of, or change in, a merchandise category proposed to be made under this paragraph during the one-year period beginning on that date; and
“(B) those additions and changes in merchandise categories actually made during the preceding one-year period.”
2000—Subsec. (b)(11), (12). Pub. L. 106–398, §1 [[div. A], title III, §334(a)], added par. (11) and redesignated former par. (11) as (12).
Subsec. (c). Pub. L. 106–398, §1 [[div. A], title III, §332(a)(1)], substituted “subsection (d) or section” for “section 2484(b) or”.
Subsec. (d)(1). Pub. L. 106–398, §1 [[div. A], title III, §332(a)(2)(A)], substituted “section 2685” for “sections 2484 and 2685”.
Subsec. (d)(3). Pub. L. 106–398, §1 [[div. A], title III, §332(a)(2)(B)], added par. (3).
Subsec. (f). Pub. L. 106–398, §1 [[div. A], title III, §334(b)], struck out “(1)” before “Notwithstanding”, substituted “tobacco products” for “items in the merchandise categories specified in paragraph (2)”, and struck out par. (2) which read as follows: “The merchandise categories referred to in paragraph (1) are as follows:
“(A) Magazines and other periodicals.
“(B) Tobacco products.”
1999—Subsec. (c). Pub. L. 106–65 substituted “November 18, 1997,” for “the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998,” in second sentence.
1998—Subsec. (g). Pub. L. 105–261 added subsec. (g).
1997—Subsec. (a). Pub. L. 105–85, §372(e)(1), inserted heading.
Subsec. (b). Pub. L. 105–85, §372(a)(1), inserted heading and substituted “Merchandise sold in, at, or by commissary stores may include items only in the following categories:” for “Merchandise sold in commissary stores may include items in the following categories:” in introductory provisions.
Subsec. (b)(11). Pub. L. 105–85, §372(a)(2), amended par. (11) generally. Prior to amendment, par. (11) read as follows: “Other categories designated in regulations prescribed by the Secretary of a military department and approved by the Secretary of Defense.”
Subsec. (c). Pub. L. 105–85, §372(b), inserted heading, substituted “in, at, or by commissary stores.” for “in commissary stores.”, and inserted at end “Effective on the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998, the uniform percentage shall be equal to five percent and may not be changed except by a law enacted after such date.”
Subsec. (d). Pub. L. 105–85, §372(c), inserted heading and amended text generally. Prior to amendment, text read as follows: “The Secretary of Defense shall prescribe regulations establishing uniform pricing policies for merchandise authorized for sale by this section. The policies in the regulations shall—
“(1) require the establishment of a sales price of each item of merchandise at a level which will recoup the actual product cost of the item (consistent with this section and sections 2484 and 2685 of this title); and
“(2) promote the lowest practical price of merchandise sold at commissary stores.”
Subsec. (e). Pub. L. 105–85, §373, inserted at end “In determining whether a brand name commercial item is regularly sold outside of commissary stores, the Secretary shall consider only sales of the item on a regional or national basis by commercial grocery or other retail operations consisting of multiple stores.”
Pub. L. 105–85, §372(e)(2), inserted heading and substituted “in, at, or by commissary stores” for “in commissary stores” in two places.
Subsec. (f). Pub. L. 105–85, §372(d), added subsec. (f).
1996—Subsec. (e). Pub. L. 104–201 added subsec. (e).
1987—Pub. L. 100–180, §313(a)(2), inserted “and pricing” in section catchline.
Subsec. (d). Pub. L. 100–180, §313(a)(1), added subsec. (d).
Pub. L. 109–364, div. A, title X, §1071(g), Oct. 17, 2006, 120 Stat. 2402, provided that the amendment made by section 1071(g)(6) is effective as of Oct. 28, 2004, and as if included in Pub. L. 108–375 as enacted.
Pub. L. 106–398, §1 [[div. A], title III, §332(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–60, provided that: “The amendments made by this section [amending this section] shall take effect on October 1, 2001.”
Pub. L. 100–180, div. A, title III, §313(b), Dec. 4, 1987, 101 Stat. 1074, required Secretary of Defense to prescribe regulations required by subsec. (d) of this section not later than 90 days after Dec. 4, 1987.
Pub. L. 104–201, div. A, title III, §342(b), Sept. 23, 1996, 110 Stat. 2489, provided that: “Section 2486(e) [now 2484(e)] of title 10, United States Code, as added by subsection (a), shall not affect the terms, conditions, or duration of any contract or other agreement entered into by the Secretary of Defense before the date of the enactment of this Act [Sept. 23, 1996] for the procurement of commercial items for resale in commissary stores.”
Pub. L. 108–375, div. A, title VI, §651(g), Oct. 28, 2004, 118 Stat. 1972, provided that:
“(1) The Secretary of Defense may conduct a test program involving the sale of telephone cards, film, and one-time use cameras in not less than 10 commissary stores for a period selected by the Secretary, but not less than six months.
“(2) Within 90 days after the completion of the first year of the test program or within 90 days after the completion of the test program, whichever occurs first, the Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report containing the results of the test program. The report shall include an analysis of the impact of the sale of such items on the exchange dividend and such recommendations as the Secretary considers appropriate regarding legislative changes necessary to expand the sale of such items in commissary stores.”
Pub. L. 105–85, div. A, title III, §372(f), Nov. 18, 1997, 111 Stat. 1707, provided that, not later than 30 days after Nov. 18, 1997, the Secretary of Defense was to submit to Congress a report specifying the merchandise categories authorized for sale sold in, at, or by commissary stores pursuant to regulations prescribed under subsection (b)(11) of this section, as in effect before Nov. 18, 1997.
(a)
(2) Any change to private operation of a commissary store function that is being performed by more than 10 Department of Defense civilian employees shall not take effect until the end of the 75-day period beginning on the date on which the Secretary of Defense submits to Congress written notice of the change. Until December 31, 2008, the Defense Commissary Agency is not required to conduct any cost-comparison study under the policies and procedures of Office of Management and Budget Circular A–76 relating to the possible contracting out of commissary store functions.
(b)
(2) A commissary store operated by a nonappropriated fund instrumentality of the Department of Defense shall be operated in accordance with section 2483 of this title. Subject to such section, the Secretary of Defense may authorize a transfer of goods, supplies, and facilities of, and funds appropriated for, the Defense Commissary Agency or any other agency of the Department of Defense that supports the operation of the commissary system to a nonappropriated fund instrumentality for the operation of a commissary store.
(c)
(2) The Secretary of Defense shall determine the membership of the governing board, which shall include, at a minimum, appropriate representatives from each military department. The chairman of the governing board shall be a commissioned officer or member of the senior executive service who has demonstrated experience or knowledge relevant to the management of the defense commissary system. In selecting other members of the governing board, the Secretary shall give priority to persons with experience related to logistics, military personnel, military entitlements or other experiences of value of management of commissaries.
(3) The governing board shall be accountable only to the Secretary of Defense and to the civilian officer of the Department of Defense who is assigned the responsibility for the overall supervision of the Defense Commissary Agency pursuant to section 192(a) of this title. The Director of the Defense Commissary Agency shall be accountable to and report to the board.
(d)
(2)(A) The Secretary of Defense may assign an officer on the active-duty list to serve as the Director of the Defense Commissary Agency.
(B) Not more than 18 members (in addition to the officer referred to in subparagraph (A)) of the armed forces on active duty may be assigned to the Defense Commissary Agency. Members who may be assigned under this subparagraph to regional headquarters of the agency shall be limited to enlisted members assigned to duty as advisers in the regional headquarters responsible for overseas commissaries and to veterinary specialists.
(e)
(2) The amount payable under paragraph (1) for use of a commissary facility by a military department shall be equal to the share of depreciation of the facility that is attributable to that use, as determined under regulations prescribed by the Secretary of Defense.
(3) The Director of the Defense Commissary Agency shall credit amounts paid under paragraph (1) for use of a facility to an appropriate account to which proceeds of a surcharge applied under section 2484(d) of this title are credited.
(4) This subsection applies with respect to a commissary facility that is acquired, constructed, converted, expanded, installed, or otherwise improved (in whole or in part) with the proceeds of a surcharge applied under section 2484(d) of this title.
(f)
(A) A charitable nonprofit food bank that is designated by the Secretary of Defense or the Secretary of Health and Human Services as authorized to receive such donations.
(B) A State or local agency that is designated by the Secretary of Defense or the Secretary of Health and Human Services as authorized to receive such donations.
(C) A chapter or other local unit of a recognized national veterans organization that provides services to persons without adequate shelter and is designated by the Secretary of Veterans Affairs as authorized to receive such donations.
(D) A not-for-profit organization that provides care for homeless veterans and is designated by the Secretary of Veterans Affairs as authorized to receive such donations.
(2) Food that may be donated under this subsection is commissary store food, mess food, meals ready-to-eat (MREs), rations known as humanitarian daily rations (HDRs), and other food available to the Secretary of Defense that—
(A) is certified as edible by appropriate food inspection technicians;
(B) would otherwise be destroyed as unusable; and
(C) in the case of commissary store food, is unmarketable and unsaleable.
(3) In the case of commissary store food, a donation under this subsection shall take place at the site of the commissary store that is donating the food.
(4) This subsection does not authorize any service (including transportation) to be provided in connection with a donation under this subsection.
(g)
(2)(A) The following persons are liable to the United States for the amount of a check referred to in paragraph (1) that is returned unpaid to the United States, together with any charge imposed under that paragraph:
(i) The person who presented the check.
(ii) Any person whose status and relationship to the person who presented the check provide the basis for that person's eligibility to make purchases at a commissary store.
(B) Any amount for which a person is liable under subparagraph (A) may be collected by deducting and withholding such amount from any amounts payable to that person by the United States.
(3) Amounts collected as charges imposed under paragraph (1) shall be credited to the commissary trust revolving fund.
(4) Appropriated funds may be used to pay any costs incurred in the collection of checks and charges referred to in paragraph (1). An appropriation account charged a cost under the preceding sentence shall be reimbursed the amount of that cost out of funds in the commissary trust revolving fund.
(5) In this subsection, the term “commissary trust revolving fund” means the trust revolving fund maintained by the Department of Defense for surcharge collections and proceeds of sales of commissary stores.
(h)
(2) Paragraph (1) applies to the following:
(A) Information contained in the computerized business systems of commissary stores or the Defense Commissary Agency that is collected through or in connection with the use of electronic scanners in commissary stores, including the following information:
(i) Data relating to sales of goods or services.
(ii) Demographic information on customers.
(iii) Any other information pertaining to commissary transactions and operations.
(B) Business programs, systems, and applications (including software) relating to commissary operations that were developed with funding derived from commissary surcharges.
(3)(A) The Secretary of Defense may, using competitive procedures, enter into a contract to sell information described in paragraph (2).
(B) The Secretary of Defense may release, without charge, information on an item sold in commissary stores to the manufacturer or producer of that item or an agent of the manufacturer or producer.
(C) The Secretary of Defense shall establish performance benchmarks and shall submit information on customer satisfaction and performance data to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.
(D) The Secretary of Defense may, by contract entered into with a business, grant to the business a license to use business programs referred to in paragraph (2)(B), including software used in or comprising any such program. The fee charged for the license shall be based on the costs of similar programs developed and marketed by businesses in the private sector, determined by means of surveys.
(E) Each contract entered into under this paragraph shall specify the amount to be paid for information released or a license granted under the contract, as the case may be.
(4) Information described in paragraph (2) may not be released, under paragraph (3) or otherwise, in a form that identifies any customer or that provides information making it possible to identify any customer.
(5) Amounts received by the Secretary under this section shall be credited to funds derived from commissary surcharges applied under section 2484(e) of this title, shall be merged with those funds, and shall be available for the same purposes as the funds with which merged.
(Aug. 10, 1956, ch. 1041, 70A Stat. 141, §2482; Pub. L. 100–456, div. A, title III, §321, Sept. 29, 1988, 102 Stat. 1952; Pub. L. 104–106, div. A, title III, §331(a), Feb. 10, 1996, 110 Stat. 260; Pub. L. 104–201, div. A, title III, §341(b), Sept. 23, 1996, 110 Stat. 2489; Pub. L. 105–261, div. A, title III, §§361(b), 363(a), Oct. 17, 1998, 112 Stat. 1984, 1985; Pub. L. 108–136, div. A, title VI, §653, Nov. 24, 2003, 117 Stat. 1522; renumbered §2485 and amended Pub. L. 108–375, div. A, title VI, §651(a)(2), (6), (7), Oct. 28, 2004, 118 Stat. 1964, 1968; Pub. L. 109–163, div. A, title VI, §672, Jan. 6, 2006, 119 Stat. 3319; Pub. L. 111–350, §5(b)(35), Jan. 4, 2011, 124 Stat. 3845.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2482 | [Uncodified]. | Aug. 1, 1953, ch. 305, §624 (last proviso), 67 Stat. 353. |
This section is codified as permanent law on the basis of an opinion of the Assistant General Counsel (Fiscal Matters), Department of Defense, dated September 28, 1954. The words “and privately owned organizations” are omitted as surplusage since under 1 U.S.C. 1 “person” includes such an organization.
A prior section 2485, added Pub. L. 99–145, title XIV, §1460(a), Nov. 8, 1985, 99 Stat. 764; amended Pub. L. 101–510, div. A, title III, §324(a), (b)(1), Nov. 5, 1990, 104 Stat. 1530; Pub. L. 104–201, div. A, title III, §365, Sept. 23, 1996, 110 Stat. 2494, related to donation of unusable food from commissary stores and other activities, prior to repeal by Pub. L. 108–375, div. A, title VI, §651(a)(1), Oct. 28, 2004, 118 Stat. 1964.
A prior section 2486 was renumbered section 2484 of this title.
2011—Subsec. (b)(1). Pub. L. 111–350 substituted “section 107 of title 41” for “section 4(6) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(6))”.
2006—Subsec. (a)(2). Pub. L. 109–163 inserted at end “Until December 31, 2008, the Defense Commissary Agency is not required to conduct any cost-comparison study under the policies and procedures of Office of Management and Budget Circular A–76 relating to the possible contracting out of commissary store functions.”
2004—Pub. L. 108–375, §651(a)(2), (6), renumbered section 2482 of this title as this section.
Subsec. (b)(2). Pub. L. 108–375, §651(a)(7)(A), substituted “section 2483” for “section 2484”.
Subsec. (c)(2). Pub. L. 108–375, §651(a)(7)(B), inserted at end “The chairman of the governing board shall be a commissioned officer or member of the senior executive service who has demonstrated experience or knowledge relevant to the management of the defense commissary system. In selecting other members of the governing board, the Secretary shall give priority to persons with experience related to logistics, military personnel, military entitlements or other experiences of value of management of commissaries.”
Subsecs. (d) to (h). Pub. L. 108–375, §651(a)(7)(C), added subsecs. (d) to (h).
2003—Subsec. (a). Pub. L. 108–136 designated existing provisions as par. (1), inserted first sentence, added par. (2), and struck out former first and second sentences which read as follows: “Private persons may operate commissary stores under such regulations as the Secretary of Defense may approve. A contract with a private person for the operation of any commissary store may not require or permit the contractor to carry out functions for the procurement of products to be sold in the store or to engage in functions relating to the overall management of a commissary system or the management of any such store.”
1998—Subsec. (b)(1). Pub. L. 105–261, §363(a), inserted at end “However, the Defense Commissary Agency may not pay for any such service provided by the United States Transportation Command any amount that exceeds the price at which the service could be procured through full and open competition, as such term is defined in section 4(6) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(6)).”
Subsec. (c). Pub. L. 105–261, §361(b), added subsec. (c).
1996—Pub. L. 104–106 struck out “private” after “stores:” in section catchline, designated existing text as subsec. (a), inserted heading, and added subsec. (b).
Subsec. (b)(1). Pub. L. 104–201 substituted “another element of the Department of Defense or with another Federal department, agency, or instrumentality to provide or obtain services” for “another department, agency, or instrumentality of the Department of Defense or another Federal agency to provide services”.
1988—Pub. L. 100–456 inserted at end “A contract with a private person for the operation of any commissary store may not require or permit the contractor to carry out functions for the procurement of products to be sold in the store or to engage in functions relating to the overall management of a commissary system or the management of any such store. Such functions shall be carried out by personnel of the Department of Defense under regulations approved by the Secretary of Defense.”
Pub. L. 105–261, div. A, title III, §363(b), Oct. 17, 1998, 112 Stat. 1986, provided that: “The amendment made by subsection (a) [amending this section] shall apply with respect to services provided or obtained on or after the date of the enactment of this Act [Oct. 17, 1998].”
Pub. L. 102–484, div. A, title III, §363, Oct. 23, 1992, 106 Stat. 2380, required the Secretary of Defense to establish a demonstration program to determine the feasibility of having nonappropriated fund instrumentalities operate commissary stores at military installations and provided for termination of the program and submission of a report on its implementation, not later than the expiration of the one-year period beginning on Oct. 23, 1992.
2004—Pub. L. 108–375, div. A, title VI, §651(b)(1), Oct. 28, 2004, 118 Stat. 1971, added subchapter heading and items 2487 to 2489.
(a)
(2) Paragraph (1) does not apply to the following:
(A) Combined exchange and commissary stores operated under the authority provided by section 2489 of this title.
(B) NEXMART stores of the Navy Exchange Service Command established before October 1, 2003.
(b)
(2) In this subsection, the term “defense retail systems” means the defense commissary system and exchange stores system and other revenue-generating facilities operated by nonappropriated fund instrumentalities of the Department of Defense for the morale, welfare, and recreation of members of the armed forces.
(Added Pub. L. 108–375, div. A, title VI, §651(b)(1), Oct. 28, 2004, 118 Stat. 1971.)
A prior section 2487, added Pub. L. 99–661, div. A, title III, §313(a), Nov. 14, 1986, 100 Stat. 3852; amended Pub. L. 102–484, div. A, title III, §364(a), (b)(2), Oct. 23, 1992, 106 Stat. 2381, 2382; Pub. L. 104–106, div. A, title III, §332, Feb. 10, 1996, 110 Stat. 260; Pub. L. 107–107, div. A, title III, §333(a), Dec. 28, 2001, 115 Stat. 1058, related to release of certain commercially valuable information to the public by the Secretary of Defense with respect to commissary stores, prior to repeal by Pub. L. 108–375, div. A, title VI, §651(a)(1), Oct. 28, 2004, 118 Stat. 1964.
(a)
(b)
(2) The Secretary may select a military installation for the operation of a combined exchange and commissary store under this section only if—
(A) the installation is to be closed, or has been or is to be realigned, under a base closure law; or
(B) a military exchange and a commissary store are operated at the installation by separate entities at the time of, or immediately before, such selection and it is not economically feasible to continue that separate operation.
(c)
(d)
(e)
(2) The total amount of appropriated funds transferred during a fiscal year to support the operation of a combined exchange and commissary store at a military installation under this section may not exceed an amount that is equal to 25 percent of the amount of appropriated funds that was provided for the operation of the commissary store of the Defense Commissary Agency on that installation during the last full fiscal year of operation of that commissary store.
(f)
(Added Pub. L. 104–106, div. A, title III, §336(a)(1), Feb. 10, 1996, 110 Stat. 263, §2490a; amended Pub. L. 105–85, div. A, title X, §1061(d), Nov. 18, 1997, 111 Stat. 1891; Pub. L. 108–136, div. A, title X, §1043(c)(2), Nov. 24, 2003, 117 Stat. 1611; renumbered §2488, Pub. L. 108–375, div. A, title VI, §651(b)(3), Oct. 28, 2004, 118 Stat. 1971; Pub. L. 111–383, div. A, title X, §1075(b)(37), Jan. 7, 2011, 124 Stat. 4371.)
Section 375 of the National Defense Authorization Act for Fiscal Year 1995, referred to in subsec. (c), is section 375 of Pub. L. 103–337, div. A, title III, Oct. 5, 1994, 108 Stat. 2736, as amended, which is not classified to the Code.
A prior section 2488 was renumbered section 2495 of this title.
2011—Subsec. (f). Pub. L. 111–383 substituted “armed forces” for “Armed Forces” in two places.
2004—Pub. L. 108–375 renumbered section 2490a of this title as this section.
2003—Subsec. (f). Pub. L. 108–136, §1043(c)(2), substituted “
“(1) The term”
and struck out par. (2) which read as follows: “The term ‘base closure law’ has the meaning given such term by section 2667(h) of this title.”
1997—Subsec. (f)(2). Pub. L. 105–85 substituted “section 2667(h)” for “section 2667(g)”.
(a)
(2) In establishing a quantity or other restriction, the Secretary—
(A) may not discriminate among the various categories of eligible patrons of the commissary and exchange system; and
(B) shall ensure that the restriction is consistent with the purpose of the overseas commissary and exchange system to provide reasonable access for eligible patrons to purchase merchandise items made in the United States.
(b)
(c)
(Added Pub. L. 105–261, div. A, title III, §365(a), Oct. 17, 1998, 112 Stat. 1986, §2492; amended Pub. L. 106–65, div. A, title X, §1066(a)(22), Oct. 5, 1999, 113 Stat. 771; Pub. L. 107–314, div. A, title X, §1041(a)(15), Dec. 2, 2002, 116 Stat. 2645; renumbered §2489, Pub. L. 108–375, div. A, title VI, §651(b)(3), Oct. 28, 2004, 118 Stat. 1971.)
A prior section 2489 was renumbered section 2495a of this title.
A prior section 2489a was renumbered section 2495b of this title.
A prior section 2490 was renumbered section 2868 of this title.
A prior section 2490a was renumbered section 2488 of this title.
Another prior section 2490a was renumbered section 2783 of this title.
2004—Pub. L. 108–375 renumbered section 2492 of this title as this section.
2002—Subsec. (c). Pub. L. 107–314 added subsec. (c) and struck out heading and text of former subsec. (c). Text read as follows: “The Secretary of Defense shall notify Congress of any change proposed or made to any of the host nation laws or any of the treaty obligations of the United States, and any changed conditions within host nations, if the change would necessitate the use of quantity or other restrictions on purchases in commissary and exchange stores located outside the United States.”
1999—Subsec. (b). Pub. L. 106–65 substituted “October 17, 1998” for “the date of the enactment of this section”.
2009—Pub. L. 111–84, div. A, title VI, §651(b), Oct. 28, 2009, 123 Stat. 2369, added item 2492a.
2004—Pub. L. 108–375, div. A, title VI, §651(c)(1), Oct. 28, 2004, 118 Stat. 1971, added subchapter heading and items 2491 to 2495b.
(a)
(b)
(c)
(2) The status of an employee in a position identified by the Secretary under paragraph (1) may, with the consent of the employee, be converted to the status of an employee of a nonappropriated fund instrumentality. An employee who does not consent to the conversion may not be removed from the position because of the failure to provide such consent.
(3) The conversion of an employee from the status of an employee paid by appropriated funds to the status of an employee of a nonappropriated fund instrumentality shall be without a break in service for the concerned employee. The conversion shall not entitle an employee to severance pay, back pay or separation pay under subchapter IX of chapter 55 of title 5, or be considered an involuntary separation or other adverse personnel action entitling an employee to any right or benefit under such title or any other provision of law or regulation.
(4) In this subsection, the term “an employee of a nonappropriated fund instrumentality” means an employee described in section 2105(c) of title 5.
(Added Pub. L. 107–314, div. A, title III, §323(a), Dec. 2, 2002, 116 Stat. 2510, §2494; renumbered §2491, Pub. L. 108–375, div. A, title VI, §651(c)(2), Oct. 28, 2004, 118 Stat. 1972.)
A prior section 2491 was renumbered section 2500 of this title.
2004—Pub. L. 108–375 renumbered section 2494 of this title as this section.
(a)
(b)
(2) The Secretary of Defense shall prescribe regulations governing the use of appropriated funds under this subsection.
(Added Pub. L. 103–160, div. A, title III, §312(a), Nov. 30, 1993, 107 Stat. 1618, §2246; renumbered §2491a, Pub. L. 108–375, div. A, title VI, §651(d), Oct. 28, 2004, 118 Stat. 1972.)
2004—Pub. L. 108–375 renumbered section 2246 of this title as this section.
(a)
(b)
(Added Pub. L. 103–337, div. A, title III, §372(a), Oct. 5, 1994, 108 Stat. 2735, §2247; amended Pub. L. 105–85, div. A, title III, §375, Nov. 18, 1997, 111 Stat. 1708; renumbered §2491b, Pub. L. 108–375, div. A, title VI, §651(d), Oct. 28, 2004, 118 Stat. 1972.)
2004—Pub. L. 108–375 renumbered section 2247 of this title as this section.
1997—Subsec. (b). Pub. L. 105–85 substituted “the maintenance, repair, or renovation of real property, and the transportation” for “real property maintenance, and transportation”.
Amounts may not be retained in a nonappropriated morale, welfare, and recreation account of a military installation of an armed force in excess of the amount necessary to meet cash requirements of that installation. Amounts in excess of that amount shall be transferred to a single nonappropriated morale, welfare, and recreation account for that armed force. This section does not apply to the Coast Guard.
(Added Pub. L. 103–337, div. A, title III, §373(a), Oct. 5, 1994, 108 Stat. 2736, §2219; amended Pub. L. 104–106, div. A, title III, §341, Feb. 10, 1996, 110 Stat. 265; renumbered §2491c, Pub. L. 108–375, div. A, title VI, §651(d), Oct. 28, 2004, 118 Stat. 1972.)
2004—Pub. L. 108–375 renumbered section 2219 of this title as this section.
1996—Pub. L. 104–106, in first sentence, substituted “an armed force” for “a military department”, in second sentence, substituted “a single, nonappropriated morale, welfare, and recreation account for that armed force” for “a single, department-wide nonappropriated morale, welfare, and recreation account of the military department”, and inserted after second sentence “This section does not apply to the Coast Guard.”
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
An agency or instrumentality of the Department of Defense that supports the operation of the exchange system, or the operation of a morale, welfare, and recreation system, of the Department of Defense may enter into a contract or other agreement with another element of the Department of Defense or with another Federal department, agency, or instrumentality to provide or obtain goods and services beneficial to the efficient management and operation of the exchange system or that morale, welfare, and recreation system.
(Added Pub. L. 104–201, div. A, title III, §341(a)(1), Sept. 23, 1996, 110 Stat. 2488, §2482a; renumbered §2492, Pub. L. 108–375, div. A, title VI, §651(c)(3), Oct. 28, 2004, 118 Stat. 1972.)
A prior section 2492 was renumbered section 2489 of this title.
2004—Pub. L. 108–375 renumbered section 2482a of this title as this section.
(a)
(2) The limitation in paragraph (1) shall not be construed to prohibit or preclude the use of Department resources, personnel, or equipment to administer or facilitate personal information services contracts with private contractors.
(b)
(1) a private sector vendor is not available to provide the personal information services at specific locations;
(2) the interests of the user population would be best served by allowing the Government to provide such services; or
(3) circumstances (as specified by the Secretary for purposes of this section) are such that the provision of such services by a Department entity is in the best interest of the Government or military users in general.
(c)
(Added Pub. L. 111–84, div. A, title VI, §651(a), Oct. 28, 2009, 123 Stat. 2368.)
Pub. L. 111–84, div. A, title VI, §651(c), Oct. 28, 2009, 123 Stat. 2369, provided that: “Section 2492a of title 10, United States Code, as added by subsection (a), does not affect the validity or terms of any contract for the provision of personal information services entered into before the date of the enactment of this Act [Oct. 28, 2009].”
(a)
(1) The term “Fisher House” means a housing facility that—
(A) is located in proximity to a health care facility of the Army, the Air Force, or the Navy;
(B) is available for residential use on a temporary basis by patients of that health care facility, members of the families of such patients, and others providing the equivalent of familial support for such patients; and
(C) is constructed and donated by—
(i) the Zachary and Elizabeth M. Fisher Armed Services Foundation; or
(ii) another source, if the Secretary of the military department concerned designates the housing facility as a Fisher House.
(2) The term “Fisher Suite” means one or more rooms that—
(A) meet the requirements of subparagraphs (A) and (B) of paragraph (1);
(B) are constructed, altered, or repaired and donated by a source described in subparagraph (C) of that paragraph; and
(C) are designated by the Secretary of the military department concerned as a Fisher Suite.
(b)
(c)
(d)
(e)
(A) accept money, property, and services donated for the support of a Fisher House or Fisher Suite associated with health care facilities of that military department; and
(B) may impose fees relating to the use of such Fisher Houses and Fisher Suites.
(2) All monetary donations, and the proceeds of the disposal of any other donated property, accepted by the Secretary of a military department under this subsection shall be credited to the fund established under subsection (d) for the Fisher Houses and Fisher Suites associated with health care facilities of that military department and shall be available to that Secretary to support all such Fisher Houses and Fisher Suites.
(f)
(g)
(1) The amount in the fund established by that Secretary under subsection (d) as of October 1 of the previous year.
(2) The operation of the fund during the preceding fiscal year, including—
(A) all gifts, fees, and interest credited to the fund; and
(B) all disbursements from the fund.
(3) The budget for the operation of the Fisher Houses and Fisher Suites for the fiscal year in which the report is submitted.
(Added Pub. L. 105–261, div. A, title IX, §906(a)(1), Oct. 17, 1998, 112 Stat. 2093; amended Pub. L. 106–398, §1 [[div. A], title IX, §914(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–230; Pub. L. 107–314, div. A, title III, §321, Dec. 2, 2002, 116 Stat. 2510.)
2002—Subsec. (f). Pub. L. 107–314 amended heading and text of subsec. (f) generally. Prior to amendment text read as follows: “The Secretary of the Navy shall provide base operating support for Fisher Houses associated with health care facilities of the Navy. The level of the support shall be equivalent to the base operating support that the Secretary provides for morale, welfare, and recreation category B community activities (as defined in regulations, prescribed by the Secretary, that govern morale, welfare, and recreation activities associated with Navy installations).”
2000—Subsecs. (f), (g). Pub. L. 106–398 added subsec. (f) and redesignated former subsec. (f) as (g).
Pub. L. 106–398, §1 [[div. A], title IX, §914(c)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–230, provided that: “The amendments made by subsection (a) [amending this section] shall be effective as of October 17, 1998, as if included in section 2493 of title 10, United States Code, as enacted by section 906(a) of Public Law 105–261.”
Pub. L. 106–398, §1 [[div. A], title IX, §914(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–230, provided that:
“(1) The Secretary of the Navy may continue to employ, and pay out of appropriated funds, any employee of the Navy in the competitive service who, as of October 17, 1998, was employed by the Navy in a position at a Fisher House administered by the Navy, but only for so long as the employee is continuously employed in that position.
“(2) After a person vacates a position in which the person was continued to be employed under the authority of paragraph (1), a person employed in that position shall be employed as an employee of a nonappropriated fund instrumentality of the United States and may not be paid for services in that position out of appropriated funds.
“(3) In this subsection:
“(A) The term ‘Fisher House’ has the meaning given the term in section 2493(a)(1) of title 10, United States Code.
“(B) The term ‘competitive service’ has the meaning given the term in section 2102 of title 5, United States Code.”
[Pub. L. 106–398, §1 [[div. A], title IX, §914(c)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–230, provided that: “Subsection (b) [set out above] applies with respect to the pay period that includes October 17, 1998, and subsequent pay periods.”]
Pub. L. 105–261, div. A, title IX, §906(b)–(e), Oct. 17, 1998, 112 Stat. 2095, provided that:
“(b)
“(1) establish the fund required under section 2493(d) of title 10, United States Code (as added by subsection (a)); and
“(2) close the Fisher House Trust Fund established for that department under section 2221 of such title and transfer the amounts in the closed fund to the newly established fund.
“(c)
“(2) Of the amount authorized to be appropriated pursuant to section 301(4) for operation and maintenance for the Air Force, the Secretary of the Air Force shall transfer to the fund established by that Secretary under section 2493(d) of title 10, United States Code (as added by subsection (a)), such amount as that Secretary considers appropriate for establishing in the fund a corpus sufficient for operating Fisher Houses and Fisher Suites associated with health care facilities of the Department of the Air Force.
“(d)
“(1) the certification of that Secretary that those actions have been completed; and
“(2) a statement of the amount deposited in the fund established by that Secretary under section 2493(d) of title 10, United States Code (as added by subsection (a)).
“(e)
Appropriations for the Department of Defense may be used to provide utility services for—
(1) buildings on military installations authorized by regulation to be used for morale, welfare, and recreation purposes; and
(2) other morale, welfare, and recreation activities for members of the armed forces.
(Added Pub. L. 108–375, div. A, title VI, §651(c)(4), Oct. 28, 2004, 118 Stat. 1972.)
A prior section 2494 was renumbered section 2491 of this title.
(a) The Secretary of Defense shall provide that—
(1) covered alcoholic beverage purchases made for resale on a military installation located in the United States shall be made from the most competitive source and distributed in the most economical manner, price and other factors considered, except that
(2) in the case of malt beverages and wine, such purchases shall be made from, and delivery shall be accepted from, a source within the State in which the military installation concerned is located.
(b) If a military installation located in the contiguous States is located in more than one State, a source of supply in any State in which the installation is located shall be considered for the purposes of subsection (a)(2) to be a source within the State in which the installation is located.
(c)(1) In the case of covered alcoholic beverage purchases of distilled spirits, to determine whether a nonappropriated fund instrumentality of the Department of Defense provides the most economical method of distribution to package stores, the Secretary of Defense shall consider all components of the distribution costs incurred by the nonappropriated fund instrumentality, such as overhead costs (including costs associated with management, logistics, administration, depreciation, and utilities), the costs of carrying inventory, and handling and distribution costs.
(2) The Secretary shall use the agencies performing audit functions on behalf of the armed forces and the Inspector General of the Department of Defense to make determinations under this subsection.
(d) In this section:
(1) The term “covered alcoholic beverage purchases” means purchases of alcoholic beverages by a nonappropriated fund instrumentality of the Department of Defense with nonappropriated funds.
(2) The term “State” includes the District of Columbia.
(Added Pub. L. 99–661, div. A, title III, §313(a), Nov. 14, 1986, 100 Stat. 3853, §2488; amended Pub. L. 100–180, div. A, title III, §312(a), Dec. 4, 1987, 101 Stat. 1073; Pub. L. 104–106, div. A, title III, §333, Feb. 10, 1996, 110 Stat. 261; Pub. L. 106–398, §1 [[div. A], title III, §335], Oct. 30, 2000, 114 Stat. 1654, 1654A–61; renumbered §2495, Pub. L. 108–375, div. A, title VI, §651(b)(2), (c)(5), Oct. 28, 2004, 118 Stat. 1971, 1972.)
2004—Pub. L. 108–375 renumbered section 2488 of this title as this section.
2000—Subsec. (c)(2), (3). Pub. L. 106–398 redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “If the use of a private distributor would subject covered alcoholic beverage purchases of distilled spirits to direct or indirect State taxation, a nonappropriated fund instrumentality shall be considered to be the most economical method of distribution regardless of the results of the determination under paragraph (1).”
1996—Subsec. (a)(1). Pub. L. 104–106, §333(a), inserted “and distributed in the most economical manner” after “most competitive source”.
Subsecs. (c), (d). Pub. L. 104–106, §333(b), added subsec. (c) and redesignated former subsec. (c) as (d).
1987—Subsec. (a)(2). Pub. L. 100–180 struck out “purchased for resale on a military installation located in the contiguous States” after “malt beverages and wines”.
Pub. L. 100–180, div. A, title III, §312(b), Dec. 4, 1987, 101 Stat. 1073, provided that: “The amendment made by subsection (a) [amending this section] shall apply with respect to purchases of malt beverages and wine after the end of the 60-day period beginning on the date of the enactment of this Act [Dec. 4, 1987].”
Pub. L. 109–148, div. A, title VIII, §8080, Dec. 30, 2005, 119 Stat. 2717, which provided that none of the funds appropriated by div. A of Pub. L. 109–148 were to be used for the support of any nonappropriated funds activity of the Department of Defense that procured malt beverages and wine with nonappropriated funds for resale (including such alcoholic beverages sold by the drink) on a military installation located in the United States unless such malt beverages and wine were procured within that State, or in the case of the District of Columbia, within the District of Columbia, in which the military installation was located, was from the Department of Defense Appropriations Act, 2006, and was repeated in provisions of subsequent appropriations acts which are not set out in the Code. Similar provisions were contained in the following prior appropriations acts:
Pub. L. 108–287, title VIII, §8087, Aug. 5, 2004, 118 Stat. 991.
Pub. L. 108–87, title VIII, §8088, Sept. 30, 2003, 117 Stat. 1093.
Pub. L. 107–248, title VIII, §8092, Oct. 23, 2002, 116 Stat. 1558.
Pub. L. 107–117, div. A, title VIII, §8108, Jan. 10, 2002, 115 Stat. 2271.
Pub. L. 106–259, title VIII, §8108, Aug. 9, 2000, 114 Stat. 698.
Pub. L. 106–79, title VIII, §8132, Oct. 25, 1999, 113 Stat. 1266.
Pub. L. 104–61, title VIII, §8055, Dec. 1, 1995, 109 Stat. 662.
Pub. L. 103–335, title VIII, §8058A, Sept. 30, 1994, 108 Stat. 2632.
Pub. L. 103–139, title VIII, §8099A, Nov. 11, 1993, 107 Stat. 1462.
Pub. L. 102–396, title IX, §9114, Oct. 6, 1992, 106 Stat. 1929.
Pub. L. 102–172, title VIII, §8111A, Nov. 26, 1991, 105 Stat. 1200.
Pub. L. 101–511, title VIII, §8068, Nov. 5, 1990, 104 Stat. 1889.
Pub. L. 101–165, title IX, §9093, Nov. 21, 1989, 103 Stat. 1149.
Pub. L. 100–463, title VIII, §8122, Oct. 1, 1988, 102 Stat. 2270–40.
Pub. L. 100–202, §101(b) [title VIII, §8081], Dec. 22, 1987, 101 Stat. 1329–43, 1329–76.
Pub. L. 99–500, §101(c) [title IX, §9090], Oct. 18, 1986, 100 Stat. 1783–82, 1783–116, and Pub. L. 99–591, §101(c) [title IX, §9090], Oct. 30, 1986, 100 Stat. 3341–82, 3341–116.
Pub. L. 99–190, §101(b) [title VIII, §8099], Dec. 19, 1985, 99 Stat. 1185, 1219.
The Secretary of Defense shall ensure that each nonappropriated-fund activity engaged principally in selling alcoholic beverage products in a packaged form (commonly referred to as a “package store”) that is located at a military installation outside the United States shall give appropriate treatment with respect to wines produced in the United States to ensure that such wines are given, in general, an equitable distribution, selection, and price when compared with wines produced by the host nation.
(Added Pub. L. 100–180, div. A, title III, §311(a)(1), Dec. 4, 1987, 101 Stat. 1073, §2489; renumbered §2495a, Pub. L. 108–375, div. A, title VI, §651(b)(2), (c)(5), Oct. 28, 2004, 118 Stat. 1971, 1972.)
2004—Pub. L. 108–375 renumbered section 2489 of this title as this section.
Pub. L. 100–180, div. A, title III, §311(b), Dec. 4, 1987, 101 Stat. 1073, directed Secretary of Defense to prescribe regulations to implement this section not later than 90 days after Dec. 4, 1987.
(a)
(b)
(c)
(2)(A) The Secretary of Defense shall appoint six members of the board to broadly represent the interests of the patron base served by the defense commissary system and the exchange system. The Secretary shall appoint one of the members to serve as the chairman of the board. At least one member appointed under this subparagraph shall be a person with experience managing or advocating for military family programs and who is also an eligible patron of the defense commissary system and the exchange system.
(B) The Secretary of each of the military departments shall appoint one member of the board.
(C) A vacancy on the board shall be filled in the same manner as the original appointment.
(3) The Secretary of Defense may detail persons to serve as staff for the board. At a minimum, the Secretary shall ensure that the board is assisted at meetings by military resale and legal advisors.
(4) The recommendations made by the board under paragraph (1) shall be made available to the public. The Secretary of Defense shall publicize the availability of such recommendations by such means as the Secretary considers appropriate.
(5) Members of the board shall be allowed travel expense, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5 while away from their homes or regular places of business in the performance of services for the board.
(d)
(e)
(1) The term “sexually explicit material” means an audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium, the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way.
(2) The term “property under the jurisdiction of the Department of Defense” includes commissaries, all facilities operated by the Army and Air Force Exchange Service, the Navy Exchange Service Command, the Navy Resale and Services Support Office, Marine Corps exchanges, and ships’ stores.
(Added Pub. L. 104–201, div. A, title III, §343(a)(1), Sept. 23, 1996, 110 Stat. 2489, §2489a; renumbered §2495b, Pub. L. 108–375, div. A, title VI, §651(b)(2), (c)(5), Oct. 28, 2004, 118 Stat. 1971, 1972; amended Pub. L. 110–417, [div. A], title VI, §642(a), Oct. 14, 2008, 122 Stat. 4493.)
2008—Subsecs. (c) to (e). Pub. L. 110–417 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively.
2004—Pub. L. 108–375 renumbered section 2489a of this title as this section.
Pub. L. 104–201, div. A, title III, §343(b), Sept. 23, 1996, 110 Stat. 2490, provided that: “Subsection (a) of section 2489a [now 2495b] of title 10, United States Code, as added by subsection (a) of this section, shall take effect 90 days after the date of the enactment of this Act [Sept. 23, 1996].”
Pub. L. 110–417, [div. A], title VI, §642(b), Oct. 14, 2008, 122 Stat. 4494, provided that:
“(1)
“(2)
A prior chapter 148, comprised of section 2501 et seq., relating to defense industrial base, was repealed, except for sections 2504 to 2507, by Pub. L. 102–484, div. D, title XLII, §4202(a), Oct. 23, 1992, 106 Stat. 2659. Sections 2504 to 2507 of that chapter were renumbered sections 2531 to 2534, respectively, of this chapter by Pub. L. 102–484, §4202(a).
2000—Pub. L. 106–398, §1 [[div. A], title X, §1033(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260, added item for subchapter VII.
1998—Pub. L. 105–261, div. A, title X, §1069(a)(4), Oct. 17, 1998, 112 Stat. 2136, substituted “2500” for “2491” in item for subchapter I and struck out “and Dual-Use Assistance Extension Programs” after “Technology” in item for subchapter IV.
1996—Pub. L. 104–106, div. A, title XIII, §1321(a)(2), Feb. 10, 1996, 110 Stat. 477, added item for subchapter VI.
1997—Pub. L. 105–85, div. A, title III, §371(c)(4), Nov. 18, 1997, 111 Stat. 1705, renumbered item 2491 as 2500.
In this chapter:
(1) The term “national technology and industrial base” means the persons and organizations that are engaged in research, development, production, integration, services, or information technology activities conducted within the United States and Canada.
(2) The term “dual-use” with respect to products, services, standards, processes, or acquisition practices, means products, services, standards, processes, or acquisition practices, respectively, that are capable of meeting requirements for military and nonmilitary applications.
(3) The term “dual-use critical technology” means a critical technology that has military applications and nonmilitary applications.
(4) The term “technology and industrial base sector” means a group of public or private persons and organizations that engage in, or are capable of engaging in, similar research, development, production, integration, services, or information technology activities.
(5) The terms “Federal laboratory” and “laboratory” have the meaning given the term “laboratory” in section 12(d)(2) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a(d)(2)), except that such terms include a federally funded research and development center sponsored by a Federal agency.
(6) The term “critical technology” means a technology that is—
(A) a national critical technology; or
(B) a defense critical technology.
(7) The term “national critical technology” means a technology that appears on the list of national critical technologies contained in the most recent biennial report on national critical technologies submitted to Congress by the President pursuant to section 603(d) 1 of the National Science and Technology Policy, Organization, and Priorities Act of 1976 (42 U.S.C. 6683(d)).
(8) The term “defense critical technology” means a technology that is identified under section 2505 of this title as critical for attaining the national security objectives set forth in section 2501(a) of this title.
(9) The term “eligible firm” means a company or other business entity that, as determined by the Secretary of Commerce—
(A) conducts a significant level of its research, development, engineering, manufacturing, integration, services, and information technology activities in the United States; and
(B) is a company or other business entity the majority ownership or control of which is by United States citizens or is a company or other business of a parent company that is incorporated in a country the government of which—
(i) encourages the participation of firms so owned or controlled in research and development consortia to which the government of that country provides funding directly or provides funding indirectly through international organizations or agreements; and
(ii) affords adequate and effective protection for the intellectual property rights of companies incorporated in the United States.
Such term includes a consortium of such companies or other business entities, as determined by the Secretary of Commerce.
(10) The term “manufacturing technology” means techniques and processes designed to improve manufacturing quality, productivity, and practices, including quality control, shop floor management, inventory management, and worker training, as well as manufacturing equipment and software.
(11) The term “Small Business Innovation Research Program” means the program established under the following provisions of section 9 of the Small Business Act (15 U.S.C. 638):
(A) Paragraphs (4) through (7) of subsection (b).
(B) Subsections (e) through (l).
(12) The term “Small Business Technology Transfer Program” means the program established under the following provisions of such section:
(A) Paragraphs (4) through (7) of subsection (b).
(B) Subsections (e) and (n) through (p).
(13) The term “significant equity percentage” means—
(A) a level of contribution and participation sufficient, when compared to the other non-Federal participants in the partnership or other cooperative arrangement involved, to demonstrate a comparable long-term financial commitment to the product or process development involved; and
(B) any other criteria the Secretary may consider necessary to ensure an appropriate equity mix among the participants.
(14) The term “person of a foreign country” has the meaning given such term in section 3502(d) of the Primary Dealers Act of 1988 (22 U.S.C. 5342(d)).
(15) The term “integration” means the process of providing systems engineering and technical direction for a system for the purpose of achieving capabilities that satisfy program requirements.
(Added Pub. L. 102–484, div. D, title XLII, §4203(a), Oct. 23, 1992, 106 Stat. 2661, §2491; amended Pub. L. 103–160, div. A, title XI, §1182(a)(9), title XIII, §1315(f), Nov. 30, 1993, 107 Stat. 1771, 1788; Pub. L. 103–337, div. A, title XI, §§1113(d), 1115(e), Oct. 5, 1994, 108 Stat. 2866, 2869; Pub. L. 104–106, div. A, title X, §1081(h), Feb. 10, 1996, 110 Stat. 455; renumbered §2500 and amended Pub. L. 105–85, div. A, title III, §371(b)(3), title X, §1073(a)(53), Nov. 18, 1997, 111 Stat. 1705, 1903; Pub. L. 111–383, div. A, title VIII, §895(a), Jan. 7, 2011, 124 Stat. 4313.)
Section 603 of the National Science and Technology Policy, Organization, and Priorities Act of 1976, referred to in par. (7), was classified to section 6683 of Title 42, The Public Health and Welfare, and was omitted from the Code.
Provisions similar to those in this section were contained in former sections 2511 and 2521 of this title prior to repeal by Pub. L. 102–484, §4202(a).
2011—Par. (1). Pub. L. 111–383, §895(a)(1), substituted “integration, services, or information technology” for “or maintenance”.
Par. (4). Pub. L. 111–383, §895(a)(2), substituted “production, integration, services, or information technology” for “or production”.
Par. (9)(A). Pub. L. 111–383, §895(a)(3), substituted “manufacturing, integration, services, and information technology” for “and manufacturing”.
Par. (15). Pub. L. 111–383, §895(a)(4), added par. (15).
1997—Pub. L. 105–85, §371(b)(3), renumbered section 2491 of this title as this section.
Par. (8). Pub. L. 105–85, §1073(a)(53), substituted “that is identified under section 2505 of this title as critical for attaining the national security objectives set forth in section 2501(a) of this title.” for “that appears on the list of critical technologies contained, pursuant to subsection (b)(4) of section 2505 of this title, in the most recent national technology and industrial base assessment submitted to Congress by the Secretary of Defense pursuant to section 2506(e) of this title.”
1996—Pars. (11) to (16). Pub. L. 104–106 redesignated pars. (13) to (16) as (11) to (14), respectively, and struck out former pars. (11) and (12) which read as follows:
“(11) The term ‘manufacturing extension program’ means a public or private, nonprofit program for the improvement of the quality, productivity, and performance of United States-based small manufacturing firms in the United States.
“(12) The term ‘United States-based small manufacturing firm’ means a company or other business entity that, as determined by the Secretary of Commerce—
“(A) engages in manufacturing;
“(B) has less than 500 employees; and
“(C) is an eligible firm.”
1994—Par. (5). Pub. L. 103–337, §1113(d), inserted before period at end “, except that such terms include a federally funded research and development center sponsored by a Federal agency”.
Par. (16). Pub. L. 103–337, §1115(e), added par. (16).
1993—Par. (2). Pub. L. 103–160, §1182(a)(9)(A), substituted “nonmilitary applications” for “nonmilitary application”.
Par. (8). Pub. L. 103–160, §1182(a)(9)(B), substituted “subsection (b)(4)” for “subsection (f)”.
Pars. (13) to (15). Pub. L. 103–160, §1315(f), added pars. (13) to (15).
Section 1101 of title XI of div. A of Pub. L. 103–337 provided that: “This title [enacting sections 2519 and 2520 of this title, amending this section, sections 1151, 1152, 2391, 2511 to 2513, and 2524 of this title, and sections 1662d and 1662d–1 of Title 29, Labor, and enacting and amending provisions set out as notes under section 2501 of this title] may be cited as the ‘Defense Conversion, Reinvestment, and Transition Assistance Amendments of 1994’.”
Section 1301 of title XIII of div. A of Pub. L. 103–160 provided that: “This title [enacting sections 1152 and 1153 of this title and sections 1279d, 1279e, and 1280a of the Appendix to Title 46, Shipping, amending this section, sections 1142, 1151, 1598, 2410j, 2501, 2502, 2511 to 2513, 2523, and 2524 of this title, sections 1551 and 1662d–1 of Title 29, Labor, section 31326 of Title 46, and sections 1271, 1273, 1274, and 1274a of the Appendix to Title 46, repealing section 2504 of this title, enacting provisions set out as notes under sections 1143, 1151, 2501, 2511, 2701, and 5013 of this title, section 1662d–1 of Title 29, and sections 1279b and 1279d of the Appendix to Title 46, amending provisions set out as notes under sections 1143, 2391, and 2501 of this title, and repealing provisions set out as a note under section 2701 of this title] may be cited as the ‘Defense Conversion, Reinvestment, and Transition Assistance Amendments of 1993’.”
Section 4001 of Pub. L. 102–484 provided that: “This division [div. D (§§4001–4501) of Pub. L. 102–484, see Tables for classification] may be cited as the ‘Defense Conversion, Reinvestment, and Transition Assistance Act of 1992’.”
Amendment by section 1315(f) of Pub. L. 103–160 not to alter financial commitment requirements in effect on the day before Nov. 30, 1993, for non-Federal Government participants in a project funded under section 2511, 2512, 2513, 2523, or 2524 of this title, using funds appropriated for a fiscal year beginning before Oct. 1, 1993, see section 1315(g) of Pub. L. 103–160, set out as a note under section 2511 of this title.
Section 4101 of Pub. L. 102–484 provided that: “Congress makes the following findings:
“(1) The collapse of communism in Eastern Europe and the dissolution of the Soviet Union have fundamentally changed the military threat that formed the basis for the national security policy of the United States since the end of World War II.
“(2) The change in the military threat presents a unique opportunity to restructure and reduce the military requirements of the United States.
“(3) As the United States proceeds with the post-Cold War defense build down, the Nation must recognize and address the impact of reduced defense spending on the military personnel, civilian employees, and defense industry workers who have been the foundation of the national defense policies of the United States.
“(4) The defense build down will have a significant impact on communities as procurements are reduced and military installations are closed and realigned.
“(5) Despite the changes in the military threat, the United States must maintain the capability to respond to regional conflicts that threaten the national interests of the United States, and to reconstitute forces in the event of an extended conflict.
“(6) The skills and capabilities of military personnel, civilian employees of the Department of Defense, defense industry workers, and defense industries represent an invaluable national resource that can contribute to the economic growth of the United States and to the long-term vitality of the national technology and industrial base.
“(7) Prompt and vigorous implementation of defense conversion, reinvestment, and transition assistance programs is essential to ensure that the defense build down is structured in a manner that—
“(A) enhances the long-term ability of the United States to maintain a strong and vibrant national technology and industrial base; and
“(B) promotes economic growth.”
Section 4201 of title XLII of div. D of Pub. L. 102–484 provided that: “The purposes of this title [see Tables for classification] are to consolidate, revise, clarify, and reenact policies and requirements, and to enact additional policies and requirements, relating to the national technology and industrial base, defense reinvestment, and defense conversion programs that further national security objectives.”
Section 4203(b) of Pub. L. 102–484 provided that until first national technology and industrial base assessment was submitted to Congress by Secretary of Defense pursuant to former section 2506(e) of this title, the term “defense critical technology” for purposes of this chapter, would have meaning given such term in section 2521 of this title, as in effect on day before Oct. 23, 1992.
1 See References in Text note below.
2011—Pub. L. 111–383, div. A, title VIII, §896(b)(2), Jan. 7, 2011, 124 Stat. 4316, which directed amendment of table of sections at the beginning of this chapter by adding item 2508 at the end, was executed by adding item 2508 at the end of the table of sections at the beginning of this subchapter to reflect the probable intent of Congress.
1996—Pub. L. 104–201, div. A, title VIII, §829(g), Sept. 23, 1996, 110 Stat. 2614, added item 2504 and substituted “Department of Defense technology and industrial base policy guidance” for “National technology and industrial base: periodic defense capability plan” in item 2506.
Pub. L. 104–106, div. A, title X, §1081(i)(1), Feb. 10, 1996, 110 Stat. 455, substituted “National security objectives concerning national technology and industrial base” for “Congressional defense policy concerning national technology and industrial base, reinvestment, and conversion” in item 2501.
1993—Pub. L. 103–160, div. A, title XIII, §1312(a)(2), Nov. 30, 1993, 107 Stat. 1786, struck out item 2504 “Center for the Study of Defense Economic Adjustment”.
(a)
(1) Supplying, equipping, and supporting the force structure of the armed forces that is necessary to achieve—
(A) the objectives set forth in the national security strategy report submitted to Congress by the President pursuant to section 108 of the National Security Act of 1947 (50 U.S.C. 404a);
(B) the policy guidance of the Secretary of Defense provided pursuant to section 113(g) of this title; and
(C) the future-years defense program submitted to Congress by the Secretary of Defense pursuant to section 221 of this title.
(2) Sustaining production, maintenance, repair, logistics, and other activities in support of military operations of various durations and intensity.
(3) Maintaining advanced research and development activities to provide the armed forces with systems capable of ensuring technological superiority over potential adversaries.
(4) Reconstituting within a reasonable period the capability to develop, produce, and support supplies and equipment, including technologically advanced systems, in sufficient quantities to prepare fully for a war, national emergency, or mobilization of the armed forces before the commencement of that war, national emergency, or mobilization.
(5) Providing for the development, manufacture, and supply of items and technologies critical to the production and sustainment of advanced military weapon systems within the national technology and industrial base.
(6) Providing for the generation of services capabilities that are not core functions of the armed forces and that are critical to military operations within the national technology and industrial base.
(7) Providing for the development, production, and integration of information technology within the national technology and industrial base.
(8) Maintaining critical design skills to ensure that the armed forces are provided with systems capable of ensuring technological superiority over potential adversaries.
(b)
(1) Relying, to the maximum extent practicable, upon the commercial national technology and industrial base that is required to meet the national security needs of the United States.
(2) Reducing the reliance of the Department of Defense on technology and industrial base sectors that are economically dependent on Department of Defense business.
(3) Reducing Federal Government barriers to the use of commercial products, processes, and standards.
(Added Pub. L. 102–484, div. D, title XLII, §4211, Oct. 23, 1992, 106 Stat. 2662; amended Pub. L. 103–35, title II, §201(c)(7), May 31, 1993, 107 Stat. 98; Pub. L. 103–160, div. A, title XI, §1182(a)(10), title XIII, §1313, Nov. 30, 1993, 107 Stat. 1771, 1786; Pub. L. 104–106, div. A, title X, §1081(a), Feb. 10, 1996, 110 Stat. 452; Pub. L. 104–201, div. A, title VIII, §829(a), Sept. 23, 1996, 110 Stat. 2612; Pub. L. 111–23, title III, §303(a), May 22, 2009, 123 Stat. 1731; Pub. L. 111–383, div. A, title VIII, §895(b), Jan. 7, 2011, 124 Stat. 4314.)
A prior section 2501, added Pub. L. 100–456, div. A, title VIII, §821(b)(1)(B), Sept. 29, 1988, 102 Stat. 2014, related to centralized guidance, analysis, and planning, prior to repeal by Pub. L. 102–484, §4202(a).
Another prior section 2501 was renumbered section 2533 of this title.
2011—Subsec. (a)(1). Pub. L. 111–383, §895(b)(1), substituted “Supplying, equipping, and supporting” for “Supplying and equipping” in introductory provisions.
Subsec. (a)(2). Pub. L. 111–383, §895(b)(2), substituted “logistics, and other activities in support of” for “and logistics for”.
Subsec. (a)(4). Pub. L. 111–383, §895(b)(3), substituted “, produce, and support” for “and produce”.
Subsec. (a)(6) to (8). Pub. L. 111–383, §895(b)(4), added pars. (6) and (7) and redesignated former par. (6) as (8).
2009—Subsec. (a)(6). Pub. L. 111–23 added par. (6).
1996—Pub. L. 104–106, §1081(a)(2), substituted “National security objectives concerning national technology and industrial base” for “Congressional defense policy concerning national technology and industrial base, reinvestment, and conversion” as section catchline.
Subsec. (a). Pub. L. 104–106, §1081(a)(1)(A)(i), substituted “National Security” for “Defense Policy” in heading.
Subsec. (a)(5). Pub. L. 104–201 added par. (5).
Pub. L. 104–106, §1081(a)(1)(A)(ii), struck out par. (5) which read as follows: “Furthering the missions of the Department of Defense through the support of policy objectives and programs relating to the defense reinvestment, diversification, and conversion objectives specified in subsection (b).”
Subsecs. (b), (c). Pub. L. 104–106, §1081(a)(1)(B), (C), redesignated subsec. (c) as (b) and struck out former subsec. (b) which stated policy objectives of Congress relating to defense reinvestment, diversification, and conversion.
1993—Subsec. (a)(1)(A). Pub. L. 103–35 substituted “section 108” for “section 104”.
Subsec. (a)(5). Pub. L. 103–160, §1313, added par. (5).
Subsec. (b)(2). Pub. L. 103–160, §1182(a)(10), substituted “that, by reducing the public sector demand for capital, increases the amount of capital available” for “and thereby free up capital”.
Pub. L. 111–383, div. A, title VIII, §891, Jan. 7, 2011, 124 Stat. 4310, provided that:
“(a)
“(b)
“(c)
“(d)
“(e)
“(f)
Pub. L. 110–417, [div. A], title II, §256, Oct. 14, 2008, 122 Stat. 4404, provided that:
“(a)
“(b)
“(1)
“(2)
“(A) Development and maintenance of a printed circuit board and interconnect technology roadmap that ensures that the Department of Defense has access to the manufacturing capabilities and technical expertise necessary to meet future military requirements regarding such technology.
“(B) Development of recommended funding strategies necessary to meet the requirements of the roadmap developed under subparagraph (A).
“(C) Assessment of the vulnerabilities, trustworthiness, and diversity of the printed circuit board supply chain, including the development of trustworthiness requirements for printed circuit boards used in defense systems, and to develop strategies to address matters that are identified as a result of such assessment.
“(D) Such other roles and responsibilities as the Secretary of Defense considers appropriate.
“(c)
“(d)
“(1) The term ‘Directive 5101.1’ means Department of Defense Directive 5101.1, or any successor directive relating to the responsibilities of an executive agent of the Department of Defense.
“(2) The term ‘executive agent’ has the meaning given the term ‘DoD Executive Agent’ in Directive 5101.1.”
Pub. L. 109–163, div. A, title II, §253(c), Jan. 6, 2006, 119 Stat. 3180, provided that whenever the Secretary of Defense provided for the conduct of a study referred to as a Technology Area Review and Assessment, the Secretary, not later than March 1 of the year following the year in which that study was conducted, was to submit to the Committees on Armed Services and Appropriations of the Senate and the House of Representatives a report containing a summary of each such Technology Area Review and Assessment conducted during that year, prior to repeal by Pub. L. 110–181, div. A, title II, §236, Jan. 28, 2008, 122 Stat. 47.
Pub. L. 108–136, div. A, title VIII, subtitle B, part I, Nov. 24, 2003, 117 Stat. 1542, as amended by Pub. L. 109–364, div. A, title VIII, §841, Oct. 17, 2006, 120 Stat. 2335; Pub. L. 111–84, div. A, title VIII, §846, Oct. 28, 2009, 123 Stat. 2420, provided that:
“No provision of this subtitle [subtitle B (§§811–828) of title VIII of div. A of Pub. L. 108–136, enacting section 2436 of this title, amending sections 2533a and 2534 of this title, and enacting provisions set out as notes under sections 2436, 2505, 2521, and 2534 of this title] or any amendment made by this subtitle shall apply to the extent the Secretary of Defense, in consultation with the Secretary of Commerce, the United States Trade Representative, and the Secretary of State, determines that it is inconsistent with United States obligations under an international agreement.
“(a)
“(A) the degree to which the United States is dependent on foreign sources of supply; and
“(B) the capabilities of the United States defense industrial base to produce military systems necessary to support the national security objectives set forth in section 2501 of title 10, United States Code.
“(2) For purposes of the assessment program, the Secretary shall use existing data, as required under subsection (b), and submit an annual report, as required under subsection (c).
“(b)
“(A) Whether the contractor is a United States or foreign contractor.
“(B) The principal place of business of the contractor and the principal place of performance of the contract.
“(C) Whether the contract was awarded on a sole source basis or after receipt of competitive offers.
“(D) The dollar value of the contract.
“(2) The Federal Procurement Data System described in section 6(d)(4)(A) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 405(d)(4)(A)) [now 41 U.S.C. 1122(a)(4)(A)], or any successor system, shall collect from contracts described in paragraph (1) the information specified in that paragraph.
“(3) Information obtained in the implementation of this section is subject to the same limitations on disclosure, and penalties for violation of such limitations, as is provided under section 2507 of title 10, United States Code. Such information also shall be exempt from release under section 552 of title 5, United States Code.
“(4) For purposes of meeting the requirements set forth in this section, the Secretary of Defense may not require the provision of information beyond the information that is currently provided to the Department of Defense through existing data collection systems by non-Federal entities with respect to contracts and subcontracts with the Department of Defense or any military department.
“(c)
“(2)(A) The report shall include the following with respect to contracts described in subsection (b):
“(i) The total number and value of such contracts awarded by the Department of Defense.
“(ii) The total number and value of such contracts awarded on a sole source basis.
“(iii) The total number and value of contracts described in clause (ii) awarded to foreign contractors, summarized by country.
“(iv) The total number and value of contracts awarded to foreign contractors through competitive procedures, summarized by country.
“(v) The dollar value of any articles, materials, or supplies purchased that were manufactured outside of the United States.
“(vi) An itemized list of all waivers granted with respect to such articles, materials, or supplies under the Buy American Act ([former] 41 U.S.C. 10a et seq.) [see 41 U.S.C. 8301 et seq.].
“(vii) A summary of—
“(I) the total procurement funds expended on articles, materials, and supplies manufactured inside the United States; and
“(II) the total procurement funds expended on articles, materials, and supplies manufactured outside the United States.
“(B) The report also shall include—
“(i) the status of the matters described in subparagraphs (A) and (B) of subsection (a)(1);
“(ii) the status of implementation of successor procurement data management systems; and
“(iii) such other matters as the Secretary considers appropriate.
“(d)
“(e)
“(a)
“(b)
“(c)
“(d)
“(e)
“(f)
“(1) ensuring the visibility and accountability of transactions engaged in through the Fund; and
“(2) reporting to Congress each year regarding activities of the Fund during the previous fiscal year.”
Pub. L. 107–107, div. A, title II, subtitle D, Dec. 28, 2001, 115 Stat. 1041, provided that:
“This subtitle may be cited as the ‘Air Force Science and Technology for the 21st Century Act’.
“(a)
“(1) Continue and improve efforts to ensure that—
“(A) the Air Force science and technology community is represented, and the recommendations of that community are considered, at all levels of program planning and budgetary decisionmaking within the Air Force;
“(B) advocacy for science and technology development is institutionalized across all levels of Air Force management in a manner that is not dependent on individuals; and
“(C) the value of Air Force science and technology development is made increasingly apparent to the warfighters, by linking the needs of those warfighters with decisions on science and technology development.
“(2) Complete and adopt a policy directive that provides for changes in how the Air Force makes budgetary and nonbudgetary decisions with respect to its science and technology development programs and how it carries out those programs.
“(3) At least once every five years, conduct a review of the long-term challenges and short-term objectives of the Air Force science and technology programs that is consistent with the review specified in section 252 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (as enacted into law by Public Law 106–398; 114 Stat. 1654A–46 [set out as a note below]).
“(4) Ensure that development and science and technology planning and investment activities are carried out for future space warfighting systems and for future nonspace warfighting systems in an integrated manner.
“(5) Elevate the position within the Office of the Secretary of the Air Force that has primary responsibility for budget and policy decisions for science and technology programs.
“(b)
“(A) Coordinating the needs of Air Force warfighters with decisions on science and technology development.
“(B) Giving input into the establishment of priorities among science and technology programs.
“(C) Analyzing Air Force capability options for the allocation of Air Force resources.
“(D) Developing concepts for technology, warfighting systems, and operations with which the Air Force can achieve its critical future goals.
“(E) Evaluating concepts for systems and operations that leverage technology across Air Force organizational boundaries.
“(F) Ensuring that a ‘system-of-systems’ approach is used in carrying out the various Air Force capability planning exercises.
“(G) Utilizing existing analysis capabilities within the Air Force product centers in a collaborative and integrated manner.
“(2) Not later than one year after the date of the enactment of this Act [Dec. 28, 2001], the Secretary of the Air Force shall submit to Congress a report on the implementation of the planning process required by paragraph (1). The report shall include the annual amount that the Secretary considers necessary to carry out paragraph (1).
“(a)
“(b)
“(A) That the concerns about the management of the science and technology program that have been raised by Congress, the Defense Science Board, the Air Force Science Advisory Board, and the Air Force Association have been adequately addressed.
“(B) That appropriate and sufficient technology is available to ensure the military superiority of the United States and counter future high-risk threats.
“(C) That the science and technology investments are balanced to meet the near-, mid-, and long-term needs of the Air Force.
“(D) That technologies are made available that can be used to respond flexibly and quickly to a wide range of future threats.
“(E) That the Air Force organizational structure provides for a sufficiently senior level advocate of science and technology to ensure an ongoing, effective presence of the science and technology community during the budget and planning process.
“(2) In addition, the study shall assess the specific changes to the Air Force science and technology program as follows:
“(A) Whether the biannual science and technology summits provide sufficient visibility into, and understanding and appreciation of, the value of the science and technology program to the senior level of Air Force budget and policy decisionmakers.
“(B) Whether the applied technology councils are effective in contributing the input of all levels beneath the senior leadership into the coordination, focus, and content of the science and technology program.
“(C) Whether the designation of the commander of the Air Force Materiel Command as the science and technology budget advocate is effective to ensure that an adequate Air Force science and technology budget is requested.
“(D) Whether the revised development planning process is effective to aid in the coordination of the needs of the Air Force warfighters with decisions on science and technology investments and the establishment of priorities among different science and technology programs.
“(E) Whether the implementation of section 252 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (as enacted into law by Public Law 106–398; 114 Stat. 1654A–46 [set out as a note below]) is effective to identify the basis for the appropriate science and technology program funding level and investment portfolio.
“(c)
Pub. L. 106–398, §1 [[div. A], title II, §252], Oct. 30, 2000, 114 Stat. 1654, 1654A–46, provided that:
“(a)
“(b)
“(1) An assessment of the budgetary resources that are being used for fiscal year 2001 for addressing the long-term challenges and the short-term objectives of the Air Force science and technology programs.
“(2) The budgetary resources that are necessary to address those challenges and objectives adequately.
“(3) A course of action for each projected or ongoing Air Force science and technology program that does not address either the long-term challenges or the short-term objectives.
“(4) The matters required under subsection (c)(5) and (d)(6).
“(c)
“(2) The team shall solicit views from the entire Air Force science and technology community on the matters under consideration by the team.
“(3) The team—
“(A) shall select for consideration science and technology challenges that involve—
“(i) compelling requirements of the Air Force;
“(ii) high-risk, high-payoff areas of exploration; and
“(iii) very difficult, but probably achievable, results; and
“(B) should not select a linear extension of any ongoing Air Force science and technology program for consideration as a science and technology challenge under subparagraph (A).
“(4) The Deputy Assistant Secretary of the Air Force for Science, Technology, and Engineering shall designate a technical coordinator and a management coordinator for each science and technology challenge identified pursuant to this subsection. Each technical coordinator shall have sufficient expertise in fields related to the challenge to be able to identify other experts in such fields and to affirm the credibility of the challenge. The coordinator for a science and technology challenge shall conduct workshops within the relevant scientific and technological community to obtain suggestions for possible approaches to addressing the challenge and to identify ongoing work that addresses the challenge, deficiencies in current work relating to the challenge, and promising areas of research.
“(5) In carrying out subsection (a), the Secretary of the Air Force shall review the science and technology challenges identified pursuant to this subsection and, for each such challenge, at a minimum—
“(A) consider the results of the workshops conducted pursuant to paragraph (4); and
“(B) identify any work not currently funded by the Air Force that should be performed to meet the challenge.
“(d)
“(2) The task force shall solicit views from the entire Air Force requirements community, user community, and acquisition community.
“(3) The task force shall select for consideration short-term objectives that involve—
“(A) compelling requirements of the Air Force;
“(B) support in the user community; and
“(C) likely attainment of the desired benefits within a five-year period.
“(4) The Deputy Assistant Secretary of the Air Force for Science, Technology, and Engineering shall establish an integrated product team for each short-term objective identified pursuant to this subsection. Each integrated product team shall include representatives of the requirements community, the user community, and the science and technology community with relevant expertise.
“(5) The integrated product team for a short-term objective shall be responsible for—
“(A) identifying, defining, and prioritizing the enabling capabilities that are necessary for achieving the objective;
“(B) identifying deficiencies in the enabling capabilities that must be addressed if the short-term objective is to be achieved; and
“(C) working with the Air Force science and technology community to identify science and technology projects and programs that should be undertaken to eliminate each deficiency in an enabling capability.
“(6) In carrying out subsection (a), the Secretary of the Air Force shall review the short-term science and technology objectives identified pursuant to this subsection and, for each such objective, at a minimum—
“(A) consider the work of the integrated product team conducted pursuant to paragraph (5); and
“(B) identify the science and technology work of the Air Force that should be undertaken to eliminate each deficiency in enabling capabilities that is identified by the integrated product team pursuant to subparagraph (B) of that paragraph.
“(e)
“(2) Immediately upon completing the review required by subsection (a), the Secretary of Defense shall notify the Comptroller General of the completion of the review. For the purposes of paragraph (1), the date of the notification shall be considered the date of the completion of the review.”
Pub. L. 106–65, div. A, title II, §243, Oct. 5, 1999, 113 Stat. 551, required the Under Secretary of Defense for Acquisition, Technology, and Logistics to submit to the congressional defense committees a report on the actions necessary to promote the research base and technological development needed for ensuring that the Armed Forces had the military capabilities necessary for meeting national security requirements over the next two to three decades.
Pub. L. 106–65, div. A, title II, §212, Oct. 5, 1999, 113 Stat. 542, as amended by Pub. L. 108–136, div. A, title X, §1031(h)(1), Nov. 24, 2003, 117 Stat. 1604; Pub. L. 109–364, div. A, title II, §217, Oct. 17, 2006, 120 Stat. 2125, which provided the sense of Congress as to funding objectives for the Defense Science and Technology Program, was repealed by Pub. L. 111–84, div. A, title II, §213, Oct. 28, 2009, 123 Stat. 2226.
Pub. L. 105–261, div. A, title II, §214, Oct. 17, 1998, 112 Stat. 1948, provided that:
“(a)
“(b)
“(1)
“(A) The sustainment of research capabilities in scientific and engineering disciplines critical to the Department of Defense.
“(B) The education and training of the next generation of scientists and engineers in disciplines that are relevant to future defense systems, particularly through the conduct of basic research.
“(C) The continued support of the Defense Experimental Program to Stimulate Competitive Research and research programs at historically black colleges and universities and minority institutions.
“(2)
“(B) It is the sense of Congress that funds made available for projects and programs of the Defense Science and Technology Program should be used only for the benefit of the Department of Defense, which includes—
“(i) the development of technology that has only military applications;
“(ii) the development of militarily useful, commercially viable technology; and
“(iii) the adaptation of commercial technology, products, or processes for military purposes.
“(3)
“(4)
“(A) management and funding for the Defense Science and Technology Program for each military department should receive a level of priority and leadership attention equal to the level received by program acquisition, and the Secretary of each military department should ensure that a senior official in the department holds the appropriate title and responsibility to ensure effective oversight and emphasis on science and technology;
“(B) to ensure an appropriate long-term focus for investments, a sufficient percentage of science and technology funds should be directed toward new technology areas, and annual reviews should be conducted for ongoing research areas to ensure that those funded initiatives are either integrated into acquisition programs or discontinued when appropriate;
“(C) the Secretary of each military department should take appropriate steps to ensure that sufficient numbers of officers and civilian employees in the department hold advanced degrees in technical fields; and
“(D) of particular concern, the Secretary of the Air Force should take appropriate measures to ensure that sufficient numbers of scientists and engineers are maintained to address the technological challenges faced in the areas of air, space, and information technology.
“(c)
“(1)
“(2)
“(A) result in recommendations on the minimum requirements for maintaining a technology base that is sufficient, based on both historical developments and future projections, to project superiority in air and space weapons systems and in information technology;
“(B) address the effects on national defense and civilian aerospace industries and information technology of reducing funding below the goal described in subsection (a); and
“(C) result in recommendations on the appropriate levels of staff with baccalaureate, masters, and doctorate degrees, and the optimal ratio of civilian and military staff holding such degrees, to ensure that science and technology functions of the Department of Defense remain vital.
“(3)
“(d)
“(1) The term ‘Defense Science and Technology Program’ means basic and applied research and advanced development.
“(2) The term ‘basic and applied research’ means work funded in program elements for defense research and development under Department of Defense category 6.1 or 6.2.
“(3) The term ‘advanced development’ means work funded in program elements for defense research and development under Department of Defense category 6.3.”
Pub. L. 104–201, div. A, title II, §270, Sept. 23, 1996, 110 Stat. 2469, as amended by Pub. L. 106–65, div. A, title II, §242, title X, §1067(5), Oct. 5, 1999, 113 Stat. 551, 774; Pub. L. 109–163, div. A, title II, §253(a), (b), Jan. 6, 2006, 119 Stat. 3179, 3180, which required biennial submission to Congress by the Secretary of Defense of a plan for ensuring that the science and technology program of the Department of Defense supported the development of the future joint warfighting capabilities identified as priority requirements for the Armed Forces, was repealed by Pub. L. 111–84, div. A, title II, §241, Oct 28, 2009, 123 Stat. 2237.
Section 808 of Pub. L. 104–106 authorized Secretary of Defense to enter into agreements with defense contractors under which certain cost reimbursement rules would be applied and required submission of report to congressional defense committees not later than one year after Feb. 10, 1996, prior to repeal by Pub. L. 105–85, div. A, title X, §1027(d), Nov. 18, 1997, 111 Stat. 1880. See section 7315 of this title.
Pub. L. 103–337, div. A, title XI, §1118, Oct. 5, 1994, 108 Stat. 2870, provided that: “At the time of the award for a cooperative agreement or other transaction under a program carried out under chapter 148 of title 10, United States Code, the head of the agency concerned shall include in the file pertaining to such agreement or transaction a brief explanation of the manner in which the award advances and enhances a particular national security objective set forth in section 2501(a) of such title or a particular policy objective set forth in [former] section 2501(b) of such title.”
Pub. L. 103–160, div. A, title XIII, §1303, Nov. 30, 1993, 107 Stat. 1784, provided that during each of the fiscal years 1994, 1995, and 1996, the Secretary of Defense was to prepare a report that assessed the effectiveness of all defense conversion, reinvestment, and transition assistance programs, as defined in section 1302 of Pub. L. 103–160, 107 Stat. 1783, during the preceding fiscal year.
Sections 1351 to 1354 of Pub. L. 103–160, as amended by Pub. L. 104–201, div. A, title X, §1073(e)(1)(F), (2)(B), (3), Sept. 23, 1996, 110 Stat. 2658, provided that:
“This subtitle [subtitle D, §§1351–1363 of title XIII of div. A of Pub. L. 103–160, enacting sections 1279d, 1279e, and 1280a of the Appendix to Title 46, Shipping, amending section 31326 of Title 46 and sections 1271, 1273, 1274, and 1274a of the Appendix to Title 46, and enacting provisions set out as notes under sections 1279b and 1279d of the Appendix to Title 46] may be cited as the ‘National Shipbuilding and Shipyard Conversion Act of 1993’.
“(a)
“(b)
“(1) by the Secretary of Defense, with respect to programs under the jurisdiction of the Secretary of Defense; and
“(2) by the Secretary of Transportation, with respect to programs under the jurisdiction of the Secretary of Transportation.
“(c)
“(1)
“(2)
“(3)
“(4)
“The Secretary of Defense shall designate the Defense Advanced Research Projects Agency of the Department of Defense as the lead agency of the Department of Defense for activities of the Department of Defense which are part of the National Shipbuilding Initiative program. Those activities shall be carried out as part of defense conversion activities of the Department of Defense.
“(a) DARPA
“(1) Consultation with the Maritime Administration, the Office of Economic Adjustment, the National Economic Council, the National Shipbuilding Research Project, the Coast Guard, the National Oceanic and Atmospheric Administration, appropriate naval commands and activities, and other appropriate Federal agencies on—
“(A) development and transfer to the private sector of dual-use shipbuilding technologies, ship repair technologies, and shipbuilding management technologies;
“(B) assessments of potential markets for maritime products; and
“(C) recommendation of industrial entities, partnerships, joint ventures, or consortia for short- and long-term manufacturing technology investment strategies.
“(2) Funding and program management activities to develop innovative design and production processes and the technologies required to implement those processes.
“(3) Facilitation of industry and Government technology development and technology transfer activities (including education and training, market assessments, simulations, hardware models and prototypes, and national and regional industrial base studies).
“(4) Integration of promising technology advances made in the Technology Reinvestment Program of the Defense Advanced Research Projects Agency into the National Shipbuilding Initiative to effect full defense conversion potential.
“(b)
“(1)
“(2)
[For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.]
Subtitle H of title I of div. A of Pub. L. 102–484, as amended by Pub. L. 103–35, title II, §202(a)(1), May 31, 1993, 107 Stat. 100; Pub. L. 103–337, div. A, title XI, §1141(a), (b), Oct. 5, 1994, 108 Stat. 2879; Pub. L. 104–201, div. A, title I, §143, Sept. 23, 1996, 110 Stat. 2449; Pub. L. 105–261, div. A, title I, §115, Oct. 17, 1998, 112 Stat. 1939; Pub. L. 106–65, div. A, title I, §116, Oct. 5, 1999, 113 Stat. 533, known as the “Armament Retooling and Manufacturing Support Act of 1992”, authorized the Secretary of the Army, during fiscal years 1993 through 2001, to carry out the Armament Retooling and Manufacturing Support Initiative, prior to repeal by Pub. L. 106–398, §1 [[div. A], title III, §344(d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–71.
Section 4218 of Pub. L. 102–484 related to collection of information, completion of assessments, and issuance of plans required by this subchapter, prior to repeal by Pub. L. 104–201, div. A, title VIII, §829(h), Sept. 23, 1996, 110 Stat. 2614.
Section 4239 of Pub. L. 102–484 provided that: “Not later than 120 days after the date of enactment of this Act [Oct. 23, 1992], the Secretary of Defense shall prescribe regulations to encourage defense contractors to engage in industrial diversification planning.”
Section 4471 of Pub. L. 102–484, as amended by Pub. L. 103–160, div. A, title XIII, §1372, Nov. 20, 1993, 107 Stat. 1817; Pub. L. 103–337, div. A, title XI, §1142, Oct. 5, 1994, 108 Stat. 2881; Pub. L. 104–201, div. A, title VIII, §824, Sept. 23, 1996, 110 Stat. 2610; Pub. L. 105–85, div. A, title X, §1073(d)(2)(C), Nov. 18, 1997, 111 Stat. 1905; Pub. L. 105–277, div. A, §101(f) [title VIII, §405(d)(7)(C), (f)(6)(C)], Oct. 21, 1998, 112 Stat. 2681–337, 2681–419, 2681–430, provided that:
“(a)
“(1) shall identify each contract (if any) under major defense programs of the Department of Defense that will be terminated or substantially reduced as a result of the funding levels provided in that Act; and
“(2) shall ensure that notice of the termination of, or substantial reduction in, the funding of the contract is provided—
“(A) directly to the prime contractor under the contract; and
“(B) directly to the Secretary of Labor.
“(b)
“(1) provide notice of that termination or substantial reduction to each person that is a first-tier subcontractor under that prime contract for subcontracts in an amount not less than $500,000; and
“(2) require that each such subcontractor—
“(A) provide such notice to each of its subcontractors for subcontracts in an amount in excess of $100,000; and
“(B) impose a similar notice and pass through requirement to subcontractors in an amount in excess of $100,000 at all tiers.
“(c)
“(1)(A) each representative of employees whose work is directly related to the defense contract under such program and who are employed by the defense contractor; or
“(B) if there is no such representative at that time, each such employee; and
“(2) the State or entity designated by the State to carry out rapid response activities under section 134(a)(2)(A) of the Workforce Investment Act of 1998 [29 U.S.C. 2864(a)(2)(A)], and the chief elected official of the unit of general local government within which the adverse effect may occur.
“(d)
“(e)
“(f)
“(1) The term ‘major defense program’ means a program that is carried out to produce or acquire a major system (as defined in section 2302(5) of title 10, United States Code).
“(2) The terms ‘substantial reduction’ and ‘substantially reduced’, with respect to a defense contract under a major defense program, mean a reduction of 25 percent or more in the total dollar value of the funds obligated by the contract.”
(a)
(b)
(1) The Secretary of Defense, who shall serve as chairman.
(2) The Secretary of Energy.
(3) The Secretary of Commerce.
(4) The Secretary of Labor.
(5) Such other officials as may be determined by the President.
(c)
(1) the capabilities of the national technology and industrial base to meet the national security objectives set forth in section 2501(a) of this title;
(2) programs for achieving such national security objectives; and
(3) changes in acquisition policy that strengthen the national technology and industrial base.
(d)
(Added Pub. L. 102–484, div. D, title XLII, §4212(a), Oct. 23, 1992, 106 Stat. 2664; amended Pub. L. 103–160, div. A, title XIII, §1312(b), Nov. 30, 1993, 107 Stat. 1786; Pub. L. 103–337, div. A, title X, §1070(a)(12), Oct. 5, 1994, 108 Stat. 2856; Pub. L. 104–106, div. A, title X, §1081(b), Feb. 10, 1996, 110 Stat. 452; Pub. L. 104–201, div. A, title VIII, §829(c)(2), formerly §829(c)(2), (3), Sept. 23, 1996, 110 Stat. 2613, renumbered Pub. L. 105–85, div. A, title X, §1073(c)(7)(B), Nov. 18, 1997, 111 Stat. 1904; Pub. L. 105–85, div. A, title X, §1073(c)(7)(A), Nov. 18, 1997, 111 Stat. 1904.)
A prior section 2502, added Pub. L. 100–456, div. A, title VIII, §821(b)(1)(B), Sept. 29, 1988, 102 Stat. 2015, related to defense industrial base policies, prior to repeal by Pub. L. 102–484, §4202(a).
Another prior section 2502 was renumbered section 2534 of this title.
1997—Subsec. (c). Pub. L. 105–85, §1073(c)(7)(A), made technical correction to directory language of Pub. L. 104–201, §829(c)(2). See 1996 Amendment note below.
1996—Subsec. (c). Pub. L. 104–201, §829(c)(2), formerly §829(c)(2), (3), as renumbered and amended by Pub. L. 105–85, substituted “the responsibility to ensure effective cooperation” for “the following responsibilities:”, struck out “(1) To ensure the effective cooperation” before “among departments”, struck out par. (2), redesignated subpars. (A), (B), and (C) as pars. (1), (2), and (3), respectively, and adjusted margins of such pars. Prior to repeal, par. (2) read as follows: “To prepare the periodic assessment and the periodic plan required by sections 2505 and 2506 of this title, respectively.”
Subsec. (c)(1)(B). Pub. L. 104–106, §1081(b)(1), added subpar. (B) and struck out former subpar. (B) which read as follows: “programs for achieving, during a period of reduction in defense expenditures, the defense reinvestment, diversification, and conversion objectives set forth in section 2501(b) of this title; and”.
Subsec. (c)(2), (3). Pub. L. 104–106, §1081(b)(2), (3), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “To provide overall policy guidance to ensure effective implementation by agencies of the Federal Government of defense reinvestment and conversion activities during a period of reduction in defense expenditures.”
1994—Subsec. (d). Pub. L. 103–337 substituted “executive” for “Executive”.
1993—Subsec. (d). Pub. L. 103–160 added subsec. (d).
Section 1073(c) of Pub. L. 105–85 provided that the amendment made by that section is effective as of Sept. 23, 1996, and as if included in the National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104–201, as enacted.
(a)
(b)
(c)
(1) The assembly of timely and authoritative information.
(2) Initiation of studies and analyses.
(3) Provision of technical support and assistance to—
(A) the Secretary of Defense for the preparation of the periodic assessments required by section 2505 of this title;
(B) the defense acquisition university structure and its elements; and
(C) other departments and agencies of the Federal Government in accordance with guidance established by the Council.
(4) Dissemination, through the National Technical Information Service of the Department of Commerce, of unclassified information and assessments for further dissemination within the Federal Government and to the private sector.
(Added Pub. L. 102–484, div. D, title XLII, §4213(a), Oct. 23, 1992, 106 Stat. 2665; amended Pub. L. 104–201, div. A, title VIII, §829(b), Sept. 23, 1996, 110 Stat. 2612; Pub. L. 107–107, div. A, title X, §1048(b)(4), Dec. 28, 2001, 115 Stat. 1225.)
A prior section 2503, added Pub. L. 100–456, div. A, title VIII, §821(b)(1)(B), Sept. 29, 1988, 102 Stat. 2016; amended Pub. L. 101–189, div. A, title VIII, §842(a), (b), Nov. 29, 1989, 103 Stat. 1514, 1515; Pub. L. 102–25, title VII, §701(f)(4), Apr. 6, 1991, 105 Stat. 115; Pub. L. 102–484, div. A, title X, §1052(32), Oct. 23, 1992, 106 Stat. 2501, established defense industrial base office, prior to repeal by Pub. L. 102–484, §4202(a).
2001—Subsec. (b). Pub. L. 107–107 substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition”.
1996—Subsec. (a). Pub. L. 104–201, §829(b)(1), substituted “The Secretary of Defense” for “(1) The Secretary of Defense, in consultation with the National Defense Technology and Industrial Base Council,” and struck out pars. (2) to (4) which read as follows:
“(2) As determined by the Secretary of Defense, the program shall be administered by one of the following:
“(A) An existing federally funded research and development center.
“(B) A consortium of existing federally funded research and development centers and other nonprofit entities.
“(C) A private sector entity (other than a federally funded research and development center).
“(D) The National Defense University.
“(3) A contract may be awarded under subparagraph (A), (B), or (C) of paragraph (2) only through the use of competitive procedures.
“(4) The Secretary of Defense shall ensure that there is appropriate coordination between the program and the Critical Technologies Institute.”
Subsec. (c)(3)(A). Pub. L. 104–201, §829(b)(2), substituted “the Secretary of Defense for” for “the National Defense Technology and Industrial Base Council in” and struck out “and the periodic plans required by section 2506 of this title” after “section 2505 of this title”.
Section 4213(b) of Pub. L. 102–484 provided that: “The Secretary of Defense shall establish the program required by section 2503 of title 10, United States Code, as added by subsection (a), not later than six months after the date of the enactment of this Act [Oct. 23, 1992]. The Secretary of Defense shall ensure that a contract solicitation is issued and a contract is awarded in a timely manner to facilitate the establishment of that program within the period set forth in the preceding sentence. The preceding sentence shall not apply if the Secretary determines that the program shall be administered by the National Defense University.”
The Secretary of Defense shall transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives by March 1 of each year a report which shall include the following information:
(1) A description of the departmental guidance prepared pursuant to section 2506 of this title.
(2) A description of the methods and analyses being undertaken by the Department of Defense alone or in cooperation with other Federal agencies, to identify and address concerns regarding technological and industrial capabilities of the national technology and industrial base.
(3) A description of the assessments prepared pursuant to section 2505 of this title and other analyses used in developing the budget submission of the Department of Defense for the next fiscal year.
(4) Identification of each program designed to sustain specific essential technological and industrial capabilities and processes of the national technology and industrial base.
(Added Pub. L. 104–201, div. A, title VIII, §829(e), Sept. 23, 1996, 110 Stat. 2614; amended Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774.)
A prior section 2504, added Pub. L. 102–484, div. D, title XLII, §4214(a), Oct. 23, 1992, 106 Stat. 2666, established Center for Study of Defense Economic Adjustment, prior to repeal by Pub. L. 103–160, div. A, title XIII, §1312(a)(1), Nov. 30, 1993, 107 Stat. 1786.
Another prior section 2504 was renumbered section 2531 of this title.
1999—Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security” in introductory provisions.
(a)
(b)
(1) describe sectors or capabilities, their underlying infrastructure and processes;
(2) analyze present and projected financial performance of industries supporting the sectors or capabilities in the assessment;
(3) identify technological and industrial capabilities and processes for which there is potential for the national industrial and technology base not to be able to support the achievement of national security objectives; and
(4) consider the effects of the termination of major defense acquisition programs (as the term is defined in section 2430 of this title) or major automated information system programs (as defined in section 2445a of this title) in the previous fiscal year on the sectors and capabilities in the assessment.
(c)
(1) identify cases that pose an unacceptable risk of foreign dependency, as determined by the Secretary; and
(2) present actions being taken or proposed to be taken to remedy the risk posed by the cases identified under paragraph (1), including efforts to develop a domestic source for the item in question.
(d)
(Added Pub. L. 102–484, div. D, title XLII, §4215, Oct. 23, 1992, 106 Stat. 2667; amended Pub. L. 103–35, title II, §201(g)(7), May 31, 1993, 107 Stat. 100; Pub. L. 104–201, div. A, title VIII, §829(c)(1), Sept. 23, 1996, 110 Stat. 2612; Pub. L. 111–23, title III, §303(b), May 22, 2009, 123 Stat. 1731; Pub. L. 111–383, div. A, title VIII, §895(c), Jan. 7, 2011, 124 Stat. 4314.)
A prior section 2505 was renumbered section 2532 of this title.
2011—Subsec. (b)(4). Pub. L. 111–383 inserted “or major automated information system programs (as defined in section 2445a of this title)” after “section 2430 of this title)”.
2009—Subsec. (b)(4). Pub. L. 111–23 added par. (4).
1996—Pub. L. 104–201 reenacted section catchline without change and amended text generally. Prior to amendment, text consisted of subsecs. (a) to (d) providing for National Defense Technology and Industrial Base Council to prepare, at least annually through fiscal year 1997 and biennially thereafter, a comprehensive assessment of capability of the national technology and industrial base to attain national security objectives.
1993—Pub. L. 103–35 substituted “capability” for “capabilty” in section catchline.
Pub. L. 108–136, div. A, title VIII, §824, Nov. 24, 2003, 117 Stat. 1547, required the Secretary of Defense to conduct a study of the adequacy of the industrial base of the United States to meet defense requirements of the United States for beryllium and to submit a report on the results of the study to Congress not later than Mar. 31, 2005.
Section 4219 of Pub. L. 102–484, as amended by Pub. L. 103–35, title II, §202(a)(14), May 31, 1993, 107 Stat. 101, set forth requirements for the initial regulations prescribed to implement this section, prior to repeal by Pub. L. 104–201, div. A, title VIII, §829(h), Sept. 23, 1996, 110 Stat. 2614.
(a)
(b)
(Added Pub. L. 102–484, div. D, title XLII, §4216(a), Oct. 23, 1992, 106 Stat. 2668; amended Pub. L. 104–201, div. A, title VIII, §829(d), Sept. 23, 1996, 110 Stat. 2613; Pub. L. 111–383, div. A, title VIII, §895(d), Jan. 7, 2011, 124 Stat. 4314.)
A prior section 2506 was renumbered section 2533 of this title.
2011—Subsec. (a). Pub. L. 111–383 substituted “strategy, management, budget allocation,” for “budget allocation, weapons”.
1996—Pub. L. 104–201 substituted “Department of Defense technology and industrial base policy guidance” for “National technology and industrial base: periodic defense capability plan” in section catchline and amended text generally. Prior to amendment, text consisted of subsecs. (a) to (e) providing for the National Defense Technology and Industrial Base Council to prepare, at least annually through fiscal year 1997 and biennially thereafter, a multiyear plan for ensuring that the policies and programs of the Department of Defense, the Department of Energy, and other Federal departments and agencies were planned, coordinated, funded, and implemented in a manner designed to attain national security objectives.
Section 4220 of Pub. L. 102–484 set forth requirements for the initial regulations prescribed to implement this section, prior to repeal by Pub. L. 104–201, div. A, title VIII, §829(h), Sept. 23, 1996, 110 Stat. 2614.
(a)
(b)
(c)
(d)
(e)
(f)
(1) The term “person” includes an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative of the foregoing, and includes the United States or any agency thereof, or any other government, or any of its political subdivisions, or any agency of any of the foregoing, except that no punishment provided by this section shall apply to the United States, or to any such government, political subdivision, or government agency.
(2) The term “national defense” means programs for military and atomic energy production or construction, military assistance to any foreign nation, stockpiling, space, and directly related activity.
(Added Pub. L. 102–484, div. D, title XLII, §4217, Oct. 23, 1992, 106 Stat. 2670; amended Pub. L. 103–160, div. A, title XI, §1182(b)(1), Nov. 30, 1993, 107 Stat. 1772; Pub. L. 109–163, div. A, title X, §1056(c)(5), Jan. 6, 2006, 119 Stat. 3439.)
A prior section 2507 was renumbered section 2534 of this title.
2006—Subsec. (d). Pub. L. 109–163 substituted “subsection (a)” for “section (a)”.
1993—Pub. L. 103–160 inserted headings in subsecs. (a) to (f).
(a)
(b)
(c)
(d)
(1) to support the monitoring and assessment of the industrial base required by this chapter;
(2) to address critical issues in the industrial base relating to urgent operational needs;
(3) to support efforts to expand the industrial base; and
(4) to address supply chain vulnerabilities.
(e)
(f)
(1) Direct obligations from the Fund.
(2) Transfers of monies from the Fund to relevant appropriations of the Department of Defense.
(Added Pub. L. 111–383, div. A, title VIII, §896(b)(1), Jan. 7, 2011, 124 Stat. 4315.)
Pub. L. 111–383, div. A, title VIII, §896(b)(1), Jan. 7, 2011, 124 Stat. 4315, which directed the addition of section 2508 at end of this chapter, was executed by adding this section at the end of subchapter II of this chapter to reflect the probable intent of Congress.
A prior section 2508 was renumbered section 2522 of this title and subsequently repealed.
A prior section 2509, added Pub. L. 101–510, div. A, title VIII, §825(a), Nov. 5, 1990, 104 Stat. 1604; amended Pub. L. 102–484, div. A, title X, §1052(34), Oct. 23, 1992, 106 Stat. 2501, required submission of defense industrial base annual reports, prior to repeal by Pub. L. 102–484, §4202(a).
A prior section 2510, added Pub. L. 101–510, div. A, title VIII, §826(a)(1), Nov. 5, 1990, 104 Stat. 1605, related to defense industrial base for textile and apparel products, prior to repeal by Pub. L. 102–484, §4202(a).
1996—Pub. L. 104–106, div. A, title X, §1081(i)(2), Feb. 10, 1996, 110 Stat. 455, substituted “program” for “partnerships” in item 2511 and struck out items 2512 “Commercial-military integration partnerships”, 2513 “Regional technology alliances assistance program”, 2516 “Military-Civilian Integration and Technology Transfer Advisory Board”, and 2520 “Navy Reinvestment Program”.
1994—Pub. L. 103–337, div. A, title XI, §1113(c), Oct. 5, 1994, 108 Stat. 2866, added items 2519 and 2520.
(a)
(b)
(c)
(2) The Secretary may prescribe regulations to provide for consideration of in-kind contributions by non-Federal Government participants in a project conducted under the program for the purpose of calculating the share of the project costs that has been or is being undertaken by such participants. In such regulations, the Secretary may authorize a participant that is a small business concern to use funds received under the Small Business Innovation Research Program or the Small Business Technology Transfer Program to help pay the costs of project activities. Any such funds so used may be considered in calculating the amount of the financial commitment undertaken by the non-Federal Government participants unless the Secretary determines that the small business concern has not made a significant equity percentage contribution in the project from non-Federal sources.
(3) The Secretary shall consider a project proposal submitted by a small business concern without regard to the ability of the small business concern to immediately meet its share of the anticipated project costs. Upon the selection of a project proposal submitted by a small business concern, the small business concern shall have a period of not less than 120 days in which to arrange to meet its financial commitment requirements under the project from sources other than a person of a foreign country. If the Secretary determines upon the expiration of that period that the small business concern will be unable to meet its share of the anticipated project costs, the Secretary shall revoke the selection of the project proposal submitted by the small business concern.
(d)
(e)
(1) The extent to which the proposed project advances and enhances the national security objectives set forth in section 2501(a) of this title.
(2) The technical excellence of the proposed project.
(3) The qualifications of the personnel proposed to participate in the research activities of the proposed project.
(4) An assessment of timely private sector investment in activities to achieve the goals and objectives of the proposed project other than through the project.
(5) The potential effectiveness of the project in the further development and application of each technology proposed to be developed by the project for the national technology and industrial base.
(6) The extent of the financial commitment of eligible firms to the proposed project.
(7) The extent to which the project does not unnecessarily duplicate projects undertaken by other agencies.
(f)
(Added Pub. L. 102–484, div. D, title XLII, §4221(a), Oct. 23, 1992, 106 Stat. 2677; amended Pub. L. 103–160, div. A, title XIII, §§1315(a), 1317(c), Nov. 30, 1993, 107 Stat. 1787, 1789; Pub. L. 103–337, div. A, title XI, §1115(a), Oct. 5, 1994, 108 Stat. 2868; Pub. L. 104–106, div. A, title X, §1081(c), Feb. 10, 1996, 110 Stat. 452.)
A prior section 2511, added Pub. L. 101–510, div. A, title VIII, §823(a)(3), Nov. 5, 1990, 104 Stat. 1600; amended Pub. L. 102–190, div. A, title VIII, §824(b), Dec. 5, 1991, 105 Stat. 1438, defined “manufacturing technology”, “manufacturing extension program”, and “United States-based small manufacturing firm” for purposes of former chapter 149 of this title, prior to repeal and restatement in section 2491 of this title by Pub. L. 102–484, §§4202(a), 4203(a).
Another prior section 2511 was renumbered section 2540 of this title and subsequently repealed.
Provisions similar to those in this section were contained in section 2523 of this title, prior to repeal by Pub. L. 102–484, §4202(a).
1996—Pub. L. 104–106 substituted “program” for “partnerships” in section catchline and amended text generally. Prior to amendment, text related to program for establishment of cooperative arrangements between Department of Defense and eligible entities.
1994—Subsec. (c)(3). Pub. L. 103–337 added par. (3).
1993—Subsec. (c). Pub. L. 103–160, §1315(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “The Secretary of Defense shall ensure that, to the maximum extent he determines to be practicable, the amount of the funds provided by the Federal Government under a partnership does not exceed the total amount provided by non-Federal Government participants in that partnership.”
Subsec. (e). Pub. L. 103–160, §1317(c), struck out “, except that procedures other than competitive procedures may be used in any case in which an exception set out in section 2304(c) of this title applies” after “partnerships”.
Pub. L. 105–85, div. A, title II, §203, Nov. 18, 1997, 111 Stat. 1655, as amended by Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717, provided that:
“(a)
“(b)
“(2) The objectives for fiscal years under paragraph (1) are as follows:
“(A) For fiscal year 1998, 5 percent.
“(B) For fiscal year 1999, 7 percent.
“(C) For fiscal year 2000, 10 percent.
“(D) For fiscal year 2001, 15 percent.
“(3) The Secretary of Defense may establish for a military department for a fiscal year an objective different from the objective set forth in paragraph (2) if the Secretary—
“(A) determines that compelling national security considerations require the establishment of the different objective; and
“(B) notifies Congress of the determination and the reasons for the determination.
“(c)
“(2) The primary responsibilities of the designated official shall include developing policy and overseeing the establishment of, and adherence to, procedures for ensuring that dual-use projects are initiated and administered effectively and that applicable commercial technologies are integrated into current and future military systems.
“(3) In carrying out the responsibilities, the designated official shall ensure that—
“(A) dual-use projects are consistent with the joint warfighting science and technology plan referred to in section 270 of the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104–201; 10 U.S.C. 2501 note); and
“(B) the dual-use projects of the military departments and defense agencies of the Department of Defense are coordinated and avoid unnecessary duplication.
“(d)
“(e)
“(f)
“(2) The report for a fiscal year shall contain, at a minimum, the following:
“(A) The aggregate value of all contracts, grants, cooperative agreements, or other transactions entered into during the fiscal year for which funding is counted toward meeting an objective under this section, expressed in relationship to the total amount appropriated for the applied research programs in the Department of Defense for that fiscal year.
“(B) For each military department, the value of all contracts, grants, cooperative agreements, or other transactions entered into during the fiscal year for which funding is counted toward meeting an objective under this section, expressed in relationship to the total amount appropriated for the applied research program of the military department for that fiscal year.
“(C) A summary of the cost-sharing arrangements in dual-use projects that were initiated during the fiscal year and are counted toward reaching an objective under this section.
“(D) A description of the regulations, directives, or other procedures that have been issued by the Secretary of Defense or the Secretary of a military department to increase the percentage of the total value of the dual-use projects undertaken to meet or exceed an objective under this section.
“(E) Any recommended legislation to facilitate achievement of objectives under this section.
“(g)
“(2) Of the amounts authorized to be appropriated by section 201, $50,000,000 is authorized for the Initiative.
“(3) Projects and participants in the Initiative shall be selected through the use of competitive procedures.
“(4) The budget submitted to Congress by the President for fiscal year 1999 and each fiscal year thereafter pursuant to section 1105(a) of title 31, United States Code, shall set forth separately the funding request for the Initiative.
“(h)
“(i)
“(1) The term ‘applied research program’ means a program of a military department which is funded under the 6.2 Research, Development, Test and Evaluation account of that department.
“(2) The term ‘dual-use project’ means a project under a program of a military department or a defense agency under which research or development of a dual-use technology is carried out and the costs of which are shared by the Department of Defense and non-Government entities.”
Section 1315(g) of Pub. L. 103–160 provided that in the case of projects funded under section 2511, 2512, 2513, 2523, or 2524 of this title with funds appropriated for a fiscal year beginning before Oct. 1, 1993, the amendments made by section 1315 of Pub. L. 103–160 would not alter the financial commitment requirements in effect on Nov. 30, 1993, for the non-Federal Government participants in the project.
Section 2512, added Pub. L. 102–484, div. D, title XLII, §4222(a), Oct. 23, 1992, 106 Stat. 2679; amended Pub. L. 103–160, div. A, title XIII, §1315(b), Nov. 30, 1993, 107 Stat. 1787; Pub. L. 103–337, div. A, title XI, §1115(b), Oct. 5, 1994, 108 Stat. 2868, related to commercial-military integration partnerships.
A prior section 2512, added Pub. L. 101–510, div. A, title VIII, §823(a)(3), Nov. 5, 1990, 104 Stat. 1600, related to responsibility of Secretary of Defense to provide management and planning, prior to repeal by Pub. L. 102–484, §4202(a).
Section 2513, added Pub. L. 102–190, div. A, title VIII, §821(a), Dec. 5, 1991, 105 Stat. 1428, §2524; renumbered §2513 and amended Pub. L. 102–484, div. D, title XLII, §4223(a)–(f), Oct. 23, 1992, 106 Stat. 2681; Pub. L. 103–35, title II, §201(d)(3), (e)(1), May 31, 1993, 107 Stat. 99; Pub. L. 103–160, div. A, title XI, §1182(g)(2), title XIII, §§1315(c), 1316, Nov. 30, 1993, 107 Stat. 1774, 1787, 1789; Pub. L. 103–337, div. A, title XI, §1115(c), Oct. 5, 1994, 108 Stat. 2868, related to regional technology alliances assistance program.
A prior section 2513, added Pub. L. 101–510, div. A, title VIII, §823(a)(3), Nov. 5, 1990, 104 Stat. 1601; amended Pub. L. 102–190, div. A, title II, §203(c), Dec. 5, 1991, 105 Stat. 1314, required annual National Defense Manufacturing Technology Plan, prior to repeal by Pub. L. 102–484, §4202(a).
(a)
(b)
(c)
(2) Under the Program, the defense laboratories, in coordination with the Office of Technology Transfer in the Office of the Secretary of Defense, shall carry out cooperative activities with private industry in order to promote (by the use or exchange of patents, licenses, cooperative research and development agreements and other cooperative agreements, and the use of symposia, meetings, and other similar mechanisms) the transfer of defense or dual-use technologies from the defense laboratories to private industry, and the development and application of such technologies by the defense laboratories and private industry, for the purpose of the commercial utilization of such technologies by private industry.
(3) The Secretary of Defense shall develop and annually update a plan for each defense laboratory that participates in the Program under which plan the laboratory shall carry out cooperative activities with private industry to promote the transfers described in subsection (b).
(4) In this subsection, the term “defense laboratory” means any laboratory owned or operated by the Department of Defense that carries out research in fiscal year 1993 in an amount in excess of $50,000,000.
(Added Pub. L. 102–484, div. D, title XLII, §4224(a), Oct. 23, 1992, 106 Stat. 2682; amended Pub. L. 104–201, div. A, title VIII, §829(f), Sept. 23, 1996, 110 Stat. 2614.)
A prior section 2514, added Pub. L. 101–510, div. A, title VIII, §823(a)(3), Nov. 5, 1990, 104 Stat. 1601, directed Secretary of Defense to enhance research relating to manufacturing technology, prior to repeal by Pub. L. 102–484, §4202(a).
Provisions similar to those in subsecs. (a) and (b) of this section were contained in section 2363 of this title prior to repeal by Pub. L. 102–484, §§4224(c), 4271(a)(2).
1996—Subsec. (c)(5). Pub. L. 104–201 struck out par. (5) which read as follows: “The Secretary shall coordinate the Program with the National Defense Technology and Industrial Base Council.”
Superconductivity research and development activities by Secretary of Defense and by Defense Advanced Research Projects Agency, see section 5207 of Title 15, Commerce and Trade.
Pub. L. 100–180, div. A, title II, §218(c), Dec. 4, 1987, 101 Stat. 1053, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729; Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717, provided that:
“(1) The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall take appropriate action to ensure that high-temperature superconductivity technology resulting from the research activities of the Department of Defense is transferred to the private sector. Such transfer shall be made in accordance with section 10(e) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710(e)), other applicable provisions of law, and Executive Order Number 12591, dated April 10, 1987 [set out as a note under 15 U.S.C. 3710].
“(2) The Secretary of Energy, in consultation with the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall ensure that the national laboratories of the Department of Energy participate, to the maximum appropriate extent, in the transfer to the private sector of technology developed under the Department of Defense superconductivity program in the national laboratories.”
(a)
(b)
(c)
(1) monitors all research and development activities that are carried out by or for the military departments and Defense Agencies;
(2) identifies all such research and development activities that use technologies, or result in technological advancements, having potential nondefense commercial applications;
(3) serves as a clearinghouse for, coordinates, and otherwise actively facilitates the transition of such technologies and technological advancements from the Department of Defense to the private sector;
(4) conducts its activities in consultation and coordination with the Department of Energy and the Department of Commerce; and
(5) provides private firms with assistance to resolve problems associated with security clearances, proprietary rights, and other legal considerations involved in such a transition of technology.
(d)
(Added Pub. L. 102–484, div. D, title XLII, §4225(a), Oct. 23, 1992, 106 Stat. 2683; amended Pub. L. 104–106, div. A, title XV, §1502(a)(22), Feb. 10, 1996, 110 Stat. 505; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–136, div. A, title X, §1031(a)(23), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 108–375, div. A, title X, §1084(b)(3), Oct. 28, 2004, 118 Stat. 2060.)
A prior section 2515, added Pub. L. 101–510, div. A, title VIII, §823(a)(3), Nov. 5, 1990, 104 Stat. 1602, related to computer-integrated manufacturing technology, prior to repeal by Pub. L. 102–484, §4202(a).
2004—Subsec. (d). Pub. L. 108–375 struck out par. (1) designation before “The Secretary”, substituted “congressional defense committees” for “congressional committees specified in paragraph (2)”, and struck out par. (2) which read as follows: “The committees referred to in paragraph (1) are—
“(A) the Committee on Armed Services and the Committee on Appropriations of the Senate; and
“(B) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.”
2003—Subsec. (d). Pub. L. 108–136, §1031(a)(23)(A), substituted “Biennial” for “Annual” in heading.
Subsec. (d)(1). Pub. L. 108–136, §1031(a)(23)(B), substituted “a biennial report” for “an annual report” in first sentence, “each even-numbered year” for “each year” in second sentence, and “during the two fiscal years” for “during the fiscal year” in third sentence.
1999—Subsec. (d)(2)(B). Pub. L. 106–65 substituted “Committee on Armed Services” for “Committee on National Security”.
1996—Subsec. (d). Pub. L. 104–106 substituted “Annual Report” for “Reporting Requirement” in heading, designated existing provisions as par. (1), substituted “The Secretary of Defense shall submit to the congressional committees specified in paragraph (2) an annual report on the activities of the Office. The report shall be submitted each year at the same time” for “The Secretary of Defense shall submit to the Committees on Armed Services and on Appropriations of the Senate and the House of Representatives an annual report on the activities of the Office at the same time”, and added par. (2).
Section 4225(b) of Pub. L. 102–484 provided that: “The Office of Technology Transition shall commence operations within 120 days after the date of the enactment of this Act [Oct. 23, 1992].”
Section 4225(c)(2) of Pub. L. 102–484 provided that: “Notwithstanding section 2515(d) of title 10, United States Code (as added by subsection (a))—
“(A) the first report under that section shall be submitted not later than one year after the date of the enactment of this Act [Oct. 23, 1992]; and
“(B) no additional report is necessary under that section in the fiscal year in which such first report is submitted.”
Section, added Pub. L. 102–484, div. D, title XLII, §4226(a), Oct. 23, 1992, 106 Stat. 2684; amended Pub. L. 103–35, title II, §201(g)(8), May 31, 1993, 107 Stat. 100, related to Military-Civilian Integration and Technology Transfer Advisory Board.
A prior section 2516, added Pub. L. 101–510, div. A, title VIII, §823(a)(3), Nov. 5, 1990, 104 Stat. 1602, related to enhancement of concurrent engineering practices in design and development of weapon systems, prior to repeal by Pub. L. 102–484, §4202(a).
(a)
(b)
(1) to minimize the duplication of any effort of the Department of Commerce by the Department of Defense regarding the monitoring of foreign activities related to defense critical technologies that have potential commercial uses; and
(2) to ensure that the Office is effectively utilized to disseminate information to users of such information within the Federal Government.
(c)
(1) To maintain within the Department of Defense a central library for the compilation and appropriate dissemination of unclassified and classified information and assessments regarding significant foreign activities in research, development, and applications of defense critical technologies.
(2) To establish and maintain—
(A) a widely accessible unclassified data base of information and assessments regarding foreign science and technology activities that involve defense critical technologies, including, especially, activities in Europe and in Pacific Rim countries; and
(B) a classified data base of information and assessments regarding such activities.
(3) To perform liaison activities among the military departments, Defense Agencies, and other appropriate elements of the Department of Defense, with appropriate agencies and offices of the Department of Commerce and the Department of State, and with other departments and agencies of the Federal Government in order to ensure that significant activities in research, development, and applications of defense critical technologies are identified, monitored, and assessed by an appropriate department or agency of the Federal Government.
(4) To ensure the maximum practicable public availability of information and assessments contained in the unclassified data bases established pursuant to paragraph (2)—
(A) by limiting, to the maximum practicable extent, restrictive classification of such information and assessments; and
(B) by disseminating to the National Technical Information Service of the Department of Commerce information and assessments regarding defense critical technologies having potential commercial uses.
(5) To disseminate through the National Technical Information Service of the Department of Commerce unclassified information and assessments regarding defense critical technologies having potential commercial uses so that such information and assessments may be further disseminated within the Federal Government and to the private sector.
(Added Pub. L. 102–190, div. A, title VIII, §821(a), Dec. 5, 1991, 105 Stat. 1430, §2525; renumbered §2517 and amended Pub. L. 102–484, div. D, title XLII, §4227, Oct. 23, 1992, 106 Stat. 2685; Pub. L. 111–383, div. A, title IX, §901(j)(4), Jan. 7, 2011, 124 Stat. 4324.)
A prior section 2517 was renumbered section 2523 of this title and subsequently repealed.
2011—Subsec. (a). Pub. L. 111–383 substituted “Assistant Secretary of Defense for Research and Engineering” for “Director of Defense Research and Engineering”.
1992—Pub. L. 102–484 renumbered section 2525 of this title as this section and inserted “Critical” after “Foreign Defense” in subsec. (a).
Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.
(a)
(b)
(Added Pub. L. 102–190, div. A, title VIII, §821(a), Dec. 5, 1991, 105 Stat. 1431, §2526; renumbered §2518, Pub. L. 102–484, div. D, title XLII, §4228, Oct. 23, 1992, 106 Stat. 2685.)
A prior section 2518 was renumbered section 2522 of this title and subsequently repealed.
1992—Pub. L. 102–484 renumbered section 2526 of this title as this section.
(a)
(b)
(2) For purposes of this section, a federally funded research and development center shall be considered a Department of Defense laboratory if the center is sponsored by the Department of Defense.
(c)
(2) Subject to subsection (d), the Secretary may provide a partnership with technical and other assistance in order to facilitate the achievement of the purpose of this section.
(d)
(2) The regulations prescribed pursuant to section 2511(c)(2) of this title shall apply to in-kind contributions made by non-Federal Government participants in a partnership.
(e)
(f)
(g)
(Added Pub. L. 103–337, div. A, title XI, §1113(a), Oct. 5, 1994, 108 Stat. 2864; amended Pub. L. 104–106, div. A, title X, §1081(d), Feb. 10, 1996, 110 Stat. 454.)
1996—Subsec. (b). Pub. L. 104–106, §1081(d)(1), struck out “referred to in section 2511(b) of this title” after “corporations”.
Subsec. (f). Pub. L. 104–106, §1081(d)(2), substituted “section 2511(e)” for “section 2511(f)”.
Section, added Pub. L. 103–337, div. A, title XI, §1113(b), Oct. 5, 1994, 108 Stat. 2865, related to Navy Reinvestment Program.
2000—Pub. L. 106–398, §1 [[div. A], title III, §344(c)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–71, redesignated item 2525 as 2521 and added item 2522.
1998—Pub. L. 105–261, div. A, title X, §1069(a)(5), Oct. 17, 1998, 112 Stat. 2136, struck out “AND DUAL-USE ASSISTANCE EXTENSION PROGRAMS” after “TECHNOLOGY” in subchapter heading.
1996—Pub. L. 104–106, div. A, title II, §276(b), title X, §1081(i)(3), Feb. 10, 1996, 110 Stat. 242, 455, struck out items 2521 “National Defense Manufacturing Technology Program”, 2522 “Defense Advanced Manufacturing Technology Partnerships”, 2523 “Manufacturing extension programs”, and 2524 “Defense dual-use assistance extension program” and substituted “Manufacturing Technology Program” for “Manufacturing Science and Technology Program” in item 2525.
1994—Pub. L. 103–337, div. A, title II, §256(a)(2), Oct. 5, 1994, 108 Stat. 2704, substituted “Manufacturing Science and” for “Industrial Preparedness Manufacturing” in item 2525.
1993—Pub. L. 103–160, div. A, title VIII, §801(a)(2), Nov. 30, 1993, 107 Stat. 1701, added item 2525.
(a)
(b)
(1) to provide centralized guidance and direction (including goals, milestones, and priorities) to the military departments and the Defense Agencies on all matters relating to manufacturing technology;
(2) to direct the development and implementation of Department of Defense plans, programs, projects, activities, and policies that promote the development and application of advanced technologies to manufacturing processes, tools, and equipment;
(3) to improve the manufacturing quality, productivity, technology, and practices of businesses and workers providing goods and services to the Department of Defense;
(4) to focus Department of Defense support for the development and application of advanced manufacturing technologies and processes for use to meet manufacturing requirements that are essential to the national defense, as well as for repair and remanufacturing in support of the operations of systems commands, depots, air logistics centers, and shipyards;
(5) to disseminate information concerning improved manufacturing improvement concepts, including information on such matters as best manufacturing practices, product data exchange specifications, computer-aided acquisition and logistics support, and rapid acquisition of manufactured parts;
(6) to sustain and enhance the skills and capabilities of the manufacturing work force;
(7) to promote high-performance work systems (with development and dissemination of production technologies that build upon the skills and capabilities of the work force), high levels of worker education and training; and
(8) to ensure appropriate coordination between the manufacturing technology programs and industrial preparedness programs of the Department of Defense and similar programs undertaken by other departments and agencies of the Federal Government or by the private sector.
(c)
(2) In the establishment and review of requirements for an advanced manufacturing technology or process, the Secretary shall ensure the participation of those prospective technology users that are expected to be the users of that technology or process.
(3) The Secretary shall ensure that each project under the program for the development of an advanced manufacturing technology or process includes an implementation plan for the transition of that technology or process to the prospective technology users that will be the users of that technology or process.
(4) In the periodic review of a project under the program, the Secretary shall ensure participation by those prospective technology users that are the expected users for the technology or process being developed under the project.
(5) In order to promote increased dissemination and use of manufacturing technology throughout the national defense technology and industrial base, the Secretary shall seek, to the maximum extent practicable, the participation of manufacturers of manufacturing equipment in the projects under the program.
(6) In this subsection, the term “prospective technology users” means the following officials and elements of the Department of Defense:
(A) Program and project managers for defense weapon systems.
(B) Systems commands.
(C) Depots.
(D) Air logistics centers.
(E) Shipyards.
(d)
(2) Under the competitive procedures used, the factors to be considered in the evaluation of each proposed grant, contract, cooperative agreement, or other transaction for a project under the program shall include the extent to which that proposed transaction provides for the proposed recipient to share in the cost of the project. For a project for which the Government receives an offer from only one offeror, the contracting officer shall negotiate the ratio of contract recipient cost to Government cost that represents the best value to the Government.
(e)
(2)(A) The Chair of the Joint Defense Manufacturing Technology Panel shall be the head of the Panel. The Chair shall be appointed, on a rotating basis, from among the appropriate personnel of the military departments and Defense Agencies with manufacturing technology programs.
(B) The Panel shall be composed of at least one individual from among appropriate personnel of each military department and Defense Agency with manufacturing technology programs. The Panel may include as ex-officio members such individuals from other government organizations, academia, and industry as the Chair considers appropriate.
(3) The purposes of the Panel shall be as follows:
(A) To identify and integrate requirements for the program.
(B) To conduct joint planning for the program.
(C) To develop joint strategies for the program.
(4) In carrying out the purposes specified in paragraph (3), the Panel shall perform the functions as follows:
(A) Conduct comprehensive reviews and assessments of defense-related manufacturing issues being addressed by the manufacturing technology programs and related activities of the Department of Defense.
(B) Execute strategic planning to identify joint planning opportunities for increased cooperation in the development and implementation of technological products and the leveraging of funding for such purposes with the private sector and other government agencies.
(C) Ensure the integration and coordination of requirements and programs under the program with the Office of the Secretary of Defense and other national-level initiatives, including the establishment of information exchange processes with other government agencies, private industry, academia, and professional associations.
(D) Conduct such other functions as the Under Secretary of Defense for Acquisition, Technology, and Logistics shall specify.
(5) The Panel shall report to and receive direction from the Assistant Secretary of Defense for Research and Engineering on manufacturing technology issues of multi-service concern and application.
(6) The administrative expenses of the Panel shall be borne by each military department and Defense Agency with manufacturing technology programs in such manner as the Panel shall provide.
(f)
(A) The overall manufacturing technology goals, milestones, priorities, and investment strategy for the program.
(B) The objectives of, and funding for, the program for each military department and each Defense Agency that shall participate in the program during the period of the plan.
(2) The Secretary shall include in the plan mechanisms for assessing the effectiveness of the program under the plan.
(3) The Secretary shall update the plan on a biennial basis.
(4) Each plan, and each update to the plan, shall cover a period of five fiscal years.
(Added Pub. L. 103–160, div. A, title VIII, §801(a)(1), Nov. 30, 1993, 107 Stat. 1700, §2525; amended Pub. L. 103–337, div. A, title II, §256(a)(1), Oct. 5, 1994, 108 Stat. 2704; Pub. L. 104–106, div. A, title II, §276(a), title X, §1081(e), title XV, §1503(a)(28), Feb. 10, 1996, 110 Stat. 241, 454, 512; Pub. L. 105–85, div. A, title II, §211(a), (b), Nov. 18, 1997, 111 Stat. 1657; Pub. L. 105–261, div. A, title II, §213, Oct. 17, 1998, 112 Stat. 1947; Pub. L. 106–65, div. A, title II, §216, Oct. 5, 1999, 113 Stat. 543; renumbered §2521, Pub. L. 106–398, §1 [[div. A], title III, §344(c)(1)(A)], Oct. 30, 2000, 114 Stat. 1654, 1654A–71; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 107–314, div. A, title II, §213, Dec. 2, 2002, 116 Stat. 2481; Pub. L. 108–136, div. A, title X, §1031(a)(24), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 110–181, div. A, title II, §238(a), Jan. 28, 2008, 122 Stat. 48; Pub. L. 111–84, div. A, title II, §212, Oct. 28, 2009, 123 Stat. 2225; Pub. L. 111–383, div. A, title IX, §901(a)(2), Jan. 7, 2011, 124 Stat. 4317.)
A prior section 2521, added Pub. L. 102–484, div. D, title XLII, §4231(a), Oct. 23, 1992, 106 Stat. 2686, related to National Defense Manufacturing Technology Program, prior to repeal by Pub. L. 104–106, div. A, title X, §1081(f), Feb. 10, 1996, 110 Stat. 454.
Another prior section 2521, added Pub. L. 102–190, div. A, title VIII, §821(a), Dec. 5, 1991, 105 Stat. 1426, defined terms for purposes of former chapter 150 of this title, prior to repeal and restatement in section 2491 [now 2500] of this title by Pub. L. 102–484, §§4202(a), 4203(a).
Another prior section 2521 was renumbered section 2540 of this title and subsequently repealed.
2009—Subsecs. (e), (f). Pub. L. 111–84 added subsec. (e) and redesignated former subsec. (e) as (f).
2008—Subsec. (e). Pub. L. 110–181 added subsec. (e).
2003—Subsec. (e). Pub. L. 108–136 struck out heading and text of subsec. (e) which related to preparation and maintenance of a five-year plan for the Manufacturing Technology Program by the Secretary of Defense.
2002—Subsec. (e)(1). Pub. L. 107–314, §213(a), substituted “prepare and maintain a five-year plan for the program.” for “prepare a five-year plan for the program which establishes—
“(A) the overall manufacturing technology goals, milestones, priorities, and investment strategy for the program; and
“(B) for each of the five fiscal years covered by the plan, the objectives of, and funding for the program by, each military department and each Defense Agency participating in the program.”
Subsec. (e)(2). Pub. L. 107–314, §213(a), substituted “establish” for “include” in introductory provisions and amended subpars. (A) and (B) generally. Prior to amendment, text read as follows:
“(A) An assessment of the effectiveness of the program, including a description of all completed projects and status of implementation.
“(B) An assessment of the extent to which the costs of projects are being shared by the following:
“(i) Commercial enterprises in the private sector.
“(ii) Department of Defense program offices, including weapon system program offices.
“(iii) Departments and agencies of the Federal Government outside the Department of Defense.
“(iv) Institutions of higher education.
“(v) Other institutions not operated for profit.
“(vi) Other sources.”
Subsec. (e)(3). Pub. L. 107–314, §213(b), substituted “biennially” for “annually” and “for each even-numbered fiscal year” for “for a fiscal year”.
2001—Subsec. (a). Pub. L. 107–107 substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
2000—Pub. L. 106–398 renumbered section 2525 of this title as this section.
1999—Subsec. (a). Pub. L. 106–65, §216(a), in first sentence, inserted “through the development and application of advanced manufacturing technologies and processes that will reduce the acquisition and supportability costs of defense weapon systems and reduce manufacturing and repair cycle times across the life cycles of such systems” after “title”.
Subsec. (b)(4). Pub. L. 106–65, §216(b), amended par. (4) generally. Prior to amendment, par. (4) read as follows: “to promote dual-use manufacturing processes;”.
Subsec. (c)(2) to (6). Pub. L. 106–65, §216(c), added pars. (2) to (4), redesignated former par. (2) as (5), and added par. (6).
Subsec. (d). Pub. L. 106–65, §216(d), struck out “(A)” before “In accordance with” in par. (1), redesignated par. (1)(B) as par. (2), substituted “Under the competitive procedures used, the factors to be considered in the evaluation of each proposed grant, contract, cooperative agreement, or other transaction for a project under the program shall include the extent to which that proposed transaction provides for the proposed recipient to share in the cost of the project.” for “For each grant awarded and each contract, cooperative agreement, or other transaction entered into on a cost-share basis under the program, the ratio of contract recipient cost to Government cost shall be determined by competitive procedures.”, and struck out former pars. (2) and (3) which required grants, contracts, cooperative agreements, and other transactions to be awarded or entered into on a cost-sharing basis unless the Secretary of Defense made certain determinations and specified as a goal that at least 25 percent of the funds available for the program for each fiscal year be used for grants, contracts, cooperative agreements, and other transactions on a cost-share basis under which the ratio of recipient cost to Government cost was two to one.
Subsec. (e)(2)(A). Pub. L. 106–65, §216(e)(1), inserted “, including a description of all completed projects and status of implementation” before period at end.
Subsec. (e)(2)(C). Pub. L. 106–65, §216(e)(2), added subpar. (C).
1998—Subsec. (d)(1). Pub. L. 105–261, §213(a), designated existing provisions as subpar. (A), substituted “In accordance with the policy stated in section 2374 of this title, competitive” for “Competitive”, and added subpar. (B).
Subsec. (d)(2). Pub. L. 105–261, §213(b), designated existing provisions as subpar. (A), redesignated former subpars. (A) to (C) as cls. (i) to (iii), respectively, and added subpars. (B) and (C).
Subsec. (d)(3). Pub. L. 105–261, §213(c)(2), substituted “As a goal, at least” for “At least” and “should” for “shall” and inserted at end “The Secretary of Defense, in coordination with the Secretaries of the military departments and upon recommendation of the Under Secretary of Defense for Acquisition and Technology, shall establish annual objectives to meet such goal.”
Subsec. (d)(4). Pub. L. 105–261, §213(c)(1), struck out par. (4) which read as follows: “If the requirement of paragraph (3) cannot be met by July 15 of a fiscal year, the Under Secretary of Defense for Acquisition and Technology may waive the requirement and obligate the balance of the funds available for the program for that fiscal year on a cost-share basis under which the ratio of recipient cost to Government cost is less than two to one. Before implementing any such waiver, the Under Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives the reasons for the waiver.”
Subsec. (e)(2). Pub. L. 105–261, §213(d), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The plan shall include an assessment of the effectiveness of the program.”
1997—Subsec. (c)(2). Pub. L. 105–85, §211(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The Secretary shall seek, to the extent practicable, the participation of manufacturers of manufacturing equipment in the projects under the program.”
Subsec. (e). Pub. L. 105–85, §211(b), added subsec. (e).
1996—Pub. L. 104–106, §276(a)(1), amended section catchline, as amended by Pub. L. 104–106, §§1503(a)(28), 1506, by striking out “Science and” after “Manufacturing”.
Pub. L. 104–106, §1503(a)(28), substituted “Science and Technology Program” for “science and technology program” in section catchline.
Subsec. (a). Pub. L. 104–106, §276(a)(2), struck out “Science and” after “Manufacturing” and inserted after first sentence “The Secretary shall use the joint planning process of the directors of the Department of Defense laboratories in establishing the program.”
Subsec. (b). Pub. L. 104–106, §1081(e), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “
Subsec. (c). Pub. L. 104–106, §276(a)(3), designated existing provisions as par. (1) and added par. (2).
Subsec. (d)(2)(C). Pub. L. 104–106, §276(a)(4)(A), added subpar. (C).
Subsec. (d)(3), (4). Pub. L. 104–106, §276(a)(4)(B), added pars. (3) and (4).
1994—Pub. L. 103–337 substituted “Manufacturing science and technology program” for “Industrial Preparedness Manufacturing Technology Program” as section catchline and amended text generally. Prior to amendment, text read as follows: “The Secretary of Defense shall establish an Industrial Preparedness Manufacturing Technology program to enhance the capability of industry to meet the manufacturing needs of the Department of Defense.”
“Assistant Secretary of Defense for Research and Engineering” substituted for “Director of Defense Research and Engineering” in subsec. (e)(5) on authority of section 901(a) of Pub. L. 111–383, set out as a note under section 131 of this title.
Pub. L. 110–181, div. A, title II, §214, Jan. 28, 2008, 122 Stat. 36, as amended by Pub. L. 111–383, div. A, title IX, §901(l)(2), Jan. 7, 2011, 124 Stat. 4326, provided that: “No funds available to the Office of the Secretary of Defense for any fiscal year may be obligated or expended for the defense-wide manufacturing science and technology program unless the Assistant Secretary of Defense for Research and Engineering ensures each of the following:
“(1) A component of the Department of Defense has requested and evaluated—
“(A) competitive proposals, for each project under the program that is not a project covered by subparagraph (B); and
“(B) proposals from as many sources as is practicable under the circumstances, for a project under the program if the disclosure of the needs of the Department of Defense with respect to that project would compromise the national security.
“(2) Each project under the program is carried out—
“(A) in accordance with the statutory requirements of the Manufacturing Technology Program established by section 2521 of title 10, United States Code; and
“(B) in compliance with all requirements of any directive that applies to manufacturing technology.
“(3) An implementation plan has been developed.”
[Pub. L. 111–383, div. A, title IX, §901(l)(2), Jan. 7, 2011, 124 Stat. 4326, which directed amendment of section 214 of Pub. L. 110–181, set out above, by substituting “Assistant Secretary of Defense for Research and Engineering” for “Director of Defense Research and Engineering”, was executed by making the substitution for “Director, Defense Research and Engineering,” to reflect the probable intent of Congress.]
Pub. L. 110–181, div. A, title II, §238(b), Jan. 28, 2008, 122 Stat. 48, provided that:
“(1)
“(2)
Pub. L. 109–163, div. A, title II, subtitle D, Jan. 6, 2006, 119 Stat. 3175, as amended by Pub. L. 111–383, div. A, title IX, §901(a)(2), Jan. 7, 2011, 124 Stat. 4317, provided that:
“(a)
“(b)
“(c)
“(a)
“(b)
“(1) The Manufacturing Extension Partnership Program.
“(2) The identification of incentives for industry to incorporate and utilize such manufacturing processes and technologies.
“(a)
“(1) identify an area of technology where the development of an industry-prepared roadmap for new manufacturing and technology processes applicable to defense manufacturing requirements would be beneficial to the Department of Defense; and
“(2) establish a task force, and act in cooperation, with the private sector to map the strategy for the development of manufacturing processes and technologies needed to support technology development in the area identified under paragraph (1).
“(b)
“(a)
“(b)
“(1) a comprehensive description of the actions undertaken under this subtitle during fiscal year 2006;
“(2) an assessment of effectiveness of such actions in enhancing research and development on manufacturing technologies and processes, and the implementation of such within the defense manufacturing base; and
“(3) such recommendations as the Under Secretary considers appropriate for additional actions to be undertaken in order to increase the effectiveness of the actions undertaken under this subtitle in enhancing manufacturing activities within the defense manufacturing base.
“In this subtitle:
“(1)
“(2)
“(3)
Pub. L. 108–136, div. A, title VIII, §823, Nov. 24, 2003, 117 Stat. 1547, provided that:
“(a)
“(1) An identification of resources with respect to Government contracting regulations, including compliance procedures and information on the availability of counseling.
“(2) An identification of resources for locating opportunities for contracting with the Department of Defense, including information about defense contracts that are expected to be carried out that may require the use of machine tools.
“(b)
Pub. L. 108–87, title VIII, §8062, Sept. 30, 2003, 117 Stat. 1086, provided that: “Notwithstanding any other provision of law, the Naval shipyards of the United States shall be eligible to participate in any manufacturing extension program financed by funds appropriated in this or any other Act or hereafter in any other Act.”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 107–248, title VIII, §8063, Oct. 23, 2002, 116 Stat. 1550.
Pub. L. 107–117, div. A, title VIII, §8068, Jan. 10, 2002, 115 Stat. 2262.
Pub. L. 106–259, title VIII, §8067, Aug. 9, 2000, 114 Stat. 689.
Pub. L. 106–79, title VIII, §8070, Oct. 25, 1999, 113 Stat. 1245.
Pub. L. 105–262, title VIII, §8070, Oct. 17, 1998, 112 Stat. 2312.
Pub. L. 105–56, title VIII, §8076, Oct. 8, 1997, 111 Stat. 1236.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8085], Sept. 30, 1996, 110 Stat. 3009–71, 3009–105.
Pub. L. 104–61, title VIII, §8064, Dec. 1, 1995, 109 Stat. 664.
Pub. L. 103–335, title VIII, §8071, Sept. 30, 1994, 108 Stat. 2635.
Pub. L. 103–139, title VIII, §8083A, Nov. 11, 1993, 107 Stat. 1459.
Pub. L. 102–396, title IX, §9112, Oct. 6, 1992, 106 Stat. 1929.
The Secretary of the Army is authorized by chapter 434 of this title to carry out programs for the support of armaments retooling and manufacturing in the national defense industrial and technology base.
(Added Pub. L. 106–398, §1 [[div. A], title III, §344(c)(1)(B)], Oct. 30, 2000, 114 Stat. 1654, 1654A–71.)
A prior section 2522, added Pub. L. 102–190, div. A, title VIII, §823(a)(1), Dec. 5, 1991, 105 Stat. 1435, §2518; renumbered §2522 and amended Pub. L. 102–484, div. D, title XLII, §4232(a), (b), Oct. 23, 1992, 106 Stat. 2687, related to defense advanced manufacturing technology partnerships, prior to repeal by Pub. L. 104–106, div. A, title X, §1081(f), Feb. 10, 1996, 110 Stat. 454.
Another prior section 2522, added Pub. L. 101–189, div. A, title VIII, §841(b)(1), Nov. 29, 1989, 103 Stat. 1512, §2508; amended Pub. L. 101–510, div. A, title VIII, §821(a), Nov. 5, 1990, 104 Stat. 1597; Pub. L. 102–25, title VII, §701(g)(3), Apr. 6, 1991, 105 Stat. 115; renumbered §2522, Pub. L. 102–190, div. A, title VIII, §821(b)(1), Dec. 5, 1991, 105 Stat. 1431, required an annual defense critical technologies plan, prior to repeal by Pub. L. 102–484, §4202(a).
Section 2523, added Pub. L. 101–510, div. A, title VIII, §823(a)(3), Nov. 5, 1990, 104 Stat. 1602, §2517; amended Pub. L. 102–190, div. A, title VIII, §824(a), Dec. 5, 1991, 105 Stat. 1436; renumbered §2523 and amended Pub. L. 102–484, div. D, title XLII, §4233(a), (b), Oct. 23, 1992, 106 Stat. 2687; Pub. L. 103–160, div. A, title IX, §904(d)(1), title XI, §1182(b)(2), title XIII, §1315(d), Nov. 30, 1993, 107 Stat. 1728, 1772, 1787, related to manufacturing extension programs.
A prior section 2523, added Pub. L. 102–190, div. A, title VIII, §821(a), Dec. 5, 1991, 105 Stat. 1427, related to defense dual-use critical technology partnerships, prior to repeal and restatement in section 2511 of this title by Pub. L. 102–484, §§4202(a), 4221(a).
Section 2524, added Pub. L. 102–484, div. D, title XLII, §4234(a), Oct. 23, 1992, 106 Stat. 2687; amended Pub. L. 103–35, title II, §201(g)(9), May 31, 1993, 107 Stat. 100; Pub. L. 103–160, div. A, title XIII, §§1314, 1315(e), Nov. 30, 1993, 107 Stat. 1786, 1788; Pub. L. 103–337, div. A, title X, §1070(b)(10), title XI, §§1114(b), (c), 1115(d), Oct. 5, 1994, 108 Stat. 2857, 2867–2869; Pub. L. 104–106, div. A, title XV, §1503(a)(27), Feb. 10, 1996, 110 Stat. 512, related to defense dual-use assistance extension program.
A prior section 2524 was renumbered section 2513 of this title.
A prior section 2525 was renumbered section 2517 of this title.
A prior section 2526 was renumbered section 2518 of this title.
2011—Pub. L. 111–350, §5(b)(36), Jan. 4, 2011, 124 Stat. 3845, substituted “chapter 83 of title 41” for “the Buy American Act” in item 2533.
2008—Pub. L. 110–181, div. A, title X, §1063(c)(8), Jan. 28, 2008, 122 Stat. 323, amended directory language of Pub. L. 109–364, §842(a)(2). See 2006 Amendment note below.
2006—Pub. L. 109–364, div. A, title VIII, §842(a)(2), Oct. 17, 2006, 120 Stat. 2337, as amended by Pub. L. 110–181, div. A, title X, §1063(c)(8), Jan. 28, 2008, 122 Stat. 323, added item 2533b.
2001—Pub. L. 107–107, div. A, title VIII, §832(a)(2), Dec. 28, 2001, 115 Stat. 1190, added item 2533a.
1994—Pub. L. 103–337, div. A, title VIII, §812(b)(2), title X, §1070(a)(13)(B), Oct. 5, 1994, 108 Stat. 2816, 2856, substituted “Determinations of public interest under the Buy American Act” for “Limitation on use of funds: procurement of goods which are other than American goods” in item 2533 and renumbered items 2540 and 2541 as 2539a and 2539b, respectively.
1993—Pub. L. 103–160, div. A, title VIII, §§828(c)(5), 842(c)(2), Nov. 30, 1993, 107 Stat. 1714, 1719, substituted “Award of certain contracts to entities controlled by a foreign government: prohibition” for “Prohibition on award of certain Department of Defense and Department of Energy contracts to companies owned by an entity controlled by a foreign government” in item 2536 and added items 2538 to 2541.
1992—Pub. L. 102–484, div. A, title VIII, §§836(a)(2), 838(b), Oct. 23, 1992, 106 Stat. 2463, 2466, added items 2536 and 2537.
(a)
(1) consider the effects of such existing or proposed memorandum of understanding or related agreement on the defense technology and industrial base of the United States; and
(2) regularly solicit and consider comments and recommendations from the Secretary of Commerce with respect to the commercial implications of such memorandum of understanding or related agreement and the potential effects of such memorandum of understanding or related agreement on the international competitive position of United States industry.
(b)
(c)
(Added Pub. L. 100–456, div. A, title VIII, §824, Sept. 29, 1988, 102 Stat. 2019, §2504; amended Pub. L. 101–189, div. A, title VIII, §815(a), Nov. 29, 1989, 103 Stat. 1500; Pub. L. 101–510, div. A, title XIV, §1453, Nov. 5, 1990, 104 Stat. 1694; renumbered §2531 and amended Pub. L. 102–484, div. D, title XLII, §§4202(a), 4271(c), Oct. 23, 1992, 106 Stat. 2659, 2696.)
1992—Pub. L. 102–484, §4202(a), renumbered section 2504 of this title as this section.
Subsec. (a)(1). Pub. L. 102–484, §4271(c), substituted “defense technology and industrial base” for “defense industrial base”.
1990—Subsec. (a). Pub. L. 101–510 inserted “or to the reciprocal procurement of defense items,” after “defense equipment,” in introductory provisions.
1989—Pub. L. 101–189 inserted “and related agreements” after “understanding” in section catchline and amended text generally. Prior to amendment, text read as follows: “In the negotiation and renegotiation of each memorandum of understanding between the Secretary of Defense, acting on behalf of the United States, and one or more foreign countries (or any instrumentality of a foreign country) relating to research, development, or production of defense equipment, the Secretary of Defense shall—
“(1) consider the effect of such proposed memorandum of understanding on the defense industrial base of the United States; and
“(2) regularly solicit and consider information or recommendations from the Secretary of Commerce with respect to the effect on the United States industrial base of such memorandum of understanding.”
Pub. L. 108–375, div. A, title VIII, §831, Oct. 28, 2004, 118 Stat. 2017, provided that:
“(a)
“(b)
“(1) develop a comprehensive defense acquisition trade policy that provides the necessary guidance and incentives for the elimination of any adverse effects of offset agreements in defense trade; and
“(2) review and make necessary modifications to existing acquisition policies and strategies, and review and seek to make necessary modifications to existing memoranda of understanding, cooperative project agreements, or related agreements with foreign defense trade partners, to reflect this goal.
“(c)
“(d)
“(1) The term ‘foreign defense trade partner’ means a foreign country with respect to which there is—
“(A) a memorandum of understanding or related agreement described in section 2531(a) of title 10, United States Code; or
“(B) a cooperative project agreement described in section 27 of the Arms Export Control Act (22 U.S.C. 2767).
“(2) The term ‘offset agreement’ has the meaning provided that term by section 36(e) of the Arms Export Control Act (22 U.S.C. 2776(e)).
“(3) The terms ‘defense article’ and ‘defense service’ have the meanings provided those terms by section 47(7) of the Arms Export Control Act (22 U.S.C. 2794(7)).”
(a)
(1) Transfer of technology in connection with offset arrangements.
(2) Application of offset arrangements, including cases in which United States funds are used to finance the purchase by a foreign government.
(3) Effects of offset arrangements on specific subsectors of the industrial base of the United States and for preventing or ameliorating any serious adverse effects on such subsectors.
(b)
(2) Paragraph (1) shall not apply in the case of a memorandum of understanding or agreement described in paragraph (1) if the Secretary of Defense, in consultation with the Secretary of Commerce and the Secretary of State, determines that a transfer of United States defense technology pursuant to such understanding or agreement will result in strengthening the national security of the United States and so certifies to Congress.
(3) If a United States firm is required under the terms of a memorandum of understanding, or other agreement entered into by the United States with a foreign country, to transfer defense technology to a foreign country, the United States firm may protest the determination to the Secretary of Defense on the grounds that the transfer of such technology would adversely affect the defense industrial base of the United States and would result in substantial financial loss to the protesting firm. The Secretary of Defense, in consultation with the Secretary of Commerce and the Secretary of State, shall make the final determination of the validity of the protesting firm's claim.
(c)
(d)
(1) The term “United States firm” means a business entity that performs substantially all of its manufacturing, production, and research and development activities in the United States.
(2) The term “foreign firm” means a business entity other than a United States firm.
(Added Pub. L. 100–456, div. A, title VIII, §825(b), Sept. 29, 1988, 102 Stat. 2020, §2505; renumbered §2532, Pub. L. 102–484, div. D, title XLII, §4202(a), Oct. 23, 1992, 106 Stat. 2659.)
1992—Pub. L. 102–484 renumbered section 2505 of this title as this section.
Pub. L. 108–87, title VIII, §8138, Sept. 30, 2003, 117 Stat. 1106, directed the Secretary of Defense to review contractual offset arrangements to which the policy established under this section applied, memoranda of understanding and related agreements to which the limitation in section 2531(c) of this title applied that had been entered into with a country with respect to which such contractual offset arrangements had been entered into, and waivers granted with respect to a foreign country under section 2534(d)(3) of this title; determine the effects of the use of such arrangements, memoranda of understanding, agreements, and waivers on the national technology and industrial base; and submit a report on the results of the review to Congress not later than Mar. 1, 2005.
Section 825(a) of Pub. L. 100–456 provided that: “Congress makes the following findings:
“(1) Many contracts entered into by United States firms for the supply of weapon systems or defense-related items to foreign countries and foreign firms are subject to contractual arrangements under which United States firms must agree—
“(A) to have a specified percentage of work under, or monetary amount of, the contract performed by one or more foreign firms;
“(B) to purchase a specified amount or quantity of unrelated goods or services from domestic sources of such foreign countries; or
“(C) to invest a specified amount in domestic businesses of such foreign countries.
Such contractual arrangements, known as ‘offsets’, are a component of international trade and could have an impact on United States defense industry opportunities in domestic and foreign markets.
“(2) Some United States contractors and subcontractors may be adversely affected by such contractual arrangements.
“(3) Many contracts which provide for or are subject to offset arrangements require, in connection with such arrangements, the transfer of United States technology to foreign firms.
“(4) The use of such transferred technology by foreign firms in conjunction with foreign trade practices permitted under the trade policies of the countries of such firms can give foreign firms a competitive advantage against United States firms in world markets for products using such technology.
“(5) A purchase of defense equipment pursuant to an offset arrangement may increase the cost of the defense equipment to the purchasing country and may reduce the amount of defense equipment that a country may purchase.
“(6) The exporting of defense equipment produced in the United States is important to maintain the defense industrial base of the United States, lower the unit cost of such equipment to the Department of Defense, and encourage the standardized utilization of United States equipment by the allies of the United States.”
Section 825(c) of Pub. L. 100–456, as amended by Pub. L. 101–189, div. A, title VIII, §816, Nov. 29, 1989, 103 Stat. 1501, provided that:
“(1) The President shall enter into negotiations with foreign countries that have a policy of requiring an offset arrangement in connection with the purchase of defense equipment or supplies from the United States. The negotiations should be conducted with a view to achieving an agreement with the countries concerned that would limit the adverse effects that such arrangements have on the defense industrial base of each such country. Every effort shall be made to achieve such agreements within two years after September 29, 1988.
“(2) In the negotiation or renegotiation of any memorandum of understanding between the United States and one or more foreign countries relating to the reciprocal procurement of defense equipment and supplies or research and development, the President shall make every effort to achieve an agreement with the country or countries concerned that would limit the adverse effects that offset arrangements have on the defense industrial base of the United States.”
[For delegation of functions of President under section 825(c) of Pub. L. 100–456 to Secretary of Defense and United States Trade Representative, see section 5–201 of Ex. Ord. No. 12661, 54 F.R. 779, set out as a note under section 2901 of Title 19, Customs Duties.]
Pub. L. 100–456, div. A, title VIII, §825(d), Sept. 29, 1988, 102 Stat. 2021, provided that, not later than Nov. 15, 1988, the President was to submit to Congress a comprehensive report on contractual offset arrangements required of United States firms for the supply of weapon systems or defense-related items to foreign countries or foreign firms, and, not later than Mar. 15, 1990, the President was to transmit to Congress a report containing a discussion of appropriate actions to be taken by the United States with respect to purchases from United States firms by a foreign country (or a firm of that country) when that country or firm required an offset arrangement in connection with the purchase of defense equipment or supplies in favor of such country.
(a) In determining under section 8302 of title 41 whether application of such Act is inconsistent with the public interest, the Secretary of Defense shall consider the following:
(1) The bids or proposals of small business firms in the United States which have offered to furnish American goods.
(2) The bids or proposals of all other firms in the United States which have offered to furnish American goods.
(3) The United States balance of payments.
(4) The cost of shipping goods which are other than American goods.
(5) Any duty, tariff, or surcharge which may enter into the cost of using goods which are other than American goods.
(6) A need to ensure that the Department of Defense has access to advanced, state-of-the-art commercial technology.
(7) The need to protect the national technology and industrial base, to preserve and enhance the national technology employment base, and to provide for a defense mobilization base.
(8) A need to ensure that application of different rules of origin for United States end items and foreign end items does not result in an award to a firm other than a firm providing a product produced in the United States.
(9) Any need—
(A) to maintain the same source of supply for spare and replacement parts for an end item that qualifies as an American good; or
(B) to maintain the same source of supply for spare and replacement parts in order not to impair integration of the military and commercial industrial base.
(10) The national security interests of the United States.
(b) In this section, the term “goods which are other than American goods” means—
(1) an end product that is not mined, produced, or manufactured in the United States; or
(2) an end product that is manufactured in the United States but which includes components mined, produced, or manufactured outside the United States the aggregate cost of which exceeds the aggregate cost of the components of such end product that are mined, produced, or manufactured in the United States.
(Added Pub. L. 100–370, §3(a)(1), July 19, 1988, 102 Stat. 855, §2501; renumbered §2506, Pub. L. 100–456, div. A, title VIII, §821(b)(1)(A), Sept. 29, 1988, 102 Stat. 2014; renumbered §2533, Pub. L. 102–484, div. D, title XLII, §4202(a), Oct. 23, 1992, 106 Stat. 2659; amended Pub. L. 103–337, div. A, title VIII, §812(a), (b)(1), Oct. 5, 1994, 108 Stat. 2815, 2816; Pub. L. 104–106, div. D, title XLIII, §4321(b)(20), Feb. 10, 1996, 110 Stat. 673; Pub. L. 105–85, div. A, title X, §1073(a)(54), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 111–350, §5(b)(37), Jan. 4, 2011, 124 Stat. 3845.)
Section is based on Pub. L. 93–365, title VII, §707, Aug. 5, 1974, 88 Stat. 406.
2011—Pub. L. 111–350, §5(b)(37)(A), substituted “chapter 83 of title 41” for “the Buy American Act” in section catchline.
Subsec. (a). Pub. L. 111–350, §5(b)(37)(B), substituted “section 8302 of title 41” for “section 2 of the Buy American Act (41 U.S.C. 10a)” in introductory provisions.
1997—Subsec. (a). Pub. L. 105–85 substituted “(41 U.S.C. 10a)” for “(41 U.S.C. 10a))”.
1996—Subsec. (a). Pub. L. 104–106 substituted “the Buy American Act (41 U.S.C. 10a)) whether application of such Act” for “title III of the Act of March 3, 1993 (41 U.S.C. 10a), popularly known as the ‘Buy American Act’, whether application of title III of such Act”.
1994—Pub. L. 103–337, §812(b)(1), substituted “Determinations of public interest under the Buy American Act” for “Limitation on use of funds: procurement of goods which are other than American goods” as section catchline.
Subsec. (a). Pub. L. 103–337, §812(a)(1), added subsec. (a) and struck out former subsec. (a) which read as follows: “Funds appropriated to the Department of Defense may not be obligated under a contract for procurement of goods which are other than American goods (as defined in subsection (c)) unless adequate consideration is given to the following:
“(1) The bids or proposals of firms located in labor surplus areas in the United States (as designated by the Department of Labor) which have offered to furnish American goods.
“(2) The bids or proposals of small business firms in the United States which have offered to furnish American goods.
“(3) The bids or proposals of all other firms in the United States which have offered to furnish American goods.
“(4) The United States balance of payments.
“(5) The cost of shipping goods which are other than American goods.
“(6) Any duty, tariff, or surcharge which may enter into the cost of using goods which are other than American goods.”
Subsecs. (b), (c). Pub. L. 103–337, §812(a), redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows: “Consideration of the matters referred to in paragraphs (1) through (6) of subsection (a) shall be given under regulations of the Secretary of Defense and subject to the determinations and exceptions contained in title III of the Act of March 3, 1933 (41 U.S.C. 10a, 10b), popularly known as the ‘Buy American Act’.”
1992—Pub. L. 102–484 renumbered section 2506 of this title as this section.
For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
(a)
(b)
(1) An article or item of—
(A) food;
(B) clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof);
(C) tents, tarpaulins, or covers;
(D) cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or
(E) any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials.
(2) Hand or measuring tools.
(c)
(d)
(1) Procurements outside the United States in support of combat operations or procurements of any item listed in subsection (b)(1)(A) or (b)(2) in support of contingency operations.
(2) Procurements by vessels in foreign waters.
(3) Emergency procurements or procurements of perishable foods by, or for, an establishment located outside the United States for the personnel attached to such establishment.
(4) Procurements of any item listed in subsection (b)(1)(A) or (b)(2) for which the use of procedures other than competitive procedures has been approved on the basis of section 2304(c)(2) of this title, relating to unusual and compelling urgency of need.
(e)
(1) such procurement is necessary—
(A) to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources for the purposes of offsetting sales made by the United States Government or United States firms under approved programs serving defense requirements; or
(B) in furtherance of agreements with foreign governments in which both such governments agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country; and
(2) any such agreement with a foreign government complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with section 2457 of this title.
(f)
(1) Foods manufactured or processed in the United States.
(2) Waste and byproducts of cotton and wool fiber for use in the production of propellants and explosives.
(g)
(h)
(i)
(j)
(k)
(Added Pub. L. 107–107, div. A, title VIII, §832(a)(1), Dec. 28, 2001, 115 Stat. 1189; amended Pub. L. 108–136, div. A, title VIII, §§826, 827, Nov. 24, 2003, 117 Stat. 1548; Pub. L. 109–163, div. A, title VIII, §§831, 833, Jan. 6, 2006, 119 Stat. 3388; Pub. L. 109–364, div. A, title VIII, §842(a)(3), Oct. 17, 2006, 120 Stat. 2337; Pub. L. 111–350, §5(b)(38), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 111–383, div. A, title VIII, §847, title X, §1075(b)(38), Jan. 7, 2011, 124 Stat. 4286, 4371.)
The Internet site maintained by the General Services Administration known as FedBizOps.gov, referred to in subsec. (k), probably means FedBizOpps.gov or fbo.gov, see 65 F.R. 50872.
2011—Subsec. (c). Pub. L. 111–383, §847, substituted “subsection (b)” for “subsection (b)(1)”.
Subsec. (d)(1), (4). Pub. L. 111–383, §1075(b)(38), substituted “(b)(1)(A) or (b)(2)” for “(b)(1)(A), (b)(2), or (b)(3)”.
Subsec. (i). Pub. L. 111–350 substituted “section 1906 of title 41” for “section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)”.
2006—Subsec. (b)(1)(B). Pub. L. 109–163, §833(b), inserted before semicolon “and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof)”.
Subsec. (b)(2), (3). Pub. L. 109–364, §842(a)(3)(A), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “Specialty metals, including stainless steel flatware.”
Subsec. (c). Pub. L. 109–364, §842(a)(3)(B), struck out “or specialty metals (including stainless steel flatware)” after “subsection (b)(1)”.
Subsec. (d)(3). Pub. L. 109–163, §831, inserted “, or for,” after “perishable foods by”.
Subsec. (e). Pub. L. 109–364, §842(a)(3)(C), struck out “Specialty Metals and” after “Exception for” in heading and “specialty metals or” after “procurement of” in introductory provisions.
Subsec. (k). Pub. L. 109–163, §833(a), added subsec. (k).
2003—Subsec. (d). Pub. L. 108–136, §826(1), struck out “Outside the United States” after “Procurements” in heading.
Subsec. (d)(1). Pub. L. 108–136, §826(2), inserted “or procurements of any item listed in subsection (b)(1)(A), (b)(2), or (b)(3) in support of contingency operations” after “combat operations”.
Subsec. (d)(4). Pub. L. 108–136, §826(3), added par. (4).
Subsec. (f). Pub. L. 108–136, §827, substituted “
“(1) Foods”
for “
Pub. L. 109–364, div. A, title VIII, §842(a)(4)(B), Oct. 17, 2006, 120 Stat. 2337, provided that: “The amendments made by paragraph (3) [amending this section] shall take effect on the date occurring 30 days after the date of the enactment of this Act [Oct. 17, 2006].”
This section is popularly known as the “Berry Amendment”.
Pub. L. 111–383, div. A, title VIII, §821(b), Jan. 7, 2011, 124 Stat. 4268, provided that: “No solicitation issued before January 1, 2015, by the Department of Defense may include a requirement that proposals submitted pursuant to such solicitation must include the use of fire resistant rayon fiber.”
Pub. L. 110–181, div. A, title VIII, §829, Jan. 28, 2008, 122 Stat. 229, as amended by Pub. L. 111–383, div. A, title VIII, §821(a), Jan. 7, 2011, 124 Stat. 4267, provided that:
“(a)
“(1) That fire resistant rayon fiber for the production of uniforms is not available from sources within the national technology and industrial base.
“(2) That—
“(A) procuring fire resistant rayon fiber manufactured from suppliers within the national technology and industrial base would result in sole-source contracts or subcontracts for the supply of fire resistant rayon fiber; and
“(B) such sole-source contracts or subcontracts would not be in the best interests of the Government or consistent with the objectives of section 2304 of title 10, United States Code.
“(b)
“(c)
“(d)
“(1) is a party to a defense memorandum of understanding entered into under section 2531 of title 10, United States Code; and
“(2) does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.
“(e)
“(f)
Pub. L. 109–163, div. A, title VIII, §832, Jan. 6, 2006, 119 Stat. 3388, provided that:
“(a)
“(b)
Pub. L. 108–287, title VIII, §8118, Aug. 5, 2004, 118 Stat. 998, provided that: “Notwithstanding any other provision of law, section 2533a(f) of title 10, United States Code, shall hereafter not apply to any fish, shellfish, or seafood product. This section applies to contracts and subcontracts for the procurement of commercial items notwithstanding section 34 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 430) [now 41 U.S.C. 1906].”
1 See References in Text note below.
(a)
(1) The following types of end items, or components thereof, containing a specialty metal not melted or produced in the United States: aircraft, missile and space systems, ships, tank and automotive items, weapon systems, or ammunition.
(2) A specialty metal that is not melted or produced in the United States and that is to be purchased directly by the Department of Defense or a prime contractor of the Department.
(b)
(2) This subsection applies to prime contracts and subcontracts at any tier under such contracts.
(c)
(1) Acquisitions outside the United States in support of combat operations or in support of contingency operations.
(2) Acquisitions for which the use of procedures other than competitive procedures has been approved on the basis of section 2304(c)(2) of this title, relating to unusual and compelling urgency of need.
(d)
(1) the acquisition is necessary—
(A) to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources for the purposes of offsetting sales made by the United States Government or United States firms under approved programs serving defense requirements; or
(B) in furtherance of agreements with foreign governments in which both such governments agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country; and
(2) any such agreement with a foreign government complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with section 2457 of this title.
(e)
(f)
(g)
(h)
(2) This section does not apply to contracts or subcontracts for the acquisition of commercially available off-the-shelf items, as defined in section 35(c) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c)), other than—
(A) contracts or subcontracts for the acquisition of specialty metals, including mill products, such as bar, billet, slab, wire, plate and sheet, that have not been incorporated into end items, subsystems, assemblies, or components;
(B) contracts or subcontracts for the acquisition of forgings or castings of specialty metals, unless such forgings or castings are incorporated into commercially available off-the-shelf end items, subsystems, or assemblies;
(C) contracts or subcontracts for commercially available high performance magnets unless such high performance magnets are incorporated into commercially available off-the-shelf-end items or subsystems; and
(D) contracts or subcontracts for commercially available off-the-shelf fasteners, unless such fasteners are—
(i) incorporated into commercially available off-the-shelf end items, subsystems, assemblies, or components; or
(ii) purchased as provided in paragraph (3).
(3) This section does not apply to fasteners that are commercial items that are purchased under a contract or subcontract with a manufacturer of such fasteners, if the manufacturer has certified that it will purchase, during the relevant calendar year, an amount of domestically melted specialty metal, in the required form, for use in the production of such fasteners for sale to the Department of Defense and other customers, that is not less than 50 percent of the total amount of the specialty metal that it will purchase to carry out the production of such fasteners.
(i)
(2) This subsection does not apply to high performance magnets.
(j)
(A) the item is a commercial derivative military article; and
(B) the contractor certifies that the contractor and its subcontractors have entered into a contractual agreement, or agreements, to purchase an amount of domestically melted specialty metal in the required form, for use during the period of contract performance in the production of the commercial derivative military article and the related commercial article, that is not less than the greater of—
(i) an amount equivalent to 120 percent of the amount of specialty metal that is required to carry out the production of the commercial derivative military article (including the work performed under each subcontract); or
(ii) an amount equivalent to 50 percent of the amount of specialty metal that is purchased by the contractor and its subcontractors for use during such period in the production of the commercial derivative military article and the related commercial article.
(2) For the purposes of this subsection, the amount of specialty metal that is required to carry out the production of the commercial derivative military article includes specialty metal contained in any item, including commercially available off-the-shelf items, incorporated into such commercial derivative military article.
(k)
(2) A written determination under paragraph (1)—
(A) may not be delegated below the level of the Deputy Secretary of Defense or the Under Secretary of Defense for Acquisition, Technology, and Logistics;
(B) shall specify the quantity of end items to which the waiver applies and the time period over which the waiver applies; and
(C) shall be provided to the congressional defense committees prior to making such a determination (except that in the case of an urgent national security requirement, such certification may be provided to the defense committees up to 7 days after it is made).
(3)(A) In any case in which the Secretary makes a determination under paragraph (1), the Secretary shall determine whether or not the noncompliance was knowing and willful.
(B) If the Secretary determines that the noncompliance was not knowing or willful, the Secretary shall ensure that the contractor or subcontractor responsible for the noncompliance develops and implements an effective plan to ensure future compliance.
(C) If the Secretary determines that the noncompliance was knowing or willful, the Secretary shall—
(i) require the development and implementation of a plan to ensure future compliance; and
(ii) consider suspending or debarring the contractor or subcontractor until such time as the contractor or subcontractor has effectively addressed the issues that lead to such noncompliance.
(l)
(1) Steel—
(A) with a maximum alloy content exceeding one or more of the following limits: manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or
(B) containing more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, columbium, molybdenum, nickel, titanium, tungsten, or vanadium.
(2) Metal alloys consisting of nickel, iron-nickel, and cobalt base alloys containing a total of other alloying metals (except iron) in excess of 10 percent.
(3) Titanium and titanium alloys.
(4) Zirconium and zirconium base alloys.
(m)
(1) The term “United States” includes possessions of the United States.
(2) The term “component” has the meaning provided in section 4 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 403).
(3) The term “acquisition” has the meaning provided in section 4 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 403).
(4) The term “required form” shall not apply to end items or to their components at any tier. The term “required form” means in the form of mill product, such as bar, billet, wire, slab, plate or sheet, and in the grade appropriate for the production of—
(A) a finished end item delivered to the Department of Defense; or
(B) a finished component assembled into an end item delivered to the Department of Defense.
(5) The term “commercially available off-the-shelf”, has the meaning provided in section 35(c) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c)).
(6) The term “assemblies” means items forming a portion of a system or subsystem that can be provisioned and replaced as an entity and which incorporates multiple, replaceable parts.
(7) The term “commercial derivative military article” means an item procured by the Department of Defense that is or will be produced using the same production facilities, a common supply chain, and the same or similar production processes that are used for the production of articles predominantly used by the general public or by nongovernmental entities for purposes other than governmental purposes.
(8) The term “subsystem” means a functional grouping of items that combine to perform a major function within an end item, such as electrical power, attitude control, and propulsion.
(9) The term “end item” means the final production product when assembled or completed, and ready for issue, delivery, or deployment.
(10) The term “subcontract” includes a subcontract at any tier.
(Added Pub. L. 109–364, div. A, title VIII, §842(a)(1), Oct. 17, 2006, 120 Stat. 2335; amended Pub. L. 110–181, div. A, title VIII, §804(a)–(f), Jan. 28, 2008, 122 Stat. 208–211; Pub. L. 111–350, §5(b)(39), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 111–383, div. A, title X, §1075(f)(2), Jan. 7, 2011, 124 Stat. 4376.)
Section 34 of the Office of Federal Procurement Policy Act, referred to in subsec. (h)(1), means section 34 of Pub. L. 93–400, which was classified to section 430 of former Title 41, Public Contracts, and was repealed and restated in section 1906 of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
Section 35 of the Office of Federal Procurement Policy Act, referred to in subsec. (h)(1), (2) and (m)(5), means section 35 of Pub. L. 93–400, which was classified to section 431 of former Title 41, Public Contracts. Subsecs. (a) and (b) of such section 35 were repealed and restated as section 1907 of Title 41, Public Contracts, and subsec. (c) of such section 35 was repealed and restated as section 104 of Title 41, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
Section 4 of the Office of Federal Procurement Policy Act, referred to in subsec. (m)(2), (3), means section 4 of Pub. L. 93–400, which was classified to section 403 of former Title 41, Public Contracts, and was repealed and the provisions thereof restated in sections 102, 103, 105, 107 to 116, 131 to 134, and 1301 of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
2011—Subsec. (a)(2). Pub. L. 111–383, §1075(f)(2)(A), made technical amendment to directory language of Pub. L. 110–181, §804(a)(3). See 2008 Amendment note below.
Subsec. (h). Pub. L. 111–350, §5(b)(39)(A), which directed substitution of “section 1906 of title 41” for “section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)”, could not be executed because the words “section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)” did not appear in text.
Subsec. (j). Pub. L. 111–350, §5(b)(39)(B), which directed substitution of “section 105 of title 41” for “section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)” in subsec. (j), could not be executed because the words “section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)” did not appear in subsec. (j) after the amendment by Pub. L. 110–181, §804(d).
Subsec. (m)(3) to (10). Pub. L. 111–383, §1075(f)(2)(B), made technical amendment to directory language of Pub. L. 110–181, §804(e). See 2008 Amendment note below.
2008—Subsec. (a). Pub. L. 110–181, §804(a)(1), substituted “Except as provided in subsections (b) through (m), the acquisition by the Department of Defense of the following items is prohibited:” for “Except as provided in subsections (b) through (j), funds appropriated or otherwise available to the Department of Defense may not be used for procurement of—” in introductory provisions.
Subsec. (a)(1). Pub. L. 110–181, §804(a)(2), substituted “The following” for “the following” and substituted period for “; or” at end.
Subsec. (a)(2). Pub. L. 110–181, §804(a)(3), as amended by Pub. L. 111–383, §1075(f)(2)(A), substituted “A specialty” for “a specialty”.
Subsec. (c). Pub. L. 110–181, §804(f)(1), substituted “Acquisitions” for “Procurements” in heading and pars. (1) and (2).
Subsec. (d). Pub. L. 110–181, §804(f)(2), substituted “acquisition” for “procurement” in introductory provisions and par. (1).
Subsec. (f). Pub. L. 110–181, §804(f)(3), substituted “acquisitions” for “procurements”.
Subsec. (g). Pub. L. 110–181, §804(c), (f)(3), substituted “acquisitions” for “procurements” and “electronic components, unless the Secretary of Defense, upon the recommendation of the Strategic Materials Protection Board pursuant to section 187 of this title, determines that the domestic availability of a particular electronic component is critical to national security.” for “commercially available electronic components whose specialty metal content is de minimis in value compared to the overall value of the lowest level electronic component produced that contains such specialty metal.”
Subsec. (h). Pub. L. 110–181, §804(b), amended heading and text generally. Prior to amendment, text read as follows: “This section applies to procurements of commercial items notwithstanding section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430).”
Subsecs. (i) to (m). Pub. L. 110–181, §804(d), added subsecs. (i) to (k) and redesignated former subsecs. (i) and (j) as (l) and (m), respectively.
Subsec. (m)(3) to (10). Pub. L. 110–181, §804(e), as amended by Pub. L. 111—383, §1075(f)(2)(B), added pars. (3) to (10).
Pub. L. 111–383, div. A, title X, §1075(f)(2), Jan. 7, 2011, 124 Stat. 4376, provided that amendment by section 1075(f)(2) is effective as of January 28, 2008, and as if included in Public Law 110–181 as enacted.”
Pub. L. 109–364, div. A, title VIII, §842(a)(4)(A), Oct. 17, 2006, 120 Stat. 2337, provided that: “Section 2533b of title 10, United States Code, as added by paragraph (1), shall apply with respect to contracts entered into after the date occurring 30 days after the date of the enactment of this Act [Oct. 17, 2006].”
Pub. L. 110–181, div. A, title VIII, §804(g), Jan. 28, 2008, 122 Stat. 211, provided that: “Not later than 120 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall prescribe regulations on the implementation of this section [amending this section and enacting provisions set out as a note under this section] and the amendments made by this section, including specific guidance on how thresholds established in subsections (h)(3), (i) and (j) of section 2533b of title 10, United States Code, as amended by this section, should be implemented.”
Pub. L. 111–383, div. A, title VIII, §823, Jan. 7, 2011, 124 Stat. 4269, provided that:
“(a)
“(b)
“(c)
Pub. L. 110–181, div. A, title VIII, §804(h), Jan. 28, 2008, 122 Stat. 211, provided that: “No later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], any domestic nonavailability determination under section 2533b of title 10, United States Code, including a class deviation, or rules made by the Department of Defense between December 6, 2006, and the date of the enactment of this Act, shall be reviewed and amended, as necessary, to comply with the amendments made by this section [amending this section and enacting provisions set out as a note under this section]. This requirement shall not apply to a domestic nonavailability determination that applies to—
“(1) an individual contract that was entered into before the date of the enactment of this Act; or
“(2) an individual Department of Defense program, except to the extent that such domestic nonavailability determination applies to contracts entered into after the date of the enactment of this Act.”
Pub. L. 110–181, div. A, title VIII, §884, Jan. 28, 2008, 122 Stat. 264, provided that:
“(a)
“(1) publish a notice on the website maintained by the General Services Administration known as FedBizOpps.gov (or any successor site) of the Secretary's intent to make the domestic nonavailability determination; and
“(2) solicit information relevant to such notice from interested parties, including producers of specialty metal mill products.
“(b)
“(2) The Secretary shall ensure that any such determination and the rationale for such determination is made publicly available to the maximum extent consistent with the protection of national security information and confidential business information.”
Pub. L. 109–364, div. A, title VIII, §842(b), Oct. 17, 2006, 120 Stat. 2337, provided that:
“(1)
“(A) the contracting officer for the contract determines in writing that—
“(i) it would not be practical or economical to remove or replace the specialty metals incorporated in such items or to substitute items containing compliant materials;
“(ii) the prime contractor and subcontractor responsible for providing items containing non-compliant materials have in place an effective plan to ensure compliance with section 2533b of title 10, United States Code (as so added), with regard to items containing specialty metals if such metals were incorporated into items produced, manufactured, or assembled in the United States after the date of the enactment of this Act [Oct. 17, 2006]; and
“(iii) the non-compliance is not knowing or willful; and
“(B) the Under Secretary of Defense for Acquisition, Technology, and Logistics or the service acquisition executive of the military department concerned approves the determination.
“(2)
“(3)
“(4)
1 See References in Text note below.
(a)
(1)
(2)
(3)
(i) Air circuit breakers.
(ii) Welded shipboard anchor and mooring chain with a diameter of four inches or less.
(iii) Vessel propellers with a diameter of six feet or more.
(B) The following components of vessels, to the extent they are unique to marine applications: gyrocompasses, electronic navigation chart systems, steering controls, pumps, propulsion and machinery control systems, and totally enclosed lifeboats.
(4)
(A) Powered and non-powered valves in Federal Supply Classes 4810 and 4820 used in piping for naval surface ships and submarines.
(B) Machine tools in the Federal Supply Classes for metal-working machinery numbered 3405, 3408, 3410 through 3419, 3426, 3433, 3438, 3441 through 3443, 3445, 3446, 3448, 3449, 3460, and 3461.
(5)
(b)
(1)
(2)
(A) meets the requirement set forth in paragraph (1);
(B) is an existing producer under the industrial preparedness program at the time the contract is awarded;
(C) has received all required regulatory approvals; and
(D) when the contract for the procurement is awarded, has in existence in the national technology and industrial base the plant, equipment, and personnel necessary to perform the contract.
(3)
(A) the manufacturer meets the requirements set forth in paragraph (1); and
(B) all castings incorporated into such propellers are poured and finished in the United States.
(c)
(1)
(2)
(i) A contract for procurement of such an item for use in property under the control of the Department of Defense, including any Government-owned, contractor-operated facility.
(ii) A contract that is entered into by a contractor on behalf of the Department of Defense for the purpose of providing such an item to another contractor as Government-furnished equipment.
(B) In any case in which a contract for items described in subsection (a)(4) includes the procurement of more than one Federal Supply Class of machine tools or machine tools and accessories, each supply class shall be evaluated separately for purposes of determining whether the limitation in subsection (a) applies.
(C) Subsection (a)(4) and this paragraph shall cease to be effective on October 1, 1996.
(3)
(4)
(d)
(1) Application of the limitation would cause unreasonable costs or delays to be incurred.
(2) United States producers of the item would not be jeopardized by competition from a foreign country, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.
(3) Application of the limitation would impede cooperative programs entered into between the Department of Defense and a foreign country, or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items that is entered into under section 2531 of this title, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.
(4) Satisfactory quality items manufactured by an entity that is part of the national technology and industrial base (as defined in section 2500(1) of this title) are not available.
(5) Application of the limitation would result in the existence of only one source for the item that is an entity that is part of the national technology and industrial base (as defined in section 2500(1) of this title).
(6) The procurement is for an amount less than the simplified acquisition threshold and simplified purchase procedures are being used.
(7) Application of the limitation is not in the national security interests of the United States.
(8) Application of the limitation would adversely affect a United States company.
(e)
(1)
(2)
(3)
(f)
(1) specifically refers to this section;
(2) specifically states that such provision of law modifies or supersedes the provisions of this section; and
(3) specifically identifies the particular domestic source involved and states that the contract to be awarded pursuant to such provision of law is being awarded in contravention of this section.
(g)
(2) Paragraph (1) does not apply to contracts for items described in subsection (a)(5) (relating to ball bearings and roller bearings), notwithstanding section 1905 of title 41.
(h)
(1) may not use contract clauses or certifications; and
(2) shall use management and oversight techniques that achieve the objective of the subsection without imposing a significant management burden on the Government or the contractor involved.
(i)
(2) This subsection applies to the waiver authority provided by subsection (d) on the basis of the applicability of paragraph (2) or (3) of that subsection.
(3) The waiver authority described in paragraph (2) may not be delegated below the Under Secretary of Defense for Acquisition, Technology, and Logistics.
(4) At least 15 days before the effective date of any waiver made under the waiver authority described in paragraph (2), the Secretary shall publish in the Federal Register and submit to the congressional defense committees a notice of the determination to exercise the waiver authority.
(5) Any waiver made by the Secretary under the waiver authority described in paragraph (2) shall be in effect for a period not greater than one year, as determined by the Secretary.
(j)
(A) the amount of the purchase does not exceed $2,500;
(B) the precision level of the ball or roller bearings to be procured under the contract or subcontract is rated lower than the rating known as Annual Bearing Engineering Committee (ABEC) 5 or Roller Bearing Engineering Committee (RBEC) 5, or an equivalent of such rating;
(C) at least two manufacturers in the national technology and industrial base that are capable of producing the ball or roller bearings have not responded to a request for quotation issued by the contracting activity for that contract or subcontract; and
(D) no bearing to be procured under the contract or subcontract has a basic outside diameter (exclusive of flange diameters) in excess of 30 millimeters.
(2) Paragraph (1) does not apply to a purchase if such purchase would result in the total amount of purchases of ball bearings and roller bearings to satisfy requirements under Department of Defense contracts, using the authority provided in such paragraph, to exceed $200,000 during the fiscal year of such purchase.
(Added Pub. L. 97–295, §1(29)(A), Oct. 12, 1982, 96 Stat. 1294, §2400; amended Pub. L. 100–180, div. A, title I, §124(a), (b)(1), title VIII, §824(a), Dec. 4, 1987, 101 Stat. 1042, 1043, 1134; renumbered §2502 and amended Pub. L. 100–370, §3(b)(1), July 19, 1988, 102 Stat. 855; renumbered §2507 and amended Pub. L. 100–456, div. A, title VIII, §§821(b)(1)(A), 822, Sept. 29, 1988, 102 Stat. 2014, 2017; Pub. L. 101–510, div. A, title VIII, §835(a), title XIV, §1421, Nov. 5, 1990, 104 Stat. 1614, 1682; Pub. L. 102–190, div. A, title VIII, §§834, 835, Dec. 5, 1991, 105 Stat. 1447, 1448; renumbered §2534 and amended Pub. L. 102–484, div. A, title VIII, §§831, 833(a), title X, §1052(33), div. D, title XLII, §§4202(a), 4271(b)(4), Oct. 23, 1992, 106 Stat. 2460, 2461, 2501, 2659, 2696; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–337, div. A, title VIII, §814, Oct. 5, 1994, 108 Stat. 2817; Pub. L. 103–355, title IV, §4102(i), Oct. 13, 1994, 108 Stat. 3341; Pub. L. 104–106, div. A, title VIII, §806(a)(1)–(4), (b)–(d), title XV, §1503(a)(30), Feb. 10, 1996, 110 Stat. 390, 391, 512; Pub. L. 104–201, div. A, title VIII, §810, title X, §1074(a)(14), Sept. 23, 1996, 110 Stat. 2608, 2659; Pub. L. 105–85, div. A, title III, §371(d)(1), title VIII, §811(a), title X, §1073(a)(55), Nov. 18, 1997, 111 Stat. 1706, 1839, 1903; Pub. L. 106–398, §1 [[div. A], title VIII, §805], Oct. 30, 2000, 114 Stat. 1654, 1654A–207; Pub. L. 107–107, div. A, title VIII, §835(a), title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1191, 1225; Pub. L. 108–136, div. A, title VIII, §828, Nov. 24, 2003, 117 Stat. 1548; Pub. L. 111–350, §5(b)(40), Jan. 4, 2011, 124 Stat. 3846.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2400 | 10:2303 (note). | Sept. 20, 1968, Pub. L. 90–500, §404, 82 Stat. 851. |
The words “of the United States under the provisions of this Act or the provisions of any other law” are omitted as surplus. The word “acquisition” is substituted for “purchase, lease, rental, or other acquisition” because it is inclusive. The words “this section” are substituted for “this prohibition” because of the restatement.
2011—Subsec. (g)(2). Pub. L. 111–350 substituted “section 1905 of title 41” for “section 33 of the Office of Federal Procurement Policy Act (41 U.S.C. 429)”.
2003—Subsec. (a)(5). Pub. L. 108–136 inserted before period at end “, except ball bearings and roller bearings being procured for use in an end product manufactured by a manufacturer that does not satisfy the requirements of subsection (b) or in a component part manufactured by such a manufacturer”.
2001—Subsec. (i)(3). Pub. L. 107–107, §1048(b)(2), substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.
Subsec. (j). Pub. L. 107–107, §835(a), added subsec. (j).
2000—Subsec. (c)(3). Pub. L. 106–398 substituted “October 1, 2005” for “October 1, 2000”.
1997—Subsec. (b)(3). Pub. L. 105–85, §1073(a)(55), substituted “(a)(3)(A)(iii)” for “(a)(3)(A)(ii)”.
Subsec. (d)(4), (5). Pub. L. 105–85, §371(d)(1), substituted “section 2500(1)” for “section 2491(1)”.
Subsec. (i). Pub. L. 105–85, §811(a), added subsec. (i).
1996—Subsec. (a)(3). Pub. L. 104–106, §806(a)(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “
Subsec. (b)(3). Pub. L. 104–106, §806(a)(2), added par. (3).
Subsec. (c). Pub. L. 104–106, §1503(a)(30), substituted “
Subsec. (c)(1). Pub. L. 104–106, §806(a)(3), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “
Subsec. (c)(3). Pub. L. 104–106, §806(b), substituted “October 1, 2000” for “October 1, 1995”.
Subsec. (c)(4). Pub. L. 104–201, §1074(a)(14), substituted “February 10, 1998” for “the date occurring two years after the date of the enactment of the National Defense Authorization Act for Fiscal Year 1996”.
Pub. L. 104–106, §806(c), added par. (4).
Subsec. (d)(3). Pub. L. 104–201, §810, inserted “or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items that is entered into under section 2531 of this title,” after “a foreign country,”.
Subsec. (g). Pub. L. 104–106, §806(d), designated existing provisions as par. (1) and added par. (2).
Subsec. (h). Pub. L. 104–106, §806(a)(4), added subsec. (h).
1994—Pub. L. 103–337 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (f) relating to acquisition of multipassenger motor vehicles, chemical weapons antidote, valves and machine tools, carbonyl iron powders, air circuit breakers, and sonobuoys.
Subsec. (g). Pub. L. 103–355 added subsec. (g).
1993—Subsec. (b)(2). Pub. L. 103–160 substituted “Under Secretary of Defense for Acquisition and Technology” for “Under Secretary of Defense for Acquisition”.
1992—Pub. L. 102–484, §§4202(a), 4271(b)(4), renumbered section 2507 of this title as this section and substituted “Miscellaneous limitations on the procurement of goods other than United States goods” for “Miscellaneous procurement limitations” in section catchline.
Subsec. (c). Pub. L. 102–484, §831, redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: “
Subsec. (d). Pub. L. 102–484, §831(b), redesignated subsec. (e) as (d). Former subsec. (d) redesignated (c).
Subsec. (d)(3)(A). Pub. L. 102–484, §1052(33), substituted “Government-owned” for “government-owned”.
Subsec. (e). Pub. L. 102–484, §831(b), redesignated subsec. (f) as (e). Former subsec. (e) redesignated (d).
Subsec. (f). Pub. L. 102–484, §833(a), added subsec. (f). Former subsec. (f) redesignated (e).
1991—Subsec. (d)(1). Pub. L. 102–190, §834(a), substituted “Effective through fiscal year 1996” for “During fiscal years 1989, 1990, and 1991”.
Subsec. (d)(3) to (5). Pub. L. 102–190, §834(b), added pars. (3) and (4), redesignated former par. (3) as (5), and struck out former par. (4) which read as follows: “The provisions of this section may be renewed with respect to any item by the Secretary of Defense at the end of fiscal year 1991 for an additional two fiscal years if the Secretary determines that a continued restriction on that item is in the national security interest.”
Subsec. (e)(1). Pub. L. 102–190, §835(1), substituted “Until January 1, 1993, the Secretary” for “The Secretary”.
Subsec. (e)(3). Pub. L. 102–190, §835(2), (4), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: “After September 30, 1994, the Secretary may terminate the restriction required under paragraph (1) if the Secretary determines that continuing the restriction is not in the national interest.”
Subsec. (e)(3)(A). Pub. L. 102–190, §835(3), struck out before period “by an entity more than 50 percent of which is owned or controlled by citizens of the United States or Canada”.
Subsec. (e)(4). Pub. L. 102–190, §835(4), redesignated par. (4) as (3).
1990—Subsec. (e). Pub. L. 101–510, §835(a), added subsec. (e).
Subsec. (f). Pub. L. 101–510, §1421, added subsec. (f).
1988—Pub. L. 100–370, and Pub. L. 100–456, §821(b)(1)(A), successively renumbered section 2400 of this title as section 2502 of this title and then as this section.
Subsec. (a). Pub. L. 100–370 substituted “this subsection” for “this section”.
Subsec. (d). Pub. L. 100–456, §822, added subsec. (d).
1987—Pub. L. 100–180 substituted “Miscellaneous procurement limitations” for “Limitation on procurement of buses” in section catchline, designated existing provisions as subsec. (a) and added heading, and added subsecs. (b) and (c).
Pub. L. 107–107, div. A, title VIII, §835(b), Dec. 28, 2001, 115 Stat. 1192, provided that: “Subsection (j) of such section 2534 (as added by subsection (a)) shall apply with respect to a contract or subcontract to purchase ball bearings or roller bearings entered into after the date of the enactment of this Act [Dec. 28, 2001].”
Section 811(b) of Pub. L. 105–85 provided that: “Subsection (i) of section 2534 of such title [10 U.S.C. 2534(i)], as added by subsection (a), shall apply with respect to—
“(1) contracts and subcontracts entered into on or after the date of the enactment of this Act [Nov. 18, 1997]; and
“(2) options for the procurement of items that are exercised after such date under contracts that are entered into before such date if the option prices are adjusted for any reason other than the application of a waiver granted under subsection (d) of such section 2534, on the basis of the applicability of paragraph (2) or (3) of that subsection.”
Section 806(a)(5) of Pub. L. 104–106 provided that: “Subsection (a)(3)(B) of section 2534 of title 10, United States Code, as amended by paragraph (1), shall apply only to contracts entered into after March 31, 1996.”
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Section 833(b) of Pub. L. 102–484 provided that: “Subsection (f) of section 2534 of title 10, United States Code, as added by subsection (a), shall apply with respect to solicitations for contracts issued after the expiration of the 120-day period beginning on the date of the enactment of this Act [Oct. 23, 1992].”
Section 835(b) of Pub. L. 101–510 provided that subsec. (e) of this section, as added by section 835(a) of Pub. L. 101–510, applied with respect to systems or items procured by or provided to Department of Defense after Nov. 5, 1990.
Pub. L. 111–383, div. A, title VIII, §846, Jan. 7, 2011, 124 Stat. 4285, provided that:
“(a)
“(b)
“(1) installed on Department of Defense property or in a facility owned by the Department of Defense; and
“(2) reserved for the exclusive use of the Department of Defense for the full economic life of the device.
“(c)
Pub. L. 108–136, div. A, title VIII, §821, Nov. 24, 2003, 117 Stat. 1546, provided that:
“(a)
“(b)
“(c)
“(d)
“(2) With respect to contracts in existence on the date of the enactment of this Act, the Secretary of Defense shall take such action as is necessary to ensure that such contracts are in compliance with subsection (b) not later than 24 months after such date.”
(a)
(1) to provide a comprehensive and continuous program for the future safety and for the defense of the United States by providing adequate measures whereby an essential nucleus of Government-owned industrial plants and an industrial reserve of machine tools and other industrial manufacturing equipment may be assured for immediate use to supply the needs of the armed forces in time of national emergency or in anticipation thereof;
(2) that such Government-owned plants and such reserve shall not exceed in number or kind the minimum requirements for immediate use in time of national emergency, and that any such items which shall become excess to such requirements shall be disposed of as expeditiously as possible;
(3) that to the maximum extent practicable, reliance will be placed upon private industry for support of defense production; and
(4) that machine tools and other industrial manufacturing equipment may be held in plant equipment packages or in a general reserve to maintain a high state of readiness for production of critical items of defense materiel, to provide production capacity not available in private industry for defense materiel, or to assist private industry in time of national disaster.
(b)
(A) determine which industrial plants and installations (including machine tools and other industrial manufacturing equipment) should become a part of the Defense Industrial Reserve;
(B) designate what excess industrial property shall be disposed of;
(C) establish general policies and provide for the transportation, handling, care, storage, protection, maintenance, repair, rebuilding, utilization, recording, leasing and security of such property;
(D) direct the transfer without reimbursement of such property to other Government agencies with the consent of such agencies;
(E) direct the leasing of any of such property to designated lessees;
(F) authorize the disposition in accordance with existing law of any of such property when in the opinion of the Secretary such property is no longer needed by the Department of Defense; and
(G) notwithstanding chapter 5 of title 40 and any other provision of law, authorize the transfer to a nonprofit educational institution or training school, on a nonreimbursable basis, of any such property already in the possession of such institution or school whenever the program proposed by such institution or school for the use of such property is in the public interest.
(2)(A) The Secretary of a military department to which equipment or other property is transferred from the Defense Industrial Reserve shall reimburse appropriations available for the purposes of the Defense Industrial Reserve for the full cost (including direct and indirect costs) of—
(i) storage of such property;
(ii) repair and maintenance of such property; and
(iii) overhead allocated to such property.
(B) The Secretary of Defense shall prescribe regulations establishing general policies and fee schedules for reimbursements under subparagraph (A).
(c)
(1) The term “Defense Industrial Reserve” means—
(A) a general reserve of industrial manufacturing equipment, including machine tools, selected by the Secretary of Defense for retention for national defense or for other emergency use;
(B) those industrial plants and installations held by and under the control of the Department of Defense in active or inactive status, including Government-owned/Government-operated plants and installations and Government-owned/contractor-operated plants and installations which are retained for use in their entirety, or in part, for production of military weapons systems, munitions, components, or supplies; and
(C) those industrial plants and installations under the control of the Secretary which are not required for the immediate need of any department or agency of the Government and which should be sold, leased, or otherwise disposed of.
(2) The term “plant equipment package” means a complement of active and idle machine tools and other industrial manufacturing equipment held by and under the control of the Department of Defense and approved by the Secretary for retention to produce particular defense materiel or defense supporting items at a specific level of output in the event of emergency.
(Added and amended Pub. L. 102–484, div. D, title XLII, §4235, Oct. 23, 1992, 106 Stat. 2690; Pub. L. 103–35, title II, §201(c)(8), May 31, 1993, 107 Stat. 98; Pub. L. 103–337, div. A, title III, §379(a), Oct. 5, 1994, 108 Stat. 2737; Pub. L. 107–107, div. A, title X, §1048(a)(23), Dec. 28, 2001, 115 Stat. 1224; Pub. L. 107–217, §3(b)(7), Aug. 21, 2002, 116 Stat. 1295.)
The text of section 451 of Title 50, War and National Defense, which was transferred to this section, designated subsec. (a), and amended by Pub. L. 102–484, §4235(a)(2), was based on acts July 2, 1948, ch. 811, §2, 62 Stat. 1225; Nov. 16, 1973, Pub. L. 93–155, title VIII, §809, 87 Stat. 617.
The text of section 453 of Title 50 which was transferred to this section, designated subsec. (b), and amended by Pub. L. 102–484, §4235(a)(3), was based on acts July 2, 1948, ch. 811, §4, 62 Stat. 1226; Nov. 16, 1973, Pub. L. 93–155, title VIII, §809, 87 Stat. 617; Nov. 14, 1986, Pub. L. 99–661, div. A, title XIII, §1359(a), 100 Stat. 3999. For effective date of 1986 amendment, see section 1359(b) of Pub. L. 99–661.
The text of section 452 of Title 50 which was transferred to this section, designated subsec. (c), and amended by Pub. L. 102–484, §4235(b), was based on acts July 2, 1948, ch. 811, §3, 62 Stat. 1225; Nov. 16, 1973, Pub. L. 93–155, title VIII, §809, 87 Stat. 617.
2002—Subsec. (b)(1)(G). Pub. L. 107–217 substituted “chapter 5 of title 40” for “title II of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 481 et seq.)”.
2001—Subsec. (a). Pub. L. 107–107, §1048(a)(23)(A)(i), substituted “intent of Congress—” for “intent of Congress” in introductory provisions.
Subsec. (a)(1). Pub. L. 107–107, §1048(a)(23)(A)(ii), (iii), substituted “armed forces” for “Armed Forces” and realigned margins.
Subsec. (a)(2) to (4). Pub. L. 107–107, §1048(a)(23)(A)(ii), realigned margins.
Subsec. (b)(1). Pub. L. 107–107, §1048(a)(23)(B)(i), substituted “in subsection (a), the Secretary of Defense shall—” for “in this section, the Secretary is authorized and directed to—” in introductory provisions.
Subsec. (b)(1)(A). Pub. L. 107–107, §1048(a)(23)(B)(ii), substituted “Defense Industrial Reserve” for “defense industrial reserve”.
Subsec. (c). Pub. L. 107–107, §1048(a)(23)(C), redesignated par. (2) as (1), substituted “means—” for “means” in introductory provisions, realigned margins of subpars. (A) to (C) of par. (1) and inserted “and” after semicolon in subpar. (B), redesignated par. (3) as (2), and struck out former par. (1) which read as follows: “The term ‘Secretary’ means Secretary of Defense.”
1994—Subsec. (b)(1)(G). Pub. L. 103–337 amended subpar. (G) generally. Prior to amendment, subpar. (G) read as follows: “authorize and regulate the lending of any such property to any nonprofit educational institution or training school whenever (i) the program proposed by such institution or school for the use of such property will contribute materially to national defense, and (ii) such institution or school shall by agreement make such provision as the Secretary shall deem satisfactory for the proper maintenance and care of such property and for its return, without expense to the Government, upon request of the Secretary.”
1993—Subsec. (b)(2)(B). Pub. L. 103–35 substituted “subparagraph (A)” for “paragraph (1)”.
1992—Pub. L. 102–484, §4235(a), added section number and catchline.
Subsec. (a). Pub. L. 102–484, §4235(a)(2), transferred the text of section 451 of Title 50, War and National Defense, to this section, designated it subsec. (a), inserted heading, and substituted “It” for “In enacting this chapter it” in introductory provisions. See Codification note above.
Subsec. (b). Pub. L. 102–484, §4235(a)(3), transferred the text of section 453 of Title 50, War and National Defense, to the end of this section and designated it subsec. (b), inserted heading, redesignated former subsec. (a) of section 453 as par. (1), substituted “in this section” for “in this chapter” in introductory provisions, redesignated former pars. (1) to (7) as subpars. (A) to (G), respectively, in subpar. (G) redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, redesignated former subsec. (b) of section 453 as par. (2), and in par. (2) redesignated former par. (1) as subpar. (A), former subpars. (A) to (C) as cls. (i) to (iii), and former par. (2) as subpar. (B). See Codification note above.
Subsec. (c). Pub. L. 102–484, §4235(b), transferred the text of section 452 of Title 50, War and National Defense, to the end of this section, designated it subsec. (c), inserted heading, and substituted “In this section:” for “As used in this chapter—” in introductory provisions. See Codification note above.
Section 379(b) of Pub. L. 103–337 provided that: “Except for property determined by the Secretary of Defense to be needed by the Department of Defense, property loaned before December 31, 1993, to an educational institution or training school under section 2535(b) of title 10, United States Code, or section 4(a)(7) of the Defense Industrial Reserve Act (as in effect before October 23, 1992 [former section 453(a)(7) of Title 50, War and National Defense, see Codification and 1992 Amendment notes above]) shall be regarded as surplus property. Upon certification by the Secretary to the Administrator of General Services that the property is being used by the borrowing educational institution or training school for a purpose consistent with that for which the property was loaned, the Administrator may authorize the conveyance of all right, title, and interest of the United States in such property to the borrower if the borrower agrees to accept the property. The Administrator may require any additional terms and conditions in connection with a conveyance so authorized that the Administrator considers appropriate to protect the interests of the United States.”
(a)
(b)
(A) the Secretary concerned determines that the waiver is essential to the national security interests of the United States; or
(B) in the case of a contract awarded for environmental restoration, remediation, or waste management at a Department of Defense or Department of Energy facility—
(i) the Secretary concerned determines that the waiver will advance the environmental restoration, remediation, or waste management objectives of the department concerned and will not harm the national security interests of the United States; and
(ii) the entity to which the contract is awarded is controlled by a foreign government with which the Secretary concerned is authorized to exchange Restricted Data under section 144 c. of the Atomic Energy Act of 1954 (42 U.S.C. 2164(c)).
(2) The Secretary concerned shall notify Congress of any decision to grant a waiver under paragraph (1)(B) with respect to a contract. The contract may be awarded only after the end of the 45-day period beginning on the date the notification is received by the committees.
(c)
(1) The term “entity controlled by a foreign government” includes—
(A) any domestic or foreign organization or corporation that is effectively owned or controlled by a foreign government; and
(B) any individual acting on behalf of a foreign government,
as determined by the Secretary concerned. Such term does not include an organization or corporation that is owned, but is not controlled, either directly or indirectly, by a foreign government if the ownership of that organization or corporation by that foreign government was effective before October 23, 1992.
(2) The term “proscribed category of information” means a category of information that—
(A) with respect to Department of Defense contracts—
(i) includes special access information;
(ii) is determined by the Secretary of Defense to include information the disclosure of which to an entity controlled by a foreign government is not in the national security interests of the United States; and
(iii) is defined in regulations prescribed by the Secretary of Defense for the purposes of this section; and
(B) with respect to Department of Energy contracts—
(i) is determined by the Secretary of Energy to include information described in subparagraph (A)(ii); and
(ii) is defined in regulations prescribed by the Secretary of Energy for the purposes of this section.
(3) The term “Secretary concerned” means—
(A) the Secretary of Defense, with respect to Department of Defense contracts; and
(B) the Secretary of Energy, with respect to Department of Energy contracts.
(Added Pub. L. 102–484, div. A, title VIII, §836(a)(1), Oct. 23, 1992, 106 Stat. 2462; amended Pub. L. 103–35, title II, §201(d)(4), May 31, 1993, 107 Stat. 99; Pub. L. 103–160, div. A, title VIII, §842(a)–(c)(1), Nov. 30, 1993, 107 Stat. 1719; Pub. L. 104–201, div. A, title VIII, §828, Sept. 23, 1996, 110 Stat. 2611.)
1996—Subsec. (b). Pub. L. 104–201 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “
1993—Pub. L. 103–160, §842(c)(1), substituted “Award of certain contracts to entities controlled by a foreign government: prohibition” for “Prohibition on award of certain Department of Defense and Department of Energy contracts to companies owned by an entity controlled by a foreign government.” as section catchline.
Pub. L. 103–35 struck out period at end of section catchline.
Subsec. (a). Pub. L. 103–160, §842(a), struck out “a company owned by” after “awarded to” and substituted “that entity” for “that company”.
Subsec. (c)(1). Pub. L. 103–160, §842(b), inserted at end “Such term does not include an organization or corporation that is owned, but is not controlled, either directly or indirectly, by a foreign government if the ownership of that organization or corporation by that foreign government was effective before October 23, 1992.”
Section 836(b) of Pub. L. 102–484 provided that: “Section 2536 of title 10, United States Code, as added by subsection (a), shall apply with respect to contracts entered into after the expiration of the 90-day period beginning on the date of the enactment of this Act [Oct. 23, 1992].”
(a)
(b)
(c)
(2) The entities referred to in paragraph (1) are the following:
(A) The Defense Intelligence Agency.
(B) The Army Foreign Technology Science Center.
(C) The Naval Maritime Intelligence Center.
(D) The Air Force Foreign Aerospace Science and Technology Center.
(Added Pub. L. 102–484, div. A, title VIII, §838(a), Oct. 23, 1992, 106 Stat. 2465; amended Pub. L. 103–35, title II, §201(d)(5), (h)(2), May 31, 1993, 107 Stat. 99, 100; Pub. L. 107–314, div. A, title X, §1041(a)(16), Dec. 2, 2002, 116 Stat. 2645.)
2002—Subsec. (a). Pub. L. 107–314 substituted “$10,000,000” for “$100,000”.
1993—Subsec. (a). Pub. L. 103–35, §201(d)(5), substituted “respectively, that” for “respectively, which”.
Subsec. (d). Pub. L. 103–35, §201(h)(2), struck out subsec. (d) which read as follows: “In this section, the term ‘defense critical technology’ has the meaning provided that term by section 2491(8) of this title.”
(a)
(b)
(c)
(1) to give precedence to the order as prescribed in subsection (b);
(2) to manufacture the kind, quantity, or quality of arms or ammunition, parts thereof, or necessary supplies, as ordered by the head of such department; or
(3) to furnish them at a reasonable price as determined by the head of such department.
(d)
(e)
(f)
(Added Pub. L. 103–160, div. A, title VIII, §822(a)(1), Nov. 30, 1993, 107 Stat. 1704; amended Pub. L. 103–337, div. A, title VIII, §811, Oct. 5, 1994, 108 Stat. 2815.)
Provisions similar to those in this section were contained in sections 4501 and 9501 of this title, prior to repeal by Pub. L. 103–160, §822(a)(2).
1994—Subsec. (a). Pub. L. 103–337, §811(1), substituted “head of any department” for “Secretary of Defense”.
Subsec. (c). Pub. L. 103–337, §811, substituted “through the head of any department” for “through the Secretary of Defense” and “opinion of the head of that department” for “opinion of the Secretary of Defense” in introductory provisions and “head of such department” for “Secretary” in pars. (2) and (3).
Subsec. (d). Pub. L. 103–337, §811(1), substituted “head of any department” for “Secretary of Defense”.
(a)
(b)
(c)
(Added Pub. L. 103–160, div. A, title VIII, §822(a)(1), Nov. 30, 1993, 107 Stat. 1705.)
Provisions similar to those in this section were contained in sections 4502(a)–(c) and 9502(a)–(c) of this title, prior to repeal by Pub. L. 103–160, §822(a)(2).
The President may appoint a nonpartisan Board on Mobilization of Industries Essential for Military Preparedness, and may provide necessary clerical assistance, to organize and coordinate operations under sections 2538 and 2539 of this title.
(Added Pub. L. 103–160, div. A, title VIII, §822(a)(1), Nov. 30, 1993, 107 Stat. 1705, §2540; renumbered §2539a, Pub. L. 103–337, div. A, title X, §1070(a)(13)(A), Oct. 5, 1994, 108 Stat. 2856.)
Provisions similar to those in this section were contained in sections 4502(d) and 9502(d) of this title, prior to repeal by Pub. L. 103–160, §822(a)(2).
1994—Pub. L. 103–337 renumbered section 2540 of this title as this section.
(a)
(1) sell, rent, lend, or give samples, drawings, and manufacturing or other information (subject to the rights of third parties) to any person or entity;
(2) sell, rent, or lend government equipment or materials to any person or entity—
(A) for use in independent research and development programs, subject to the condition that the equipment or material be used exclusively for such research and development; or
(B) for use in demonstrations to a friendly foreign government;
(3) make available to any person or entity, at an appropriate fee, the services of any government laboratory, center, range, or other testing facility for the testing of materials, equipment, models, computer software, and other items; and
(4) make available to any person or entity, through leases, contracts, or other appropriate arrangements, facilities, services, and equipment of any government laboratory, research center, or range, if the facilities, services, and equipment provided will not be in direct competition with the domestic private sector.
(b)
(c)
(d)
(Added Pub. L. 103–160, div. A, title VIII, §822(b)(1), Nov. 30, 1993, 107 Stat. 1705, §2541; renumbered §2539b, Pub. L. 103–337, div. A, title X, §1070(a)(13)(A), Oct. 5, 1994, 108 Stat. 2856; amended Pub. L. 103–355, title III, §3022, Oct. 13, 1994, 108 Stat. 3333; Pub. L. 104–106, div. A, title VIII, §804, div. D, title XLIII, §4321(a)(8), Feb. 10, 1996, 110 Stat. 390, 671; Pub. L. 106–65, div. A, title X, §1066(a)(23), Oct. 5, 1999, 113 Stat. 771; Pub. L. 110–181, div. A, title II, §232, Jan. 28, 2008, 122 Stat. 46.)
2008—Subsec. (a)(4). Pub. L. 110–181, §232(1), added par. (4).
Subsec. (c). Pub. L. 110–181, §232(2), struck out “for services” before “made available” and substituted “subsections (a)(3) and (a)(4)” for “subsection (a)(3)”.
Subsec. (d). Pub. L. 110–181, §232(3), struck out “for services made available” after “Fees received” and substituted “subsections (a)(3) and (a)(4)” for “subsection (a)(3)”.
1999—Subsec. (a). Pub. L. 106–65 substituted “Secretaries of the military departments” for “secretaries of the military departments”.
1996—Subsec. (a). Pub. L. 104–106, §4321(a)(8), made technical correction to Pub. L. 103–355, §3022. See 1994 Amendment note below.
Subsec. (c). Pub. L. 104–106, §804, inserted “and indirect” after “recoup the direct”.
1994—Pub. L. 103–337 renumbered section 2541 of this title as this section.
Subsec. (a). Pub. L. 103–355, §3022, as amended by Pub. L. 104–106, §4321(a)(8), inserted “rent,” after “sell,” in par. (1) and “, rent,” after “sell” in par. (2).
Section 4321(a) of Pub. L. 104–106 provided that the amendment made by that section is effective as of Oct. 13, 1994, and as if included in Pub. L. 103–355 as enacted.
(a)
(b)
(1) A member nation of the North Atlantic Treaty Organization (NATO).
(2) A country designated as of March 31, 1995, as a major non-NATO ally pursuant to section 2350a(i)(3) of this title, as in effect on that date.
(3) A country in Central Europe that, as determined by the Secretary of State—
(A) has changed its form of national government from a nondemocratic form of government to a democratic form of government since October 1, 1989; or
(B) is in the process of changing its form of national government from a nondemocratic form of government to a democratic form of government.
(4) A noncommunist country that was a member nation of the Asia Pacific Economic Cooperation (APEC) as of October 31, 1993.
(c)
(Added Pub. L. 104–106, div. A, title XIII, §1321(a)(1), Feb. 10, 1996, 110 Stat. 475; amended Pub. L. 108–375, div. A, title X, §1084(d)(21), Oct. 28, 2004, 118 Stat. 2062.)
A prior section 2540, acts Aug. 10, 1956, ch. 1041, 70A Stat. 141, §2511; renumbered §2521, Nov. 5, 1990, Pub. L. 101–510, div. A, title VIII, §823(a)(2), 104 Stat. 1600; renumbered §2540, Dec. 5, 1991, Pub. L. 102–190, div. A, title VIII, §821(e)(3), 105 Stat. 1432, related to availability or issuance to reserve components of supplies, services, and facilities of armed forces, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1664(c)(2), 1691, Oct. 5, 1994, 108 Stat. 3012, 3026, effective Dec. 1, 1994. See section 18502 of this title.
Another prior section 2540 was renumbered section 2539a of this title.
2004—Subsec. (b)(2). Pub. L. 108–375 inserted “, as in effect on that date” before period at end.
Pub. L. 108–287, title VIII, §8065, Aug. 5, 2004, 118 Stat. 985, provided that: “To the extent authorized by subchapter VI of chapter 148 of title 10, United States Code, for the current fiscal year and hereafter the Secretary of Defense may issue loan guarantees in support of United States defense exports not otherwise provided for: Provided, That the total contingent liability of the United States for guarantees issued under the authority of this section may not exceed $15,000,000,000: Provided further, That the exposure fees charged and collected by the Secretary for each guarantee shall be paid by the country involved and shall not be financed as part of a loan guaranteed by the United States: Provided further, That the Secretary shall provide quarterly reports to the Committees on Appropriations, Armed Services, and Foreign Relations of the Senate and the Committees on Appropriations, Armed Services, and International Relations [now Committee on Foreign Affairs] in the House of Representatives on the implementation of this program: Provided further, That amounts charged for administrative fees and deposited to the special account provided for under section 2540c(d) of title 10, shall be available for paying the costs of administrative expenses of the Department of Defense that are attributable to the loan guarantee program under subchapter VI of chapter 148 of title 10, United States Code.”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 108–87, title VIII, §8066, Sept. 30, 2003, 117 Stat. 1087.
Pub. L. 107–248, title VIII, §8067, Oct. 23, 2002, 116 Stat. 1551.
Pub. L. 107–117, div. A, title VIII, §8073, Jan. 10, 2002, 115 Stat. 2264.
Pub. L. 106–259, title VIII, §8071, Aug. 9, 2000, 114 Stat. 690.
Pub. L. 106–79, title VIII, §8075, Oct. 25, 1999, 113 Stat. 1246.
Pub. L. 105–262, title VIII, §8075, Oct. 17, 1998, 112 Stat. 2314.
Pub. L. 105–56, title VIII, §8081, Oct. 8, 1997, 111 Stat. 1237.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8093], Sept. 30, 1996, 110 Stat. 3009–71, 3009–107.
Pub. L. 104–61, title VIII, §8075, Dec. 1, 1995, 109 Stat. 665.
Pub. L. 104–106, div. A, title XIII, §1321(b), Feb. 10, 1996, 110 Stat. 477, provided that, not later than two years after Feb. 10, 1996, the President was to submit to Congress a report on the loan guarantee program established pursuant to this section.
A guarantee issued under this subchapter shall be fully and freely transferable.
(Added Pub. L. 104–106, div. A, title XIII, §1321(a)(1), Feb. 10, 1996, 110 Stat. 476.)
(a)
(b)
(c)
(Added Pub. L. 104–106, div. A, title XIII, §1321(a)(1), Feb. 10, 1996, 110 Stat. 476.)
(a)
(b)
(c)
(d)
(2)(A) If for any fiscal year amounts in the special account established under paragraph (1) are not available (or are not anticipated to be available) in a sufficient amount for administrative expenses of the Department of Defense for that fiscal year that are directly attributable to the administration of the program under this subchapter, the Secretary may use amounts currently available for operations and maintenance for Defense-wide activities, not to exceed $500,000 in any fiscal year, for those expenses.
(B) The Secretary shall, from funds in the special account established under paragraph (1), replenish operations and maintenance accounts for amounts expended under subparagraph (A) as soon as the Secretary determines practicable.
(Added Pub. L. 104–106, div. A, title XIII, §1321(a)(1), Feb. 10, 1996, 110 Stat. 476; amended Pub. L. 106–398, §1 [[div. A], title X, §1081(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–284.)
2000—Subsec. (d). Pub. L. 106–398 designated existing provisions as par. (1) and added par. (2).
Pub. L. 106–398, §1 [[div. A], title X, §1081(b), (c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–284, provided that:
“(b)
“(c)
“(1) A discussion of the effectiveness of the loan guarantee program in furthering the sale of United States defense articles, defense services, and design and construction services to nations that are specified in section 2540(b) of such title, to include a comparison of the loan guarantee program with other United States Government programs that are intended to contribute to the sale of United States defense articles, defense services, and design and construction services and other comparisons the Secretary determines to be appropriate.
“(2) A discussion of the requirements and resources (including personnel and funds) for continued administration of the loan guarantee program by the Defense Department, to include—
“(A) an itemization of the requirements necessary and resources available (or that could be made available) to administer the loan guarantee program for each of the following entities: the Defense Security Cooperation Agency, the Department of Defense International Cooperation Office, and other Defense Department agencies, offices, or activities as the Secretary may specify; and
“(B) for each such activity, agency, or office, a comparison of the use of Defense Department personnel exclusively to administer, manage, and oversee the program with the use of contracted commercial entities to administer and manage the program.
“(3) Any legislative recommendations that the Secretary believes could improve the effectiveness of the program.
“(4) A determination made by the Secretary of Defense indicating which Defense Department agency, office, or other activity should administer, manage, and oversee the loan guarantee program to increase sales of United States defense articles, defense services, and design and construction services, such determination to be made based on the information and analysis provided in the report.”
In this subchapter:
(1) The terms “defense article”, “defense services”, and “design and construction services” have the meanings given those terms in section 47 of the Arms Export Control Act (22 U.S.C. 2794).
(2) The term “cost”, with respect to a loan guarantee, has the meaning given that term in section 502 of the Congressional Budget and Impoundment Control Act of 1974 (2 U.S.C. 661a).
(Added Pub. L. 104–106, div. A, title XIII, §1321(a)(1), Feb. 10, 1996, 110 Stat. 477.)
(a)
(1) The improvement of the protection of the critical infrastructure of the commercial firms.
(2) The refinancing of improvements previously made to the protection of the critical infrastructure of the commercial firms.
(b)
(1) conducts a significant level of its research, development, engineering, and manufacturing activities in the United States;
(2) is a company or other business entity the majority ownership or control of which is by United States citizens or is a company or other business of a parent company that is incorporated in a country the government of which—
(A) encourages the participation of firms so owned or controlled in research and development consortia to which the government of that country provides funding directly or provides funding indirectly through international organizations or agreements; and
(B) affords adequate and effective protection for the intellectual property rights of companies incorporated in the United States;
(3) provides technology products or services critical to the operations of the Department of Defense;
(4) meets standards of prevention of cyberterrorism applicable to the Department of Defense; and
(5) agrees to submit the report required under section 2541d of this title.
(c)
(d)
(e)
(Added Pub. L. 106–398, §1 [[div. A], title X, §1033(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–258.)
A prior section 2541 was renumbered section 2551 of this title.
Another prior section 2541 was renumbered section 2539b of this title.
(a)
(b)
(c)
(2) Amounts in the special account shall be available, to the extent and in amounts provided in appropriations Acts, for paying the costs of administrative expenses of the Department of Defense that are attributable to the loan guarantee program under this subchapter.
(3)(A) If for any fiscal year amounts in the special account established under paragraph (1) are not available (or are not anticipated to be available) in a sufficient amount for administrative expenses of the Department of Defense for that fiscal year that are directly attributable to the administration of the program under this subchapter, the Secretary may use amounts currently available for operations and maintenance for Defense-wide activities, not to exceed $500,000 in any fiscal year, for those expenses.
(B) The Secretary shall, from funds in the special account established under paragraph (1), replenish operations and maintenance accounts for amounts expended under subparagraph (A).
(Added Pub. L. 106–398, §1 [[div. A], title X, §1033(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–259.)
(a)
(1) process applications for loan guarantees;
(2) administer repayment of loans; and
(3) provide any other services to the Secretary to administer this subchapter.
(b)
(Added Pub. L. 106–398, §1 [[div. A], title X, §1033(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–259.)
The following provisions of subchapter VI of this chapter apply to guarantees issued under this subchapter:
(1) Section 2540a, relating to transferability of guarantees.
(2) Subsections (b) and (c) of section 2540b, providing limitations.
(3) Section 2540d(2), providing a definition of the term “cost”.
(Added Pub. L. 106–398, §1 [[div. A], title X, §1033(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260; amended Pub. L. 107–107, div. A, title X, §1048(a)(24), Dec. 28, 2001, 115 Stat. 1224.)
2001—Pub. L. 107–107 substituted “subchapter” for “subtitle” in two places in introductory provisions.
The Secretary of Defense shall require each qualified commercial firm for which a loan is guaranteed under this subchapter to submit to the Secretary a report on the improvements financed or refinanced with the loan. The report shall include an assessment of the value of the improvements for the protection of the critical infrastructure of that commercial firm. The Secretary shall prescribe the time for submitting the report.
(Added Pub. L. 106–398, §1 [[div. A], title X, §1033(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260; amended Pub. L. 108–136, div. A, title X, §1031(a)(25), Nov. 24, 2003, 117 Stat. 1598.)
Prior sections 2542 to 2550 were renumbered sections 2552 to 2560 of this title, respectively.
2003—Pub. L. 108–136 struck out subsec. (a) designation and heading and struck out subsec. (b) which directed that the Secretary of Defense annually submit to Congress a report on the loan guarantee program under this subchapter.
A prior chapter 149, comprised of sections 2511 to 2518, relating to manufacturing technology, was repealed, except for sections 2517 and 2518, by Pub. L. 102–484, div. D, title XLII, §4202(a), Oct. 23, 1992, 106 Stat. 2659. Sections 2517 and 2518 of that chapter were renumbered sections 2523 and 2522, respectively, of this chapter by Pub. L. 102–484, div. D, title XLII, §§4232(a), 4233(a), Oct. 23, 1992, 106 Stat. 2687, and were subsequently repealed.
Another prior chapter 149, comprised of section 2511, was successively renumbered chapter 150 of this title, comprised of section 2521, then chapter 152 of this title, comprised of section 2540 et seq.
A prior chapter 150, comprised of sections 2521 to 2526, relating to development of dual-use critical technologies, was repealed, except for sections 2524 to 2526, by Pub. L. 102–484, div. D, title XLII, §4202(a), Oct. 23, 1992, 106 Stat. 2659. Sections 2524, 2525, and 2526 of that chapter were renumbered sections 2513, 2517, and 2518, respectively, of this chapter by Pub. L. 102–484, div. D, title XLII, §§4223(a), 4227(a), 4228, Oct. 23, 1992, 106 Stat. 2681, 2685. Section 2513 of this chapter was subsequently repealed.
Another prior chapter 150, comprised of section 2521, was renumbered chapter 152 of this title, comprised of section 2540 et seq.
In this chapter:
(1) The term “acquisition” has the meaning provided in section 4(16) 1 of the Office of Federal Procurement Policy Act (41 U.S.C. 403(16)).
(2) The term “defense acquisition system” means the workforce engaged in carrying out the acquisition of property and services for the Department of Defense; the management structure responsible for directing and overseeing the acquisition of property and services for the Department of Defense; and the statutory, regulatory, and policy framework that guides the acquisition of property and services for the Department of Defense.
(3) The term “element of the defense acquisition system” means an organization that employs members of the acquisition workforce, carries out acquisition functions, and focuses primarily on acquisition.
(4) The term “acquisition workforce” has the meaning provided in section 101(a)(18) of this title.
(Added Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4288.)
Section 4(16) of the Office of Federal Procurement Policy Act, referred to in par. (1), means section 4(16) of Pub. L. 93–400, which was classified to section 403(16) of former Title 41, Public Contracts, and was repealed and restated as section 131 of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.
A prior section 2545 was renumbered section 2555 of this title.
Pub. L. 111–383, div. A, title VIII, §860, Jan. 7, 2011, 124 Stat. 4287, provided that: “This subtitle [subtitle F (§§860–896) of title VIII of div. A of Pub. L. 111–383, enacting this chapter and sections 139e, 1701a, 1722b, 1748, 1762, and 2508 of this title, amending sections 101, 1723, 1746, 2302, 2500, 2501, 2505, and 2506 of this title, enacting provisions set out as notes under sections 1723, 1748, 2222, 2302, 2306a, 2330, and 2501 of this title, amending provisions set out as notes under section 2371 of this title and section 637 of Title 15, Commerce and Trade, and repealing provisions set out as notes under sections 1701 and 1723 of this title] may be cited as the ‘Improve Acquisition Act of 2010’.”
1 See References in Text note below.
(a)
(b)
(Added Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4288.)
A prior section 2546 was renumbered section 2556 of this title.
(a)
(1) The development of requirements relating to the defense acquisition system (subject, where appropriate, to validation by the Joint Requirements Oversight Council pursuant to section 181 of this title).
(2) The coordination of measures to control requirements creep in the defense acquisition system.
(3) The development of career paths in acquisition for military personnel (as required by section 1722a of this title).
(4) The assignment and training of contracting officer representatives when such representatives are required to be members of the armed forces because of the nature of the contract concerned.
(b)
(c)
(1) The term “requirements creep” means the addition of new technical or operational specifications after a requirements document is approved by the appropriate validation authority for the requirements document.
(2) The term “requirements document” means a document produced in the requirements process that is provided for an acquisition program to guide the subsequent development, production, and testing of the program and that—
(A) justifies the need for a materiel approach, or an approach that is a combination of materiel and non-materiel, to satisfy one or more specific capability gaps;
(B) details the information necessary to develop an increment of militarily useful, logistically supportable, and technically mature capability, including key performance parameters; or
(C) identifies production attributes required for a single increment of a program.
(Added Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4289.)
A prior section 2547 was renumbered section 2557 of this title.
(a)
(1) determining the extent to which such elements of the defense acquisition system deliver value to the Department of Defense, taking into consideration the performance elements identified in subsection (b);
(2) assisting senior officials of the Department of Defense in identifying and developing lessons learned from best practices and shortcomings in the performance of such elements of the defense acquisition system; and
(3) assisting senior officials of the Department of Defense in developing acquisition workforce excellence under section 1701a of this title 1
(b)
(A) the extent to which acquisitions conducted by the element of the defense acquisition system under review meet applicable cost, schedule, and performance objectives; and
(B) the staffing and quality of the acquisition workforce and the effectiveness of the management of the acquisition workforce, including workforce incentives and career paths.
(2) The Secretary of Defense shall ensure that the performance assessments required by this section are appropriately tailored to reflect the diverse nature of the work performed by each element of the defense acquisition system. In addition to the mandatory areas under paragraph (1), a performance assessment may consider, as appropriate, specific areas of acquisition concern, such as—
(A) the selection of contractors, including—
(i) the extent of competition and the use of exceptions to competition requirements;
(ii) compliance with Department of Defense policies regarding the participation of small business concerns and various categories of small business concerns, including the use of contract bundling and the availability of non-bundled contract vehicles;
(iii) the quality of market research;
(iv) the effective consideration of contractor past performance; and
(v) the number of bid protests, the extent to which such bid protests have been successful, and the reasons for such success;
(B) the negotiation of contracts, including—
(i) the appropriate application of section 2306a of this title (relating to truth in negotiations);
(ii) the appropriate use of contract types appropriate to specific procurements;
(iii) the appropriate use of performance requirements;
(iv) the appropriate acquisition of technical data and other rights and assets necessary to support long-term sustainment and follow-on procurement; and
(v) the timely definitization of any undefinitized contract actions; and
(C) the management of contractor performance, including—
(i) the assignment of appropriately qualified contracting officer representatives and other contract management personnel;
(ii) the extent of contract disputes, the reasons for such disputes, and the extent to which they have been successfully addressed;
(iii) the appropriate consideration of long-term sustainment and energy efficiency objectives; and
(iv) the appropriate use of integrated testing.
(c)
(1) the designation of elements of the defense acquisition system that are subject to performance assessment at an organizational level that ensures such assessments can be performed in an efficient and integrated manner;
(2) the frequency with which such performance assessments should be conducted;
(3) goals, standards, tools, and metrics for use in conducting performance assessments;
(4) the composition of the teams designated to perform performance assessments;
(5) any phase-in requirements needed to ensure that qualified staff are available to perform performance assessments;
(6) procedures for tracking the implementation of recommendations made pursuant to performance assessments;
(7) procedures for developing and disseminating lessons learned from performance assessments; and
(8) procedures for ensuring that information from performance assessments are retained electronically and are provided in a timely manner to the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Director of the Office of Performance Assessment and Root Cause Analysis as needed to assist them in performing their responsibilities under this section.
(d)
(e)
(1) the annual report prepared by the Secretary of Defense pursuant to section 1116 of title 31, United States Code, shall address the Department's success in achieving performance goals established pursuant to such section for elements of the defense acquisition system; and
(2) the annual report prepared by the Director of the Office of Performance Assessment and Root Cause Analysis pursuant to section 103(f) of the Weapon Systems Acquisition Reform Act of 2009 (10 U.S.C. 2430 note), shall include information on the activities undertaken by the Department pursuant to such section, including a summary of significant findings or recommendations arising out of performance assessments.
(Added Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4289.)
The date of the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, referred to in subsec. (a), is the date of enactment of Pub. L. 111–383, which was approved Jan. 7, 2011.
The Government Performance Results Act of 1993, referred to in subsec. (d), probably means the Government Performance and Results Act of 1993, Pub. L. 103–62, Aug. 3, 1993, 107 Stat. 285, which enacted section 306 of Title 5, Government Organization and Employees, sections 1115 to 1119, 9703, and 9704 of Title 31, Money and Finance, and sections 2801 to 2805 of Title 39, Postal Service, amended section 1105 of Title 31, and enacted provisions set out as notes under sections 1101 and 1115 of Title 31. For complete classification of this Act to the Code, see Short Title of 1993 Amendment note set out under section 1101 of Title 31 and Tables.
Section 103 of the Weapon Systems Acquisition Reform Act of 2009, referred to in subsec. (e)(2), is section 103 of Pub. L. 111–23, which was formerly set out as a note under section 2430 of this title, and was transferred, renumbered as section 2438 of this title, and amended by Pub. L. 111–383, div. A, title IX, §901(d), (k)(1)(F), Jan. 7, 2011, 124 Stat. 4321, 4325.
A prior section 2548 was renumbered section 2558 of this title.
1 So in original. Probably should be followed by a period.
Chapter was comprised of subchapter I, former section 2540, and subchapter II, sections 2541 to 2553, prior to amendment by Pub. L. 104–106, div. A, title XV, §1503(a)(29), Feb. 10, 1996, 110 Stat. 512, which struck out headings for subchapters I and II.
2011—Pub. L. 111–383, div. A, title X, §1074(b)(2), Jan. 7, 2011, 124 Stat. 4368, substituted “Excess nonlethal supplies: availability for humanitarian relief, domestic emergency assistance, and homeless veterans assistance” for “Excess nonlethal supplies: availability for homeless veteran initiatives and humanitarian relief” in item 2557.
2008—Pub. L. 110–181, div. A, title III, §376(b), title X, §§1063(a)(12), 1068(b)(2), Jan. 28, 2008, 122 Stat. 84, 322, 326, inserted period at end of item 2567 and then struck out item 2567 “Supplies, services, and equipment: provision in major public emergencies” and added item 2568.
2006—Pub. L. 109–364, div. A, title X, §1076(b)(2), Oct. 17, 2006, 120 Stat. 2406, added item 2567.
2002—Pub. L. 107–314, div. A, title X, §1066(b), Dec. 2, 2002, 116 Stat. 2656, added item 2566.
2001—Pub. L. 107–107, div. A, title III, §361(b)(2), title XII, §1201(a)(2), Dec. 28, 2001, 115 Stat. 1065, 1245, substituted “Excess nonlethal supplies: availability for homeless veteran initiatives and humanitarian relief” for “Excess nonlethal supplies: humanitarian relief” in item 2557 and substituted “2565.” for “2555.” in item 2565.
2000—Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(2), title XII, §1203(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260, 1654A–325, renumbered items 2541 to 2554 as 2551 to 2564, respectively, and added item 2555 “Nuclear test monitoring equipment: furnishing to foreign governments” at end.
1997—Pub. L. 105–85, div. A, title X, §1073(c)(2)(B), Nov. 18, 1997, 111 Stat. 1904, amended directory language of Pub. L. 104–201, §367(b). See 1996 Amendment note below.
1996—Pub. L. 104–201, div. A, title III, §367(b), Sept. 23, 1996, 110 Stat. 2497, as amended by Pub. L. 105–85, div. A, title X, §1073(c)(2)(B), Nov. 18, 1997, 111 Stat. 1904, added item 2554.
Pub. L. 104–201, div. A, title III, §366(b), Sept. 23, 1996, 110 Stat. 2496, substituted “Equipment and services: Presidential inaugural ceremonies” for “Equipment: Inaugural Committee” in item 2543.
Pub. L. 104–106, div. A, title XV, §1503(a)(29), Feb. 10, 1996, 110 Stat. 512, struck out subchapter analysis consisting of items for subchapters I “Issue to the Armed Forces” and II “Issue of Serviceable Material Other Than to the Armed Forces” and struck out headings for subchapters I “ISSUE TO THE ARMED FORCES” and II “ISSUE OF SERVICEABLE MATERIAL OTHER THAN TO THE ARMED FORCES”.
1994—Pub. L. 103–337, div. A, title III, §339(a)(2), title XVI, §1671(b)(14), Oct. 5, 1994, 108 Stat. 2720, 3014, struck out item 2540 “Reserve components: supplies, services, and facilities” and added item 2553.
1992—Pub. L. 102–484, div. A, title III, §304(c)(2), div. D, title XLIII, §4304(b), Oct. 23, 1992, 106 Stat. 2362, 2700, added items 2551 and 2552.
1991—Pub. L. 102–190, div. A, title VIII, §821(e)(1), (2), Dec. 5, 1991, 105 Stat. 1431, substituted “152” for “150” as chapter number, “ISSUE OF SUPPLIES, SERVICES, AND FACILITIES” for “ISSUE TO ARMED FORCES” as chapter heading, added subchapter analysis and subchapter I heading, renumbered item 2521 as 2540, and substituted subchapter II heading for former chapter 151 heading “ISSUE OF SERVICEABLE MATERIAL OTHER THAN TO ARMED FORCES”.
1990—Pub. L. 101–510, div. A, title VIII, §823(a)(1), (b)(2), title XIV, §1481(f)(2), (g)(2), Nov. 5, 1990, 104 Stat. 1600, 1602, 1707, substituted “150” for “149” as chapter number, renumbered item 2511 as 2521, and added items 2549 and 2550.
1989—Pub. L. 101–189, div. A, title III, §329(a)(2), Nov. 29, 1989, 103 Stat. 1417, added item 2548.
1985—Pub. L. 99–145, title XIV, §1454(b), Nov. 8, 1985, 99 Stat. 761, added item 2547.
1983—Pub. L. 98–94, title III, §305(a)(2), Sept. 24, 1983, 97 Stat. 629, added item 2546.
1978—Pub. L. 95–492, §2, Oct. 20, 1978, 92 Stat. 1642, added item 2545.
1972—Pub. L. 92–249, Mar. 10, 1972, 86 Stat. 62, added item 2544.
1958—Pub. L. 85–861, §1(48)(B), Sept. 2, 1958, 72 Stat. 1459, added item 2543.
(a) The Secretary of a military department, under conditions prescribed by him, may lend cots, blankets, pillows, mattresses, bed sacks, and other supplies under the jurisdiction of that department to any recognized national veterans’ organization for use at its national or state convention or national youth athletic or recreation tournament. He may, under conditions prescribed by him, also permit the organization to use unoccupied barracks under the jurisdiction of that department for such an occasion.
(b) Property lent under subsection (a) may be delivered on terms and at times agreed upon by the Secretary of the military department concerned and representatives of the veterans’ organization. However, the veterans’ organization must defray any expense incurred by the United States in the delivery, return, rehabilitation, or replacement of that property, as determined by the Secretary.
(c) The Secretary of the military department concerned shall require a good and sufficient bond for the return in good condition of property lent or used under subsection (a).
(Aug. 10, 1956, ch. 1041, 70A Stat. 142, §2541; renumbered §2551, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2541(a) 2541(b) |
5:150m. 5:150n. |
Aug. 1, 1949, ch. 372, 63 Stat. 483. |
| 2541(c) | 5:150o. |
In subsection (a), the word “may” is substituted for the words “are authorized to * * * at their discretion”. The word “supplies” is substituted for the words “articles or equipment”. The words “available” and “as may be needed” are omitted as surplusage. The words “under the jurisdiction of that department” are substituted for the words “of the Army, Navy, or Air Force” and “under their respective jurisdictions”.
In subsection (b), the words “prior to any such conventions or national youth athletic or recreation tournaments” are omitted as surplusage.
In subsection (c), the words “require of” are substituted for the words “take from”.
A prior section 2551 was renumbered section 2561 of this title.
2000—Pub. L. 106–398 renumbered section 2541 of this title as this section.
The Secretary of a military department, under regulations to be prescribed by him, may lend equipment under the jurisdiction of that department that is on hand, and that can be temporarily spared, to any organization formed by the American National Red Cross that needs it for instruction and practice for the purpose of aiding the Army, Navy, or Air Force in time of war. The Secretary shall by regulation require the immediate return, upon request, of equipment lent under this section. The Secretary shall require a bond, in double the value of the property issued under this section, for the care and safekeeping of that property and for its return when required.
(Aug. 10, 1956, ch. 1041, 70A Stat. 142, §2542; renumbered §2552, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2542 | 10:1255. 10:1256. 34:549. 34:550. |
May 8, 1914, J. Res. 15, 38 Stat. 771. |
The word “may” is substituted for the words “is authorized * * * at his discretion”, in 10:1255 and 34:549. The word “lend” is substituted for the word “issue”, in 10:1255 and 34:549. The words “proper”, “to be”, “out of equipment for medical or other establishments”, and “belonging to the Government”, in 10:1255 and 34:549, are omitted as surplusage. The words “that needs it” are substituted for the words “as may appear to be required”. The words “under the jurisdiction of that department” are inserted for clarity. The words “upon request” are substituted for the words “when called for by the authority which issued them”.
A prior section 2552 was renumbered section 2562 of this title.
2000—Pub. L. 106–398 renumbered section 2542 of this title as this section.
(a)
(1) the Presidential Inaugural Committee; and
(2) the congressional Joint Inaugural Committee.
(b)
(1) Planning and carrying out activities relating to security and safety.
(2) Planning and carrying out ceremonial activities.
(3) Loan of property.
(4) Any other assistance that the Secretary considers appropriate.
(c)
(2) Costs reimbursed under paragraph (1) shall be credited to the appropriations from which the costs were paid. The amount credited to an appropriation shall be proportionate to the amount of the costs charged to that appropriation.
(d)
(1) return that property within nine days after the date of the ceremony inaugurating the President;
(2) give good and sufficient bond for the return in good order and condition of that property;
(3) indemnify the United States for any loss of, or damage to, that property; and
(4) defray any expense incurred for the delivery, return, rehabilitation, replacement, or operation of that property.
(e)
(1) The term “Presidential Inaugural Committee” means the committee referred to in section 501 of title 36 that is appointed with respect to the inauguration of a President-elect and Vice President-elect.
(2) The term “congressional Joint Inaugural Committee” means the joint committee of the Senate and House of Representatives referred to in section 507 of title 36 that is appointed with respect to the inauguration of a President-elect and Vice President-elect.
(Added Pub. L. 85–861, §1(48)(A), Sept. 2, 1958, 72 Stat. 1458, §2543; amended Pub. L. 96–513, title V, §511(81), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 104–201, div. A, title III, §366(a), Sept. 23, 1996, 110 Stat. 2495; Pub. L. 105–225, §4(a)(2), Aug. 12, 1998, 112 Stat. 1498; renumbered §2553, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2543(a) 2543(b) 2543(c) |
36:726 (1st sentence). 36:726 (less 1st and 2d sentences). 36:721(b)(1) (as applicable to 36:726). 36:726 (2d sentence). |
Aug. 6, 1956, ch. 974, §§1(b)(1) (as applicable to §6), 6, 70 Stat. 1049, 1050. |
In subsection (a), the words “under section 721 of title 36” are inserted for clarity. The words “ensigns” and “Red Cross flags” are omitted as covered by the word “flags”.
In subsection (b), the words “and the whole without expense to the United States” are omitted as surplusage.
In subsection (c), the words “nine days after the date of the ceremony inaugurating the President” are substituted for the words “five days after the end of the inaugural period”, in 36:726 (2d sentence), and 36:721(b)(1).
A prior section 2553 was renumbered section 2563 of this title.
2000—Pub. L. 106–398 renumbered section 2543 of this title as this section.
1998—Subsec. (e)(1). Pub. L. 105–225, §4(a)(2)(A), substituted “section 501 of title 36” for “subsection (b)(2) of the first section of the Presidential Inaugural Ceremonies Act (36 U.S.C. 721)”.
Subsec. (e)(2). Pub. L. 105–225, §4(a)(2)(B), substituted “section 507 of title 36” for “the proviso in section 9 of the Presidential Inaugural Ceremonies Act (36 U.S.C. 729)”.
1996—Pub. L. 104–201 substituted “Equipment and services: Presidential inaugural ceremonies” for “Equipment: Inaugural Committee” in section catchline and amended text generally. Prior to amendment, text read as follows:
“(a) The Secretary of Defense, under such conditions as he may prescribe, may lend, to an Inaugural Committee established under the first section of the Presidential Inaugural Ceremonies Act (36 U.S.C. 721), hospital tents, smaller tents, camp appliances, hospital furniture, flags other than battle flags, flagpoles, litters, and ambulances and the services of their drivers, that can be spared without detriment to the public service.
“(b) The Inaugural Committee must give a good and sufficient bond for the return in good order and condition of property lent under subsection (a).
“(c) Property lent under subsection (a) shall be returned within nine days after the date of the ceremony inaugurating the President. The Inaugural Committee shall—
“(1) indemnify the United States for any loss of, or damage to, property lent under subsection (a); and
“(2) defray any expense incurred for the delivery, return, rehabilitation, replacement, or operation of that property.”
1980—Subsec. (a). Pub. L. 96–513 substituted “the first section of the Presidential Inaugural Ceremonies Act (36 U.S.C. 721)” for “section 721 of title 36”.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
(a) The Secretary of Defense is hereby authorized, under such regulations as he may prescribe, to lend to the Boy Scouts of America, for the use and accommodation of Scouts, Scouters, and officials who attend any national or world Boy Scout Jamboree, such cots, blankets, commissary equipment, flags, refrigerators, and other equipment and without reimbursement, furnish services and expendable medical supplies, as may be necessary or useful to the extent that items are in stock and items or services are available.
(b) Such equipment is authorized to be delivered at such time prior to the holding of any national or world Boy Scout Jamboree, and to be returned at such time after the close of any such jamboree, as may be agreed upon by the Secretary of Defense and the Boy Scouts of America. No expense shall be incurred by the United States Government for the delivery, return, rehabilitation, or replacement of such equipment.
(c) The Secretary of Defense, before delivering such property, shall take from the Boy Scouts of America, good and sufficient bond for the safe return of such property in good order and condition, and the whole without expense to the United States.
(d) The Secretary of Defense is hereby authorized under such regulations as he may prescribe, to provide, without expense to the United States Government, transportation from the United States or military commands overseas, and return, on vessels of the Military Sealift Command or aircraft of the Air Mobility Command for (1) those Boy Scouts, Scouters, and officials certified by the Boy Scouts of America, as representing the Boy Scouts of America at any national or world Boy Scout Jamboree, and (2) the equipment and property of such Boy Scouts, Scouters, and officials and the property loaned to the Boy Scouts of America, by the Secretary of Defense pursuant to this section to the extent that such transportation will not interfere with the requirements of military operations.
(e) Before furnishing any transportation under subsection (d), the Secretary of Defense shall take from the Boy Scouts of America, a good and sufficient bond for the reimbursement to the United States by the Boy Scouts of America, of the actual costs of transportation furnished under this section.
(f) Amounts paid to the United States to reimburse it for expenses incurred under subsection (b) and for the actual costs of transportation furnished under subsection (d) shall be credited to the current applicable appropriations or funds to which such expenses and costs were charged and shall be available for the same purposes as such appropriations or funds.
(g) In the case of a Boy Scout Jamboree held on a military installation, the Secretary of Defense may provide personnel services and logistical support at the military installation in addition to the support authorized under subsections (a) and (d).
(h) Other departments of the Federal Government are authorized, under such regulations as may be prescribed by the Secretary thereof, to provide to the Boy Scouts of America, equipment and other services, under the same conditions and restrictions prescribed in the preceding subsections for the Secretary of Defense.
(i)(1) The Secretary of Defense shall provide at least the same level of support under this section for a national or world Boy Scout Jamboree as was provided under this section for the preceding national or world Boy Scout Jamboree.
(2) The Secretary of Defense may waive paragraph (1), if the Secretary—
(A) determines that providing the support subject to paragraph (1) would be detrimental to the national security of the United States; and
(B) submits to Congress a report containing such determination in a timely manner, and before the waiver takes effect.
(Added Pub. L. 92–249, Mar. 10, 1972, 86 Stat. 62, §2544; amended Pub. L. 104–106, div. A, title III, §376, Feb. 10, 1996, 110 Stat. 283; renumbered §2554, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260l; Pub. L. 107–107, div. A, title IX, §931(a), Dec. 28, 2001, 115 Stat. 1200; Pub. L. 109–148, div. A, title VIII, §8126(c)(2), Dec. 30, 2005, 119 Stat. 2729; Pub. L. 109–163, div. A, title X, §1058(c), Jan. 6, 2006, 119 Stat. 3443.)
Pub. L. 109–148, §8126(c)(2), and Pub. L. 109–163, §1058(c), amended this section by adding substantially identical subsecs. (i). The subsec. (i) added by Pub. L. 109–148, §8126(c)(2), was subsequently omitted on authority of Pub. L. 109–364, §1071(f)(1), (3), which repealed Pub. L. 109–148, §8126(c)(2), and provided that the amendments by Pub. L. 109–148, §8126(c)(2), and Pub. L. 109–163, §1058(c), to this section be executed so as to appear only once in the law as amended. See Reconciliation of Duplicate Enactments note and 2005 and 2006 Amendment notes below.
A prior section 2554 was renumbered section 2564 of this title.
2006—Subsec. (i). Pub. L. 109–163 added subsec. (i). See Codification note above.
2005—Subsec. (i). Pub. L. 109–148 added subsec. (i) which read as follows:
“(i)(1) The Secretary of Defense shall provide at least the same level of support under this section for a national or world Boy Scout Jamboree as was provided under this section for the preceding national or world Boy Scout Jamboree.
“(2) The Secretary of Defense may waive paragraph (1), if the Secretary—
“(A) determines that providing the support subject to paragraph (1) would be detrimental to the national security of the United States; and
“(B) reports such a determination to the Congress in a timely manner, and before such support is not provided.”
See Codification note above.
2001—Subsec. (d). Pub. L. 107–107 substituted “Air Mobility Command” for “Military Airlift Command”.
2000—Pub. L. 106–398 renumbered section 2544 of this title as this section.
1996—Subsecs. (g), (h). Pub. L. 104–106 added subsec. (g) and redesignated former subsec. (g) as (h).
Pub. L. 109–364, div. A, title X, §1071(f)(1), Oct. 17, 2006, 120 Stat. 2402, as amended by Pub. L. 110–181, div. A, title X, §1063(c)(10), Jan. 28, 2008, 122 Stat. 323, provided that: “In executing to section 2554 of title 10, United States Code, the amendments made by section 8126(c)(2) of Public Law 109–148 [adding subsec. (i) to this section] (119 Stat. 2729) and section 1058(c) of Public Law 109–163 [adding subsec. (i) to this section] (119 Stat. 3443), such amendments shall be executed so as to appear only once in the law as amended.”
Pub. L. 109–148, div. A, title VIII, §8126(c)(1), Dec. 30, 2005, 119 Stat. 2729, which set forth congressional findings in support of youth organization events, such as the Boy Scouts of America's National Scout Jamboree, was repealed by Pub. L. 109–364, div. A, title X, §1071(f)(3), Oct. 17, 2006, 120 Stat. 2402.
(a) The Secretary of Defense is authorized, under such regulations as he may prescribe, to provide, without expense to the United States Government, transportation from the United States or military commands overseas, and return, on vessels of the Military Sealift Command or aircraft of the Air Mobility Command for (1) those Girl Scouts and officials certified by the Girl Scouts of the United States of America as representing the Girl Scouts of the United States of America at any International World Friendship Event or Troops on Foreign Soil meeting which is endorsed and approved by the National Board of Directors of the Girl Scouts of the United States of America and is conducted outside of the United States, (2) United States citizen delegates coming from outside of the United States to triennial meetings of the National Council of the Girl Scouts of the United States of America, and (3) the equipment and property of such Girl Scouts and officials, to the extent that such transportation will not interfere with the requirements of military operations.
(b) Before furnishing any transportation under subsection (a), the Secretary of Defense shall take from the Girl Scouts of the United States of America a good and sufficient bond for the reimbursement to the United States by the Girl Scouts of the United States of America, of the actual costs of transportation furnished under subsection (a).
(c) Amounts paid to the United States to reimburse it for the actual costs of transportation furnished under subsection (a) shall be credited to the current applicable appropriations or funds to which such costs were charged and shall be available for the same purposes as such appropriations or funds.
(Added Pub. L. 95–492, §1, Oct. 20, 1978, 92 Stat. 1642, §2545; renumbered §2555, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260; Pub. L. 107–107, div. A, title IX, §931(a), Dec. 28, 2001, 115 Stat. 1200.)
Another section 2555 was renumbered section 2565 of this title.
2001—Subsec. (a). Pub. L. 107–107 substituted “Air Mobility Command” for “Military Airlift Command”.
2000—Pub. L. 106–398 renumbered section 2545 of this title as this section.
(a)(1) The Secretary of a military department may make military installations under his jurisdiction available for the furnishing of shelter to persons without adequate shelter. The Secretary may, incidental to the furnishing of such shelter, provide services as described in subsection (b). Shelter and incidental services provided under this section may be provided without reimbursement.
(2) The Secretary concerned shall carry out this section in cooperation with appropriate State and local governmental entities and charitable organizations. The Secretary shall, to the maximum extent practicable, use the services and personnel of such entities and organizations in determining to whom and the circumstances under which shelter is furnished under this section.
(b) Services that may be provided incident to the furnishing of shelter under this section are the following:
(1) Utilities.
(2) Bedding.
(3) Security.
(4) Transportation.
(5) Renovation of facilities.
(6) Minor repairs undertaken specifically to make suitable space available for shelter to be provided under this section.
(7) Property liability insurance.
(c) Shelter and incidental services may only be provided under this section to the extent that the Secretary concerned determines will not interfere with military preparedness or ongoing military functions.
(d) The Secretary concerned may provide bedding for support of shelters for the homeless that are operated by entities other than the Department of Defense. Bedding may be provided under this subsection without reimbursement, but may only be provided to the extent that the Secretary determines that the provision of such bedding will not interfere with military requirements.
(e) The Secretary of Defense shall prescribe regulations for the administration of this section.
(Added Pub. L. 98–94, title III, §305(a)(1), Sept. 24, 1983, 97 Stat. 628, §2546; amended Pub. L. 99–167, title VIII, §825, Dec. 3, 1985, 99 Stat. 992; renumbered §2556, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260.)
2000—Pub. L. 106–398 renumbered section 2546 of this title as this section.
1985—Subsecs. (d), (e). Pub. L. 99–167 added subsec. (d) and redesignated former subsec. (d) as (e).
Section 305(b) of Pub. L. 98–94 provided that: “Section 2546 [now 2556] of title 10, United States Code, as added by subsection (a), shall take effect on October 1, 1983.”
(a)(1) The Secretary of Defense may make available for humanitarian relief purposes any nonlethal excess supplies of the Department of Defense. In addition, the Secretary may make nonlethal excess supplies of the Department available to support domestic emergency assistance activities.
(2) The Secretary of Defense may make excess clothing, shoes, sleeping bags, and related nonlethal excess supplies available to the Secretary of Veterans Affairs for distribution to homeless veterans and programs assisting homeless veterans. The transfer of nonlethal excess supplies to the Secretary of Veterans Affairs under this paragraph shall be without reimbursement.
(b)(1) Excess supplies made available for humanitarian relief purposes under this section shall be transferred to the Secretary of State, who shall be responsible for the distribution of such supplies.
(2) Excess supplies made available under this section to support domestic emergency assistance activities shall be transferred to the Secretary of Homeland Security. The Secretary of Defense may provide assistance in the distribution of such supplies at the request of the Secretary of Homeland Security.
(c) This section does not constitute authority to conduct any activity which, if carried out as an intelligence activity by the Department of Defense, would require a notice to the intelligence committees under title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.).
(d) In this section:
(1) The term “nonlethal excess supplies” means property, other than real property, of the Department of Defense—
(A) that is excess property, as defined in regulations of the Department of Defense; and
(B) that is not a weapon, ammunition, or other equipment or material that is designed to inflict serious bodily harm or death.
(2) The term “intelligence committees” means the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
(Added Pub. L. 99–145, title XIV, §1454(a), Nov. 8, 1985, 99 Stat. 761, §2547; amended Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 101–510, div. A, title XIII, §1322(a)(10), Nov. 5, 1990, 104 Stat. 1671; Pub. L. 102–88, title VI, §602(c)(3), Aug. 14, 1991, 105 Stat. 444; renumbered §2557, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260; Pub. L. 107–107, div. A, title III, §361(a), (b)(1), Dec. 28, 2001, 115 Stat. 1064, 1065; Pub. L. 111–383, div. A, title X, §1074(a), (b)(1), Jan. 7, 2011, 124 Stat. 4368.)
The National Security Act of 1947, referred to in subsec. (c), is act July 26, 1947, ch. 343, 61 Stat. 495, as amended. Title V of the Act is classified generally to subchapter III (§413 et seq.) of chapter 15 of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 401 of Title 50 and Tables.
2011—Pub. L. 111–383, §1074(b)(1), substituted “Excess nonlethal supplies: availability for humanitarian relief, domestic emergency assistance, and homeless veterans assistance” for “Excess nonlethal supplies: availability for homeless veteran initiatives and humanitarian relief” in section catchline.
Subsec. (a)(1). Pub. L. 111–383, §1074(a)(1), inserted at end “In addition, the Secretary may make nonlethal excess supplies of the Department available to support domestic emergency assistance activities.”
Subsec. (b). Pub. L. 111–383, §1074(a)(2), designated existing provisions as par. (1) and added par. (2).
2001—Pub. L. 107–107, §361(b)(1), inserted “availability for homeless veteran initiatives and” before “humanitarian relief” in section catchline.
Subsec. (a). Pub. L. 107–107, §361(a), designated existing provisions as par. (1) and added par. (2).
2000—Pub. L. 106–398 renumbered section 2547 of this title as this section.
1991—Subsec. (c). Pub. L. 102–88 struck out par. (1) which read as follows: “a finding under section 662 of the Foreign Assistance Act of 1961 (22 U.S.C. 2422); or”, struck out par. (2) designation, and substituted “title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.)” for “section 501(a)(1) of the National Security Act of 1947 (50 U.S.C. 413)”.
1990—Subsecs. (d), (e). Pub. L. 101–510 redesignated subsec. (e) as (d) and struck out former subsec. (d) which read as follows:
“(1) The Secretary of State shall submit an annual report on the disposition of all excess supplies transferred by the Secretary of Defense to the Secretary of State under this section during the preceding year.
“(2) Such reports shall be submitted to the Committees on Armed Services and on Foreign Relations of the Senate and the Committees on Armed Services and on Foreign Affairs of the House of Representatives.
“(3) Such reports shall be submitted not later than June 1 of each year.”
1987—Subsec. (e)(1), (2). Pub. L. 100–26 inserted “The term” after each par. designation and struck out uppercase letter of first word after first quotation marks in each par. and substituted lowercase letter.
(a)
(b)
(1) the provision of the services in any case is approved in advance by the Secretary concerned;
(2) the services can be provided in conjunction with training in appropriate military skills; and
(3) the services can be provided within existing funds otherwise available to the Secretary concerned.
(c)
(1) limited air and ground transportation;
(2) communications;
(3) medical assistance;
(4) administrative support; and
(5) security support.
(d)
(e)
(Added Pub. L. 101–189, div. A, title III, §329(a)(1), Nov. 29, 1989, 103 Stat. 1417, §2548; renumbered §2558, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260.)
2000—Pub. L. 106–398 renumbered section 2548 of this title as this section.
Section 329(b) of Pub. L. 101–189 provided that: “Section 2548 [now 2558] of title 10, United States Code, as added by subsection (a), shall take effect on the date of the enactment of this Act [Nov. 29, 1989].”
(a)
(b)
(Added Pub. L. 101–510, div. A, title XIV, §1481(f)(1), Nov. 5, 1990, 104 Stat. 1707, §2549; renumbered §2559, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260.)
Provisions similar to those in this section were contained in Pub. L. 101–165, title IX, §9020, Nov. 21, 1989, 103 Stat. 1133, which was set out as a note under section 2241 of this title, prior to repeal by Pub. L. 101–510, §1481(f)(3).
2000—Pub. L. 106–398 renumbered section 2549 of this title as this section.
The Secretary of Defense (or Secretary of a military department) may not lease to a non-Federal agency in the United States any aircraft or vehicle owned or operated by the Department of Defense if suitable aircraft or vehicles are commercially available in the private sector. However, nothing in the preceding sentence shall affect authorized and established procedures for the sale of surplus aircraft or vehicles.
(Added Pub. L. 101–510, div. A, title XIV, §1481(g)(1), Nov. 5, 1990, 104 Stat. 1707, §2550; renumbered §2560, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260.)
Provisions similar to those in this section were contained in Pub. L. 101–165, title IX, §9025, Nov. 21, 1989, 103 Stat. 1134, which was set out as a note under section 2241 of this title, prior to repeal by Pub. L. 101–510, §1481(g)(4).
2000—Pub. L. 106–398 renumbered section 2550 of this title as this section.
(a)
(2) The Secretary of Defense may use the authority provided by paragraph (1) to transport supplies intended for use to respond to, or mitigate the effects of, an event or condition, such as an oil spill, that threatens serious harm to the environment, but only if other sources to provide such transportation are not readily available. The Secretary may require reimbursement for costs incurred by the Department of Defense to transport supplies under this paragraph.
(b)
(c)
(2) Each report required by paragraph (1) shall cover all provisions of law that authorize appropriations for humanitarian assistance to be available from the Department of Defense for the purposes of this section.
(3) Each report under this subsection shall set forth the following information regarding activities during the previous fiscal year:
(A) The total amount of funds obligated for humanitarian relief under this section.
(B) The number of scheduled and completed transportation missions for purposes of providing humanitarian assistance under this section.
(C) A description of any transfer of excess nonlethal supplies of the Department of Defense made available for humanitarian relief purposes under section 2557 of this title. The description shall include the date of the transfer, the entity to whom the transfer is made, and the quantity of items transferred.
(d)
(e)
(f)
(1) The Committee on Armed Services and the Committee on Foreign Relations of the Senate.
(2) The Committee on Armed Services and the Committee on International Relations of the House of Representatives.
(Added Pub. L. 102–484, div. A, title III, §304(c)(1), Oct. 23, 1992, 106 Stat. 2361, §2551; amended Pub. L. 104–106, div. A, title XIII, §1312, Feb. 10, 1996, 110 Stat. 474; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; renumbered §2561 and amended Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1), (c)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260; Pub. L. 108–136, div. A, title III, §312(d), Nov. 24, 2003, 117 Stat. 1430.)
2003—Subsec. (a). Pub. L. 108–136 designated existing provisions as par. (1) and added par. (2).
2000—Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], renumbered section 2551 of this title as this section.
Subsec. (c)(3)(C). Pub. L. 106–398, §1 [[div. A], title X, §1033(c)(1)], substituted “section 2557” for “section 2547”.
1999—Subsec. (f)(2). Pub. L. 106–65 substituted “Committee on Armed Services” for “Committee on National Security”.
1996—Subsec. (b). Pub. L. 104–106, §1312(1), (2), redesignated subsec. (d) as (b) and struck out former subsec. (b) which read as follows: “
“(1) the payment of administrative costs incurred in providing the transportation described in subsection (a); and
“(2) the purchase or other acquisition of transportation assets for the distribution of humanitarian relief supplies in the country of destination.”
Subsec. (c). Pub. L. 104–106, §1312(1), (3), added subsec. (c) and struck out former subsec. (c) which read as follows:
“(c)
“(2) Such transportation shall be provided by the most economical commercial or military means available, unless the Secretary of State determines that it is in the national interest of the United States to provide such transportation other than by the most economical means available. The means used to provide such transportation may include the use of aircraft and personnel of the reserve components of the Armed Forces.
“(3) Nothing in this subsection shall be construed as waiving the requirements of section 2631 of this title and sections 901(b) and 901b of the Merchant Marine Act, 1936 (46 U.S.C. App. 1241(b) and 1241f).”
Subsec. (d). Pub. L. 104–106, §1312(4), redesignated subsec. (f) as (d) and substituted “the congressional committees specified in subsection (f) and the Committees on Appropriations of the Senate and House of Representatives of the” for “the Committees on Appropriations and on Armed Services of the Senate and House of Representatives, the Committee on Foreign Relations of the Senate, and the Committee on Foreign Affairs of the House of Representatives of the”. Former subsec. (d) redesignated (b).
Subsec. (e). Pub. L. 104–106, §1312(3), (5), redesignated subsec. (g) as (e) and struck out former subsec. (e) which required status reports and specified time for submission, coverage, and contents.
Subsec. (f). Pub. L. 104–106, §1312(6), added subsec. (f). Former subsec. (f) redesignated (d).
Subsec. (g). Pub. L. 104–106, §1312(5), redesignated subsec. (g) as (e).
Committee on International Relations of House of Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
Notification provided to appropriate congressional committees with respect to assistance under this section to include detailed description of items for which transportation is provided that are excess nonlethal supplies of Department of Defense, including quantity, acquisition value, and value at time of transportation of such items, see section 1504(c) of Pub. L. 103–160, set out in a Humanitarian and Civic Assistance note under section 401 of this title.
Pub. L. 102–484, div. A, title III, §304(d), Oct. 28, 1992, 106 Stat. 2362, provided that for purposes of subsec. (e) of this section, section 304 of Pub. L. 102–190 (105 Stat. 1333) and the humanitarian relief laws referred to in section 304(f)(4) of Pub. L. 102–190 (as in effect on the day before Oct. 23, 1992) were to be considered as provisions of law that authorized appropriations for humanitarian assistance to be available for the purposes of this section.
(a)
(1) no department or agency of the Federal Government (other than the Department of Defense), no State, and no other person or entity eligible to receive excess or surplus property under subtitle I of title 40 and division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41 submits to the Defense Reutilization and Marketing Service a request for such equipment during the period for which the Defense Reutilization and Marketing Service accepts such a request; or
(2) the President determines that the transfer is necessary in order to respond to an emergency for which the equipment is especially suited.
(b)
(c)
(Added Pub. L. 102–484, div. D, title XLIII, §4304(a), Oct. 23, 1992, 106 Stat. 2699, §2552; renumbered §2562 and amended Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1), (c)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260; Pub. L. 107–217, §3(b)(8), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 107–314, div. A, title X, §1062(e)(1), Dec. 2, 2002, 116 Stat. 2651; Pub. L. 111–350, §5(b)(41), Jan. 4, 2011, 124 Stat. 3846.)
The Foreign Assistance Act of 1961, referred to in subsec. (a), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, as amended. Part II of the Act is classified generally to subchapter II (§2301 et seq.) of chapter 32 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2151 of Title 22 and Tables.
2011—Subsec. (a)(1). Pub. L. 111–350 substituted “division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” for “title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)”.
2002—Subsec. (a)(1). Pub. L. 107–217, §3(b)(8)(A), as amended by Pub. L. 107–314, inserted “subtitle I of title 40 and title III of” before “the Federal” the second place it appeared.
Pub. L. 107–217, §3(b)(8)(B), substituted “(41 U.S.C. 251 et seq.)” for “(40 U.S.C. 472 et seq.)”.
2000—Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], renumbered section 2552 of this title as this section.
Subsec. (b). Pub. L. 106–398, §1 [[div. A], title X, §1033(c)(2)], substituted “section 2557” for “section 2547”.
Pub. L. 107–314, div. A, title X, §1062(e), Dec. 2, 2002, 116 Stat. 2651, provided that the amendment made by section 1062(e)(1) is effective as if included in Pub. L. 107–217 as originally enacted.
(a)
(2)(A) Except as provided in subparagraph (B), articles and services referred to in paragraph (1) are articles and services that are manufactured or performed by any working-capital funded industrial facility of the armed forces.
(B) The authority in this section does not apply to sales of articles and services by a working-capital funded Army industrial facility (including a Department of the Army arsenal) that manufactures large caliber cannons, gun mounts, recoil mechanisms, ammunition, munitions, or components thereof, which are governed by regulations required by section 4543 of this title.
(b)
(c)
(A) the Secretary of Defense determines that the articles or services are not available from a commercial source in the United States;
(B) the purchaser agrees to hold harmless and indemnify the United States, except as provided in paragraph (3), from any claim for damages or injury to any person or property arising out of the articles or services;
(C) the articles or services can be substantially manufactured or performed by the industrial facility concerned with only incidental subcontracting;
(D) it is in the public interest to manufacture the articles or perform the services;
(E) the Secretary determines that the sale of the articles or services will not interfere with the military mission of the industrial facility concerned; and
(F) the sale of the goods and services is made on the basis that it will not interfere with performance of work by the industrial facility concerned for the Department of Defense.
(2) The Secretary of Defense may waive the condition in paragraph (1)(A) and subsection (a)(1) that an article or service must be not available from a United States commercial source in the case of a particular sale if the Secretary determines that the waiver is necessary for reasons of national security and notifies Congress regarding the reasons for the waiver.
(3) Paragraph (1)(B) does not apply in any case of willful misconduct or gross negligence or in the case of a claim by a purchaser of articles or services under this section that damages or injury arose from the failure of the Government to comply with quality, schedule, or cost performance requirements in the contract to provide the articles or services.
(d)
(2) In the sale of articles and services under this section, the Secretary shall—
(A) charge the purchaser, at a minimum, the variable costs, capital improvement costs, and equipment depreciation costs that are associated with the articles or services sold;
(B) enter into a firm, fixed-price contract or, if agreed by the purchaser, a cost reimbursement contract for the sale; and
(C) develop and maintain (from sources other than appropriated funds) working capital to be available for paying design costs, planning costs, procurement costs, and other costs associated with the articles or services sold.
(e)
(f)
(g)
(1) The term “advance incremental funding”, with respect to a sale of articles or services, means a series of partial payments for the articles or services that includes—
(A) one or more partial payments before the commencement of work or the incurring of costs in connection with the manufacture of the articles or the performance of the services, as the case may be; and
(B) subsequent progress payments that result in full payment being completed as the required work is being completed.
(2) The term “not available”, with respect to an article or service proposed to be sold under this section, means that the article or service is unavailable from a commercial source in the required quantity and quality or within the time required.
(3) The term “variable costs”, with respect to sales of articles or services, means the costs that are expected to fluctuate directly with the volume of sales and—
(A) in the case of articles, the volume of production necessary to satisfy the sales orders; or
(B) in the case of services, the extent of the services sold.
(Added Pub. L. 103–337, div. A, title III, §339(a)(1), Oct. 5, 1994, 108 Stat. 2718, §2553; amended Pub. L. 106–65, div. A, title III, §331(a)(2), (b), Oct. 5, 1999, 113 Stat. 566, 567; renumbered §2563, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260; Pub. L. 107–107, div. A, title III, §343(a), Dec. 28, 2001, 115 Stat. 1061.)
2001—Subsec. (c)(1)(B). Pub. L. 107–107, §343(a)(1), substituted “as provided in paragraph (3)” for “in any case of willful misconduct or gross negligence”.
Subsec. (c)(3). Pub. L. 107–107, §343(a)(2), added par. (3).
2000—Pub. L. 106–398 renumbered section 2553 of this title as this section.
1999—Subsec. (c). Pub. L. 106–65, §331(a)(2), designated existing provisions as par. (1), redesignated former pars. (1) to (6) as subpars. (A) to (F), respectively, of par. (1), and added par. (2).
Subsec. (g)(2), (3). Pub. L. 106–65, §331(b), added par. (2) and redesignated former par. (2) as (3).
Section 339(b) of Pub. L. 103–337 provided that: “Section 2553 [now 2563] of title 10, United States Code, as added by subsection (a), shall take effect on April 1, 1995.”
(a)
(b)
(1) to the extent that such needs cannot reasonably be met by a source other than the Department;
(2) to the extent that the provision of such assistance does not adversely affect the military preparedness of the armed forces; and
(3) if the organization requesting such assistance agrees to reimburse the Department for amounts expended by the Department in providing the assistance in accordance with the provisions of section 377 of this title and other applicable provisions of law.
(c)
(1) Sporting events for which funds have been appropriated before September 23, 1996.
(2) The Special Olympics.
(3) The Paralympics.
(4) A sporting event sanctioned by the United States Olympic Committee through the Paralympic Military Program.
(5) Any national or international paralympic sporting event (other than a sporting event described in paragraphs (1) through (4))—
(A) that—
(i) is held in the United States or any of its territories or commonwealths;
(ii) is governed by the International Paralympic Committee; and
(iii) is sanctioned by the United States Olympic Committee;
(B) for which participation exceeds 100 amateur athletes; and
(C) in which at least 10 percent of the athletes participating in the sporting event are members or former members of the armed forces who are participating in the sporting event based upon an injury or wound incurred in the line of duty in the armed force and veterans who are participating in the sporting event based upon a service-connected disability.
(d)
(e)
(1) a description of the assistance provided;
(2) the amount expended by the Department in providing the assistance;
(3) if the assistance was provided under subsection (a), the certification of the Attorney General with respect to the assistance under that subsection; and
(4) if the assistance was provided under subsection (b)—
(A) an explanation why the assistance could not reasonably be met by a source other than the Department; and
(B) the amount the Department was reimbursed under that subsection.
(f)
(g)
(2) The total amount expended for any fiscal year to provide support for sporting events described in subsection (c)(5) may not exceed $1,000,000.
(Added Pub. L. 104–201, div. A, title III, §367(a), Sept. 23, 1996, 110 Stat. 2496, §2554; amended Pub. L. 105–85, div. A, title X, §1073(a)(56), (c)(2)(A), Nov. 18, 1997, 111 Stat. 1903, 1904; renumbered §2564, Pub. L. 106–398, §1 [[div. A], title X, §1033(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–260; Pub. L. 110–181, div. A, title III, §372(a), Jan. 28, 2008, 122 Stat. 81.)
2008—Subsec. (c)(4), (5). Pub. L. 110–181, §372(a)(1), added pars. (4) and (5).
Subsec. (g). Pub. L. 110–181, §372(a)(2), added subsec. (g).
2000—Pub. L. 106–398 renumbered section 2554 of this title as this section.
1997—Pub. L. 105–85, §1073(c)(2)(A), made technical amendment to directory language of Pub. L. 104–201, §367(a), which enacted this section.
Subsec. (c)(1). Pub. L. 105–85, §1073(a)(56), substituted “September 23, 1996” for “the date of the enactment of this Act”.
Section 1073(c) of Pub. L. 105–85 provided that the amendment made by that section is effective as of Sept. 23, 1996, and as if included in the National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104–201, as enacted.
Pub. L. 104–208, div. A, title V, §5802, Sept. 30, 1996, 110 Stat. 3009–522, as amended by Pub. L. 110–181, div. A, title III, §372(b), Jan. 28, 2008, 122 Stat. 82, provided that: “There is hereby established on the books of the Treasury an account, ‘Support for International Sporting Competitions, Defense’ (hereinafter referred to in this section as the ‘Account’) to be available until expended for logistical and security support for international sporting competitions and for support of sporting competitions authorized under section 2564(c)(4) and (5), of title 10, United States Code, (other than pay and non-travel-related allowances of members of the Armed Forces of the United States, except for members of the reserve components thereof called or ordered to active duty in connection with providing such support): Provided, That there shall be credited to the Account: (a) unobligated balances of the funds appropriated in Public Laws 103–335 [108 Stat. 2605] and 104–61 [109 Stat. 642] under the headings ‘Summer Olympics’; (b) any reimbursements received by the Department of Defense in connection with support to the 1993 World University Games; the 1994 World Cup Games; and the 1996 Games of the XXVI Olympiad held in Atlanta, Georgia; (c) any reimbursements received by the Department of Defense after the date of enactment of this Act [Sept. 30, 1996] for logistical and security support provided to international sporting competitions; and (d) amounts specifically appropriated to the Account, all to remain available until expended: Provided further, That none of the funds made available to the Account may be obligated until 15 days after the congressional defense committees have been notified in writing by the Secretary of Defense as to the purpose for which these funds will be obligated.”
(a)
(1) transfer title or otherwise provide to a foreign government (A) equipment for the monitoring of nuclear test explosions, and (B) associated equipment;
(2) as part of any such conveyance or provision of equipment, install such equipment on foreign territory or in international waters; and
(3) inspect, test, maintain, repair, or replace any such equipment.
(b)
(1) to provide the United States with timely access to the data produced, collected, or generated by the equipment; and
(2) to permit the Secretary of Defense to take such measures as the Secretary considers necessary to inspect, test, maintain, repair, or replace that equipment, including access for purposes of such measures.
(c)
(d)
(Added Pub. L. 106–398, §1 [[div. A], title XII, §1203(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–324, §2555; renumbered §2565 and amended Pub. L. 107–107, div. A, title XII, §1201(a)(1), (b), Dec. 28, 2001, 115 Stat. 1245.)
2001—Pub. L. 107–107, §1201(a)(1), renumbered section 2555 of this title as this section.
Subsec. (a). Pub. L. 107–107, §1201(b)(1)(A), substituted “Transfer Title to or Otherwise” for “Convey or” in heading.
Subsec. (a)(1). Pub. L. 107–107, §1201(b)(1)(B), substituted “transfer title” for “convey” and struck out “and” after semicolon at end.
Subsec. (a)(3). Pub. L. 107–107, §1201(b)(1)(C), (D), added par. (3).
Subsec. (b). Pub. L. 107–107, §1201(b)(2)(A), substituted “provided to a foreign government” for “conveyed or otherwise provided” in introductory provisions.
Subsec. (b)(1). Pub. L. 107–107, §1201(b)(2)(B), inserted “and” after semicolon at end.
Subsec. (b)(2). Pub. L. 107–107, §1201(b)(2)(C), substituted a period for “; and” at end.
Subsec. (b)(3). Pub. L. 107–107, §1201(b)(2)(D), struck out par. (3) which read as follows: “to return such equipment to the United States (or allow the United States to recover such equipment) if either party determines that the agreement no longer serves its interests.”
(a)
(b)
(1) The term “military welfare society” means the following:
(A) The Army Emergency Relief Society.
(B) The Navy-Marine Corps Relief Society.
(C) The Air Force Aid Society, Inc.
(2) The term “services” includes lighting, heating, cooling, electricity, office furniture, office machines and equipment, telephone and other information technology services (including installation of lines and equipment, connectivity, and other associated services), and security systems (including installation and other associated expenses).
(Added Pub. L. 107–314, div. A, title X, §1066(a), Dec. 2, 2002, 116 Stat. 2656.)
Section, added Pub. L. 109–364, div. A, title X, §1076(b)(1), Oct. 17, 2006, 120 Stat. 2405, related to supplies, services, and equipment: provision in major public emergencies.
The Secretary of a military department may authorize a member of the armed forces under the jurisdiction of the Secretary who has been deployed in support of a contingency operation for at least 30 days to retain, after that member is no longer so deployed, the combat uniform issued to that member as organizational clothing and individual equipment.
(Added Pub. L. 110–181, div. A, title III, §376(a), Jan. 28, 2008, 122 Stat. 84.)
2011—Pub. L. 111–383, div. A, title X, §1072(c)(2), Jan. 7, 2011, 124 Stat. 4366, substituted “Surplus military equipment: sale to State and local law enforcement, firefighting, homeland security, and emergency management agencies” for “Surplus military equipment: sale to State and local law enforcement and firefighting agencies” in item 2576.
2006—Pub. L. 109–364, div. A, title III, §352(b), div. B, title XXVIII, §2825(d)(1)(B), Oct. 17, 2006, 120 Stat. 2161, 2477, substituted “supplies” for “property” in item 2571 and “animals” for “working dogs” in item 2583.
Pub. L. 109–163, div. A, title V, §599(d), Jan. 6, 2006, 119 Stat. 3284, struck out “at end of useful working life” after “adoption” in item 2583.
2001—Pub. L. 107–107, div. A, title X, §1048(a)(25), Dec. 28, 2001, 115 Stat. 1224, redesignated item 2582 relating to military working dogs as item 2583.
2000—Pub. L. 106–446, §1(b), Nov. 6, 2000, 114 Stat. 1933, added item 2582 relating to military working dogs.
Pub. L. 106–398, §1 [[div. A], title III, §381(b), title XVII, §1706(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–85, 1654A–367, added items 2576b and 2582 relating to military equipment identified on United States munitions list.
1998—Pub. L. 105–261, div. A, title XII, §1234(b), Oct. 17, 1998, 112 Stat. 2157, added item 2581.
1997—Pub. L. 105–85, div. A, title X, §1063(b), Nov. 18, 1997, 111 Stat. 1893, added item 2580.
1996—Pub. L. 104–201, div. A, title X, §1033(a)(2), Sept. 23, 1996, 110 Stat. 2640, added item 2576a.
1993—Pub. L. 103–160, div. A, title XI, §1171(a)(2), Nov. 30, 1993, 107 Stat. 1766, added item 2579.
1988—Pub. L. 100–456, div. A, title III, §324(b), Sept. 29, 1988, 102 Stat. 1954, substituted “Documents, historical artifacts, and condemned or obsolete combat materiel: loan, gift, or exchange” for “Condemned or obsolete material: loan or gift to certain organizations” in item 2572.
Pub. L. 100–370, §1(k)(2), July 19, 1988, 102 Stat. 848, added item 2578.
1982—Pub. L. 97–214, §6(b)(2), July 12, 1982, 96 Stat. 172, added item 2577.
1980—Pub. L. 96–513, title V, §511(83)(B), Dec. 12, 1980, 94 Stat. 2927, struck out item 2573 “Excess property: transfers to Canal Zone Government”.
1968—Pub. L. 90–500, title IV, §403(b), Sept. 20, 1968, 82 Stat. 851, added item 2576.
1958—Pub. L. 85–861, §1(50), Sept. 2, 1958, 72 Stat. 1459, substituted “property” for “supplies” in item 2571.
(a) If either of the Secretaries concerned requests it and the other approves, supplies may be transferred, without compensation, from one armed force to another.
(b) If its head approves, a department or organization within the Department of Defense may, upon request, perform work and services for, or furnish supplies to, any other of those departments or organizations, without reimbursement or transfer of funds.
(c) If military or civilian personnel of a department or organization within the Department of Defense are assigned or detailed to another of those departments or organizations, and if the head of the department or organization to which they are transferred approves, their pay and allowances and the cost of transporting their dependents and household goods may be charged to an appropriation that is otherwise available for those purposes to that department or organization.
(d) No agency or official of the executive branch of the Federal Government may establish any regulation, program, or policy or take any other action which precludes, directly or indirectly, the Secretaries concerned from exercising the authority provided in this section.
(Aug. 10, 1956, ch. 1041, 70A Stat. 143; Pub. L. 85–861, §1(49), Sept. 2, 1958, 72 Stat. 1459; Pub. L. 99–167, title VIII, §821, Dec. 3, 1985, 99 Stat. 991; Pub. L. 109–364, div. B, title XXVIII, §2825(c)(1), (d)(1)(A), Oct. 17, 2006, 120 Stat. 2477.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2571(a) [now (b)] | 5:171t (less clause (2)). | Oct. 29, 1949, ch. 787, §621, 63 Stat. 1020. |
| 2571(b) [now (c)] | 5:171t (clause 2)). |
In subsection (a), the words “After June 30, 1949” are omitted as executed. The words “may perform work and services for, or furnish supplies to” are substituted for the words “services, work, supplies, materials, and equipment may be rendered or supplied”, since the word “supplies”, as defined in section 101(26) of this title, includes “equipment” and “material”. The words “upon request” are inserted for clarity.
In subsection (b), the words “on a reimbursable or other basis as authorized by law”, “to duty”, and “naval” are omitted as surplusage.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2571(a) | 14:640. | June 15, 1955, ch. 142, 69 Stat. 134. |
In subsection (a), the first 12 words are substituted for 14:640 (last 20 words). The words “may be transferred” are substituted for the words “The interchange . . . is authorized”, since the words “without compensation” authorize a simple one-way transfer, while the word “interchange” normally means a mutual exchange. The words “military stores . . . and equipment of every character” are omitted as covered by the word “supplies” as defined in section 101(26) of this title. The words “armed force” are substituted for the enumeration of the armed forces.
2006—Pub. L. 109–364, §2825(d)(1)(A), substituted “supplies” for “property” in section catchline.
Subsec. (a). Pub. L. 109–364, §2825(c)(1), struck out “and real estate” after “supplies”.
1985—Subsec. (d). Pub. L. 99–167 added subsec. (d).
1958—Pub. L. 85–861, §1(49)(A), substituted “property” for “supplies” in section catchline.
Subsecs. (a) to (c). Pub. L. 85–861, §1(49)(B), (C), added subsec. (a) and redesignated former subsecs. (a) and (b) as (b) and (c), respectively.
Pub. L. 110–329, div. C, title VIII, §8075, Sept. 30, 2008, 122 Stat. 3638, provided that:
“(a) During the current fiscal year and hereafter, the Secretary of Defense, in coordination with the Secretary of Health and Human Services, may carry out a program to distribute surplus dental and medical equipment of the Department of Defense, at no cost to the Department of Defense, to Indian Health Service facilities and to federally-qualified health centers (within the meaning of section 1905(l)(2)(B) of the Social Security Act (42 U.S.C. 1396d(l)(2)(B))).
“(b) In carrying out this provision, the Secretary of Defense shall give the Indian Health Service a property disposal priority equal to the priority given to the Department of Defense and its twelve special screening programs in distribution of surplus dental and medical supplies and equipment.”
(a) The Secretary concerned may lend or give items described in subsection (c) that are not needed by the military department concerned (or by the Coast Guard, in the case of the Secretary of Homeland Security), to any of the following:
(1) A municipal corporation, county, or other political subdivision of a State.
(2) A servicemen's monument association.
(3) A museum, historical society, or historical institution of a State or a foreign nation or a nonprofit military aviation heritage foundation or association incorporated in a State.
(4) An incorporated museum or memorial that is operated and maintained for educational purposes only and the charter of which denies it the right to operate for profit.
(5) A post of the Veterans of Foreign Wars of the United States or of the American Legion or a unit of any other recognized war veterans’ association.
(6) A local or national unit of any war veterans’ association of a foreign nation which is recognized by the national government of that nation (or by the government of one of the principal political subdivisions of that nation).
(7) A post of the Sons of Veterans Reserve.
(b)(1) Subject to paragraph (2), the Secretary concerned may exchange items described in subsection (c) that are not needed by the armed forces for any of the following items or services if such items or services directly benefit the historical collection of the armed forces:
(A) Similar items held by any individual, organization, institution, agency, or nation.
(B) Conservation supplies, equipment, facilities, or systems.
(C) Search, salvage, or transportation services.
(D) Restoration, conservation, or preservation services.
(E) Educational programs.
(2) The Secretary concerned may not make an exchange under paragraph (1) unless the monetary value of property transferred, or services provided, to the United States under the exchange is not less than the value of the property transferred by the United States. The Secretary concerned may waive the limitation in the preceding sentence in the case of an exchange of property for property in any case in which the Secretary determines that the item to be received by the United States in the exchange will significantly enhance the historical collection of the property administered by the Secretary.
(c) This section applies to the following types of property held by a military department or the Coast Guard: books, manuscripts, works of art, historical artifacts, drawings, plans, models, and condemned or obsolete combat materiel.
(d)(1) A loan or gift made under this section shall be subject to regulations prescribed by the Secretary concerned and to regulations under section 121 of title 40. The Secretary concerned shall ensure that an item authorized to be donated under this section is demilitarized in the interest of public safety, as determined necessary by the Secretary or the Secretary's delegee.
(2)(A) Except as provided in subparagraph (B), the United States may not incur any expense in connection with a loan or gift under subsection (a), including any expense associated with demilitarizing an item under paragraph (1), for which the recipient of the item shall be responsible.
(B) The Secretary concerned may, without cost to the recipient, demilitarize, prepare, and transport in the continental United States for donation to a recognized war veterans’ association an item authorized to be donated under this section if the Secretary determines the demilitarization, preparation, and transportation can be accomplished as a training mission without additional budgetary requirements for the unit involved.
(Aug. 10, 1956, ch. 1041, 70A Stat. 143; Pub. L. 96–513, title V, §511(82), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 100–456, div. A, title III, §324(a), Sept. 29, 1988, 102 Stat. 1954; Pub. L. 101–510, div. A, title III, §325, Nov. 5, 1990, 104 Stat. 1531; Pub. L. 102–484, div. A, title III, §373, Oct. 23, 1992, 106 Stat. 2385; Pub. L. 103–337, div. A, title X, §1071, Oct. 5, 1994, 108 Stat. 2859; Pub. L. 104–106, div. A, title III, §372, Feb. 10, 1996, 110 Stat. 280; Pub. L. 107–107, div. A, title X, §1043(d), Dec. 28, 2001, 115 Stat. 1219; Pub. L. 107–217, §3(b)(9), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107–314, div. A, title III, §369, Dec. 2, 2002, 116 Stat. 2524; Pub. L. 110–417, [div. A], title III, §352, Oct. 14, 2008, 122 Stat. 4425.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2572 | 5:150p. | May 22, 1896, ch. 231; restated May 26, 1928, ch. 785; restated Feb. 28, 1933, ch. 137; restated June 19, 1940, ch. 398; July 31, 1947, ch. 421; restated Feb. 27, 1948, ch. 76, §1, 62 Stat. 37; Oct. 31, 1951, ch. 654, §2(2), 65 Stat. 706. |
The word “may” is substituted for the words “are each authorized, in their discretion”. The reference to posts of the Grand Army of the Republic is omitted, since that organization disbanded in 1950. The words “under regulations to be prescribed by him” are substituted for the words “subject to rules and regulations covering the same in each department”. The words “without expense to the United States” are substituted for the words “and the Government shall be at no expense in connection with any such loan or gift”. The words “local unit” are inserted in clause (7) to conform to clauses (5), (6), and (8).
2008—Subsec. (d)(1). Pub. L. 110–417, §352(1), inserted at end “The Secretary concerned shall ensure that an item authorized to be donated under this section is demilitarized in the interest of public safety, as determined necessary by the Secretary or the Secretary's delegee.”
Subsec. (d)(2)(A). Pub. L. 110–417, §352(2), inserted “, including any expense associated with demilitarizing an item under paragraph (1), for which the recipient of the item shall be responsible” before period at end.
2002—Subsec. (a). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation” in introductory provisions.
Subsec. (a)(3). Pub. L. 107–314 inserted before period at end “or a nonprofit military aviation heritage foundation or association incorporated in a State”.
Subsec. (d)(1). Pub. L. 107–217 substituted “section 121 of title 40” for “section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486)”.
2001—Subsec. (a)(1). Pub. L. 107–107, §1043(d)(1), inserted “, county, or other political subdivision of a State” before period at end.
Subsec. (a)(2). Pub. L. 107–107, §1043(d)(2), substituted “servicemen's monument” for “soldiers’ monument”.
Subsec. (a)(4). Pub. L. 107–107, §1043(d)(3), inserted “or memorial” after “An incorporated museum”.
1996—Subsec. (b)(1). Pub. L. 104–106 substituted “not needed by the armed forces for any of the following items or services if such items or services directly benefit the historical collection of the armed forces:” for “not needed by the armed forces for similar items held by any individual, organization, institution, agency, or nation or for search, salvage, transportation, and restoration services which directly benefit the historical collection of the armed forces.” and added subpars. (A) to (E).
1994—Subsec. (b)(1). Pub. L. 103–337 inserted “transportation,” after “salvage,”.
1992—Subsec. (d)(2). Pub. L. 102–484 designated existing provisions as subpar. (A), substituted “Except as provided in subparagraph (B), the” for “The”, and added subpar. (B).
1990—Subsec. (b)(1). Pub. L. 101–510, §325(1), inserted before period at end “or for search, salvage, and restoration services which directly benefit the historical collection of the armed forces”.
Subsec. (b)(2). Pub. L. 101–510, §325(2), inserted “, or services provided,” after “monetary value of property transferred” in first sentence and “in the case of an exchange of property for property” after “preceding sentence” in second sentence.
1988—Pub. L. 100–456 substituted “Documents, historical artifacts, and condemned or obsolete combat materiel: loan, gift, or exchange” for “Condemned or obsolete material: loan or gift to certain organizations” in section catchline, and amended text generally. Prior to amendment, text read as follows: “Subject to regulations under section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486), the Secretary of a military department, or the Secretary of Transportation, under regulations to be prescribed by him, may lend or give, without expense to the United States, books, manuscripts, works of art, drawings, plans, models, and condemned or obsolete combat material that are not needed by that department to—
“(1) a municipal corporation;
“(2) a soldiers’ monument association;
“(3) a State museum;
“(4) an incorporated museum, operated and maintained for educational purposes only, whose charter denies it the right to operate for profit;
“(5) a post of the Veterans of Foreign Wars of the United States;
“(6) a post of the American Legion;
“(7) a local unit of any other recognized war veterans’ association; or
“(8) a post of the Sons of Veterans Reserve.”
1980—Pub. L. 96–513 substituted “section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486), the Secretary of a military department or the Secretary of Transportation” for “section 486 of title 40, the Secretary of a military department or the Secretary of the Treasury”.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Pub. L. 108–136, div. A, title X, §1052, Nov. 24, 2003, 117 Stat. 1614, provided that, during fiscal years 2004 and 2005, the Secretary of a military department could use the authority provided by this section to acquire an historical artifact that directly benefitted the historical collection of the Armed Forces in exchange for any obsolete or surplus property held by that military department, without regard to whether the property was described in subsec. (c) of this section.
Pub. L. 106–65, div. A, title X, §1051, Oct. 5, 1999, 113 Stat. 763, as amended by Pub. L. 109–163, div. A, title X, §1061, Jan. 6, 2006, 119 Stat. 3445, provided that:
“(a)
“(b)
“(1)
“(2)
“(A) is located at a cemetery of the National Cemetery System, war memorial, or military installation in the United States;
“(B) is dedicated to, or otherwise memorializes, the death in combat or combat-related duties of members of the United States Armed Forces; and
“(C) was brought to the United States from abroad as a memorial of combat abroad.
“(c)
Section, act Aug. 10, 1956, ch. 1041, 70A Stat. 143, related to transfer of excess property to the Canal Zone Government.
Repeal effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under section 101 of this title.
A piece of armament that can be advantageously replaced, and that is not needed for its historical value, may be sold by the military department having jurisdiction over it for not less than cost, if the Secretary concerned considers that there are adequate sentimental reasons for the sale.
(Aug. 10, 1956, ch. 1041, 70A Stat. 144.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2574 | 10:1262b. 34:545. 50:69. |
Mar. 2, 1905, ch. 1307 (last 55 words of last par. under “Ordnance Department”), 33 Stat. 841. |
The words “by the military department having jurisdiction over it” are inserted for clarity. The words “if the Secretary concerned considers” are substituted for the words “when there exist * * * in the judgment of the Secretary”.
(a) The Secretary of any military department, and the Secretary of Homeland Security, under such regulations as they may respectively prescribe, may each by public or private sale or otherwise, dispose of all lost, abandoned, or unclaimed personal property that comes into the custody or control of the Secretary's department, other than property subject to section 4712, 6522, or 9712 of this title or subject to subsection (c). However, property may not be disposed of until diligent effort has been made to find the owner (or the heirs, next of kin, or legal representative of the owner). The diligent effort to find the owner (or the heirs, next of kin, or legal representative of the owner) shall begin, to the maximum extent practicable, not later than seven days after the date on which the property comes into the custody or control of the Secretary. The period for which that effort is continued may not exceed 45 days. If the owner (or the heirs, next of kin, or legal representative of the owner) is determined but not found, the property may not be disposed of until the expiration of 45 days after the date when notice, giving the time and place of the intended sale or other disposition, has been sent by certified or registered mail to that person at his last known address. When diligent effort to determine the owner (or heirs, next of kin, or legal representative of the owner) is unsuccessful, the property may be disposed of without delay, except that if it has a fair market value of more than $300, the Secretary may not dispose of the property until 45 days after the date it is received at a storage point designated by the Secretary.
(b)(1) In the case of lost, abandoned, or unclaimed personal property found on a military installation, the proceeds from the sale of the property under this section shall be credited to the operation and maintenance account of that installation and used—
(A) to reimburse the installation for any costs incurred by the installation to collect, transport, store, protect, or sell the property; and
(B) to the extent that the amount of the proceeds exceeds the amount necessary for reimbursing all such costs, to support morale, welfare, and recreation activities under the jurisdiction of the armed forces that are conducted for the comfort, pleasure, contentment, or physical or mental improvement of members of the armed forces at such installation.
(2) The net proceeds from the sale of other property under this section shall be covered into the Treasury as miscellaneous receipts.
(c) No property covered by this section may be delivered to the Armed Forces Retirement Home by the Secretary of a military department, except papers of value, sabers, insignia, decorations, medals, watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes.
(d)(1) The owner (or heirs, next of kin, or legal representative of the owner) of personal property the proceeds of which are credited to a military installation under subsection (b)(1) may file a claim with the Secretary of Defense for the amount equal to the proceeds (less costs referred to in subparagraph (A) of such subsection). Amounts to pay the claim shall be drawn from the morale, welfare, and recreation account for the installation that received the proceeds.
(2) The owner (or heirs, next of kin, or legal representative of the owner) may file a claim with the Secretary of Defense for proceeds covered into the Treasury under subsection (b)(2).
(3) Unless a claim is filed under this subsection within 5 years after the date of the disposal of the property to which the claim relates, the claim may not be considered by a court, the Secretary of Defense (in the case of a claim filed under paragraph (1)), or the Secretary of Defense (in the case of a claim filed under paragraph (2)).
(Aug. 10, 1956, ch. 1041, 70A Stat. 144; Pub. L. 89–143, Aug. 28, 1965, 79 Stat. 581; Pub. L. 96–513, title V, §511(84), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 101–189, div. A, title III, §322(a), (b), title XVI, §1622(f)(1), Nov. 29, 1989, 103 Stat. 1413, 1605; Pub. L. 101–510, div. A, title XV, §1533(a)(2), Nov. 5, 1990, 104 Stat. 1733; Pub. L. 104–106, div. A, title III, §374(a), Feb. 10, 1996, 110 Stat. 281; Pub. L. 104–316, title II, §202(d), Oct. 19, 1996, 110 Stat. 3842; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2575(a) | 5:150e. 5:150h. |
Apr. 14, 1949, ch. 50, 63 Stat. 45. |
| [Uncodified: Apr. 14, 1949, ch. 50, §6, 63 Stat. 45]. | ||
| 2575(b) | 5:150f. | |
| 5:150g. | ||
| 2575(c) | 5:150i. |
In subsection (a), the words “under such regulations as they may respectively prescribe” are substituted for 5:150h. The words “other than property * * * subject to subsection (c)” of this section are substituted for the words “subject to the provisions of section 150i of this title”. The words “other than property subject to sections 4712, 4713, 6522, 9712, or 9713 of this title” are inserted, since uncodified section 6 of the source statute provided that the source statute for this revised section did not repeal or amend the source statutes for those revised sections. The words “that comes into” are substituted for the words “which is now or may hereafter come into”. The word “possession” is omitted as covered by the words “custody or control”. The words “However, property may not be disposed of until” are inserted for clarity. The word “find” is substituted for the words “determine and locate”. The words “until the expiration” are substituted for the words “prior to the expiration of a period”. The words “determined but not found” are substituted for the words “have or has been determined”. The words “or owners”, “or representatives”, and “sold or otherwise” are omitted as surplusage.
In subsection (b), the words “may file * * * within five years” are substituted for the words “may be filed * * * at any time prior to the expiration of five years”, in 5:150g, since the claim must be disallowed if not filed within that period. The words “If not filed within that period” are substituted for the words “If claims are not filed prior to the expiration of five years from the date of the disposal of the property”, in 5:150g. The words “such a claim may not be considered” are substituted for the words “they shall be barred from being acted on”, in 5:150g.
In subsection (c), the words “No property * * * may * * * except” are substituted for the words “Any property * * * shall be limited”. The last sentence is substituted for 5:150i (proviso).
2002—Subsec. (a). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
1996—Subsec. (b). Pub. L. 104–106, §374(a)(1), added subsec. (b) and struck out former subsec. (b) which read as follows: “The net proceeds from the sale of property under this section shall be covered into the Treasury as miscellaneous receipts. The owner (or the heirs, next of kin, or legal representative of the owner) may file a claim for those proceeds with the General Accounting Office within five years after the date of the disposal of the property. If not filed within that period, such a claim may not be considered by a court or the General Accounting Office.”
Subsec. (d). Pub. L. 104–106, §374(a)(2), added subsec. (d).
Subsec. (d)(2), (3). Pub. L. 104–316 substituted “Secretary of Defense” for “Comptroller General of the United States”.
1990—Subsec. (a). Pub. L. 101–510, §1533(a)(2)(A), substituted “section 4712, 6522, or 9712” for “section 4712, 4713, 6522, 9712, or 9713”.
Subsec. (c). Pub. L. 101–510, §1533(a)(2)(B), substituted “Armed Forces Retirement Home” for “United States Soldiers’ and Airmen's Home” and “Secretary of a military department” for “Secretary of the Army or the Secretary of the Air Force” and struck out at end “The Home shall deliver the property to the owner (or the heirs, next of kin, or legal representative of the owner), if that person establishes a right to it within two years after its receipt by the Home.”
1989—Subsec. (a). Pub. L. 101–189, §1622(f)(1), struck out “of this section” after “subsection (c)”.
Pub. L. 101–189, §322(b)(2)(A), substituted “the Secretary's department” for “his department”.
Pub. L. 101–189, §322(b)(1), substituted “owner (or the heirs, next of kin, or legal representative of the owner)” for “owner, his heirs or next of kin, or his legal representative” in two places.
Pub. L. 101–189, §322(a)(3), inserted after second sentence: “The diligent effort to find the owner (or the heirs, next of kin, or legal representative of the owner) shall begin, to the maximum extent practicable, not later than seven days after the date on which the property comes into the custody or control of the Secretary. The period for which that effort is continued may not exceed 45 days.”
Pub. L. 101–189, §322(a)(1), substituted “45 days” for “120 days”.
Pub. L. 101–189, §322(b)(2)(B), substituted “owner (or heirs, next of kin, or legal representative of the owner)” for “owner, his heirs or next of kin, or his legal representatives” after “When diligent effort to determine the”.
Pub. L. 101–189, §322(a)(2), substituted “more than $300, the Secretary may not dispose of the property until 45 days” for “$25 or more the property may not be disposed of until three months”.
Subsec. (b). Pub. L. 101–189, §322(b)(1), substituted “owner (or the heirs, next of kin, or legal representative of the owner)” for “owner, his heirs or next of kin, or his legal representative”.
Subsec. (c). Pub. L. 101–189, §322(b)(1), (3), substituted “owner (or the heirs, next of kin, or legal representative of the owner)” for “owner, his heirs or next of kin, or his legal representative”, and “that person” for “he” before “establishes a right”.
1980—Subsec. (a). Pub. L. 96–513, §511(84)(A), substituted “Secretary of Transportation” for “Secretary of the Treasury”.
Subsec. (c). Pub. L. 96–513, §511(84)(B), substituted “United States Soldiers’ and Airmen's Home” for “Soldiers’ Home”.
1965—Subsec. (a). Pub. L. 89–143 provided for notice by certified mail and substituted provision for disposition of property without delay when diligent effort to determine ownership is unsuccessful and after three months following receipt at designated storage point of property with fair market value of $25 or more, for former provision for disposition of property one year after receipt at designated storage point.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 101–510 effective one year after Nov. 5, 1990, see section 1541 of Pub. L. 101–510, formerly set out as an Effective Date note under section 401 of Title 24, Hospitals and Asylums.
Section 322(c) of Pub. L. 101–189 provided that: “The amendments made by subsection (a) [amending this section] shall apply with respect to property that comes into the custody or control of the Secretary of a military department or the Secretary of Transportation after the date of the enactment of this Act [Nov. 29, 1989].”
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
(a) The Secretary of Defense, under regulations prescribed by him, may sell to State and local law enforcement, firefighting, homeland security, and emergency management agencies, at fair market value, pistols, revolvers, shotguns, rifles of a caliber not exceeding .30, ammunition for such firearms, gas masks, personal protective equipment, and other appropriate equipment which (1) are suitable for use by such agencies in carrying out law enforcement, firefighting, homeland security, and emergency management activities, and (2) have been determined to be surplus property under subtitle I of title 40 and division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(b) Such surplus military equipment shall not be sold under the provisions of this section to a State or local law enforcement, firefighting, homeland security, or emergency management agency unless request therefor is made by such agency, in such form and manner as the Secretary of Defense shall prescribe, and such request, with respect to the type and amount of equipment so requested, is certified as being necessary and suitable for the operation of such agency by the Governor (or such State official as he may designate) of the State in which such agency is located. Equipment sold to a State or local law enforcement, firefighting, homeland security, or emergency management agency under this section shall not exceed, in quantity, the amount requested and certified for such agency and shall be for the exclusive use of such agency. Such equipment may not be sold, or otherwise transferred, by such agency to any individual or public or private organization or agency.
(Added Pub. L. 90–500, title IV, §403(a) Sept. 20, 1968, 82 Stat. 851; amended Pub. L. 96–513, title V, §511(85), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 107–217, §3(b)(10), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 111–350, §5(b)(42), Jan. 4, 2011, 124 Stat. 3846; Pub. L. 111–383, div. A, title X, §1072(a)–(c)(1), Jan. 7, 2011, 124 Stat. 4366.)
2011—Pub. L. 111–383, §1072(c)(1), substituted “Surplus military equipment: sale to State and local law enforcement, firefighting, homeland security, and emergency management agencies” for “Surplus military equipment: sale to State and local law enforcement and firefighting agencies” in section catchline.
Subsec. (a). Pub. L. 111–383, §1072(a)(1), (b), substituted “State and local law enforcement, firefighting, homeland security, and emergency management agencies” for “State and local law enforcement and firefighting agencies”, “personal protective equipment, and other appropriate equipment” for “and protective body armor”, and “in carrying out law enforcement, firefighting, homeland security, and emergency management activities” for “in carrying out law enforcement and firefighting activities”.
Pub. L. 111–350 substituted “division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” for “title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)”.
Subsec. (b). Pub. L. 111–383, §1072(a)(2), substituted “State or local law enforcement, firefighting, homeland security, or emergency management agency” for “State or local law enforcement or firefighting agency” in two places.
2002—Subsec. (a). Pub. L. 107–217 inserted “subtitle I of title 40 and title III of” before “the Federal Property and Administrative Services Act of 1949” and substituted “(41 U.S.C. 251 et seq.)” for “(40 U.S.C. 471 et seq.)”.
1980—Subsec. (a). Pub. L. 96–513 substituted “under” for “pursuant to”, and “(40 U.S.C. 471 et seq.)” for “(68 Stat. 377), as amended”.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Pub. L. 111–383, div. A, title III, §346, Jan. 7, 2011, 124 Stat. 4191, provided that:
“(a)
“(b)
“(c)
Pub. L. 106–181, title VII, §740, Apr. 5, 2000, 114 Stat. 173, as amended by Pub. L. 107–296, title XVII, §1704(e)(6), Nov. 25, 2002, 116 Stat. 2315; Pub. L. 107–314, div. A, title X, §§1051, 1062(i), Dec. 2, 2002, 116 Stat. 2648, 2651, provided that:
“(a)
“(1)
“(2)
“(A) excess to the needs of the Department; and
“(B) acceptable for commercial sale.
“(b)
“(1) shall have as their primary purpose usage for oil spill spotting, observation, and dispersant delivery and may not have any secondary purpose that would interfere with oil spill response efforts under an oil spill response plan; and
“(2) may not be flown outside of or removed from the United States except for the purpose of fulfilling an international agreement to assist in oil spill dispersing efforts, for immediate response efforts for an oil spill outside United States waters that has the potential to threaten United States waters, or for other purposes that are jointly approved by the Secretary of Defense and the Secretary of Homeland Security.
“(c)
“(d)
“(1)
“(2)
“(A) ensure that the sale of the aircraft and aircraft parts is made at a fair market value, as determined by the Secretary of Defense, and, to the extent practicable, on a competitive basis;
“(B) require a certification by the purchaser that the aircraft and aircraft parts will be used only in accordance with the conditions set forth in subsection (b);
“(C) establish appropriate means of verifying and enforcing the use of the aircraft and aircraft parts by the purchaser and other operators in accordance with the conditions set forth in subsection (b) or pursuant to subsection (e); and
“(D) ensure, to the maximum extent practicable, that the Secretary of Defense consults with the Administrator of General Services and with the heads of appropriate departments and agencies of the Federal Government regarding alternative requirements for such aircraft and aircraft parts before the sale of such aircraft and aircraft parts under this section.
“(e)
“(f)
“(1) the number and types of aircraft sold under the authority, and the terms and conditions under which the aircraft were sold;
“(2) the persons or entities to which the aircraft were sold; and
“(3) an accounting of the current use of the aircraft sold.
“(g)
“(1)
“(2)
“(h)
“(i)
[For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.]
Pub. L. 104–307, Oct. 14, 1996, 110 Stat. 3811, as amended by Pub. L. 106–65, div. A, title X, §1067(23), Oct. 5, 1999, 113 Stat. 775; Pub. L. 106–398, §1 [[div. A], title III, §388], Oct. 30, 2000, 114 Stat. 1654, 1654A–89; Pub. L. 107–314, div. A, title X, §1062(k), Dec. 2, 2002, 116 Stat. 2651, known as the Wildfire Suppression and Aircraft Transfer Act of 1996, authorized the Secretary of Defense, during the period beginning on Oct. 1, 1996, and ending on Sept. 30, 2005, to sell the aircraft and aircraft parts that were determined by the Secretary to be excess to the needs of the Department of Defense and acceptable for commercial sale to persons or entities that contracted with the Federal Government for the delivery of fire retardant by air in order to suppress wildfire.
(a)
(A) suitable for use by the agencies in law enforcement activities, including counter-drug and counter-terrorism activities; and
(B) excess to the needs of the Department of Defense.
(2) The Secretary shall carry out this section in consultation with the Attorney General and the Director of National Drug Control Policy.
(b)
(1) the property is drawn from existing stocks of the Department of Defense;
(2) the recipient accepts the property on an as-is, where-is basis;
(3) the transfer is made without the expenditure of any funds available to the Department of Defense for the procurement of defense equipment; and
(4) all costs incurred subsequent to the transfer of the property are borne or reimbursed by the recipient.
(c)
(d)
(Added Pub. L. 104–201, div. A, title X, §1033(a)(1), Sept. 23, 1996, 110 Stat. 2639.)
Provisions similar to those in this section were contained in Pub. L. 101–189, div. A, title XII, §1208, Nov. 29, 1989, 103 Stat. 1566, as amended, which was set out as a note under section 372 of this title, prior to repeal by Pub. L. 104–201, §1033(b)(1).
(a)
(1) excess to the needs of the Department of Defense; and
(2) suitable for use in providing fire and emergency medical services, including personal protective equipment and equipment for communication and monitoring.
(b)
(1) the property is drawn from existing stocks of the Department of Defense;
(2) the recipient firefighting agency accepts the property on an as-is, where-is basis;
(3) the transfer is made without the expenditure of any funds available to the Department of Defense for the procurement of defense equipment; and
(4) all costs incurred subsequent to the transfer of the property are borne or reimbursed by the recipient.
(c)
(d)
(1)
(2)
(Added Pub. L. 106–398, §1 [[div. A], title XVII, §1706(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–367; amended Pub. L. 108–375, div. A, title III, §354, Oct. 28, 2004, 118 Stat. 1861.)
2004—Subsecs. (a), (b). Pub. L. 108–375 substituted “shall” for “may” in introductory provisions.
Pub. L. 106–398, §1 [[div. A], title XVII, §1707], Oct. 30, 2000, 114 Stat. 1654, 1654A–367, provided that:
“(a)
“(1) can be readily put to civilian use by fire service and the emergency response agencies; and
“(2) can be transferred to these agencies using the authority provided by section 2576b of title 10, United States Code, as added by section 1706 of this Act.
“(b)
“(1) The International Association of Fire Chiefs.
“(2) The International Association of Fire Fighters.
“(3) The National Volunteer Fire Council.
“(4) The International Association of Arson Investigators.
“(5) The International Society of Fire Service Instructors.
“(6) The National Association of State Fire Marshals.
“(7) The National Fire Protection Association.
“(c)
(a)(1) The Secretary of Defense shall prescribe regulations to provide for the sale of recyclable materials held by a military department or defense agency and for the operation of recycling programs at military installations. Such regulations shall include procedures for the designation by the Secretary of a military department (or by the Secretary of Defense with respect to facilities of a defense agency) of military installations that have established a qualifying recycling program for the purposes of subsection (b)(2).
(2) Any sale of recyclable materials by the Secretary of Defense or Secretary of a military department shall be in accordance with the procedures in sections 541–555 of title 40 for the sale of surplus property.
(b)(1) Proceeds from the sale of recyclable materials at an installation shall be credited to funds available for operations and maintenance at that installation in amounts sufficient to cover the costs of operations, maintenance, and overhead for processing recyclable materials at the installation (including the cost of any equipment purchased for recycling purposes).
(2) If after such funds are credited a balance remains available to a military installation and such installation has a qualifying recycling program (as determined by the Secretary of the military department concerned or the Secretary of Defense), not more than 50 percent of that balance may be used at the installation for projects for pollution abatement, energy conservation, and occupational safety and health activities. A project may not be carried out under the preceding sentence for an amount greater than 50 percent of the amount established by law as the maximum amount for a minor construction project.
(3) The remaining balance available to a military installation may be transferred to the nonappropriated morale and welfare account of the installation to be used for any morale or welfare activity.
(c) If the balance available to a military installation under this section at the end of any fiscal year is in excess of $2,000,000, the amount of that excess shall be covered into the Treasury as miscellaneous receipts.
(Added Pub. L. 97–214, §6(b)(1), July 12, 1982, 96 Stat. 172; amended Pub. L. 98–525, title XIV, §1405(37), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 107–217, §3(b)(11), Aug. 21, 2002, 116 Stat. 1296.)
2002—Subsec. (a)(2). Pub. L. 107–217 substituted “sections 541–555 of title 40” for “section 203 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 484)”.
1984—Subsec. (a)(1). Pub. L. 98–525 substituted “purposes” for “puposes”.
Section effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
A vessel under the jurisdiction of a military department may be transferred or otherwise made available without reimbursement to another military department or to the Department of Homeland Security, and a vessel under the jurisdiction of the Department of Homeland Security may be transferred or otherwise made available without reimbursement to a military department. Any such transfer may be made only upon the request of the Secretary of the military department concerned or the Secretary of Homeland Security, as the case may be, and with the approval of the Secretary of the department having jurisdiction of the vessel.
(Added Pub. L. 100–370, §1(k)(1), July 19, 1988, 102 Stat. 848; amended Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)
Section is based on Pub. L. 99–190, §101(b) [title VIII, §8012], Dec. 19, 1985, 99 Stat. 1185, 1204.
2002—Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation” wherever appearing.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
(a)
(b)
(2) When forces of the United States are operating in a theater of operations, enemy material captured or found abandoned shall be turned over to appropriate United States or allied military personnel except as otherwise provided in such regulations. A member of the armed forces (or other person under the authority of the armed forces in a theater of operations) may not (except in accordance with such regulations) take from a theater of operations as a souvenir an object formerly in the possession of the enemy.
(3) Such regulations shall provide that a member of the armed forces who wishes to retain as a souvenir an object covered by paragraph (2) may so request at the time the object is turned over pursuant to paragraph (2).
(4) Such regulations shall provide for an officer to be designated to review requests under paragraph (3). If the officer determines that the object may be appropriately retained as a war souvenir, the object shall be turned over to the member who requested the right to retain it.
(5) Such regulations shall provide for captured weaponry to be retained as souvenirs, as follows:
(A) The only weapons that may be retained are those in categories to be agreed upon jointly by the Secretary of Defense and the Secretary of the Treasury.
(B) Before a weapon is turned over to a member, the weapon shall be rendered unserviceable.
(C) A charge may be assessed in connection with each weapon in an amount sufficient to cover the full cost of rendering the weapon unserviceable.
(Added Pub. L. 103–160, div. A, title XI, §1171(a)(1), Nov. 30, 1993, 107 Stat. 1765.)
Section 1171(b) of Pub. L. 103–160 provided that: “The initial regulations required by section 2579 of title 10, United States Code, as added by subsection (a), shall be prescribed not later than 270 days after the date of enactment of this Act [Nov. 30, 1993]. Such regulations shall specifically address the following, consistent with section 2579 of title 10, United States Code, as added by subsection (a):
“(1) The general procedures for collection and disposition of weapons and other enemy material.
“(2) The criteria and procedures for evaluation and disposition of enemy material for intelligence, testing, or other military purposes.
“(3) The criteria and procedures for determining when retention of enemy material by an individual or a unit in the theater of operations may be appropriate.
“(4) The criteria and procedures for disposition of enemy material to a unit or other Department of Defense entity as a souvenir.
“(5) The criteria and procedures for disposition of enemy material to an individual as an individual souvenir.
“(6) The criteria and procedures for determining when demilitarization or the rendering unserviceable of firearms is appropriate.
“(7) The criteria and procedures necessary to ensure that servicemembers who have obtained battlefield souvenirs in a manner consistent with military customs, traditions, and regulations have a reasonable opportunity to obtain possession of such souvenirs, consistent with the needs of the service.”
(a)
(b)
(A) is in, or was formerly in, a chapel under the jurisdiction of the Secretary of a military department and closed or being closed; and
(B) is determined by the Secretary to be excess to the requirements of the armed forces.
(2) No real property may be donated under this section.
(c)
(Added Pub. L. 105–85, div. A, title X, §1063(a), Nov. 18, 1997, 111 Stat. 1892.)
Section 501(c)(3) of the Internal Revenue Code of 1986, referred to in subsec. (a), is classified to section 501(c)(3) of Title 26, Internal Revenue Code.
(a)
(2) The Secretary shall make all reasonable efforts to ensure that maintenance and repair work described in paragraph (1) is performed in the United States.
(b)
(Added Pub. L. 105–261, div. A, title XII, §1234(a), Oct. 17, 1998, 112 Stat. 2156.)
(a)
(1) identified on the United States Munitions List maintained under section 121.1 of title 22, Code of Federal Regulations; and
(2) assigned a demilitarization code of “B” or its equivalent.
(b)
(2) The report shall specify the following for each sale:
(A) The date of the sale.
(B) The military department or Defense Agency conducting the sale.
(C) The manner in which the sale was conducted.
(D) The military items described in subsection (a) that were sold or offered for sale.
(E) The purchaser of each item.
(F) The stated end-use of each item sold.
(c)
(Added Pub. L. 106–398, §1 [[div. A], title III, §381(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–84.)
Another section 2582 was renumbered section 2583 of this title.
(a)
(1) At the end of the animal's useful life.
(2) Before the end of the animal's useful life, if such Secretary, in such Secretary's discretion, determines that unusual or extraordinary circumstances justify making the animal available for adoption before that time.
(3) When the animal is otherwise excess to the needs of such military department.
(b)
(c)
(d)
(e)
(2) Notwithstanding any other provision of law, the United States shall not be liable for any veterinary expense associated with a military animal transferred under this section for a condition of the military animal before transfer under this section, whether or not such condition is known at the time of transfer under this section.
(f)
(g)
(1) A military working dog.
(2) A horse owned by the Department of Defense.
(Added Pub. L. 106–446, §1(a), Nov. 6, 2000, 114 Stat. 1932, §2582; renumbered §2583, Pub. L. 107–107, div. A, title X, §1048(a)(25), Dec. 28, 2001, 115 Stat. 1224; amended Pub. L. 109–163, div. A, title V, §599, Jan. 6, 2006, 119 Stat. 3284; Pub. L. 109–364, div. A, title III, §352(a), Oct. 17, 2006, 120 Stat. 2160; Pub. L. 110–181, div. A, title X, §1063(a)(13), Jan. 28, 2008, 122 Stat. 322.)
2008—Subsec. (e). Pub. L. 110–181 substituted “
2006—Pub. L. 109–364, §352(a)(1), substituted “animals” for “working dogs” in section catchline.
Pub. L. 109–163, §599(d), struck out “at end of useful working life” after “adoption” in section catchline.
Subsec. (a). Pub. L. 109–364, §352(a)(2)–(4), substituted “animal's” for “dog's” in pars. (1) and (2) and “animal” for “dog” wherever appearing, and struck out “working” after “may make a military” in introductory provisions and after “useful” in pars. (1) and (2).
Pub. L. 109–163, §599(a), (b), substituted “Secretary of the military department concerned may” for “Secretary of Defense may”, “such military department” for “the Department of Defense”, and “, unless the dog has been determined to be unsuitable for adoption under subsection (b), under circumstances as follows:” and pars. (1) to (3) for “at the end of the dog's useful working life or when the dog is otherwise excess to the needs of the Department, unless the dog has been determined to be unsuitable for adoption under subsection (b).”
Subsec. (b). Pub. L. 109–364, §352(a)(2), (3), (5), substituted “the adoptability of the animal” for “a dog's adoptability” and “animal” for “dog” in two places and struck out “working” after “military”.
Subsec. (c). Pub. L. 109–364, §352(a)(2), (3), substituted “animals” for “dogs” wherever appearing and struck out “working” after “Military”.
Subsec. (d). Pub. L. 109–364, §352(a)(2), (3), substituted “animal” for “dog” and struck out “working” after “military”.
2006—Subsec. (e). Pub. L. 109–364, §352(a)(3), substituted “animal” for “dog” wherever appearing in text.
Pub. L. 109–364, §352(a)(2), struck out “working” after “military” wherever appearing.
Subsec. (f). Pub. L. 109–364, §352(a)(2), (3), substituted “animal” for “dog” in two places and “animals” for “dogs” wherever appearing and struck out “working” after “military” in two places.
Pub. L. 109–163, §599(c), inserted “of Defense” after “Secretary”.
Subsec. (g). Pub. L. 109–364, §352(a)(6), added subsec. (g).
2001—Pub. L. 107–107 renumbered section 2582 of this title as this section.
2011—Pub. L. 111–383, div. A, title V, §591(b), Jan. 7, 2011, 124 Stat. 4232, added item 2601a.
2006—Pub. L. 109–364, div. A, title X, §1071(a)(19)(B), Oct. 17, 2006, 120 Stat. 2399, renumbered item 2613 “Emergency communications equipment: acceptance from local public safety agencies for temporary use related to disasters” as 2614.
Pub. L. 109–163, div. A, title IX, §903(a)(2), Jan. 6, 2006, 119 Stat. 3399, substituted “Regional centers for security studies” for “Asia-Pacific Center for Security Studies” in item 2611.
2004—Pub. L. 108–375, div. A, title V, §585(a)(2), title X, §1051(b), Oct. 28, 2004, 118 Stat. 1931, 2054, added two items 2613.
2003—Pub. L. 108–136, div. A, title IX, §931(c), Nov. 24, 2003, 117 Stat. 1581, struck out “foreign” before “gifts” in item 2611.
2002—Pub. L. 107–314, div. A, title IX, §931(b), Dec. 2, 2002, 116 Stat. 2625, added item 2612.
1999—Pub. L. 106–65, div. A, title IX, §915(b), Oct. 5, 1999, 113 Stat. 722, added item 2611.
1996—Pub. L. 104–201, div. A, title X, §1074(a)(15), Sept. 23, 1996, 110 Stat. 2659, struck out item 2609 “Theater Missile Defense: acceptance of contributions from allies; Theater Missile Defense Cooperation Account”.
Pub. L. 104–106, div. A, title III, §377(b), Feb. 10, 1996, 110 Stat. 284, added item 2610.
1994—Pub. L. 103–337, div. A, title III, §353(c)(2), Oct. 5, 1994, 108 Stat. 2732, substituted “schools” for “education system” in item 2605.
1993—Pub. L. 103–160, div. A, title II, §242(f)(2), title XI, §1105(b)(3), Nov. 30, 1993, 107 Stat. 1605, 1750, inserted “; Defense Cooperation Account” in item 2608 and added item 2609.
1991—Pub. L. 102–190, div. A, title X, §1061(a)(15), Dec. 5, 1991, 105 Stat. 1473, struck out “and services” after “contributions” in item 2608.
1990—Pub. L. 101–403, title II, §202(a)(2), Oct. 1, 1990, 104 Stat. 874, added item 2608.
1989—Pub. L. 101–193, title V, §502(b), Nov. 30, 1989, 103 Stat. 1708, added item 2607.
1988—Pub. L. 100–456, div. A, title III, §323(b), Sept. 29, 1988, 102 Stat. 1953, added item 2606.
1986—Pub. L. 99–661, div. A, title III, §314(b), Nov. 14, 1986, 100 Stat. 3854, added item 2605.
1970—Pub. L. 91–603, §3(2), Dec. 31, 1970, 84 Stat. 1675, added item 2604.
1962—Pub. L. 87–555, §1(2), July 27, 1962, 76 Stat. 244, added item 2603.
Pub. L. 109–148, div. A, title VIII, §8127, Dec. 30, 2005, 119 Stat. 2730, provided that:
“(a)
“(b)
“(c)
“(1) as described in section 1413a(e)(2) of title 10, United States Code; or
“(2) in an operation or area designated as a combat operation or a combat zone, respectively, by the Secretary of Defense in accordance with the regulations prescribed under subsection (a).
“(d)
“(e)
(a)
(b)
(A) members of the armed forces, including members performing full-time National Guard duty under section 502(f) of title 32, who incur a wound, injury, or illness while in the line of duty;
(B) civilian employees of the Department of Defense who incur a wound, injury, or illness while in the line of duty;
(C) dependents of such members or employees; and
(D) survivors of such members or employees who are killed.
(2) The Secretary concerned may not accept a gift of services from a foreign government or international organization under this subsection. A gift of real property, personal property, or money from a foreign government or international organization may be accepted under this subsection only if the gift is not designated for a specific individual.
(3) The Secretary of Defense shall prescribe regulations specifying the conditions that may be attached to a gift, devise, or bequest accepted under this subsection.
(c)
(1) The Department of the Army General Gift Fund, in the case of deposits made by the Secretary of the Army.
(2) The Department of the Navy General Gift Fund, in the case of deposits made by the Secretary of the Navy.
(3) The Department of the Air Force General Gift Fund, in the case of deposits made by the Secretary of the Air Force.
(4) The Coast Guard General Gift Fund, in the case of deposits made by the Secretary of Homeland Security.
(5) The Department of Defense General Gift Fund, in the case of deposits made by the Secretary of Defense.
(d)
(2) Property and money may not be accepted under subsection (a) and property, money, and services may not be accepted under subsection (b)—
(A) if the use of the property or money or the performance of the services in connection with any program, project, or activity would result in the violation of any prohibition or limitation otherwise applicable to such program, project, or activity;
(B) if the conditions attached to the property, money, or services are inconsistent with applicable law or regulations;
(C) if the Secretary concerned determines that the use of the property or money or the performance of the services would reflect unfavorably on the ability of the Department of Defense or the Coast Guard, any employee of the Department or Coast Guard, or any member of the armed forces to carry out any responsibility or duty in a fair and objective manner; or
(D) if the Secretary concerned determines that the use of the property or money or the performance of the services would compromise the integrity or appearance of integrity of any program of the Department of Defense or Coast Guard, or any individual involved in such a program.
(3) The Secretary concerned may disburse funds deposited in a gift fund referred to in subsection (c) for the purposes specified in subsections (a) and (b), subject to the terms of the gift, devise, or bequest.
(e)
(f)
(g)
(h)
(i)
(1) The term “Secretary concerned” includes the Secretary of Defense.
(2) The term “services” includes activities that benefit the morale, welfare, or recreation of members of the armed forces and their dependents or are related or incidental to the conveyance of a gift, devise, or bequest of real property or personal property under subsection (a) or (b).
(Aug. 10, 1956, ch. 1041, 70A Stat. 144; Pub. L. 96–513, title V, §511(86), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 109–163, div. A, title III, §374, Jan. 6, 2006, 119 Stat. 3211; Pub. L. 110–181, div. A, title V, §593(a), Jan. 28, 2008, 122 Stat. 138.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2601(a) 2601(b) |
5:150q. 5:150r. |
Mar. 11, 1948, ch. 107, 62 Stat. 71. |
| 2601(c) | 5:150s. | |
| 2601(d) | 5:150t. |
In subsection (a), the words “receive” and “administration” are omitted as surplusage.
In subsection (b), the words “and conditions” and “United States” are omitted as surplusage.
In subsection (c), the words “any gift, devise, or bequest of” and “real or personal” are omitted as surplusage.
In subsection (d), the words “or any part thereof deposited in the Treasury pursuant to section 150r of this title” are omitted as surplusage.
2008—Subsec. (b)(4). Pub. L. 110–181 struck out par. (4) which read as follows: “The authority to accept gifts, devises, or bequests under this subsection expires on December 31, 2007.”
2006—Pub. L. 109–163 reenacted section catchline without change and amended text generally. Prior to amendment, section consisted of subsecs. (a) to (d) relating to general gift funds.
2002—Subsec. (b)(4). Pub. L. 107–296 substituted “Secretary of Homeland Security” for “Secretary of Transportation”.
1980—Subsec. (b)(4). Pub. L. 96–513 substituted “Secretary of Transportation” for “Secretary of the Treasury”.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Pub. L. 110–181, div. A, title V, §593(b), Jan. 28, 2008, 122 Stat. 138, provided that: “The Secretary of Defense shall prescribe regulations implementing sections 2601 and 2608 of title 10, United States Code, that prohibit the solicitation of any gift under such sections by any employee of the Department of Defense if the nature or circumstances of such solicitation would compromise the integrity or the appearance of integrity of any program of the Department of Defense or of any individual involved in such program.”
(a)
(A) A member of the armed forces described in subsection (b).
(B) A civilian employee of the Department of Defense or Coast Guard described in subsection (c).
(C) The family members of such a member or employee.
(D) Survivors of such a member or employee who is killed.
(2) The regulations required by this subsection shall—
(A) apply uniformly to all elements of the Department of Defense and, to the maximum extent feasible, to the Coast Guard; and
(B) require review and approval by a designated agency ethics official before acceptance of a gift to ensure that acceptance of the gift complies with the Joint Ethics Regulation.
(b)
(1) as described in section 1413a(e)(2) of this title; or
(2) under other circumstances determined by the Secretary concerned to warrant treatment analogous to members covered by paragraph (1).
(c)
(d)
(Added Pub. L. 111–383, div. A, title V, §591(a), Jan. 7, 2011, 124 Stat. 4231.)
(a) Whenever the President finds it necessary, he may accept the cooperation and assistance of the American National Red Cross, and employ it under the armed forces under regulations to be prescribed by the Secretary of Defense.
(b) Personnel of the American National Red Cross who are performing duties in connection with its cooperation and assistance under subsection (a) may be furnished—
(1) transportation, at the expense of the United States, while traveling to and from, and while performing, those duties, in the same manner as civilian employees of the armed forces;
(2) meals and quarters, at their expense or at the expense of the American National Red Cross, except that where civilian employees of the armed forces are quartered without charge, employees of the American National Red Cross may also be quartered without charge; and
(3) available office space, warehousing, wharfage, and means of communication, without charge.
(c) No fee may be charged for a passport issued to an employee of the American National Red Cross for travel outside the United States to assume or perform duties under this section.
(d) Supplies of the American National Red Cross, including gifts for the use of the armed forces, may be transported at the expense of the United States, if it is determined under regulations prescribed under subsection (a) that they are necessary to the cooperation and assistance accepted under this section.
(e) For the purposes of this section, employees of the American National Red Cross may not be considered as employees of the United States.
(Aug. 10, 1956, ch. 1041, 70A Stat. 145.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2602(a) 2602(b) 2602(c) |
36:17. 36:17a (less provisos). 36:17a (1st proviso). |
July 17, 1953, ch. 222, §§1, 2, 7, 67 Stat. 178, 179. |
| 2602(d) | 36:17a (last proviso). | |
| 2602(e) | 36:17b. |
In subsection (a), the words “finds it necessary” are substituted for the words “shall find the * * * to be necessary”. The words “cooperation and assistance” are substituted for the words “cooperation and use * * * assistance * * * the same”. The words “under regulations to be prescribed by the Secretary of Defense” are substituted for 36:17 (last sentence). The words “tendered by the said Red Cross” are omitted as surplusage.
In subsection (b), the introductory clause is substituted for 36:17a (1st 33 words). In clause (1), the word “expense” is substituted for the words “cost and charge”. The words “traveling to and from, and while performing, those duties” are substituted for the words “proceeding to their place of duty, while serving thereat, and while returning therefrom”. In clause (2), the words “at their expense or at the expense of” are substituted for the words “providing the cost thereof is borne by such personnel or by”. The words “quartered without charge” are substituted for the words “furnished quarters on the same basis without cost”. In clause (3), the words “when such facilities are” are omitted as surplusage.
In subsection (c), the words “for travel outside the United States to assume or perform” are substituted for the words “so serving or proceeding abroad to enter upon such service”.
In subsection (d), the word “equipment” is omitted as covered by the word “supplies”. The words “gifts for the use of” are substituted for the words “Red Cross supplies that may be tendered as a gift and accepted for use by”. The word “expense” is substituted for the words “cost and charge”. The words “rules and” are omitted as surplusage.
In subsection (e), the words “Federal Government of” are omitted as surplusage.
Pub. L. 103–337, div. A, title III, §383(b), Oct. 5, 1994, 108 Stat. 2740, provided that, not later than Nov. 30 in each of 1994, 1995, and 1996, the Secretary of Defense was to submit to Congress a report on whether it was necessary for the Department of Defense to support the emergency communications services of the American National Red Cross in order to provide such services for members of the Armed Forces and their families.
(a) Notwithstanding any other provision of law, a fellowship, scholarship, or grant may, under regulations to be prescribed by the President or his designee, be made by a corporation, fund, foundation, or educational institution that is organized and operated primarily for scientific, literary, or educational purposes to any member of the armed forces, and the benefits thereof may be accepted by him—
(1) in recognition of outstanding performance in his field;
(2) to undertake a project that may be of value to the United States; or
(3) for development of his recognized potential for future career service.
However, the benefits of such a fellowship, scholarship, or grant may be accepted by the member in addition to his pay and allowances only to the extent that those benefits would be conferred upon him if the education or training contemplated by that fellowship, scholarship, or grant were provided at the expense of the United States. In addition, if such a benefit, in cash or in kind, is for travel, subsistence, or other expenses, an appropriate reduction shall be made from any payment that is made for the same purpose to the member by the United States incident to his acceptance of the fellowship, scholarship, or grant.
(b) Each member of the armed forces who accepts a fellowship, scholarship, or grant in accordance with subsection (a) shall, before he is permitted to undertake the education or training contemplated by that fellowship, scholarship, or grant, agree in writing that, after he completes the education or training, he will serve on active duty for a period at least three times the length of the period of the education or training.
(Added Pub. L. 87–555, §1(1), July 27, 1962, 76 Stat. 244; amended Pub. L. 111–383, div. A, title X, §1075(b)(39), Jan. 7, 2011, 124 Stat. 4371.)
2011—Pub. L. 111–383 substituted “armed forces” for “Armed Forces” in two places.
Ex. Ord. No. 11079, Jan. 25, 1963, 28 F.R. 819, as amended by Ex. Ord. No. 11382, Nov. 28, 1967, 32 F.R. 16247; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 13286, §69, Feb. 28, 2003, 68 F.R. 10630, provided:
By virtue of the authority vested in me by section 2603 of Title 10, United States Code [this section], I hereby designate the Secretary of Defense, with respect to members of the Army, Navy, Air Force, and Marine Corps, the Secretary of Homeland Security, with respect to members of the Coast Guard when it is not operating as a service in the Navy, and the Secretary of Health and Human Services, with respect to commissioned officers of the Public Health Service, to prescribe regulations under which members of the Armed Forces and commissioned officers of the Public Health Service may accept fellowships, scholarships, or grants from corporations, funds, foundations, or educational institutions organized and operated primarily for scientific, literary, or educational purposes. To the extent practicable, such regulations shall be uniform.
(a) Whenever the President finds it necessary in the interest of United States commitments abroad to provide facilities and services for United States merchant seamen in foreign areas, he may authorize the Secretary of Defense, under such regulations as the Secretary may prescribe, to cooperate with and assist the United Seamen's Service in establishing and providing those facilities and services.
(b) Personnel of the United Seamen's Service who are performing duties in connection with the cooperation and assistance under subsection (a) may be furnished—
(1) transportation, at the expense of the United States, while traveling to and from, and while performing those duties, in the same manner as civilian employees of the armed forces;
(2) meals and quarters, at their expense or at the expense of the United Seamen's Service, except that where civilian employees of the armed forces are quartered without charge, employees of the United Seamen's Service may also be quartered without charge; and
(3) available office space (including space for recreational activities for seamen), warehousing, wharfage, and means of communication, without charge.
(c) No fee may be charged for a passport issued to an employee of the United Seamen's Service for travel outside the United States to assume or perform duties under this section.
(d) Supplies of the United Seamen's Service, including gifts for the use of merchant seamen, may be transported at the expense of the United States, if it is determined under regulations prescribed under subsection (a) that they are necessary to the cooperation and assistance provided under this section.
(e) Where practicable, the President shall also make arrangements to provide for convertibility of local currencies for the United Seamen's Service, in connection with its activities under subsection (a).
(f) For the purposes of this section, employees of the United Seamen's Service may not be considered as employees of the United States.
(Added Pub. L. 91–603, §3(1), Dec. 31, 1970, 84 Stat. 1674.)
Section 1 of Pub. L. 91–603 provided: “That this Act [enacting this section, amending sections 1151, 1152, 1171, and 1223 of Title 46, Appendix, Shipping, and enacting provisions set out as a note under this section] may be cited as the ‘Seamen's Service Act’.”
Section 2 of Pub. L. 91–603 provided that: “It is the purpose of this Act [enacting this section and amending sections 1151, 1152, 1171 and 1223 of Title 46, Appendix, Shipping], by authorizing appropriate departments and agencies of the United States Government to cooperate with the United Seamen's Service (a nonprofit, charitable organization incorporated under the laws of the State of New York) in the establishment and operation of facilities for United States merchant seamen in foreign areas, to promote the welfare of such seamen, essential to the overall interests of shipment of United States goods and supplies to such areas.”
(a) The Secretary of Defense may accept, hold, administer, and spend any gift (including any gift of an interest in real property) made on the condition that it be used in connection with the operation or administration of a defense dependents’ school. The Secretary may pay all necessary expenses in connection with the acceptance of a gift under this subsection.
(b) There is established in the Treasury a fund to be known as the “Department of Defense Dependents’ Education Gift Fund”. Gifts of money, and the proceeds of the sale of property, received under subsection (a) shall be deposited in the fund. The Secretary may disburse funds deposited under this subsection for the benefit or use of defense dependents’ schools, subject to the terms of the gift.
(c) Subsection (c) of section 2601 of this title applies to property that is accepted under subsection (a) in the same manner that such subsection applies to property that is accepted under subsection (a) of that section.
(d)(1) Upon request of the Secretary of Defense, the Secretary of the Treasury may—
(A) retain money, securities, and the proceeds of the sale of securities, in the Department of Defense Dependents’ Education Gift Fund; and
(B) invest money and reinvest the proceeds of the sale of securities in that fund in securities of the United States or in securities guaranteed as to principal and interest by the United States.
(2) The interest and profits accruing from those securities shall be deposited to the credit of the fund and may be disbursed as provided in subsection (b).
(e) In this section, the term “gift” includes a devise of real property or a bequest of personal property.
(f) The Secretary of Defense shall prescribe regulations to carry out this section.
(g) In this section, the term “defense dependents’ school” means the following:
(1) A school established as part of the defense dependents’ education system provided for under the Defense Dependents’ Education Act of 1978 (20 U.S.C. 921 et seq.).
(2) An elementary or secondary school established pursuant to section 2164 of this title.
(Added Pub. L. 99–661, div. A, title III, §314(a), Nov. 14, 1986, 100 Stat. 3853; amended Pub. L. 103–337, div. A, title III, §353(a)–(c)(1), Oct. 5, 1994, 108 Stat. 2731.)
The Defense Dependents’ Education Act of 1978, referred to in subsec. (g)(1), is title XIV of Pub. L. 95–561, Nov. 1, 1978, 92 Stat. 2365, as amended, which is classified principally to chapter 25A (§921 et seq.) of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 921 of Title 20 and Tables.
1994—Pub. L. 103–337, §353(c)(1), substituted “schools” for “education system” in section catchline.
Subsec. (a). Pub. L. 103–337, §353(a)(1), substituted “a defense dependents’ school” for “the defense dependents’ education system provided for under the Defense Dependents’ Education Act of 1978 (20 U.S.C. 921 et seq.)”.
Subsec. (b). Pub. L. 103–337, §353(a)(2), substituted “defense dependents’ schools” for “the defense dependent's education system”.
Subsec. (g). Pub. L. 103–337, §353(b), added subsec. (g).
(a) Subject to subsection (b), the Secretary concerned may cooperate with and assist qualified scouting organizations in establishing and providing facilities and services for members of the armed forces and their dependents, and civilian employees of the Department of Defense and their dependents, at locations outside the United States.
(b) Cooperation and assistance under subsection (a) shall be provided under regulations prescribed by the Secretary of Defense and may be provided only if the President determines that such cooperation and assistance is necessary in the interest of the morale, welfare, and recreation of members of the armed forces.
(c) Personnel of a qualified scouting organization, including officials certified by that organization as representing that organization, who are performing duties in connection with cooperation and assistance provided under subsection (a) may be furnished—
(1) transportation at the expense of the United States while traveling to and from, and while performing, such duties in the same manner as civilian employees of the United States; and
(2) available office space (including space for recreational activities for Boy Scouts and Girl Scouts), warehousing, utilities, and a means of communication, without charge.
(d) Supplies of a qualified scouting organization may be transported at the expense of the United States if the Secretary concerned determines, under regulations prescribed under subsection (b), that the supplies are necessary to the cooperation and assistance provided under this section.
(e) The Secretary concerned may reimburse a qualified scouting organization for all or part of the pay of an employee of that organization for any period during which the employee was performing services under subsection (a). Any such reimbursement may not be made from appropriated funds and shall be made under regulations prescribed under subsection (b).
(f) For the purposes of this section, employees of a qualified scouting organization performing services under subsection (a) may not be considered to be employees of the United States.
(g) In this section, the term “qualified scouting organization” means the Girl Scouts of the United States of America and the Boy Scouts of America.
(Added Pub. L. 100–456, div. A, title III, §323(a), Sept. 29, 1988, 102 Stat. 1953.)
Ex. Ord. No. 12715, May 3, 1990, 55 F.R. 19051, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, and pursuant to section 2606(b) of title 10, United States Code, with regard to support of scouting activities overseas, I hereby determine that the cooperation and assistance authorized by section 2606(a) of that title is necessary in the interest of the morale, welfare, and recreation of members of the armed forces. The Secretary of Defense, or his designee, shall issue regulations concerning such cooperation and support.
George Bush.
(a) The Secretary of Defense may accept, hold, administer, and use any gift (including any gift of an interest in real property) made for the purpose of aiding and facilitating the work of the Defense Intelligence College and may pay all necessary expenses in connection with the acceptance of such a gift.
(b) Money, and proceeds from the sale of property, received as a gift under subsection (a) shall be deposited in the Treasury and shall be available for disbursement upon the order of the Secretary of Defense to the extent provided in annual appropriation Acts.
(c) Subsection (c) of section 2601 of this title applies to property that is accepted under subsection (a) in the same manner that such subsection applies to property that is accepted under subsection (a) of that section.
(d) In this section, the term “gift” includes a bequest of personal property or a devise of real property.
(Added Pub. L. 101–193, title V, §502(a), Nov. 30, 1989, 103 Stat. 1708.)
(a)
(b)
(2) Contributions of money and proceeds from the sale of any property accepted by the Secretary of Defense under subsection (a) shall be credited to the Defense Cooperation Account.
(c)
(2) Funds in the Defense Cooperation Account shall not be made available for obligation or expenditure except to the extent and in the manner provided in subsequent appropriations Acts.
(d)
(1) retained and used by the Department of Defense in the form in which it was donated;
(2) sold or otherwise disposed of upon such terms and conditions and in accordance with such procedures as the Secretary determines appropriate; or
(3) converted into a form usable by the Department of Defense.
(e)
(2) In computing the value of any property referred to in paragraph (1), the Secretary shall aggregate the value of—
(A) similar items of property accepted by the Secretary during the quarter concerned; and
(B) components which, if assembled, would comprise all or a substantial part of an item of equipment or a facility.
(f)
(g)
(2) Any interest or other income that accrues from investment in securities referred to in paragraph (1) shall be deposited to the credit of the Defense Cooperation Account.
(h)
(i)
(j)
(k)
(Added Pub. L. 101–403, title II, §202(a)(1), Oct. 1, 1990, 104 Stat. 872; amended Pub. L. 102–190, div. A, title X, §1061(a)(16), Dec. 5, 1991, 105 Stat. 1473; Pub. L. 103–160, div. A, title XI, §1105(b)(1), (2), Nov. 30, 1993, 107 Stat. 1750; Pub. L. 104–201, div. A, title X, §1063, Sept. 23, 1996, 110 Stat. 2652.)
1996—Subsec. (a). Pub. L. 104–201 inserted before period at end “and may accept from any foreign government or international organization any contribution of services made by such foreign government or international organization for use by the Department of Defense”.
1993—Pub. L. 103–160, §1105(b)(2), inserted “; Defense Cooperation Account” in section catchline.
Subsec. (i). Pub. L. 103–160, §1105(b)(1), substituted “Periodic Audits” for “Annual Audit” in heading and amended text generally. Prior to amendment, text read as follows: “The Comptroller General of the United States shall conduct an annual audit of money and property accepted by the Secretary of Defense under this section and shall submit a copy of the results of each such audit to Congress.”
1991—Subsec. (g)(1). Pub. L. 102–190 inserted “(1)” before “Upon request”.
Section, added Pub. L. 103–160, div. A, title II, §242(f)(1), Nov. 30, 1993, 107 Stat. 1605, related to acceptance of contributions from allies for Theater Missile Defense programs and establishment and use of Theater Missile Defense Cooperation Account.
(a)
(b)
(c)
(d)
(2) At the end of each year, the Secretary shall submit to Congress a report for that year describing the disposition of monetary awards accepted under this section and the payment of incidental expenses under subsection (c).
(e)
(Added Pub. L. 104–106, div. A, title III, §377(a), Feb. 10, 1996, 110 Stat. 283; amended Pub. L. 104–201, div. A, title X, §1074(a)(16), Sept. 23, 1996, 110 Stat. 2659.)
1996—Subsec. (e). Pub. L. 104–201 substituted “on February 10, 1998” for “two years after the date of the enactment of the National Defense Authorization Act for Fiscal Year 1996”.
(a)
(2) For purposes of this section, the Department of Defense regional centers for security studies are the following:
(A) The George C. Marshall European Center for Security Studies.
(B) The Asia-Pacific Center for Security Studies.
(C) The Center for Hemispheric Defense Studies.
(D) The Africa Center for Strategic Studies.
(E) The Near East South Asia Center for Strategic Studies.
(b)
(1) The government of a State or a political subdivision of a State.
(2) The government of a foreign country.
(3) A foundation or other charitable organization, including a foundation or charitable organization this is organized or operates under the laws of a foreign country.
(4) Any source in the private sector of the United States or a foreign country.
(c)
(1) the ability of the Department of Defense, any employee of the Department, or any member of the armed forces to carry out the responsibility or duty of the Department in a fair and objective manner; or
(2) the integrity of any program of the Department, or of any person involved in such a program.
(d)
(e)
(f)
(Added Pub. L. 106–65, div. A, title IX, §915(a), Oct. 5, 1999, 113 Stat. 721; amended Pub. L. 107–314, div. A, title X, §1041(a)(17), Dec. 2, 2002, 116 Stat. 2645; Pub. L. 108–136, div. A, title IX, §931(a), (b)(1), (c), Nov. 24, 2003, 117 Stat. 1580, 1581; Pub. L. 108–375, div. A, title X, §1084(f)(2), Oct. 28, 2004, 118 Stat. 2064; Pub. L. 109–163, div. A, title IX, §903(a)(1), Jan. 6, 2006, 119 Stat. 3397.)
2006—Pub. L. 109–163 amended section catchline and text generally. Prior to amendment, text consisted of subsecs. (a) to (f) relating to acceptance of gifts and donations for the Asia-Pacific Center for Security Studies.
2004—Subsec. (a)(1). Pub. L. 108–375 amended directory language of Pub. L. 108–136, §931(a)(1). See 2003 Amendment note below.
2003—Pub. L. 108–136, §931(c), struck out “foreign” before “gifts” in section catchline.
Subsec. (a). Pub. L. 108–136, §931(b)(1)(A), struck out “Foreign” before “Gifts” in heading.
Subsec. (a)(1). Pub. L. 108–136, §931(a)(1), as amended by Pub. L. 108–375, substituted “gifts and donations from sources described in paragraph (2)” for “foreign gifts or donations”.
Subsec. (a)(2), (3). Pub. L. 108–136, §931(a)(2), (3), added par. (2) and redesignated former par. (2) as (3).
Subsec. (c). Pub. L. 108–136, §931(b)(1)(B), struck out “foreign” before “gift”.
Subsec. (f). Pub. L. 108–136, §931(b)(1)(A), (C), in heading, struck out “Foreign” before “Gift” and in text, struck out “foreign” after “section, a” and “from a foreign government, a foundation or other charitable organization in a foreign country, or an individual in a foreign country” before period at end.
2002—Subsec. (e). Pub. L. 107–314 struck out heading and text of subsec. (e). Text read as follows: “If the total amount of funds accepted under subsection (a) in any fiscal year exceeds $2,000,000, the Secretary shall notify Congress of the amount of those donations for that fiscal year. Any such notice shall list each of the contributors of such amounts and the amount of each contribution in that fiscal year.”
Pub. L. 108–375, div. A, title X, §1084(f), Oct. 28, 2004, 118 Stat. 2064, provided that the amendment made by section 1084(f)(2) is effective as of Nov. 24, 2003, and as if included in Pub. L. 108–136 as enacted.
(a) The Secretary of Defense may accept, hold, administer, and spend any gift, including a gift from an international organization and a foreign gift or donation (as defined in section 2166(f)(4) of this title), that is made on the condition that it be used in connection with the operation or administration of the National Defense University. The Secretary may pay all necessary expenses in connection with the acceptance of a gift under this subsection.
(b) There is established in the Treasury a fund to be known as the “National Defense University Gift Fund”. Gifts of money, and the proceeds of the sale of property, received under subsection (a) shall be deposited in the fund. The Secretary may disburse funds deposited under this subsection for the benefit or use of the National Defense University.
(c) Subsection (c) of section 2601 of this title applies to property that is accepted under subsection (a) in the same manner that such subsection applies to property that is accepted under subsection (a) of that section.
(d)(1) Upon request of the Secretary of Defense, the Secretary of the Treasury may—
(A) retain money, securities, and the proceeds of the sale of securities, in the National Defense University Gift Fund; and
(B) invest money and reinvest the proceeds of the sale of securities in that fund in securities of the United States or in securities guaranteed as to principal and interest by the United States.
(2) The interest and profits accruing from those securities shall be deposited to the credit of the fund and may be disbursed as provided in subsection (b).
(e) In this section:
(1) the term “gift” includes a devise of real property or a bequest of personal property and any gift of an interest in real property.
(2) The term “National Defense University” includes any school or other component of the National Defense University specified under section 2165(b) of this title.
(f) The Secretary of Defense shall prescribe regulations to carry out this section.
(Added Pub. L. 107–314, div. A, title IX, §931(a), Dec. 2, 2002, 116 Stat. 2624; amended Pub. L. 108–136, div. A, title IX, §931(d), Nov. 24, 2003, 117 Stat. 1581.)
2003—Subsec. (a). Pub. L. 108–136 substituted “2166(f)(4)” for “2611(f)”.
(a)
(b)
(c)
(d)
(1) facilitating the travel of a member of the armed forces who—
(A) is deployed on active duty outside the United States away from the permanent duty station of the member in support of a contingency operation; and
(B) is granted, during such deployment, rest and recuperative leave, emergency leave, convalescent leave, or another form of leave authorized for the member; or
(2) in the case of a member of the armed forces recuperating from an injury or illness incurred or aggravated in the line of duty during such a deployment, facilitating the travel of family members of the member in order to be reunited with the member.
(e)
(2) For the use of travel benefits under subsection (d)(2) by family members of a member of the armed forces, the Secretary may, as the Secretary determines appropriate, limit—
(A) eligibility to family members who, by reason of affinity, degree of consanguinity, or otherwise, are sufficiently close in relationship to the member of the armed forces to justify the travel assistance;
(B) the number of family members who may travel; and
(C) the number of trips that family members may take.
(3) The Secretary of Defense may, in an exceptional case, authorize a person not described in subsection (d)(2) to use a travel benefit accepted under this subsection to visit a member of the armed forces described in subsection (d)(1) if that person has a notably close relationship with the member. The travel benefit may be used by such person only in accordance with such conditions and restrictions as the Secretary determines appropriate and the rules established by the air carrier or surface carrier that is the source of the travel benefit.
(f)
(1) to promote the donation of travel benefits under this section, except that amounts appropriated to the Department of Defense may not be expended for this purpose; and
(2) to assist in administering the collection, distribution, and use of travel benefits under this section.
(g)
(Added Pub. L. 108–375, div. A, title V, §585(a)(1), Oct. 28, 2004, 118 Stat. 1930; amended Pub. L. 109–364, div. A, title X, §1071(a)(20), Oct. 17, 2006, 120 Stat. 2399.)
Another section 2613 was renumbered section 2614 of this title.
2006—Subsec. (b). Pub. L. 109–364 substituted “In this” for “In the”.
(a)
(1) may accept communications equipment for use in coordinating joint response and recovery operations with public safety agencies in the event of a disaster; and
(2) may accept services related to the operation and maintenance of such equipment.
(b)
(c)
(2) Services may be accepted under subsection (a)(2) related to the operation and maintenance of communications equipment only to the extent that the necessary capabilities are not available to the military commander having custody of the equipment.
(d)
(Added Pub. L. 108–375, div. A, title X, §1051(a), Oct. 28, 2004, 118 Stat. 2053, §2613; renumbered §2614 and amended Pub. L. 109–364, div. A, title X, §1071(a)(19)(A), Oct. 17, 2006, 120 Stat. 2399.)
2006—Pub. L. 109–364 renumbered section 2613 of this title as this section and redesignated the second subsec. (c) as (d).
2011—Pub. L. 111–383, div. A, title III, §352(f), Jan. 7, 2011, 124 Stat. 4194, added items 2648 and 2649 and struck out former items 2648 “Persons and supplies: sea transportation” and 2649 “Civilian passengers and commercial cargoes: transportation on Department of Defense vessels”.
2008—Pub. L. 110–181, div. A, title III, §374(b), Jan. 28, 2008, 122 Stat. 83, added item 2641b.
2004—Pub. L. 108–375, div. A, title X, §1072(d)(1), Oct. 28, 2004, 118 Stat. 2058, added items 2648 to 2651.
2003—Pub. L. 108–136, div. A, title VI, §634(b), title X, §1006(b)(2), Nov. 24, 2003, 117 Stat. 1510, 1585, added item 2636a and amended item 2642 generally, substituting “Airlift services provided to certain other agencies: use of Department of Defense reimbursement rate” for “Reimbursement rate for airlift services provided to Central Intelligence Agency”.
2001—Pub. L. 107–107, div. A, title V, §574(b), Dec. 28, 2001, 115 Stat. 1122, added item 2647.
2000—Pub. L. 106–398, §1 [[div. A], title X, §1009(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–251, substituted “Deductions from amounts due carriers” for “Deductions from carriers because of loss or damage to material in transit” in item 2636.
1998—Pub. L. 105–262, title VIII, §8121(b), Oct. 17, 1998, 112 Stat. 2332, added item 2641a.
Pub. L. 105–261, div. A, title VIII, §813(b), Oct. 17, 1998, 112 Stat. 2087, added item 2646.
1996—Pub. L. 104–201, div. A, title III, §368(a)(2)(B), title IX, §906(d)(1), title X, §1079(b)(2), Sept. 23, 1996, 110 Stat. 2498, 2620, 2670, substituted “Motor vehicles: transportation or storage for members on change of permanent station or extended deployment” for “Motor vehicles: for members on change of permanent station” in item 2634 and added items 2644 and 2645.
Pub. L. 104–106, div. A, title III, §334(b), Feb. 10, 1996, 110 Stat. 262, added item 2643.
1993—Pub. L. 103–160, div. A, title XI, §1173(b), Nov. 30, 1993, 107 Stat. 1767, added item 2631a.
1991—Pub. L. 102–88, title V, §501(b), Aug. 14, 1991, 105 Stat. 435, added item 2642.
1990—Pub. L. 101–510, div. A, title III, §326(a)(2), Nov. 5, 1990, 104 Stat. 1531, added item 2637.
1987—Pub. L. 100–180, div. A, title XII, §1250(a)(2), Dec. 4, 1987, 101 Stat. 1168, added item 2641.
1986—Pub. L. 99–661, div. A, title XII, §1204(a)(2), Nov. 14, 1986, 100 Stat. 3971, added item 2640.
Pub. L. 99–550, §2(a)(2), Oct. 27, 1986, 100 Stat. 3070, struck out item 2637 “Transportation between residence and place of work for senior defense officials”.
1984—Pub. L. 98–525, title VI, §614(b), title XIV, §1401(j)(2), Oct. 19, 1984, 98 Stat. 2540, 2620, added items 2637 to 2639.
1982—Pub. L. 97–258, §2(b)(5)(A), Sept. 13, 1982, 96 Stat. 1053, added item 2636.
1979—Pub. L. 96–125, title VIII, §807(c)(2), Nov. 26, 1979, 93 Stat. 950, inserted “and on military installations” after “places of employment” in item 2632.
1973—Pub. L. 93–155, title VIII, §814(b), Nov. 16, 1973, 87 Stat. 621, added item 2635.
1965—Pub. L. 89–101, §1(2), July 30, 1965, 79 Stat. 425, substituted “change of permanent station” for “permanent change of station” in item 2634.
1962—Pub. L. 87–651, title I, §111(c), Sept. 7, 1962, 76 Stat. 511, substituted “Stevedoring and terminal services: vessels carrying cargo or passengers sponsored by military department” for “Terminal Services, furnish to commercial steamship companies” in item 2633, and added item 2634.
1957—Pub. L. 85–44, §2, June 1, 1957, 71 Stat. 45, added item 2633.
(a) Only vessels of the United States or belonging to the United States may be used in the transportation by sea of supplies bought for the Army, Navy, Air Force, or Marine Corps. However, if the President finds that the freight charged by those vessels is excessive or otherwise unreasonable, contracts for transportation may be made as otherwise provided by law. Charges made for the transportation of those supplies by those vessels may not be higher than the charges made for transporting like goods for private persons.
(b)(1) In each request for proposals to enter into a time-charter contract for the use of a vessel for the transportation of supplies under this section, the Secretary of Defense shall require that any reflagging or repair work on a vessel for which a proposal is submitted in response to the request for proposals be performed in the United States (including any territory of the United States).
(2) In paragraph (1), the term “reflagging or repair work” means work performed on a vessel—
(A) to enable the vessel to meet applicable standards to become a vessel of the United States; or
(B) to convert the vessel to a more useful military configuration.
(3) The Secretary of Defense may waive the requirement described in paragraph (1) if the Secretary determines that such waiver is critical to the national security of the United States. The Secretary shall immediately notify the Congress of any such waiver and the reasons for such waiver.
(Aug. 10, 1956, ch. 1041, 70A Stat. 146; Pub. L. 103–160, div. A, title III, §315(a), Nov. 30, 1993, 107 Stat. 1619.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2631 | 10:1365. 34:528. |
Apr. 28, 1904, ch. 1766, 33 Stat. 518. |
The word “supplies” is substituted for the words “coal, provisions, fodder, or supplies of any description”, in 10:1365 and 34:528. The words “pursuant to law” and “the use of”, in 10:1365 and 34:528, are omitted as surplusage. The words “as otherwise provided by law”, in 10:1365 and 34:528, are used rather than the words “under the law as it now exists”, in section 1 of the Act of April 28, 1904, ch. 1766, 33 Stat. 518. The word “may” is substituted for the word “shall”. The words “However, if” are substituted for the words “unless * * * in which case”. The words “private persons” are substituted for the words “private parties or companies”, in 10:1365 and 34:528. The last sentence is substituted for the proviso of 10:1365 and 34:528.
1993—Pub. L. 103–160 designated existing provisions as subsec. (a) and added subsec. (b).
Section 315(b) of Pub. L. 103–160 provided that: “The amendment made by subsection (a) [amending this section] shall apply to a vessel for which reflagging or repair work is necessary to be performed after the date of the enactment of this Act [Nov. 30, 1993].”
Pub. L. 109–364, div. A, title X, §1017, Oct. 17, 2006, 120 Stat. 2379, as amended by Pub. L. 110–181, div. A, title X, §1063(c)(9), div. C, title XXXV, §3526(a), Jan. 28, 2008, 122 Stat. 323, 601, provided that:
“(a)
“(b)
“(1) owned, operated, or controlled by the offeror; and
“(2) qualified to engage in the carriage of cargo in the coastwise or non-contiguous trade under sections 12112 and 50501 and chapter 551 of title 46, United States Code.
“(c)
“(d)
“(1)
“(2)
“(A)
“(B)
“(C)
“(e)
“(f)
“(1)
“(2)
“(A) any State of the United States; and
“(B) Guam.”
[Pub. L. 110–181, div. C, title XXXV, §3526(a), Jan. 28, 2008, 122 Stat. 601, which directed amendment of section 1017(b)(2) of Pub. L. 109–364, set out above, by substituting “sections 12112, 50501, and 55102 of title 46, United States Code” for “section 27 of the Merchant Marine Act, 1920 (46 U.S.C. 883), section 12106 of title 46, United States Code, and section 2 of the Shipping Act, 1916 (46 U.S.C. App. 802)”, could not be executed because those words did not appear subsequent to amendment by section 1063(c)(9) of Pub. L. 110–181, which was effective as of Oct. 17, 2006, and as if included in Pub. L. 109–364 as enacted. See Effective Date of 2008 Amendment note under section 624 of this title.]
Memorandum of the President of the United States, Aug. 7, 1985, 50 F.R. 36565, provided:
Memorandum for the Honorable Caspar W. Weinberger, the Secretary of Defense
By virtue of the authority vested in me as President by the Constitution and statutes of the United States of America, including Section 301 of Title 3 of the United States Code, I hereby delegate to the Secretary of Defense all the functions vested in me by the Cargo preference Act of 1904, 10 U.S.C. 2631. This authority may be redelegated.
This memorandum shall be published in the Federal Register.
Ronald Reagan.
(a)
(b)
(Added Pub. L. 103–160, div. A, title XI, §1173(a), Nov. 30, 1993, 107 Stat. 1767.)
(a)(1) Whenever the Secretary of the military department concerned determines that it is necessary for the effective conduct of the affairs of his department, the Secretary may provide the transportation described in paragraph (2).
(2) Transportation that may be provided under this subsection is assured and adequate transportation by motor vehicle or water carrier as follows:
(A) Transportation among places on a military installation (including any subinstallation of a military installation).
(B) Transportation to and from their places of duty or employment on a military installation for persons covered by this subsection.
(C) Transportation to and from a military installation for persons covered by this subsection and their dependents, in the case of a military installation located in an area determined by the Secretary concerned not to be adequately served by regularly scheduled, and timely, commercial or municipal mass transit services.
(D) Transportation to and from their places of employment for persons attached to, or employed in, a private plant that is manufacturing material for that department, but only during a war or a national emergency declared by Congress or the President.
(3) Except as provided under subsection (b)(3), transportation under this subsection shall be provided at reasonable rates of fare under regulations prescribed by the Secretary of Defense.
(4) Persons covered by this subsection, in the case of any military installation, are members of the armed forces, employees of the military department concerned, and other persons attached to that department who are assigned to or employed at that installation.
(b)(1) Transportation described in subparagraphs (B), (C), and (D) of subsection (a)(2) may not be provided unless the Secretary concerned, or an officer of the department concerned designated by the Secretary, determines that—
(A) other facilities are inadequate and cannot be made adequate;
(B) a reasonable effort has been made to induce operators of private facilities to provide the necessary transportation; and
(C) the service to be furnished will make proper use of transportation facilities and will supply the most efficient transportation to the persons concerned.
(2) The Secretary of Defense shall require that, in determining whether to provide transportation described in subsection (a)(2)(A) at any military installation, the Secretary of the military department concerned shall give careful consideration to the potential for saving energy and reducing air pollution.
(3) In providing transportation described in subsection (a)(2)(A) at any military installation, the Secretary concerned may not require a fare for the transportation of members of the armed forces if the transportation is incident to the performance of duty. In providing transportation described in subsection (a)(2)(C) to and from any military installation, the Secretary concerned (under regulations prescribed under subsection (a)(3)) may waive any requirement for a fare.
(4) The authority under subsection (a) to enter into contracts under which the United States is obligated to make outlays shall be effective for any fiscal year only to the extent that the budget authority for such outlays is provided in advance by appropriation Acts.
(c) To provide transportation under subsection (a), the department may—
(1) buy, lease, or charter motor vehicles or water carriers having a seating capacity of 12 or more passengers;
(2) maintain and operate that equipment by—
(A) enlisted members of the Army, Navy, Air Force, Marine Corps, or the Coast Guard, as the case may be;
(B) employees of the department concerned; and
(C) private persons under contract; and
(3) lease or charter the equipment to private or public carriers for operation under terms that are considered necessary by the Secretary or by an officer of the department designated by the Secretary, and that may provide for the pooling of Government-owned and privately owned equipment and facilities and for the reciprocal use of that equipment.
(d) Fares received under subsection (a), and proceeds of the leasing or chartering of equipment under subsection (c)(3), shall be covered into the Treasury as miscellaneous receipts.
(Aug. 10, 1956, ch. 1041, 70A Stat. 146; Pub. L. 95–362, Sept. 11, 1978, 92 Stat. 596; Pub. L. 96–125, title VIII, §807(a)–(c)(1), Nov. 26, 1979, 93 Stat. 949, 950; Pub. L. 100–180, div. A, title III, §318(a)–(c), Dec. 4, 1987, 101 Stat. 1076, 1077.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2632(a) | 5:189c (introductory clause, words of clause 2 before semicolon, and 17 words before proviso of clause 3). | May 28, 1948, ch. 352, §1, 62 Stat. 276. |
| 5:415d (introductory clause, words of clause 2 before semicolon, and 17 words before proviso of clause 3). | ||
| 5:626n (introductory clause, words of clause 2 before semicolon, and 17 words before proviso of clause 3). | ||
| 2632(b) | 5:189c (clause 4). | |
| 5:415d (clause 4). | ||
| 5:626n (clause 4). | ||
| 2632(c) | 5:189c (clause 1; and clause 3, less 17 words before proviso). | |
| 5:415d (clause 1; and clause 3, less 17 words before proviso). | ||
| 5:626n (clause 1; and clause 3, less 17 words before proviso). | ||
| 2632(d) | 5:189c (clause 2, less words before semicolon). | |
| 5:415d (clause 2, less words before semicolon). | ||
| 5:626n (clause 2, less words before semicolon). |
In subsection (a), the words “it is necessary * * * he may * * * provide assured and adequate transportation” are substituted for the words “requires assured and adequate transportation facilities * * * he is authorized * * * to provide such transportation”. The words “in the absence of adequate private or other facilities” are omitted as covered by subsection (b)(2). The words “subject, however, to the following provisions and conditions” are omitted, since the revised section states those conditions positively in the following subsections. The words “at reasonable rates of fare” are substituted for the first 23 words of clause 2 of 5:189c, 415d, and 626n. The words “under regulations to be prescribed by him” are substituted for the words “under such regulations as the Secretary of the Army [Navy, Air Force] shall prescribe” in clause 2, and the 17 words before the proviso of clause 3, of 5:189c, 415d, and 626n.
In subsection (b), the words “Transportation * * * under subsection (a)” are substituted for the words “The authority granted in this section to the Secretary of the Army [Navy, Air Force]”. The words “may not be provided” are substituted for the words “shall be exercised”. The word “transportation” is substituted for the word “service”. The words “in each case”, “as the case may be, that existing private and”, and “by other means” are omitted as surplusage.
Subsection (b)(3) is substituted for the last 25 words of clause 4 of 5:189c, 415d, and 626n.
In subsection (c), the introductory clause is substituted for the words “The equipment required to provide such transportation facilities may be either”. The words “considered necessary” are substituted for the words “shall determine necessary and advisable under the existing circumstances”. The proviso of clause 3 of 5:189c, 415d, and 626n is stated as a positive rule in clause (3) of the revised subsection. The words “for operation by the Department of the Army [Navy, Air Force], and when so obtained”, “civil”, “with such department”, “Equipment so obtained”, “and conditions”, and the first 25 words of clause 3 of 5:189c, 415d, and 626n are omitted as surplusage.
In subsection (d), the words “Treasury as” are substituted for the words “Treasury of the United States to the credit of”.
1987—Subsec. (a). Pub. L. 100–180, §318(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Whenever the Secretary of a military department determines that it is necessary for the effective conduct of the affairs of that department, he may, at reasonable rates of fare under regulations to be prescribed by the Secretary of Defense, provide assured and adequate transportation by motor vehicle or water carrier—
“(1) among places on any military installation (including any subinstallation thereof) under the jurisdiction of that department; and
“(2) to and from their places of employment—
“(A) for persons attached to, or employed in, that department; and
“(B) during a war or national emergency declared by the Congress or the President, for persons attached to, or employed in, a private plant that is manufacturing material for that department.”
Subsec. (b)(1). Pub. L. 100–180, §318(c)(1), substituted “Transportation described in subparagraphs (B), (C), and (D) of subsection (a)(2) may not be provided” for “Transportation may not be provided under subsection (a)(2)”.
Subsec. (b)(2). Pub. L. 100–180, §318(b)(1), (c)(2), redesignated subpar. (A) as par. (2) and substituted “transportation described in subsection (a)(2)(A) at any military installation” for “transportation at any military installation under subsection (a)(1)”. Subpar. (B) was struck out and replaced by par. (3) and subpar. (C) was redesignated par. (4).
Subsec. (b)(3). Pub. L. 100–180, §318(b)(2), substituted par. (3) for former subpar. (2)(B) which read as follows: “In providing transportation at any military installation under such subsection, the Secretary of the military department concerned may not require any fare for the transportation of members of the armed forces if the transportation is incident to training or other operational activities on such installation.”
Subsec. (b)(4). Pub. L. 100–180, §318(b)(3), (c)(3), redesignated former par. (2)(C) as par. (4) and substituted “subsection (a)” for “subsection (a)(1)”.
1979—Pub. L. 96–125, §807(c)(1), inserted “and on military installations” after “places of employment” in section catchline.
Subsec. (a). Pub. L. 96–125, §807(a), substituted reference to Secretary of a military department and to the Secretary of Defense for references to Secretary concerned and inserted reference to any military installation (including any subinstallation thereof) under the jurisdiction of that department.
Subsec. (b). Pub. L. 96–125, §807(b), designated existing provisions as par. (1) and cls. (1) to (3) as cls. (A) to (C), substituted “subsection (a)(2)” for “subsection (a)” and added par. (2).
1978—Subsec. (a). Pub. L. 95–362, §1(1), substituted “concerned” for “of a military department” and “of his department” for “of that department”.
Subsec. (b). Pub. L. 95–362, §1(2), struck out “of the military department” before “concerned”.
Subsec. (c)(2)(A). Pub. L. 95–362, §1(3), inserted reference to the Coast Guard.
Section 318(d) of Pub. L. 100–180 required that regulations to implement amendments to this section be prescribed not later than 90 days after Dec. 4, 1987.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
(a) Notwithstanding section 1301(a) of title 31, the Secretary of a military department may, under such regulations as he may prescribe, furnish stevedoring and terminal services and facilities to vessels carrying cargo, or passengers, or both, sponsored by his department.
(b) The furnishing of services and facilities under this section shall be at fair and reasonable rates.
(c) The proceeds from furnishing services and facilities under this section shall be paid to the credit of the appropriation or fund out of which the services or facilities were supplied.
(Added Pub. L. 85–44, §1, June 1, 1957, 71 Stat. 45; amended Pub. L. 87–651, title I, §111(a), Sept. 7, 1962, 76 Stat. 510; Pub. L. 96–513, title V, §511(87), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 97–258, §3(b)(7), Sept. 13, 1982, 96 Stat. 1063.)
Section 2633 is restated, without substantive change, to conform to the style adopted for title 10.
1982—Subsec. (a). Pub. L. 97–258 substituted “section 1301(a) of title 31” for “section 3678 of the Revised Statutes (31 U.S.C. 628)”.
1980—Subsec. (a). Pub. L. 96–513 substituted “section 3678 of the Revised Statutes (31 U.S.C. 628)” for “section 628 of title 31”.
1962—Pub. L. 87–651 amended section generally without substantive change to conform to the style adopted for the revision of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
(a) When a member of an armed force is ordered to make a change of permanent station, one motor vehicle that is owned or leased by the member (or a dependent of the member) and is for the personal use of the member or his dependents may, unless a motor vehicle owned or leased by him (or a dependent of his) was transported in advance of that change of permanent station under section 406(h) of title 37, be transported, at the expense of the United States, to his new station or such other place as the Secretary concerned may authorize—
(1) on a vessel owned, leased, or chartered by the United States;
(2) by privately owned American shipping services;
(3) by foreign-flag shipping services if shipping services described in clauses (1) and (2) are not reasonably available; or
(4) by other surface transportation if such means of transport does not exceed the cost to the United States of other authorized means.
When the Secretary concerned determines that a replacement for that motor vehicle is necessary for reasons beyond the control of the member and is in the interest of the United States, and he approves the transportation in advance, one additional motor vehicle of the member (or a dependent of the member) may be so transported.
(b)(1) When a member receives a vehicle storage qualifying order, the member may elect to have a motor vehicle described in subsection (a) stored at the expense of the United States at a location approved by the Secretary concerned. In the case of a vehicle storage qualifying order that is to make a change of permanent station, such storage is in lieu of transportation authorized by subsection (a).
(2) In this subsection, the term “vehicle storage qualifying order” means any of the following:
(A) An order to make a change of permanent station to a foreign country in a case in which the laws, regulations, or other restrictions imposed by the foreign country or by the United States either—
(i) preclude entry of a motor vehicle described in subsection (a) into that country; or
(ii) would require extensive modification of the vehicle as a condition to entry.
(B) An order to make a change of permanent station to a nonforeign area outside the continental United States in a case in which the laws, regulations, or other restrictions imposed by that area or by the United States either—
(i) preclude entry of a motor vehicle described in subsection (a) into that area; or
(ii) would require extensive modification of the vehicle as a condition to entry.
(C) An order under which a member is transferred or assigned in connection with a contingency operation to duty at a location other than the permanent station of the member for a period of more than 30 consecutive days but which is not considered a change of permanent station.
(3) Authorized expenses under this subsection include costs associated with the delivery of the motor vehicle for storage and removal of the vehicle for delivery to a destination approved by the Secretary concerned.
(4) Storage costs payable under this subsection may be paid in advance.
(c) When there has been a shipping error, or when orders directing a change of permanent station have been canceled, revoked, or modified after receipt by the member, a motor vehicle transported pursuant to this section may also be reshipped or transshipped in accordance with this section.
(d) When the Secretary concerned makes a determination under section 406(j) of title 37 that the dependents of a member on a permanent change of station are unable to accompany the member to an overseas duty station because of unexpected and uncontrollable circumstances, and the member shipped a motor vehicle pursuant to this section in anticipation of a dependent accompanying the member to the new duty station, the member may reship or transship such motor vehicle in accordance with this section.
(e) The Secretary of Defense (and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy) may prescribe regulations limiting those leased motor vehicles that may be transported pursuant to this section based upon the length of the lease and other terms and conditions of the lease that the Secretary considers appropriate.
(f) No carrier, port agent, warehouseman, freight forwarder, or other person involved in the transportation of property may have any lien on, or hold, impound, or otherwise interfere with, the movement of a motor vehicle being transported under this section.
(g) If a motor vehicle of a member (or a dependent of the member) that is transported at the expense of the United States under this section does not arrive at the authorized destination of the vehicle by the designated delivery date, the Secretary concerned shall reimburse the member for expenses incurred after that date to rent a motor vehicle for the member's use, or for the use of the dependent for whom the delayed vehicle was transported. The amount reimbursed may not exceed $30 per day, and the rental period for which reimbursement may be provided expires after 7 days or on the date on which the delayed vehicle arrives at the authorized destination (whichever occurs first).
(h) In the case of a member's change of permanent station described in subparagraph (A) or (B) of subsection (i)(1), the Secretary concerned may authorize the member to arrange for the shipment of the motor vehicle in lieu of transportation at the expense of the United States under this section. The Secretary concerned may pay the member a monetary allowance in lieu of transportation, as established under section 404(d)(1) of title 37, and the member shall be responsible for any transportation costs in excess of such allowance.
(i) In this section:
(1) The term “change of permanent station” means the transfer or assignment of a member of the armed forces from a permanent station inside the continental United States to a permanent station outside the continental United States or from a permanent station outside the continental United States to another permanent station. It also includes the following:
(A) An authorized change in home port of a vessel.
(B) A transfer or assignment between two permanent stations in the continental United States when—
(i) the member cannot, because of injury or the conditions of the order, drive the motor vehicle between the permanent duty stations; or
(ii) the Secretary concerned determines that it is advantageous and cost-effective to the United States for one motor vehicle of the member to be transported between the permanent duty stations.
(2) The term “continental United States” does not include Alaska.
(3) The term “nonforeign area outside the continental United States” means any of the following: the States of Alaska and Hawaii, the Commonwealths of Puerto Rico and the Northern Mariana Islands, and any possession of the United States.
(Added Pub. L. 87–651, title I, §111(b), Sept. 7, 1962, 76 Stat. 510; amended Pub. L. 88–431, §1(b), Aug. 14, 1964, 78 Stat. 439; Pub. L. 89–101, §1(1), July 30, 1965, 79 Stat. 425; Pub. L. 93–548, §§1, 2, Dec. 26, 1974, 88 Stat. 1743; Pub. L. 97–60, title II, §202, Oct. 14, 1981, 95 Stat. 1005; Pub. L. 99–661, div. A, title VI, §§611, 620(b)(2), Nov. 14, 1986, 100 Stat. 3878, 3883; Pub. L. 100–26, §7(j)(6), Apr. 21, 1987, 101 Stat. 283; Pub. L. 100–180, div. A, title VI, §616(a), Dec. 4, 1987, 101 Stat. 1096; Pub. L. 102–484, div. A, title VI, §622(b), Oct. 23, 1992, 106 Stat. 2422; Pub. L. 104–106, div. A, title VI, §642(a)(2), Feb. 10, 1996, 110 Stat. 368; Pub. L. 104–201, div. A, title III, §368(a)(1), (2)(A), Sept. 23, 1996, 110 Stat. 2497; Pub. L. 105–261, div. A, title VI, §§631(b)(2), 653(a), Oct. 17, 1998, 112 Stat. 2044, 2051; Pub. L. 107–107, div. A, title V, §594(a), (b), Dec. 28, 2001, 115 Stat. 1126; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107–314, div. A, title V, §575(a), (b), Dec. 2, 2002, 116 Stat. 2558, 2559; Pub. L. 108–136, div. A, title VI, §631(a), Nov. 24, 2003, 117 Stat. 1508.)
The new section 2634 of title 10 combines sections 4748, 6157, and 9748 of this title and section 471a of title 14 (which are being repealed), and reflects the Act of May 28, 1956, ch. 325 (46 U.S.C. 1241(c)).
2003—Subsecs. (h), (i). Pub. L. 108–136 added subsec. (h) and redesignated former subsec. (h) as (i).
2002—Subsec. (b)(1), (2). Pub. L. 107–314, §575(a), added pars. (1) and (2) and struck out former pars. (1) and (2) which read as follows:
“(1) In lieu of transportation authorized by this section, if a member is ordered to make a change of permanent station to a foreign country and the laws, regulations, or other restrictions imposed by the foreign country or the United States preclude entry of a motor vehicle described in subsection (a) into that country, or would require extensive modification of the vehicle as a condition to entry, the member may elect to have the vehicle stored at the expense of the United States at a location approved by the Secretary concerned.
“(2) If a member is transferred or assigned in connection with a contingency operation to duty at a location other than the permanent station of the member for a period of more than 30 consecutive days, but the transfer or assignment is not considered a change of permanent station, the member may elect to have a motor vehicle described in subsection (a) stored at the expense of the United States at a location approved by the Secretary concerned.”
Subsec. (e). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
Subsec. (h)(3). Pub. L. 107–314, §575(b), added par. (3).
2001—Subsec. (b)(4). Pub. L. 107–107, §594(a), added par. (4).
Subsec. (h)(1). Pub. L. 107–107, §594(b), substituted “includes the following:” and subpars. (A) and (B) for “includes an authorized change in home port of a vessel, or a transfer or assignment between two permanent stations in the continental United States when the member cannot, because of injury or the conditions of the order, drive the motor vehicle between the permanent duty stations.”
1998—Subsec. (d). Pub. L. 105–261, §631(b)(2), substituted “section 406(j)” for “section 406(k)”.
Subsecs. (g), (h). Pub. L. 105–261, §653(a), added subsec. (g) and redesignated former subsec. (g) as (h).
1996—Pub. L. 104–201, §368(a)(2)(A), substituted “Motor vehicles: transportation or storage for members on change of permanent station or extended deployment” for “Motor vehicles: for members on change of permanent station” in section catchline.
Subsec. (b). Pub. L. 104–201, §368(a)(1)(C), added subsec. (b). Former subsec. (b) redesignated (g).
Subsec. (d). Pub. L. 104–106 substituted “section 406(k) of title 37” for “section 406(l) of title 37”.
Subsec. (g). Pub. L. 104–201, §368(a)(1)(A), (B), redesignated subsec. (b) as (g) and transferred it to end of section.
1992—Subsec. (f). Pub. L. 102–484 added subsec. (f).
1987—Subsec. (a). Pub. L. 100–180, §616(a)(1), inserted “or leased” after “owned” in two places in introductory text.
Subsec. (d). Pub. L. 100–26 redesignated subsec. (f) as (d).
Subsec. (e). Pub. L. 100–180, §616(a)(2), added subsec. (e).
Subsec. (f). Pub. L. 100–26 redesignated subsec. (f) as (d).
1986—Subsec. (a). Pub. L. 99–661, §611(a), substituted “by other surface transportation” for “in the case of movement, the major portion of which is by shipping services described in clause (1) or (2), by other surface transportation between customary ports of embarkation and debarkation” in par. (4), and struck out “, or his designee,” after “When the Secretary concerned” in last sentence.
Subsec. (b). Pub. L. 99–661, §611(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “In this section, ‘change of permanent station’ means the transfer or assignment of a member of the armed forces from one permanent station to another. It includes the change from home or from the place from which ordered to active duty to first station upon appointment, call to active duty, enlistment, or induction, and from last duty station to home or to the place from which ordered to active duty upon separation from the service, placement upon the temporary disability retired list, release from active duty, or retirement. It also includes an authorized change in home yard or home port of a vessel.”
Subsec. (f). Pub. L. 99–661, §620(b)(2), added subsec. (f).
1981—Subsec. (a). Pub. L. 97–60 substituted “one motor vehicle that is owned by the member (or a dependent of the member) and is for the personal use of the member or his dependents may, unless a motor vehicle owned by him (or a dependent of his) was transported” for “one motor vehicle owned by him and for his personal use or the use of his dependents may, unless a motor vehicle owned by him was transported” in provisions preceding par. (1) and, in provisions following par. (4), inserted “(or a dependent of the member)” after “one additional motor vehicle of the member”.
1974—Subsec. (a)(4). Pub. L. 93–548, §1, added par. (4).
Subsec. (c). Pub. L. 93–548, §2, added subsec. (c).
1965—Pub. L. 89–101 substituted “change of permanent station” for “permanent change of station” in section catchline, designated existing provisions as subsec. (a), substituted “change of permanent station” for “permanent change of station” in two places, inserted “or for the use of his dependents” and “or such other place as the Secretary concerned may authorize”, added cl. 3, provided for the transportation of one additional motor vehicle when replacement is necessary, and added subsec. (b).
1964—Pub. L. 88–431 inserted “, leased, or chartered” and “unless a motor vehicle owned by him was transported in advance of that permanent change of station under section 406(h) of title 37”.
Pub. L. 107–314, div. A, title V, §575(c), Dec. 2, 2002, 116 Stat. 2559, provided that: “The amendments made by this section [amending this section] apply to orders to make a change of permanent station to a nonforeign area outside the continental United States (as such term is defined in subsection (h)(3) of section 2634 of title 10, United States Code, as added by subsection (b)) that are issued on or after the date of the enactment of this Act [Dec. 2, 2002].”
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Pub. L. 107–107, div. A, title V, §594(c), Dec. 28, 2001, 115 Stat. 1126, provided that: “The amendments made by this section [amending this section] apply to orders to make a change of permanent station that are issued on or after the date of the enactment of this Act [Dec. 28, 2001].”
Pub. L. 105–261, div. A, title VI, §653(e), Oct. 17, 1998, 112 Stat. 2052, provided that:
“(1) Reimbursement for motor vehicle rental expenses may not be provided under the amendments made by this section [amending this section and sections 405a, 406, and 554 of Title 37, Pay and Allowances of the Uniformed Services] until after the date on which the Secretary of Defense submits to Congress a report containing a certification that the Department of Defense has in place and operational a system to recover the cost of providing such reimbursement from commercial carriers that are responsible for the delay in the delivery of the motor vehicles of members of the Armed Forces and their dependents. The Secretary of Defense shall prepare the report in consultation with the Secretary of Transportation, with respect to the Coast Guard.
“(2) The amendments shall apply with respect to rental expenses described in such amendments that are incurred on or after the date of the submission of the report. The report shall be submitted not later than six months after the date of the enactment of this Act [Oct. 17, 1998] and shall include, in addition to the certification, a description of the system to be used to recover from commercial carriers the costs incurred under such amendments.”
Section 368(c) of Pub. L. 104–201 provided that: “The amendments made by this section [amending this section and section 406 of Title 37, Pay and Allowances of the Uniformed Services] shall take effect on April 1, 1997.”
Amendment by Pub. L. 99–661, applicable with respect to members whose dependents are unable to accompany them to an overseas permanent duty station because of circumstances arising on or after Nov. 14, 1986, see section 620(c)(2) of Pub. L. 99–661, set out as a note under section 406 of Title 37, Pay and Allowances of the Uniformed Services.
Section 3 of Pub. L. 89–101 provided that: “This Act [amending this section and section 406 of title 37] shall be effective May 1, 1965. Any member who—
“(1) transported a motor vehicle at his personal expense after April 30, 1965, and before the enactment of this Act [July 30, 1965]; and
“(2) would have been entitled to the transportation of such motor vehicle at Government expense under the provisions of this Act;
shall be reimbursed for the allowable transportation cost actually expended by him. Appropriations available for permanent change of station travel shall be available for the reimbursements authorized by this Act.”
Authority vested by this section in “the Secretary concerned” to be exercised, with respect to commissioned officers of Public Health Service, by Secretary of Health and Human Services or his designee, see section 213a of Title 42, The Public Health and Welfare.
Authority vested by this section in “the Secretary concerned” to be exercised, with respect to commissioned officer corps of National Oceanic and Atmospheric Administration, by Secretary of Commerce or his designee, see section 3071 of Title 33, Navigation and Navigable Waters.
(a) The Secretary of Defense is authorized to assist the Department of Health and Human Services and the Department of Homeland Security in providing medical emergency helicopter transportation services to civilians. Any resources provided under this section shall be under such terms and conditions, including reimbursement, as the Secretary of Defense deems appropriate and shall be subject to the following specific limitations:
(1) Assistance may be provided only in areas where military units able to provide such assistance are regularly assigned, and military units shall not be transferred from one area to another for the purpose of providing such assistance.
(2) Assistance may be provided only to the extent that it does not interfere with the performance of the military mission.
(3) The provision of assistance shall not cause any increase in funds required for the operation of the Department of Defense.
(b) No individual (or his estate) who is authorized by the Department of Defense to perform services under a program established pursuant to subsection (a), and who is acting within the scope of his duties, shall be liable for injury to, or loss of property or personal injury or death which may be caused incident to providing such services.
(Added Pub. L. 93–155, title VIII, §814(a), Nov. 16, 1973, 87 Stat. 620; amended Pub. L. 96–513, title V, §511(88), Dec. 12, 1980, 94 Stat. 2928; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)
2002—Subsec. (a). Pub. L. 107–296 substituted “Department of Homeland Security” for “Department of Transportation” in introductory provisions.
1980—Subsec. (a). Pub. L. 96–513 substituted “Department of Health and Human Services” for “Department of Health, Education, and Welfare”.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
(a)
(1) If deducted because of loss of or damage to material in transit for a military department, the amount shall be credited to the proper appropriation, account, or fund from which the same or similar material may be replaced.
(2) If deducted as an administrative offset for an overpayment previously made to the carrier under any Department of Defense contract for transportation services or as liquidated damages due under any such contract, the amount shall be credited to the appropriation or account from which payments for the transportation services were made.
(b)
(2) Regulations prescribed by the Secretary of Defense under subsection (b) of section 3716 of title 31—
(A) shall include provisions to carry out paragraph (1); and
(B) shall provide the carrier for a claim subject to paragraph (1) with an opportunity to offer an alternative method of repaying the claim (rather than by administrative offset) if the collection of the claim by administrative offset has not already been made.
(3) In this subsection, the term “simplified acquisition threshold” has the meaning given that term in section 134 of title 41.
(Added Pub. L. 97–258, §2(b)(5)(B), Sept. 13, 1982, 96 Stat. 1053; amended Pub. L. 106–398, §1 [[div. A], title X, §1009(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–250; Pub. L. 111–350, §5(b)(43), Jan. 4, 2011, 124 Stat. 3846.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2636 | 31:489a. | June 25, 1956, ch. 442, §1, 70 Stat. 336. |
The words “An amount deducted from an amount due” are substituted for “Moneys arising from deductions made from” for clarity. The words “military or naval” and “account of” are omitted as surplus. The words “a military department” are substituted for “the Departments of the Army, Navy, or Air Force” because of 10:101(7). The Department of War was designated the Department of the Army by section 205(a) of the Act of July 26, 1947 (ch. 343, 61 Stat. 501), and by sections 1 and 53 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 157, 676). The Department of the Air Force is included because of sections 205(a) and 207(a) and (f) of the Act of July 26, 1947 (ch. 343, 61 Stat. 501, 502), and section 1 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 488).
2011—Subsec. (b)(3). Pub. L. 111–350 substituted “section 134 of title 41” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11))”.
2000—Pub. L. 106–398 amended section catchline and text generally. Prior to amendment, text read as follows: “An amount deducted from an amount due a carrier because of loss of or damage to material in transit for a military department shall be credited to the proper appropriation, account, or fund from which the same or similar material may be replaced.”
Pub. L. 106–398, §1 [[div. A], title X, §1009(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–251, provided that: “Subsections (a)(2) and (b) of section 2636 of title 10, United States Code, as added by subsection (a)(1), shall apply with respect to contracts entered into after the date of the enactment of this Act [Oct. 30, 2000].”
(a)
(b)
(c)
(d)
(e)
(Added Pub. L. 108–136, div. A, title VI, §634(a), Nov. 24, 2003, 117 Stat. 1509; amended Pub. L. 109–364, div. A, title III, §363(a), (b), Oct. 17, 2006, 120 Stat. 2167; Pub. L. 110–181, div. A, title III, §373, Jan. 28, 2008, 122 Stat. 82.)
2008—Subsec. (d). Pub. L. 110–181 inserted at end “The regulations may include a requirement that a member of the armed forces or civilian employee of the Department of Defense comply with reasonable restrictions or conditions prescribed by the Secretary in order to receive the full amount deducted under subsection (b).”
2006—Subsec. (a). Pub. L. 109–364, §363(b)(1), substituted “shall include” for “may include”.
Pub. L. 109–364, §363(a), substituted “at Government expense of baggage and household effects for members of the armed forces or civilian employees of the Department of Defense (or both)” for “of baggage and household effects for members of the armed forces at Government expense”.
Subsec. (b). Pub. L. 109–364, §363(b)(2), substituted “shall be deducted” for “may be deducted”.
Pub. L. 109–364, div. A, title III, §363(b), Oct. 17, 2006, 120 Stat. 2167, provided that the amendment made by section 363(b) is effective Mar. 1, 2008.
The Secretary of Defense may authorize the commander of a unified combatant command to use Government owned or leased vehicles to provide transportation in an area outside the United States for members of the uniformed services and Federal civilian employees under the jurisdiction of that commander, and for the dependents of such members and employees, if the commander determines that public or private transportation in such area is unsafe or not available. Such transportation shall be provided in accordance with regulations prescribed by the Secretary of Defense.
(Added Pub. L. 101–510, div. A, title III, §326(a)(1), Nov. 5, 1990, 104 Stat. 1531.)
A prior section 2637, added Pub. L. 98–525, title VI, §614(a), Oct. 19, 1984, 98 Stat. 2540, related to use of passenger motor vehicles of United States for transportation between residences and places of work of senior defense officials, prior to repeal by Pub. L. 99–550, §2(a)(1), Oct. 27, 1986, 100 Stat. 3070.
The Secretary of the military department concerned may provide for the transportation of the civilian clothing of any person entering the armed forces as an enlisted member to the member's home of record.
(Added Pub. L. 98–525, title XIV, §1401(j)(1), Oct. 19, 1984, 98 Stat. 2620.)
Provisions similar to those in this section were contained in the following appropriation acts:
Oct. 12, 1984, Pub. L. 98–473, title I, §101(h) [title VIII, §8005], 98 Stat. 1904, 1922.
Dec. 8, 1983, Pub. L. 98–212, title VII, §708, 97 Stat. 1438.
Dec. 21, 1982, Pub. L. 97–377, title I, §101(c) [title VII, §708], 96 Stat. 1833, 1850.
Dec. 29, 1981, Pub. L. 97–114, title VII, §708, 95 Stat. 1579.
Dec. 15, 1980, Pub. L. 96–527, title VII, §708, 94 Stat. 3081.
Dec. 21, 1979, Pub. L. 96–154, title VII, §708, 93 Stat. 1152.
Oct. 13, 1978, Pub. L. 95–457, title VIII, §808, 92 Stat. 1244.
Sept. 21, 1977, Pub. L. 95–111, title VIII, §807, 91 Stat. 899.
Sept. 22, 1976, Pub. L. 94–419, title VII, §707, 90 Stat. 1291.
Feb. 9, 1976, Pub. L. 94–212, title VII, §707, 90 Stat. 168.
Oct. 8, 1974, Pub. L. 93–437, title VIII, §807, 88 Stat. 1225.
Jan. 2, 1974, Pub. L. 93–238, title VII, §707, 87 Stat. 1038.
Oct. 26, 1972, Pub. L. 92–570, title VII, §707, 86 Stat. 1196.
Dec. 18, 1971, Pub. L. 92–204, title VII, §707, 85 Stat. 727.
Jan. 11, 1971, Pub. L. 91–668, title VIII, §807, 84 Stat. 2030.
Dec. 29, 1969, Pub. L. 91–171, title VI, §607, 83 Stat. 480.
Oct. 17, 1968, Pub. L. 90–580, title V, §506, 82 Stat. 1129.
Sept. 29, 1967, Pub. L. 90–96, title VI, §606, 81 Stat. 242.
Section effective Oct. 1, 1985, see section 1404 of Pub. L. 98–525, set out as a note under section 520b of this title.
Funds appropriated to the Department of Defense may be used to provide minor dependents of members of the armed forces and of civilian officers and employees of the Department of Defense with transportation to and from primary and secondary schools if the schools attended by the dependents are not accessible by regular means of transportation.
(Added Pub. L. 98–525, title XIV, §1401(j)(1), Oct. 19, 1984, 98 Stat. 2620.)
Provisions similar to those in this section were contained in the following appropriation acts:
Oct. 12, 1984, Pub. L. 98–473, title I, §101(h) [title VIII, §8005], 98 Stat. 1904, 1922.
Dec. 8, 1983, Pub. L. 98–212, title VII, §708, 97 Stat. 1438.
Dec. 21, 1982, Pub. L. 97–377, title I, §101(c) [title VII, §708], 96 Stat. 1833, 1850.
Dec. 29, 1981, Pub. L. 97–114, title VII, §708, 95 Stat. 1579.
Dec. 15, 1980, Pub. L. 96–527, title VII, §708, 94 Stat. 3081.
Dec. 21, 1979, Pub. L. 96–154, title VII, §708, 93 Stat. 1152.
Oct. 13, 1978, Pub. L. 95–457, title VIII, §808, 92 Stat. 1244.
Sept. 21, 1977, Pub. L. 95–111, title VIII, §807, 91 Stat. 899.
Sept. 22, 1976, Pub. L. 94–419, title VII, §707, 90 Stat. 1291.
Feb. 9, 1976, Pub. L. 94–212, title VII, §707, 90 Stat. 168.
Oct. 8, 1974, Pub. L. 93–437, title VIII, §807, 88 Stat. 1225.
Jan. 2, 1974, Pub. L. 93–238, title VII, §707, 87 Stat. 1038.
Oct. 26, 1972, Pub. L. 92–570, title VII, §707, 86 Stat. 1196.
Dec. 18, 1971, Pub. L. 92–204, title VII, §707, 85 Stat. 727.
Jan. 11, 1971, Pub. L. 91–668, title VIII, §807, 84 Stat. 2030.
Dec. 29, 1969, Pub. L. 91–171, title VI, §607, 83 Stat. 480.
Oct. 17, 1968, Pub. L. 90–580, title V, §506, 82 Stat. 1129.
Sept. 29, 1967, Pub. L. 90–96, title VI, §606, 81 Stat. 242.
Oct. 15, 1966, Pub. L. 89–687, title VI, §606, 80 Stat. 991.
Sept. 29, 1965, Pub. L. 89–213, title VI, §606, 79 Stat. 873.
Aug. 19, 1964, Pub. L. 88–446, title V, §506, 78 Stat. 475.
Oct. 17, 1963, Pub. L. 88–149, title V, §506, 77 Stat. 264.
Aug. 9, 1962, Pub. L. 87–577, title V, §506, 76 Stat. 328.
Aug. 17, 1961, Pub. L. 87–144, title VI, §606, 75 Stat. 375.
July 7, 1960, Pub. L. 86–601, title V, §506, 74 Stat. 350.
Aug. 18, 1959, Pub. L. 86–166, title V, §606, 73 Stat. 378.
Aug. 22, 1958, Pub. L. 85–724, title VI, §606, 72 Stat. 724.
Aug. 2, 1957, Pub. L. 85–117, title VI, §607, 71 Stat. 323.
July 2, 1956, ch. 488, title VI, §607, 70 Stat. 468.
July 13, 1955, ch. 358, title VI, §609, 69 Stat. 315.
June 30, 1954, ch. 432, title VII, §709, 68 Stat. 351.
Aug. 1, 1953, ch. 305, title VI, §614, 67 Stat. 351.
July 10, 1952, ch. 630, title VI, §616, 66 Stat. 533.
Oct. 18, 1951, ch. 512, title VI, §616, 65 Stat. 446.
Sept. 6, 1950, ch. 896, Ch. X, title VI, §619, 64 Stat. 755.
Oct. 29, 1949, ch. 787, title VI, §625, 63 Stat. 1021.
June 24, 1948, ch. 632, §2, 62 Stat. 667.
July 30, 1947, ch. 357, title I, §2, 61 Stat. 569.
Section effective Oct. 1, 1985, see section 1404 of Pub. L. 98–525, set out as a note under section 520b of this title.
(a)
(A) meets, at a minimum, the safety standards established by the Secretary of Transportation under chapter 447 of title 49;
(B) has at least 12 months of experience operating services in air transportation that are substantially equivalent to the service sought by the Department of Defense; and
(C) undergoes a technical safety evaluation.
(2) For purposes of paragraph (1)(C), a technical safety evaluation—
(A) shall include inspection of a representative number of aircraft; and
(B) shall be conducted in accordance with regulations prescribed by the Secretary, after consultation with the Secretary of Transportation.
(b)
(1) An on-site capability survey of the air carrier conducted at least once every two years.
(2) A performance evaluation of the air carrier conducted at least once every six months.
(3) A preflight safety inspection of each aircraft conducted at any time during the operation of, but not more than 72 hours before, each internationally scheduled charter mission departing the United States.
(4) A preflight safety inspection of each aircraft used for domestic charter missions conducted to the greatest extent practical.
(5) Operational check-rides on aircraft conducted periodically.
(c)
(1) to make recommendations to the Secretary on suspension and reinstatement of air carriers under subsection (d);
(2) to make recommendations to the Secretary on waivers under subsection (g); and
(3) to carry out such other duties and make recommendations on such other matters as the Secretary considers appropriate.
(d)
(A) shall require the immediate determination of whether to suspend an air carrier if an aircraft of the air carrier is involved in a fatal accident; and
(B) may require the suspension of an air carrier—
(i) if the carrier is in violation of any order, rule, regulation, or standard prescribed under chapter 447 of title 49; or
(ii) if an aircraft of the air carrier is involved in a serious accident.
(2) The Commercial Airlift Review Board shall make recommendations to the Secretary on suspension and reinstatement under this subsection.
(3) The Secretary shall include in each contract subject to this section the provisions on suspension and reinstatement established under this subsection.
(e)
(f)
(g)
(h)
(2) Information may be withheld under paragraph (1) from public disclosure only if the Secretary determines that—
(A) the disclosure of the information would inhibit an air carrier from voluntarily providing, in the future, safety-related information for the purposes of this section or for other air safety purposes involving the Department of Defense or another Federal agency; and
(B) the receipt of such information generally enhances the fulfillment of responsibilities under this section or other air safety responsibilities involving the Department of Defense or another Federal agency.
(3) If the Secretary provides to the head of another agency safety-related information described in paragraph (1) with respect to which the Secretary has made a determination described in paragraph (2), the head of that agency shall (notwithstanding any other provision of law) withhold the information from public disclosure unless the disclosure is specifically authorized by the Secretary.
(i)
(j)
(1) The terms “air carrier”, “aircraft”, “air transportation”, and “charter air transportation” have the meanings given such terms by section 40102(a) of title 49.
(2) The term “members of the armed forces” means members of the Army, Navy, Air Force, and Marine Corps.
(Added Pub. L. 99–661, div. A, title XII, §1204(a)(1), Nov. 14, 1986, 100 Stat. 3969; amended Pub. L. 103–272, §5(b)(1), July 5, 1994, 108 Stat. 1373; Pub. L. 105–85, div. A, title X, §1075(a), Nov. 18, 1997, 111 Stat. 1911.)
1997—Subsecs. (h) to (j). Pub. L. 105–85 added subsec. (h) and redesignated former subsecs. (h) and (i) as (i) and (j), respectively.
1994—Subsecs. (a)(1)(A), (d)(1)(B)(i). Pub. L. 103–272, §5(b)(1)(A), substituted “chapter 447 of title 49” for “title VI of the Federal Aviation Act of 1958 (49 U.S.C. App. 1421 et seq.)”.
Subsec. (i)(1). Pub. L. 103–272, §5(b)(1)(B), substituted “section 40102(a) of title 49” for “sections 101(3), 101(5), 101(10), and 101(15), respectively, of the Federal Aviation Act of 1958 (49 U.S.C. App. 1301(3), 1301(5), 1301(10), and 1301(15))”.
Section 1075(b) of Pub. L. 105–85 provided that: “Subsection (h) of section 2640 of title 10, United States Code, as added by subsection (a), shall apply with respect to requests for information made on or after the date of the enactment of this Act [Nov. 18, 1997].”
Section 1204(c) of Pub. L. 99–661 provided that: “Section 2640 of title 10, United States Code, as added by subsection (a), shall apply only to contracts which are entered into on or after the date on which the regulations required by subsection (b) are prescribed [set out below].”
Section 1204(b) of Pub. L. 99–661 required Secretary of Defense, not later than 120 days after Nov. 14, 1986, to prescribe regulations required by this section.
(a) The Secretary of Defense may provide transportation on an aircraft operating under the aeromedical evacuation system of the Department of Defense for the purpose of transporting a veteran to or from a Department of Veterans Affairs medical facility or of transporting the remains of a deceased veteran who died at such a facility after being transported to the facility under this subsection. Transportation of the remains of a deceased veteran under this subsection may be provided to the place from which the veteran was transported to the facility or to any other destination which is not farther away from the facility than such place.
(b) Transportation under this section shall be provided in accordance with an agreement entered into between the Secretary of Defense and the Secretary of Veterans Affairs. Such an agreement shall provide that transportation may be furnished to a veteran (or for the remains of a veteran) on an aircraft referred to in subsection (a) only if—
(1) the Secretary of Veterans Affairs notifies the Secretary of Defense that the veteran needs or has been furnished medical care or services in a Department of Veterans Affairs facility and the Secretary of Veterans Affairs requests such transportation in connection with the travel of such veteran (or of the remains of such veteran) to or from the Department of Veterans Affairs facility where the care or services are to be furnished or were furnished to such veteran;
(2) there is space available for the veteran (or the remains of the veteran) on the aircraft; and
(3) there is an adequate number of medical and other service attendants to care for all persons being transported on the aircraft.
(c) A veteran is not eligible for transportation under this section unless the veteran is a primary beneficiary within the meaning of clause (A) of section 8111(g)(5) of title 38.
(d)(1) A charge may not be imposed on a veteran (or on the survivors of a veteran) for transportation provided to the veteran (or for the remains of the veteran) under this section.
(2) An agreement under subsection (b) shall provide that the Department of Veterans Affairs shall reimburse the Department of Defense for any costs incurred in providing transportation to veterans (or for the remains of veterans) under this section that would not otherwise have been incurred by the Department of Defense.
(e) In this section, the term “veteran” has the meaning given that term in section 101(2) of title 38.
(Added Pub. L. 100–180, div. A, title XII, §1250(a)(1), Dec. 4, 1987, 101 Stat. 1167; amended Pub. L. 101–189, div. A, title XVI, §1621(a)(1), (2), (8), Nov. 29, 1989, 103 Stat. 1602, 1603; Pub. L. 103–337, div. A, title VI, §652(b), title X, §1070(e)(8), Oct. 5, 1994, 108 Stat. 2794, 2859.)
1994—Subsec. (a). Pub. L. 103–337, §652(b)(1), inserted before period “or of transporting the remains of a deceased veteran who died at such a facility after being transported to the facility under this subsection. Transportation of the remains of a deceased veteran under this subsection may be provided to the place from which the veteran was transported to the facility or to any other destination which is not farther away from the facility than such place”.
Subsec. (b). Pub. L. 103–337, §652(b)(2)(A)(i), inserted “(or for the remains of a veteran)” after “furnished to a veteran” in introductory provisions.
Subsec. (b)(1). Pub. L. 103–337, §652(b)(2)(A)(ii), inserted “(or of the remains of such veteran)” after “of such veteran”.
Subsec. (b)(2). Pub. L. 103–337, §652(b)(2)(A)(iii), inserted “(or the remains of the veteran)” after “for the veteran”.
Subsec. (c). Pub. L. 103–337, §1070(e)(8), substituted “section 8111(g)(5) of title 38” for “section 5011(g)(5) of title 38”.
Subsec. (d)(1). Pub. L. 103–337, §652(b)(2)(B), inserted “(or on the survivors of a veteran)” after “on a veteran” and “(or for the remains of the veteran)” after “to the veteran”.
Subsec. (d)(2). Pub. L. 103–337, §652(b)(2)(C), inserted “(or for the remains of veterans)” after “to veterans”.
1989—Subsec. (a). Pub. L. 101–189, §1621(a)(1), substituted “Department of Veterans Affairs” for “Veterans’ Administration”.
Subsec. (b). Pub. L. 101–189, §1621(a)(2), substituted “Secretary of Veterans Affairs” for “Administrator of Veterans’ Affairs” in introductory provisions and in par. (1).
Subsec. (b)(1). Pub. L. 101–189, §1621(a)(8), substituted “the Secretary of Veterans Affairs requests” for “the Administrator requests”.
Pub. L. 101–189, §1621(a)(1), substituted “Department of Veterans Affairs” for “Veterans’ Administration” in two places.
Subsec. (d)(2). Pub. L. 101–189, §1621(a)(1), substituted “Department of Veterans Affairs” for “Veterans’ Administration”.
Section 1250(b) of Pub. L. 100–180 directed Secretary of Defense and Administrator of Veterans’ Affairs to enter into an agreement required by this section not later than 60 days after Dec. 4, 1987.
(a)
(b)
(1) resides in and is located in American Samoa; and
(2) as determined by an official of the Department of Veterans Affairs designated for that purpose by the Secretary of Veterans Affairs, must be transported to the State of Hawaii in order to receive hospital care to which such veteran is entitled under chapter 17 of title 38 in facilities of such Department in the State of Hawaii.
(c)
(2) A charge may not be imposed on a veteran for transportation provided to the veteran under this section.
(Added Pub. L. 105–262, title VIII, §8121(a), Oct. 17, 1998, 112 Stat. 2332; amended Pub. L. 106–65, div. A, title X, §1066(a)(24), Oct. 5, 1999, 113 Stat. 771.)
1999—Subsec. (b)(2). Pub. L. 106–65, §1066(a)(24)(A), struck out “, United States Code,” after “title 38”.
Subsec. (d). Pub. L. 106–65, §1066(a)(24)(B), struck out heading and text of subsec. (d). Text read as follows: “In this section:
“(1) The term ‘veteran’ has the meaning given that term in section 101(2) of title 38, United States Code.
“(2) The term ‘hospital care’ has the meaning given that term in section 1701(5) of title 38, United States Code.”
(a)
(b)
(1) is entitled to retired or retainer pay;
(2) resides in or is located in a Commonwealth or possession of the United States; and
(3) is referred by a military or civilian primary care provider located in that Commonwealth or possession to a specialty care provider for services to be provided outside of that Commonwealth or possession.
(c)
(1) the travel from the Commonwealth or possession of the United States to receive the specialty care services; and
(2) the return travel.
(d)
(e)
(Added Pub. L. 110–181, div. A, title III, §374(a), Jan. 28, 2008, 122 Stat. 82.)
(a)
(1) For military airlift services provided to the Central Intelligence Agency, if the Secretary of Defense determines that those military airlift services are provided for activities related to national security objectives.
(2) For military airlift services provided to the Department of State for the transportation of armored motor vehicles to a foreign country to meet requirements of the Department of State for armored motor vehicles associated with the overseas travel of the Secretary of State in that country.
(3) During the period beginning on October 28, 2009, and ending on October 28, 2014, for military airlift services provided to any element of the Federal Government outside the Department of Defense in circumstances other than those specified in paragraphs (1) and (2), but only if the Secretary of Defense determines that the provision of such services will promote the improved use of airlift capacity without any negative effect on the national security objectives or the national security interests contained within the United States commercial air industry.
(b)
(Added Pub. L. 102–88, title V, §501(a), Aug. 14, 1991, 105 Stat. 435; amended Pub. L. 108–136, div. A, title X, §1006(a), (b)(1), Nov. 24, 2003, 117 Stat. 1585; Pub. L. 111–84, div. A, title III, §351(a), Oct. 28, 2009, 123 Stat. 2262; Pub. L. 111–383, div. A, title X, §1075(b)(40), Jan. 7, 2011, 124 Stat. 4371.)
2011—Subsec. (a)(3). Pub. L. 111–383 substituted “During the period beginning on October 28, 2009, and ending on October 28, 2014” for “During the five-year period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 2010”.
2009—Subsec. (a)(3). Pub. L. 111–84 added par. (3).
2003—Pub. L. 108–136, §1006(b)(1), substituted “Airlift services provided to certain other agencies: use of Department of Defense reimbursement rate” for “Reimbursement rate for airlift services provided to Central Intelligence Agency” as section catchline.
Subsec. (a). Pub. L. 108–136, §1006(a), inserted “as follows:
“(1) For military airlift services provided”
before “to the Central Intelligence Agency”, and added par. (2).
(a)
(b)
(Added Pub. L. 104–106, div. A, title III, §334(a), Feb. 10, 1996, 110 Stat. 261; amended Pub. L. 109–163, div. A, title VI, §673, Jan. 6, 2006, 119 Stat. 3319.)
2006—Pub. L. 109–163 designated existing provisions as subsec. (a), inserted heading, substituted “to destinations outside the continental United States without relying on the Air Mobility Command, the Military Sealift Command,” for “by sea without relying on the Military Sealift Command” and “contracts for sea-borne transportation” for “transportation contracts”, and added subsec. (b).
In time of war, the President, through the Secretary of Defense, may take possession and assume control of all or part of any system of transportation to transport troops, war material, and equipment, or for other purposes related to the emergency. So far as necessary, he may use the system to the exclusion of other traffic.
(Aug. 10, 1956, ch. 1041, 70A Stat. 266, §4742; renumbered §2644 and amended Pub. L. 104–201, div. A, title IX, §906(a), (b), Sept. 23, 1996, 110 Stat. 2620.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4742 | 10:1361. | Aug. 29, 1916, ch. 418 (last par. under “Ordnance Department”), 39 Stat. 645. |
The words “as may be needful or desirable” are omitted as surplusage.
1996—Pub. L. 104–201 renumbered section 4742 of this title as this section and substituted “Secretary of Defense” for “Secretary of the Army”.
(a)
(A) in the case of a claim for the loss of a vessel, not later than 90 days after the date on which the Secretary of Transportation determines the claim to be payable or that amounts are due under the policy that provided the vessel war risk insurance; and
(B) in the case of any other claim, not later than 180 days after the date on which the Secretary of Transportation determines the claim to be payable.
(2) When there is a loss of a vessel that is (or may be) covered by vessel war risk insurance, the Secretary of Transportation may make, during the period when a claim for such loss is pending with the Secretary of Transportation, any required periodic payments owed by the insured party to a lessor or mortgagee of such vessel. Such payments shall commence not later than 30 days following the date of the presentment of the claim for the loss of the vessel to the Secretary of Transportation. If the Secretary of Transportation determines that the claim is payable, any amount paid under this paragraph arising from such claim shall be credited against the amount payable under the vessel war risk insurance. If the Secretary of Transportation determines that the claim is not payable, any amount paid under this paragraph arising from such claim shall constitute a debt to the United States, payable to the insurance fund. Any such amounts so returned to the United States shall be promptly credited to the fund or account from which the payments were made under this paragraph.
(b)
(c)
(d)
(e)
(2) Consolidation of claims arising from the same incident is not required before indemnification of the Secretary of Transportation for payment of a claim may be made under this section.
(f)
[(g) Repealed. Pub. L. 108–136, div. A, title X, §1031(a)(26)(B), Nov. 24, 2003, 117 Stat. 1598.]
(h)
(1)
(2)
(3)
(Added Pub. L. 104–201, div. A, title X, §1079(b)(1), Sept. 23, 1996, 110 Stat. 2669; amended Pub. L. 105–85, div. A, title X, §1073(a)(57), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 108–136, div. A, title X, §1031(a)(26), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 109–304, §17(a)(4), Oct. 6, 2006, 120 Stat. 1706.)
The date of the enactment of this section, referred to in subsec. (f), is the date of enactment of Pub. L. 104–201, which was approved Sept. 23, 1996.
2006—Subsec. (c). Pub. L. 109–304, §17(a)(4)(A), substituted “section 53909(b) of title 46” for “the second sentence of section 1208(a) of the Merchant Marine Act, 1936 (46 U.S.C. App. 1288(a))”.
Subsec. (h)(1). Pub. L. 109–304, §17(a)(4)(B), substituted “chapter 539 of title 46” for “title XII of the Merchant Marine Act, 1936 (46 U.S.C. App. 1281 et seq.),”.
Subsec. (h)(2). Pub. L. 109–304, §17(a)(4)(C), substituted “section 53909(a) of title 46” for “the first sentence of section 1208(a) of the Merchant Marine Act, 1936 (46 U.S.C. App. 1288(a))”.
2003—Subsec. (d). Pub. L. 108–136, §1031(a)(26)(A), substituted “Congress” for “Congress—”, struck out par. (1) designation before “notification”, substituted a period for “; and” after “date of the loss”, and struck out par. (2) which read as follows: “semiannual reports thereafter updating the information submitted under paragraph (1) and showing with respect to losses arising from such incident the total amount expended to cover such losses, the source of such funds, pending litigation, and estimated total cost to the Government.”
Subsec. (g). Pub. L. 108–136, §1031(a)(26)(B), struck out heading and text of subsec. (g). Text read as follows: “Not later than March 1 of each year, the Secretary of Defense shall submit to Congress a report setting forth the current amount of the contingent outstanding liability of the United States under the vessel war risk insurance program under title XII of the Merchant Marine Act, 1936 (46 U.S.C. App. 1281 et seq.).”
1997—Subsec. (a)(1)(B). Pub. L. 105–85 struck out “on which” after “after the date on which”.
(a)
(b)
(2) The evaluation factors applicable to offers for a contract under this section may include a factor that relates to the estimated aggregate value of any credits, discounts, commissions, or other fees that would accrue to the Department of Defense for the travel-related sales made under the contract.
(3) Commissions or fees received by the Department of Defense as a result of travel-related sales made under a contract entered into under this section shall be distributed as follows:
(A) For amounts relating to sales for official travel, credit to appropriations available for official travel for the fiscal year in which the amounts were charged.
(B) For amounts relating to sales for unofficial travel, deposit in nonappropriated fund accounts available for morale, welfare, and recreation programs.
(c)
(1) The term “head of an agency” has the meaning given that term in section 2302(1) of this title.
(2) The term “official travel” means travel at the expense of the Federal Government.
(3) The term “unofficial travel” means personal travel or other travel that is not paid for or reimbursed by the Federal Government out of appropriated funds.
(d)
(Added Pub. L. 105–261, div. A, title VIII, §813(a), Oct. 17, 1998, 112 Stat. 2087.)
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
The Secretary of Defense may provide transportation for the next-of-kin of persons who are unaccounted for from the Korean conflict, the Cold War, Vietnam War era, or the Persian Gulf War to and from an annual meeting in the United States. Such transportation shall be provided under such regulations as the Secretary of Defense may prescribe.
(Added Pub. L. 107–107, div. A, title V, §574(a), Dec. 28, 2001, 115 Stat. 1122.)
Pub. L. 107–117, div. A, title VIII, §8018, Jan. 10, 2002, 115 Stat. 2251, provided that: “Funds available in this Act [see Tables for classification] and hereafter may be used to provide transportation for the next-of-kin of individuals who have been prisoners of war or missing in action from the Vietnam era to an annual meeting in the United States, under such regulations as the Secretary of Defense may prescribe.”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 106–259, title VIII, §8018, Aug. 9, 2000, 114 Stat. 678.
Pub. L. 106–79, title VIII, §8018, Oct. 25, 1999, 113 Stat. 1235.
Pub. L. 105–262, title VIII, §8018, Oct. 17, 1998, 112 Stat. 2301.
Pub. L. 105–56, title VIII, §8018, Oct. 8, 1997, 111 Stat. 1224.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8019], Sept. 30, 1996, 110 Stat. 3009–71, 3009–92.
Pub. L. 104–61, title VIII, §8025, Dec. 1, 1995, 109 Stat. 657.
Pub. L. 103–335, title VIII, §8031, Sept. 30, 1994, 108 Stat. 2625.
Pub. L. 103–139, title VIII, §8034, Nov. 11, 1993, 107 Stat. 1447.
Pub. L. 102–396, title IX, §9046, Oct. 6, 1992, 106 Stat. 1912.
Pub. L. 102–172, title VIII, §8047, Nov. 26, 1991, 105 Stat. 1182.
Pub. L. 101–511, title VIII, §8051, Nov. 5, 1990, 104 Stat. 1886.
Pub. L. 101–165, title IX, §9065, Nov. 21, 1989, 103 Stat. 1143.
Whenever the Secretary of Defense considers that space is available, the following persons and supplies may be transported on vessels, vehicles, or aircraft operated by the Department of Defense:
(1) Members of Congress.
(2) Other officers of the United States traveling on official business.
(3) Secretaries and supplies of the Armed Services Department of the Young Men's Christian Association.
(4) Officers and employees of the Commonwealth of Puerto Rico on official business.
(5) The families of members of the armed forces, officers and employees of the Department of Defense or the Coast Guard, and persons described in paragraphs (1), (2), and (4).
However, a person described in paragraph (4) or (5) may be so transported only if the transportation is without expense to the United States.
(Aug. 10, 1956, ch. 1041, 70A Stat. 266, §4744; Pub. L. 86–624, §4(d), July 12, 1960, 74 Stat. 411; renumbered §2648 and amended Pub. L. 108–375, div. A, title X, §1072(a), (b)(1), Oct. 28, 2004, 118 Stat. 2057; Pub. L. 111–383, div. A, title III, §352(d), (e)(1), Jan. 7, 2011, 124 Stat. 4193.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4744 | 10:1369. 10:1370. 10:1371 (less last 29 words). |
Mar. 2, 1907, ch. 2511 (6th proviso, less last 29 words under “Transportation of the Army and Its Supplies”), 34 Stat. 1170. |
| June 30, 1921, ch. 33 (8th proviso under “Transportation of the Army and Its Supplies”), 42 Stat. 81. | ||
| Mar. 3, 1911, ch. 209 (3d proviso under “Transportation of the Army and Its Supplies”), 36 Stat. 1051. |
Reference to the Philippine government, contained in the source statute for 10:1371, is omitted, since the Philippine Republic now has the status of a foreign country and only possessions of the United States are intended to be covered by the source statute. The words “Armed Services Department” are substituted for the words “Army and Navy Department”, in 10:1370, to reflect the present name of that Department of the Young Men's Christian Association. (See also third sentence of revision note for section 4746 of this title, below.)
2011—Pub. L. 111–383 substituted “Persons and supplies: sea, land, and air transportation” for “Persons and supplies: sea transportation” in section catchline and inserted “, vehicles, or aircraft” after “vessels” in introductory provisions.
2004—Pub. L. 108–375, §1072(b)(1), in introductory provisions, substituted “Secretary of Defense” for “Secretary of the Army” and struck out “Army transport agencies or, within bulk space allocations made to the Department of the Army, on vessels operated by any military transport agency of” before “the Department of Defense”, redesignated pars. (4) to (8) as (1) to (5), respectively, in par. (5), substituted “members of the armed forces, officers and employees of the Department of Defense or the Coast Guard, and persons described in paragraphs (1), (2), and (4)” for “persons described in clauses (1), (2), (4), (5), and (7)”, in concluding provisions, substituted “paragraph (4) or (5)” for “clause (7) or (8)”, and struck out former pars. (1) to (3) which read as follows:
“(1) Members of the Navy, Marine Corps, or Coast Guard.
“(2) Officers and employees of the Department of the Army, the Department of the Navy, the Department of the Air Force, or the Coast Guard.
“(3) Supplies of the Department of the Navy.”
Pub. L. 108–375, §1072(a), renumbered section 4744 of this title as this section.
1960—Pub. L. 86–624 struck out cl. (6) which authorized transportation of officers and employees of the Territory of Hawaii, redesignated cls. (7) to (9) as (6) to (8), respectively, and substituted “clauses (1), (2), (4), (5), and (7)” for “clauses (1), (2), (4), (5), (6), and (8)” in redesignated cl. (8), and “clause (7) or (8)” for “clause (8) or (9)” in closing sentence.
(a)
(b)
(c)
(Aug. 10, 1956, ch. 1041, 70A Stat. 267, §4745; Pub. L. 96–513, title V, §512(22), Dec. 12, 1980, 94 Stat. 2930; Pub. L. 97–31, §12(3)(C), Aug. 6, 1981, 95 Stat. 154; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; renumbered §2649 and amended Pub. L. 108–375, div. A, title X, §1072(a), (b)(2), Oct. 28, 2004, 118 Stat. 2057; Pub. L. 111–383, div. A, title III, §352(a)–(c), (e)(2), Jan. 7, 2011, 124 Stat. 4193, 4194.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4745(a) 4745(b) |
10:1367 (less last 20 words). 10:1367 (last 20 words). |
June 5, 1920, ch. 240 (6th proviso under “Transportation of the Army and Its Supplies”), 41 Stat. 960. |
In subsection (a), the words “Federal Maritime Board” are substituted for the words “United States Maritime Commission”, since the functions of the chairman of that commission were transferred to the chairman of the Board by 1950 Reorganization Plan No. 21, effective May 24, 1950, 64 Stat. 1273. The words “the same kinds of service” are substituted for the words “the same class of accommodations”. The words “shipments of” and “between the same ports” are omitted as surplusage. (See also third sentence of revision note for section 4746 of this title, below.)
The date of the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, referred to in subsec. (c), is the date of enactment of Pub. L. 111–383, which was approved Jan. 7, 2011.
2011—Pub. L. 111–383, §352(e)(2), substituted “Civilian passengers and commercial cargoes: transportation on Department of Defense vessels, vehicles, and aircraft” for “Civilian passengers and commercial cargoes: transportation on Department of Defense vessels” in section catchline.
Subsec. (a). Pub. L. 111–383, §352(a), (b)(1), inserted heading, inserted “, vehicles, or aircraft” after “vessels” in two places in first sentence, and inserted “, except that in the case of transportation provided in response to an emergency, a disaster, or a request for humanitarian assistance, any amount charged for such transportation may not exceed the cost of providing the transportation” before period at end of second sentence.
Subsec. (b). Pub. L. 111–383, §352(b)(2), inserted heading and substituted “Any amount received under this section with respect to transportation provided in response to an emergency, a disaster, or a request for humanitarian assistance may be credited to the appropriation, fund, or account used in incurring the obligation for which such amount is received. In all other cases, amounts” for “Amounts”.
Subsec. (c). Pub. L. 111–383, §352(c), added subsec. (c).
2004—Pub. L. 108–375, §1072(a), (b)(2)(A), renumbered section 4745 of this title as this section and substituted “Civilian passengers and commercial cargoes: transportation on Department of Defense vessels” for “Civilian passengers and commercial cargoes: transports in trans-Atlantic service” in section catchline.
Subsec. (a). Pub. L. 108–375, §1072(b)(2)(B)–(D), struck out “(1) on vessels operated by Army transport agencies, or (2) within bulk space allocations made to the Department of the Army” after “available” and “any transport agency of” before “the Department of Defense” and substituted “Secretary of Defense, be transported” for “Secretary of the Army and the Secretary of Homeland Security, be transported”.
2002—Subsec. (a). Pub. L. 107–296 substituted “Secretary of Homeland Security” for “Secretary of Transportation”.
1981—Subsec. (a). Pub. L. 97–31 substituted “Secretary of Transportation” for “Secretary of Commerce”.
1980—Subsec. (a). Pub. L. 96–513 substituted “Secretary of Commerce” for “Chairman of the Federal Maritime Board”.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Persons residing in Alaska who are and have been employed there by the United States for at least two years, and their families, may be transported on vessels or airplanes operated by the Department of Defense, if—
(1) the Secretary of Defense considers that accommodations are available;
(2) the transportation is without expense to the United States;
(3) the transportation is limited to one round trip between Alaska and the United States during any two-year period, except in an emergency such as sickness or death; and
(4) in case of travel by air, the transportation cannot be reasonably handled by a United States commercial air carrier.
(Aug. 10, 1956, ch. 1041, 70A Stat. 267, §4746; Pub. L. 98–443, §9(k), Oct. 4, 1984, 98 Stat. 1708; renumbered §2650 and amended Pub. L. 108–375, div. A, title X, §1072(a), (b)(3), Oct. 28, 2004, 118 Stat. 2057, 2058.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4746 | 10:1371a. | Nov. 21, 1941, ch. 483; restated July 25, 1947, ch. 321, 61 Stat. 423. |
Before the enactment of the National Security Act of 1947, the transport functions covered by this section were performed only by the Army. Under section 2(a)(3) of the National Security Act (as it existed before August 10, 1949), the sea and air transportation functions of the Army, Navy, and Air Force were respectively consolidated into the “Military Sea Transportation Service”, under the Department of the Navy, and the “Military Air Transport Service”, under the Department of the Air Force. Instead of having space on its own transport vessels and airplanes, the Army is now allotted bulk space on vessels and airplanes operated by those transport services. The words “or, within bulk space allocations made to the Department of the Army, on vessels or airplanes operated by any military transport agency of the Department of Defense” are inserted, in accordance with an opinion of the Judge Advocate General of the Army (JAGA 1953/5885, 22 July 1953), to make clear that the rule applicable to Army vessels and airplanes applies to the bulk space allocated to the Army. Since the authority to perform transportation functions could again be transferred as between the military departments, the reference to “vessels or airplanes of Army transport agencies” is retained. The word “considers” is substituted for the words “in the opinion of”. The words “Persons residing in Alaska who are and have been employed there by the United States” are substituted for the words “employees of the United States, residing in Alaska, who have been in such employment”. The word “commercial” is substituted for the word “civil” for clarity. The words “from and after November 21, 1941”, “and the carriage of all such air traffic shall be terminated”, “dire”, “the privilege herein granted”, and “as to each eligible individual” are omitted as surplusage. The words “the continental” are omitted, since section 101(1) of this title defines the United States as “the States and the District of Columbia”.
2004—Pub. L. 108–375, §1072(a), (b)(3)(A), renumbered section 4746 of this title as this section and, in introductory provisions, struck out “Army transport agencies or, within bulk space allocations made to the Department of the Army, on vessels or airplanes operated by any military transport agency of” before “the Department of Defense”.
Par. (1). Pub. L. 108–375, §1072(b)(3)(B), substituted “Secretary of Defense” for “Secretary of the Army”.
Par. (4). Pub. L. 108–375, §1072(b)(3)(C), substituted “by air, the transportation cannot” for “by air—
“(A) the Secretary of Transportation has not certified that commercial air carriers of the United States that can handle the transportation are operating between Alaska and the United States; and
“(B) the transportation cannot”.
1984—Par. (4)(A). Pub. L. 98–443 substituted “Secretary of Transportation” for “Civil Aeronautics Board”.
Amendment by Pub. L. 98–443 effective Jan. 1, 1985, see section 9(v) of Pub. L. 98–443, set out as a note under section 5314 of Title 5, Government Organization and Employees.
Whenever space is available, passengers, and merchandise produced in the United States, or the Commonwealths and possessions, and consigned to residents and mercantile firms of Guam, may be transported to Guam on vessels operated by the Department of Defense, under regulations and at rates to be prescribed by the Secretary of Defense.
(Aug. 10, 1956, ch. 1041, 70A Stat. 267, §4747; renumbered §2651 and amended Pub. L. 108–375, div. A, title X, §1072(a), (b)(4), Oct. 28, 2004, 118 Stat. 2057, 2058; Pub. L. 109–163, div. A, title X, §1057(a)(6), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 111–383, div. A, title X, §1075(h)(4)(A)(ii), Jan. 7, 2011, 124 Stat. 4377.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4747 | 10:1368. 10:1371 (last 29 words). |
Mar. 3, 1911, ch. 209 (4th proviso under “Transportation of the Army and Its Supplies”), 36 Stat. 1051. |
| Mar. 2, 1907, ch. 2511 (last 29 words of 6th proviso under “Transportation of the Army and Its Supplies”), 34 Stat. 1171. |
The words “without displacing military supplies” and “of the island of”, in 10:1368 and 1371, are omitted as surplusage. The words “produced in the United States, or the Territories, Commonwealths, and possessions” are substituted for the words “of American production”.
2011—Pub. L. 111–383 made technical amendment to directory language of Pub. L. 109–163, §1057(a)(6). See 2006 Amendment note below.
2006—Pub. L. 109–163, §1057(a)(6), as amended by Pub. L. 111–383, substituted “Commonwealths and possessions” for “Territories, Commonwealths, and possessions”.
2004—Pub. L. 108–375, §1072(b)(4), substituted “the Department of Defense, under regulations and at rates to be prescribed by the Secretary of Defense” for “Army transport agencies or, within bulk space allocations made to the Department of the Army, on vessels operated by any transport agency of the Department of Defense, under regulations and at rates to be prescribed by the Secretary of the Army”.
Pub. L. 108–375, §1072(a), renumbered section 4747 of this title as this section.
Pub. L. 111–383, div. A, title X, §1075(h), Jan. 7, 2011, 124 Stat. 4377, provided that amendment by section 1075(h)(4)(A)(ii) is effective as of Jan. 6, 2006, and as if included in Pub. L. 109–163 as enacted.
This section makes necessary clerical amendments to chapter analysis.
Pub. L. 111–383, div. A, title III, §341(b), div. B, title XXVIII, §2814(c), Jan. 7, 2011, 124 Stat. 4190, 4464, struck out item 2680 “Leases: land for special operations activities” and added item 2697.
2009—Pub. L. 111–84, div. B, title XXVIII, §2822(a)(2), Oct. 28, 2009, 123 Stat. 2666, added item 2687a.
2008—Pub. L. 110–417, [div. A], title III, §311(b), div. B, title XXVIII, §2812(f)(2), Oct. 14, 2008, 122 Stat. 4409, 4728, added items 2667 and 2694c and struck out former items 2667 “Leases: non-excess property of military departments” and 2667a “Leases: non-excess property of Defense agencies”.
Pub. L. 110–181, div. B, title XXVIII, §2822(b)(2), Jan. 28, 2008, 122 Stat. 544, struck out item 2677 “Options: property required for military construction projects”.
2006—Pub. L. 109–364, div. B, title XXVIII, §§2822(d), 2823(b), 2825(d)(2)(B), 2851(c)(3), Oct. 17, 2006, 120 Stat. 2475–2477, 2495, added item 2668a, substituted “Real property: transfer between armed forces and screening requirements for other Federal use” for “Screening of real property for further Federal use before conveyance” in item 2696, and struck out items 2669 “Easements for rights-of-way: gas, water, sewer pipe lines”, 2689 “Development of geothermal energy on military lands”, 2690 “Fuel sources for heating systems; prohibition on converting certain heating facilities”, and 2693 “Conveyance of certain property: Department of Justice correctional options program”.
Pub. L. 109–163, div. B, title XXVIII, §2821(g), Jan. 6, 2006, 119 Stat. 3513, added items 2663 and 2664 and struck out former item 2663 “Acquisition” and items 2672 “Authority to acquire low-cost interests in land”, 2672a “Acquisition: interests in land when need is urgent”, and 2676 “Acquisition: limitation”.
2004—Pub. L. 108–375, div. B, title XXVIII, §2821(e)(3), Oct. 28, 2004, 118 Stat. 2130, substituted “Use of facilities by private organizations; use as polling places” for “Military installations: use by American National Red Cross; use as polling places” in item 2670 and struck out items 2664 “Acquisition of property for lumber production”, 2666 “Acquisition: land purchase contracts; limitation on commission”, 2673 “Acquisition of certain interests in land: availability of funds”, and 2679 “Representatives of veterans’ organizations: use of space and equipment”.
2003—Pub. L. 108–136, div. A, title III, §314(a)(2), div. B, title XXVIII, §2811(b)(3), Nov. 24, 2003, 117 Stat. 1431, 1725, substituted “Authority to acquire low-cost interests in land” for “Acquisition: interests in land when cost is not more than $500,000” in item 2672 and added item 2694b.
2002—Pub. L. 107–314, div. B, title XXVIII, §§2811(b), 2812(a)(2), Dec. 2, 2002, 116 Stat. 2707, 2709, added items 2684a and 2694a.
2001—Pub. L. 107–107, div. A, title X, §1048(a)(26)(B)(ii), title XVI, §1607(b)(3), Dec. 28, 2001, 115 Stat. 1225, 1280, substituted “Military installations: use by American National Red Cross; use as polling places” for “Licenses: military installations; erection and use of buildings; American National Red Cross” in item 2670 and “Conveyance of certain property: Department of Justice correctional options program” for “Conveyance of certain property” in item 2693.
1998—Pub. L. 105–261, div. B, title XXVIII, §2812(b)(2), Oct. 17, 1998, 112 Stat. 2206, struck out “from other agencies” after “lease” in item 2691.
1997—Pub. L. 105–85, div. A, title III, §§343(g)(3), 371(c)(2), title X, §§1061(c)(2), 1062(b), div. B, title XXVIII, §§2811(b)(2), 2812(b), 2813(b), 2814(a)(2), Nov. 18, 1997, 111 Stat. 1688, 1705, 1891, 1892, 1992–1995, inserted “of military departments” after “property” in item 2667, added item 2667a, substituted “$500,000” for “$200,000” in item 2672, added items 2686 and 2688, substituted “Storage, treatment, and” for “Storage and” in item 2692, and added items 2695 and 2696.
1996—Pub. L. 104–201, div. A, title III, §§332(a)(2), 369(b)(2), div. B, title XXVIII, §2862(b), Sept. 23, 1996, 110 Stat. 2485, 2498, 2805, substituted “of Pentagon Reservation and defense facilities in National Capital Region” for “of the Pentagon Reservation” in item 2674 and added items 2684 and 2694.
1993—Pub. L. 103–160, div. A, title VIII, §846(b), Nov. 30, 1993, 107 Stat. 1723, added item 2681.
1992—Pub. L. 102–496, title IV, §403(a)(2)(B), Oct. 24, 1992, 106 Stat. 3185, substituted “reports to congressional committees” for “Reports to the Armed Services Committees” in item 2662.
1991—Pub. L. 102–190, div. B, title XXVIII, §2863(a)(2), Dec. 5, 1991, 105 Stat. 1560, added item 2680.
1990—Pub. L. 101–647, title XVIII, §1802(b), Nov. 29, 1990, 104 Stat. 4850, added item 2693.
Pub. L. 101–510, div. A, title XIV, §1481(h)(2), div. B, title XXVIII, §2804(a)(2), Nov. 5, 1990, 104 Stat. 1708, 1785, added items 2674 and 2678.
1988—Pub. L. 100–370, §§1(l)(4), 2(b)(2), July 19, 1988, 102 Stat. 849, 854, added items 2661 and 2673 and struck out item 2693 “Prohibition on contracts for performance of firefighting or security-guard functions”.
1987—Pub. L. 100–224, §5(b)(3), Dec. 30, 1987, 101 Stat. 1538, inserted “; prohibition on converting certain heating facilities” after “systems” in item 2690.
Pub. L. 100–180, div. A, title XI, §1112(b)(3), Dec. 4, 1987, 101 Stat. 1147, inserted “or security-guard” before “functions” in item 2693.
1986—Pub. L. 99–661, div. A, title XII, §§1205(a)(2), 1222(a)(2), Nov. 14, 1986, 100 Stat. 3972, 3976, substituted “Fuel sources for heating systems” for “Restriction on fuel sources for new heating systems” in item 2690 and added item 2693.
Pub. L. 98–115, title VIII, §807(c)(2), Oct. 11, 1983, 97 Stat. 789; Pub. L. 99–167, title VIII, §806(a), Dec. 3, 1985, 99 Stat. 988, struck out item 2667a “Sale and replacement of nonexcess real property”, eff. Oct. 1, 1986.
1985—Pub. L. 99–167, title VIII, §810(b)(2), Dec. 3, 1985, 99 Stat. 990, substituted “$200,000” for “$100,000” in item 2672.
Pub. L. 99–145, title XII, §1224(c)(2), Nov. 8, 1985, 99 Stat. 729, inserted “; minimum drinking age on military installations” in item 2683.
1984—Pub. L. 98–407, title VIII, §§804(b), 805(b), Aug. 28, 1984, 98 Stat. 1519, 1521, added items 2691 and 2692.
1983—Pub. L. 98–115, title VIII, §807(a)(2), Oct. 11, 1983, 97 Stat. 788, added item 2667a.
1982—Pub. L. 97–321, title VIII, §805(b)(4), Oct. 15, 1982, 96 Stat. 1573, substituted in item 2689 “Development of geothermal energy on military lands” for “Development of sources of energy on or for military installations”.
Pub. L. 97–295, §1(31)(B), Oct. 12, 1982, 96 Stat. 1296, struck out item 2661a “Appropriations for advance planning of military public works”.
Pub. L. 97–258, §2(b)(6)(A), Sept. 13, 1982, 96 Stat. 1053, added item 2661a.
Pub. L. 97–214, §§6(c)(2), 10(a)(4), (5)(C), July 12, 1982, 96 Stat. 173, 175, struck out items 2661 “Planning and construction of public works projects by military departments”, 2673 “Restoration or replacement of facilities damaged or destroyed”, 2674 “Minor construction projects”, 2678 “Acquisition of mortgaged housing units”, 2681 “Construction or acquisition of family housing and community facilities in foreign countries”, 2684 “Construction of family quarters; limitations on space”, 2686 “Leases: military family housing”, and 2688 “Use of solar energy systems in new facilities”, substituted “Options: property required for military construction projects” for “Options: property required for public works projects of military departments” in item 2677, and added items 2689 and 2690.
1980—Pub. L. 96–513, title V, §511(89), Dec. 12, 1980, 94 Stat. 2928, struck out item 2680 “Reimbursement of owners of property acquired for public works projects for moving expenses”.
Pub. L. 96–418, title VIII, §806(b), Oct. 10, 1980, 94 Stat. 1777, as amended by Pub. L. 97–22, §11(c), July 10, 1981, 95 Stat. 138, substituted “$100,000” for “$50,000” in item 2762.
1979—Pub. L. 96–125, title VIII, §804(a)(2), Nov. 26, 1979, 93 Stat. 948, added item 2688.
1977—Pub. L. 95–82, title V, §504(a)(2), title VI, §§608(b), 612(b), Aug. 1, 1977, 91 Stat. 371, 378, 380, substituted “Minor construction projects” for “Establishment and development of military facilities and installations costing less than $400,000” in item 2674 and added items 2686 and 2687.
1975—Pub. L. 94–107, title VI, §607(1), (9), (10), Oct. 7, 1975, 89 Stat. 566, 567, substituted “$400,000” for “$300,000” in item 2674, struck out “; structures not on a military base” in item 2675, and added item 2672a.
1974—Pub. L. 93–552, title VI, §611, Dec. 27, 1974, 88 Stat. 1765, added item 2685.
1973—Pub. L. 93–166, title V, §509(b), Nov. 29, 1973, 87 Stat. 677, added item 2684.
1971—Pub. L. 92–145, title VII, §707(2), Oct. 27, 1971, 85 Stat. 411, substituted “$50,000” for “$25,000” in item 2672.
1970—Pub. L. 91–511, title VI, §§607(1), 613(2), Oct. 26, 1970, 84 Stat. 1223, 1226, substituted “$300,000” for “$200,000” in item 2674, and added item 2683.
1963—Pub. L. 88–174, title VI, §609(a)(2), Nov. 7, 1963, 77 Stat. 329, added item 2682.
1962—Pub. L. 87–651, title I, §112(d), title II, §209(b), Sept. 7, 1962, 76 Stat. 512, 524, substituted “$25,000” for “$5,000” in item 2672 and added items 2679 to 2681.
1960—Pub. L. 86–500, title V, §511(2), June 8, 1960, 74 Stat. 187, substituted “Reports to the Armed Services Committees” for “Agreement with Armed Services Committees; reports” in item 2662.
1958—Pub. L. 85–861, §1(52), Sept. 2, 1958, 72 Stat. 1461, added items 2672 to 2678.
Pub. L. 85–337, §4(2), Feb. 28, 1958, 72 Stat. 29, added item 2671.
(a)
(1) The repair of facilities.
(2) The installation of equipment in public and private plants.
(b)
(1) The leasing of buildings and facilities (including the payment of rentals for special purpose space at the seat of Government). Rental for such leases may be paid in advance in connection with—
(A) the conduct of field exercises and maneuvers; and
(B) the administration of the Act of July 9, 1942 (43 U.S.C. 315q).
(2) The maintenance of defense access roads which are certified to the Secretary of Transportation as important to the national defense under the provisions of section 210 of title 23.
[(c) Renumbered §2664(b)]
(d)
(Added Pub. L. 100–370, §1(l)(3), July 19, 1988, 102 Stat. 849; amended Pub. L. 108–375, div. B, title XXVIII, §2821(a)(1), (e)(1), Oct. 28, 2004, 118 Stat. 2129, 2130; Pub. L. 109–163, div. B, title XXVIII, §2821(d), (e), Jan. 6, 2006, 119 Stat. 3512.)
Subsection (a) of this section and sections 2241(a) and 2253(b) of this title are based on Pub. L. 98–212, title VII, §735, Dec. 8, 1983, 97 Stat. 1444, as amended by Pub. L. 98–525, title XIV, §§1403(a)(2), 1404, Oct. 19, 1984, 98 Stat. 2621.
Subsection (b) is based on Pub. L. 99–190, §101(b) [title VIII, §8005(d), (f)], Dec. 19, 1985, 99 Stat. 1185, 1202.
A prior section 2661, act Aug. 10, 1956, ch. 1041, 70A Stat. 147, related to planning and construction of public works projects by military departments, prior to repeal by Pub. L. 97–214, §7(1), July 12, 1982, 96 Stat. 173, eff. Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date.
2006—Subsec. (c). Pub. L. 109–163, §2821(d), redesignated subsec. (c) as section 2664(b) of this title.
Subsec. (d). Pub. L. 109–163, §2821(e), added subsec. (d).
2004—Subsecs. (a), (b). Pub. L. 108–375, §2821(e)(1), inserted headings.
Subsec. (c). Pub. L. 108–375, §2821(a)(1), added subsec. (c).
Pub. L. 107–107, div. B, title XXVIII, §2813, Dec. 28, 2001, 115 Stat. 1308, authorized the Secretary of Defense, until Dec. 31, 2005, to carry out a pilot program, known as the “Pilot Efficient Facilities Initiative”, for purposes of determining the potential for increasing the efficiency and effectiveness of the operation of military installations.
Pub. L. 103–337, div. A, title III, §329, Oct. 5, 1994, 108 Stat. 2715, directed Secretary of the Army to submit to Congress not later than May 1, 1996, a study and report on feasibility and advisability of establishing a center for land management activities and land management training activities of Department of Defense.
Section, added Pub. L. 97–258, §2(b)(6)(B), Sept. 13, 1982, 96 Stat. 1054, authorized appropriations for advance design of military public works not otherwise authorized and for construction management of foreign government funded projects used primarily by United States armed forces, and required preliminary reports to Congress on military public works whose projected advance costs exceeded a specified level.
The repeal of this section by Pub. L. 97–295 reflected the effect of section 7(2) and (8) of the Military Construction Codification Act (Pub. L. 97–214, July 12, 1982, 96 Stat. 173), which repealed the source statutes of this section (subsec. (a) was based on acts Sept. 28, 1951, ch. 434, §504, 65 Stat. 364; July 15, 1955, ch. 368, §512, 69 Stat. 352; Dec. 23, 1981, Pub. L. 97–99, §902, 95 Stat. 1381 (31 U.S.C. 723); and subsec. (b) was based on acts Sept. 12, 1966, Pub. L. 89–568, §612, 80 Stat. 756; Dec. 27, 1974, Pub. L. 93–552, §607, 88 Stat. 1763 (31 U.S.C. 723a)) subsequent to Apr. 15, 1982, the cut-off date prescribed by section 4(a) of Pub. L. 97–258, section 2(b)(6)(B) of which enacted this section.
(a)
(A) An acquisition of fee title to any real property, if the estimated price is more than $750,000.
(B) A lease of any real property to the United States, if the estimated annual rental is more than $750,000.
(C) A lease or license of real property owned by the United States (other than a lease or license entered into under section 2667(g) of this title), if the estimated annual fair market rental value of the property is more than $750,000.
(D) A transfer of real property owned by the United States to another Federal agency or another military department or to a State, if the estimated value is more than $750,000.
(E) A report of excess real property owned by the United States to a disposal agency, if the estimated value is more than $750,000.
(F) Any termination or modification by either the grantor or grantee of an existing license or permit of real property owned by the United States to a military department, under which substantial investments have been or are proposed to be made in connection with the use of the property by the military department.
(G) Any transaction or contract action that results in, or includes, the acquisition or use by, or the lease or license to, the United States of real property, if the estimated annual rental or cost for the use of the real property is more than $750,000.
(2) If a transaction covered by subparagraph (A) or (B) of paragraph (1) is part of a project, the report shall include a summary of the general plan for that project, including an estimate of the total cost of the lands to be acquired or leases to be made. The report required by this subsection concerning any report of excess real property described in subparagraph (E) of paragraph (1) shall contain a certification by the Secretary concerned that he has considered the feasibility of exchanging such property for other real property authorized to be acquired for military purposes and has determined that the property proposed to be declared excess is not suitable for such purpose.
(3) The authority of the Secretary concerned to enter into a transaction described in paragraph (1) commences only after—
(A) the end of the 30-day period beginning on the first day of the month with respect to which the report containing the facts concerning such transaction, and all other such proposed transactions for that month, is submitted under paragraph (1); or
(B) the end of the 14-day period beginning on the first day of that month when a copy of the report is provided in an electronic medium pursuant to section 480 of this title on or before the first day of that month.
(4) The report for a month under this subsection may not be submitted later than the first day of that month.
(b)
(A) issuing a contract solicitation or other lease offering with regard to the transaction; and
(B) providing public notice regarding any meeting to discuss a proposed contract solicitation with regard to the transaction.
(2) The report under paragraph (3) of subsection (a) shall include the following with regard to a proposed transaction covered by paragraph (1)(C) of such subsection:
(A) A description of the proposed transaction, including the proposed duration of the lease or license.
(B) A description of the authorities to be used in entering into the transaction.
(C) A statement of the scored cost of the entire transaction, determined using the scoring criteria of the Office of Management and Budget.
(D) A determination that the property involved in the transaction is not excess property, as required by section 2667(a)(3) of this title, including the basis for the determination.
(E) A determination that the proposed transaction is directly compatible with the mission of the military installation or Defense Agency at which the property is located and a description of the anticipated long-term use of the property at the conclusion of the lease or license.
(F) A description of the requirements or conditions within the contract solicitation or other lease offering for the person making the offer to address taxation issues, including payments-in-lieu-of taxes, and other development issues related to local municipalities.
(G) If the proposed lease involves a project related to energy production, a certification by the Secretary of Defense that the project, as it will be specified in the contract solicitation or other lease offering, is consistent with the Department of Defense performance goals and plan required by section 2911 of this title.
(3) The Secretary concerned may not enter into the actual lease or license with respect to property for which the information required by paragraph (2) was submitted in a report under subsection (a)(3) unless the Secretary again complies with the notice-and-wait requirements of such subsection. The subsequent report shall include the following with regard to the proposed transaction:
(A) A cross reference to the prior report that contained the information submitted under paragraph (2) with respect to the transaction.
(B) A description of the differences between the information submitted under paragraph (2) and the information regarding the transaction being submitted in the subsequent report.
(C) A description of the payment to be required in connection with the lease or license, including a description of any in-kind consideration that will be accepted.
(D) A description of any community support facility or provision of community support services under the lease or license, regardless of whether the facility will be operated by a covered entity (as defined in section 2667(d) of this title) or the lessee or the services will be provided by a covered entity or the lessee.
(E) A description of the competitive procedures used to select the lessee or, in the case of a lease involving the public benefit exception authorized by section 2667(h)(2) of this title, a description of the public benefit to be served by the lease.
(c)
(d)
(e)
(f)
(A) A declaration of war.
(B) A declaration of a national emergency by the President pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.).
(C) A declaration of an emergency or major disaster pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
(D) The use of the militia or the armed forces after a proclamation to disperse under section 334 of this title.
(E) A contingency operation.
(2) The reporting requirement set forth in subsection (a) shall not apply with respect to a real property transaction otherwise covered by that subsection if the Secretary concerned determines that—
(A) an event listed in paragraph (1) is imminent; and
(B) the transaction is necessary for purposes of preparation for such event.
(3) Not later than 30 days after entering into a real property transaction covered by paragraph (1) or (2), the Secretary concerned shall submit to the committees named in subsection (a) a report on the transaction. The report shall set forth any facts or information which would otherwise have been submitted in a report on the transaction under subsection (a), but for the operation of paragraph (1) or (2).
(g)
(Aug. 10, 1956, ch. 1041, 70A Stat. 147; Pub. L. 86–70, §6(c), June 25, 1959, 73 Stat. 142; Pub. L. 86–500, title V, §511(1), June 8, 1960, 74 Stat. 186; Pub. L. 86–624, §4(c), July 12, 1960, 74 Stat. 411; Pub. L. 92–145, title VII, §707(5), Oct. 27, 1971, 85 Stat. 412; Pub. L. 92–545, title VII, §709, Oct. 25, 1972, 86 Stat. 1154; Pub. L. 93–552, title VI, §610, Dec. 27, 1974, 88 Stat. 1765; Pub. L. 94–107, title VI, §607(5), (6), Oct. 7, 1975, 89 Stat. 566; Pub. L. 94–431, title VI, §614, Sept. 30, 1976, 90 Stat. 1367; Pub. L. 96–418, title VIII, §805, Oct. 10, 1980, 94 Stat. 1777; Pub. L. 100–456, div. B, title XXVIII, §2803, Sept. 29, 1988, 102 Stat. 2115; Pub. L. 101–510, div. A, title XIII, §1311(6), Nov. 5, 1990, 104 Stat. 1670; Pub. L. 102–496, title IV, §403(a)(1), (2)(A), Oct. 24, 1992, 106 Stat. 3185; Pub. L. 104–106, div. A, title XV, §1502(a)(23), div. D, title XLIII, §4321(b)(21), Feb. 10, 1996, 110 Stat. 505, 673; Pub. L. 105–261, div. B, title XXVIII, §2811, Oct. 17, 1998, 112 Stat. 2204; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 106–398, §1 [div. B, title XXVIII, §2811], Oct. 30, 2000, 114 Stat. 1654, 1654A–416; Pub. L. 108–136, div. A, title X, §1031(a)(27), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 108–375, div. A, title X, §1084(d)(22), Oct. 28, 2004, 118 Stat. 2062; Pub. L. 110–181, div. B, title XXVIII, §2821, Jan. 28, 2008, 122 Stat. 543; Pub. L. 110–417, div. B, title XXVIII, §2811, Oct. 14, 2008, 122 Stat. 4725; Pub. L. 111–383, div. B, title XXVIII, §2811(a)–(f), Jan. 7, 2011, 124 Stat. 4461, 4462.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2662(a) 2662(b) 2662(c) |
40:551. 40:552. 40:553. |
Sept. 28, 1951, ch. 434, §§601–604, 65 Stat. 365, 366. |
| 2662(d) | 40:554. |
In subsection (a), the words “must come to an agreement * * * before entering into any of the following transactions by or for the use of that department:” are substituted for the words “shall come into agreement * * * with respect to those real-estate actions by or for the use of the military departments * * * that are described in subsection (a)–(e) of this section, and in the manner therein described”. The last sentence is substituted for the last sentence of 40:551(a) and 40:551(b).
In subsection (a)(4), the words “or another military department” are substituted for the words “including transfers between the military departments”. The words “under the jurisdiction of the military departments” are omitted as surplusage.
In subsection (b), the words “more than $5,000 but not more than $25,000” are substituted for the words “between $5,000 and $25,000”. The words “shall report” are substituted for the words “will, in addition, furnish * * * reports”.
In subsection (c), the words “the United States, Alaska, Hawaii” are substituted for the words “the continental United States, the Territory of Alaska, the Territory of Hawaii”, since, as defined in section 101(1) of this title, “United States” includes the States and the District of Columbia; and “Territories” includes Alaska and Hawaii.
In subsection (d), the words “A statement * * * that the requirements of this section have been met” are substituted for the words “A recital of compliance with this chapter * * * to the effect that the requirements of this chapter have been complied with”. The words “in the alternative”, “or lease”, and “evidence thereof” are omitted as surplusage.
The National Emergencies Act, referred to in subsec. (f)(1)(B), is Pub. L. 94–412, Sept. 14, 1976, 90 Stat. 1255, as amended, which is classified principally to chapter 34 (§1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in subsec. (f)(1)(C), is Pub. L. 93–288, May 22, 1974, 88 Stat. 143, as amended, which is classified principally to chapter 68 (§5121 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 5121 of Title 42 and Tables.
2011—Subsec. (a)(1). Pub. L. 111–383, §2811(f)(1)(A), substituted “the Secretary concerned submits” for “the Secretary submits” in introductory provisions.
Subsec. (a)(1)(C). Pub. L. 111–383, §2811(a), inserted “(other than a lease or license entered into under section 2667(g) of this title)” after “United States”.
Subsec. (a)(3). Pub. L. 111–383, §2811(f)(1)(B), substituted “the Secretary concerned” for “the Secretary of a military department or the Secretary of Defense” in introductory provisions.
Subsec. (b). Pub. L. 111–383, §2811(b), (e), added subsec. (b) and struck out former subsec. (b). Prior to amendment, text read as follows: “The Secretary of each military department and, with respect to Defense Agencies, the Secretary of Defense shall submit annually to the congressional committees named in subsection (a) a report on transactions described in subsection (a) that involve an estimated value of more than $250,000, but not more than $750,000.”
Subsec. (c). Pub. L. 111–383, §2811(c), substituted “Excepted Projects” for “Geographic Scope; Excepted Projects” in heading and “This section does not” for “This section applies only to real property in the United States, Puerto Rico, Guam, the American Virgin Islands, American Samoa, and the Trust Territory of the Pacific Islands. It does not” in text.
Subsecs. (e), (f). Pub. L. 111–383, §2811(d), (f)(2), redesignated subsecs. (f) and (g) as (e) and (f), respectively, and struck out former subsec. (e). Prior to amendment, text read as follows: “No element of the Department of Defense shall occupy any general purpose space leased for it by the General Services Administration at an annual rental in excess of $750,000 (excluding the cost of utilities and other operation and maintenance services), if the effect of such occupancy is to increase the total amount of such leased space occupied by all elements of the Department of Defense, until the end of the 30-day period beginning on the date on which a report of the facts concerning the proposed occupancy is submitted to the congressional committees named in subsection (a) or, if earlier, the end of the 14-day period beginning on the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title.”
Subsec. (f)(1). Pub. L. 111–383, §2811(f)(3)(A), struck out “, and the reporting requirement set forth in subsection (e) shall not apply with respect to a real property transaction otherwise covered by that subsection,” before “if the Secretary” in introductory provisions.
Subsec. (f)(3). Pub. L. 111–383, §2811(f)(3)(B), struck out “or (e), as the case may be” after “under subsection (a)”.
Subsec. (f)(4). Pub. L. 111–383, §2811(f)(3)(C), struck out par. (4), which read as follows: “In this subsection, the term ‘Secretary concerned’ includes, with respect to Defense Agencies, the Secretary of Defense.”
Subsec. (g). Pub. L. 111–383, §2811(f)(4), added subsec. (g). Former subsec. (g) redesignated (f).
2008—Subsec. (a)(1). Pub. L. 110–181, §2821(a)(1)(A), substituted “or, with respect to a Defense Agency, the Secretary of Defense” for “, or his designee,” in introductory provisions.
Subsec. (a)(1)(G). Pub. L. 110–181, §2821(b), added subpar. (G).
Subsec. (a)(3). Pub. L. 110–181, §2821(a)(1)(B), inserted “or the Secretary of Defense” after “military department” in introductory provisions.
Subsec. (b). Pub. L. 110–181, §2821(a)(2), inserted “and, with respect to Defense Agencies, the Secretary of Defense” after “military department”.
Subsec. (c). Pub. L. 110–417 substituted “water resource development projects of the Corps of Engineers” for “river and harbor projects or flood control projects”.
Subsec. (g)(4). Pub. L. 110–181, §2821(a)(3), added par. (4).
2004—Subsec. (a)(2). Pub. L. 108–375 substituted “shall include a summary” for “must include a summarization” and inserted “of paragraph (1)” after “in subparagraph (E)”.
2003—Subsec. (a). Pub. L. 108–136, §1031(a)(27)(A)(i)–(v), inserted “(1)” after subsec. heading, substituted “the Secretary submits a report, subject to paragraph (3),” for “after the expiration of 30 days from the date upon which a report of the facts concerning the proposed transaction is submitted”, redesignated former pars. (1) to (6) as subpars. (A) to (F), respectively, of par. (1), substituted “$750,000” for “$500,000” in subpars. (A) to (E), designated concluding provisions as par. (2), and substituted “subparagraph (A) or (B) of paragraph (1)” for “clause (1) or (2)” and “subparagraph (E)” for “clause (5)”.
Subsec. (a)(3), (4). Pub. L. 108–136, §1031(a)(27)(A)(vi), added pars. (3) and (4).
Subsec. (b). Pub. L. 108–136, §1031(a)(27)(B), substituted “more than $250,000, but not more than $750,000” for “more than the simplified acquisition threshold specified in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)), but not more than $500,000”.
Subsec. (e). Pub. L. 108–136, §1031(a)(27)(C), substituted “$750,000” for “$500,000” and “the end of the 30-day period beginning on the date on which a report of the facts concerning the proposed occupancy is submitted to the congressional committees named in subsection (a) or, if earlier, the end of the 14-day period beginning on the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title” for “the expiration of thirty days from the date upon which a report of the facts concerning the proposed occupancy is submitted to the congressional committees named in subsection (a)”.
2000—Subsec. (a). Pub. L. 106–398, §1 [div. B, title XXVIII, §2811(a)], substituted “$500,000” for “$200,000” wherever appearing.
Subsec. (b). Pub. L. 106–398 substituted “specified in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)),” for “under section 2304(g) of this title” and “$500,000” for “$200,000”.
Subsec. (e). Pub. L. 106–398, §1 [div. B, title XXVIII, §2811(a)], substituted “$500,000” for “$200,000”.
1999—Subsec. (a). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security” in introductory provisions.
1998—Subsecs. (a) to (f). Pub. L. 105–261, §2811(b), inserted subsec. headings.
Subsec. (g). Pub. L. 105–261, §2811(a), added subsec. (g).
1996—Subsec. (a). Pub. L. 104–106, §1502(a)(23)(A), substituted “the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives” for “the Committees on Armed Services of the Senate and House of Representatives” in introductory provisions and struck out “to be submitted to the Committees on Armed Services of the Senate and House of Representatives” after “The report required by this subsection” in concluding provisions.
Subsec. (b). Pub. L. 104–106, §4321(b)(21), substituted “simplified acquisition threshold” for “small purchase threshold”.
Pub. L. 104–106, §1502(a)(23)(B), substituted “shall submit annually to the congressional committees named in subsection (a) a report” for “shall report annually to the Committees on Armed Services of the Senate and the House of Representatives”.
Subsec. (e). Pub. L. 104–106, §1502(a)(23)(C), substituted “the congressional committees named in subsection (a)” for “the Committees on Armed Services of the Senate and the House of Representatives”.
Subsec. (f). Pub. L. 104–106, §1502(a)(23)(D), substituted “the congressional committees named in subsection (a) shall” for “the Committees on Armed Services of the Senate and the House of Representatives shall”.
1992—Pub. L. 102–496, §403(a)(2)(A), substituted “reports to congressional committees” for “Reports to the Armed Services Committees” in section catchline.
Subsec. (f). Pub. L. 102–496, §403(a)(1), added subsec. (f).
1990—Subsec. (b). Pub. L. 101–510 substituted “the small purchase threshold under section 2304(g) of this title” for “$5,000”.
1988—Subsecs. (a), (b), (e). Pub. L. 100–456 substituted “$200,000” for “$100,000” wherever appearing.
1980—Subsecs. (a), (b), (e). Pub. L. 96–418 substituted “$100,000” for “$50,000” wherever appearing.
1976—Subsec. (a). Pub. L. 94–431 provided that the report on the excess property owned by the United States contain a certification by the Secretary concerned that he has considered the feasibility of exchanging such excess property for property suitable for military purposes and has determined such excess property not suitable for exchange.
1975—Subsec. (b). Pub. L. 94–107, §607(5), substituted requirement of annual reports for requirement of quarterly reports.
Subsec. (c). Pub. L. 94–107, §607(6), inserted provisions extending the applicability of the section to Guam, the American Samoa, and the Trust Territory of the Pacific Islands, and, in provisions relating to the inapplicability of the section, inserted reference to any real property acquisition specifically authorized in a Military Construction Authorization Act.
1974—Subsec. (a)(6). Pub. L. 93–552 added par. (6).
1972—Subsec. (e). Pub. L. 92–545 added subsec. (e).
1971—Subsec. (a)(3). Pub. L. 92–145 made the restriction applicable to a license of real property and substituted “estimated annual fair market rental value” for “estimated annual rental”.
1960—Subsec. (a). Pub. L. 86–500 prohibited the Secretary of a military department, or his designee, from entering into any of the transactions listed in subsec. (a) until after the expiration of 30 days from the date upon which a report of the facts concerning the proposed transaction is submitted to the Committees on Armed Services of the Senate and House of Representatives, and increased the amounts in pars. (1) to (5) from $25,000 to $50,000.
Subsec. (b). Pub. L. 86–500 substituted “$50,000” for “$25,000”.
Subsec. (c). Pub. L. 86–624 and Pub. L. 86–500 struck out reference to Hawaii.
Subsec. (d). Pub. L. 86–500 reenacted subsection without change.
1959—Subsec. (c). Pub. L. 86–70 struck out reference to Alaska.
For effective date and applicability of amendment by section 4321(b)(21) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Amendment by Pub. L. 100–456 effective Oct. 1, 1988, see section 2702 of Pub. L. 100–456, set out as a note under section 2391 of this title.
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.
Pub. L. 95–485, title VI, §602, Oct. 20, 1978, 92 Stat. 1617, prohibited any action to implement any substantial reduction or force structure realignment of the composite of installations, posts, camps, stations, and bases that had as a primary or secondary mission the conduct of formal entry level, advanced individual, or specialty training as a part of the fiscal year 1979 Defense manpower program unless certain criteria were complied with.
Pub. L. 95–82, title VI, §612(c), Aug. 1, 1977, 91 Stat. 380, provided that: “Section 611 of the Military Construction Authorization Act, 1966 (Public Law 89–188; 10 U.S.C. 2662 note), and section 612 of the Military Construction Authorization Act, 1977 (Public Law 94–431; 90 Stat. 1366) [which was not classified to the Code], shall be inapplicable in the case of any closure of a military installation, and any realignment with respect to a military installation, which is first publicly announced after September 30, 1977.”
Pub. L. 89–188, title VI, §611, Sept. 16, 1965, 79 Stat. 818, as amended by Pub. L. 89–568, title VI, §613, Sept. 12, 1966, 80 Stat. 757, required a report to Congress and a waiting period in connection with the closing of Defense Department facilities, prior to repeal by Pub. L. 97–214, §7(7), July 12, 1982, 96 Stat. 173, eff. Oct. 1, 1982.
(a)
(A) the site, construction, or operation of fortifications, coast defenses, or military training camps;
(B) the construction and operation of plants for the production of nitrate and other compounds, and the manufacture of explosives or other munitions of war; or
(C) the development and transmission of power for the operation of plants under subparagraph (B).
(2) In time of war or when war is imminent, the United States may, immediately upon the filing of a petition for condemnation under paragraph (1), take and use the land to the extent of the interest sought to be acquired.
(b)
(c)
(A) the Secretary determines is needed in the interest of national defense; and
(B) does not cost more than $750,000, exclusive of administrative costs and the amounts of any deficiency judgments.
(2) The Secretary of a military department may acquire any interest in land that—
(A) the Secretary determines is needed solely to correct a deficiency that is life-threatening, health-threatening, or safety-threatening; and
(B) does not cost more than $1,500,000, exclusive of administrative costs and the amounts of any deficiency judgments.
(3) This subsection does not apply to the acquisition, as a part of the same project, of more than one parcel of land unless the parcels are noncontiguous, or, if contiguous, unless the total cost is not more than $750,000, in the case of an acquisition under paragraph (1), or $1,500,000, in the case of an acquisition under paragraph (2).
(4) Appropriations available to the Department of Defense for operation and maintenance or construction may be used for the acquisition of land or interests in land under this subsection.
(d)
(A) the acquisition is needed in the interest of national defense;
(B) the acquisition is required to maintain the operational integrity of a military installation; and
(C) considerations of urgency do not permit the delay necessary to include the required acquisition in an annual Military Construction Authorization Act.
(2) Not later than 10 days after the date on which the Secretary of a military department determines to acquire an interest in land under the authority of this subsection, the Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives written notice containing a description of the property and interest to be acquired and the reasons for the acquisition.
(3) Appropriations available for military construction may be used for the purposes of this subsection.
(e)
(1) to make surveys; and
(2) to acquire the interest in real property by gift, purchase, exchange of real property owned by the United States, or otherwise.
(f)
(A) pursue, to the maximum extent practicable, all other available options for the acquisition or use of the land, such as the purchase of an easement or the execution of a land exchange; and
(B) submit to the congressional defense committees a report containing—
(i) a description of the land to be acquired;
(ii) a certification that negotiations with the owner or owners of the land occurred, and that the Secretary tendered consideration in an amount equal to the fair market value of the land, as determined by the Secretary; and
(iii) an explanation of the other approaches considered for acquiring use of the land, the reasons for the acquisition of the land, and the reasons why alternative acquisition strategies are inadequate.
(2) The Secretary concerned may have proceedings brought in the name of the United States to acquire the land after the end of the 21-day period beginning on the date on which the report is received by the committees or, if over sooner, the end of the 14-day period beginning on the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title.
(g)
(h)
(2) As consideration for an option acquired under paragraph (1), the Secretary may pay, from funds available to the military department under the jurisdiction of the Secretary for real property activities, an amount that is not more than 12 percent of the appraised fair market value of the property.
(Aug. 10, 1956, ch. 1041, 70A Stat. 147; Pub. L. 85–861, §33(a)(14), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 109–163, div. B, title XXVIII, §2821(a), Jan. 6, 2006, 119 Stat. 3511; Pub. L. 109–364, div. B, title XXVIII, §2821(b), Oct. 17, 2006, 120 Stat. 2474; Pub. L. 110–181, div. B, title XXVIII, §2822(a), Jan. 28, 2008, 122 Stat. 544; Pub. L. 111–383, div. A, title X, §1075(g)(6), Jan. 7, 2011, 124 Stat. 4377.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2663(a) 2663(b) 2663(c) |
50:171 (less provisos). 50:171 (last proviso). 50:171 (1st proviso). |
July 2, 1917, ch. 35; restated Apr. 11, 1918, ch. 51, 40 Stat. 518. |
| 2663(d) | 50:171 (2d proviso). [50:171 is made applicable to the Navy by 50:171–1 (less 16th through 21st words)]. |
Oct. 25, 1951, ch. 563, §101 (less 22d through 43d words), 65 Stat. 641. |
In subsection (a), the words “brought * * * in a court of proper jurisdiction” are substituted for the words “instituted * * * in any court having jurisdiction of such proceedings”. The words “any interest in land, including temporary use” are substituted for the words “any land, temporary use thereof or other interest therein, or right pertaining thereto”. The words “relating to suits for the condemnation of property” are omitted as surplusage. The last sentence is substituted for 50:171 (words between semicolon and first proviso). The Act of July 2, 1917, ch. 35, as restated by the Act of April 11, 1918, ch. 51 (last 77 words), are not contained in 50:171. They are also omitted from the revised section as executed.
In subsection (a)(1), the word “location” is omitted as surplusage. The words “operation of” are substituted for the words “prosecution of works for”.
In subsection (b), the words “That when such property is acquired” are omitted as surplusage. The words “under subsection (a)” are substituted for the words “of any land, temporary use thereof or other use therein or right pertaining thereto to be acquired for any of the purposes aforesaid”. The words “take and use” are substituted for the words “possession thereof may be taken * * * and used for military purposes”.
In subsection (c), the words “as soon as the owner fixes a price for it” are substituted for the words “That when the owner of such land, interest, or rights pertaining thereto shall fix a price for the same”. The word “considers” is substituted for the words “which in the opinion”. The words “contract for or buy” are substituted for the words “purchase or enter into a contract”. The words “without further delay” are omitted as surplusage.
In subsection (d), the words “a gift of any interest in land * * * for any purpose named in subsection (a)” are substituted for 50:171 (last 15 words of 2d proviso).
The deletion of the last sentence of section 2663(a) and the last sentence of section 2664(a) reflects their implied repeal by Rule 71A of the Rules of Civil Procedure for the United States District Courts (see 28 U.S.C. 2072). (See letter from Assistant Attorney General (Lands Division), Department of Justice, August 1957, to General Counsel, Department of Defense.) The other changes conform section 2664 to section 2663, both of which were based on the same source statute (sec. 8 of the Act of July 9, 1918, ch. 143, subch. XV, 40 Stat. 888) and both of which include the temporary use of the kinds of property respectively covered.
The text of section 2672, part of which was transferred to this section, redesignated subsec. (c), and amended by Pub. L. 109–163, div. B, title XXVIII, §2821(a)(2)–(5), was based on Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1459; amended Pub. L. 87–651, title I, §112(a), Sept. 7, 1962, 76 Stat. 511; Pub. L. 92–145, title VII, §707(2), (3), Oct. 27, 1971, 85 Stat. 411; Pub. L. 96–418, title VIII, §806(a), Oct. 10, 1980, 94 Stat. 1777; Pub. L. 99–167, title VIII, §810(a), (b)(1), Dec. 3, 1985, 99 Stat. 989, 990; Pub. L. 99–661, div. A, title XIII, §1343(a)(16), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 100–456, div. B, title XXVIII, §2804, Sept. 29, 1988, 102 Stat. 2115; Pub. L. 105–85, div. B, title XXVIII, §2811(a), (b)(1), Nov. 18, 1997, 111 Stat. 1991; Pub. L. 108–136, div. B, title XXVIII, §2811(a)–(b)(2), Nov. 24, 2003, 117 Stat. 1724, 1725; Pub. L. 108–375, div. B, title XXVIII, §2821(d)(1), Oct. 28, 2004, 118 Stat. 2130.
The text of section 2672a of this title, which was transferred to this section, redesignated subsec. (d), and amended by Pub. L. 109–163, div. B, title XXVIII, §2821(a)(6)–(9), was based on Pub. L. 94–107, title VI, §607(8), Oct. 7, 1975, 89 Stat. 566; amended Pub. L. 98–525, title XIV, §1405(39), Oct. 19, 1984, 98 Stat. 2624; 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; Pub. L. 108–136, div. A, title X, §1031(a)(29), Nov. 24, 2003, 117 Stat. 1599; Pub. L. 108–375, div. A, title X, §1084(d)(23), Oct. 28, 2004, 118 Stat. 2062.
The text of section 2676(b) of this title, which was transferred to this section, redesignated subsec. (e), and amended by Pub. L. 109–163, div. B, title XXVIII, §2821(a)(10), (11), was based on Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1460; amended Pub. L. 97–214, §5, July 12, 1982, 96 Stat. 170.
2011—Subsec. (a)(1). Pub. L. 111–383 made technical amendment to directory language of Pub. L. 109–364, §2821(b)(1). See 2006 Amendment note below.
2008—Subsec. (h). Pub. L. 110–181 added subsec. (h).
2006—Pub. L. 109–163, §2821(a)(1)(A), substituted “Land acquisition authorities” for “Acquisition” in section catchline.
Subsec. (a). Pub. L. 109–163, §2821(a)(1)(B), (C), inserted “
Subsec. (a)(1). Pub. L. 109–364, §2821(b)(1), as amended by Pub. L. 111–383, substituted “Subject to subsection (f), the Secretary” for “The Secretary” in introductory provisions.
Subsec. (b). Pub. L. 109–163, §2821(a)(1)(D), redesignated subsec. (c) as (b) and inserted heading.
Pub. L. 109–163, §2821(a)(1)(C), redesignated subsec. (b) as subsec. (a)(2).
Subsec. (c). Pub. L. 109–163, §2821(a)(2)–(5), redesignated pars. (1) and (2) of subsec. (a) and subsecs. (b) and (d) of section 2672 of this title as pars. (1), (2), (3), and (4), respectively, of subsec. (c) of this section, inserted subsec. heading, in par. (3), substituted “This subsection” for “This section”, “paragraph (1)” for “subsection (a)(1)”, and “paragraph (2)” for “subsection (a)(2)”, in par. (4), substituted “this subsection” for “this section”, and struck out headings for former subsecs. (a), (b), and (d) of section 2672.
Pub. L. 109–163, §2821(a)(1)(D), redesignated subsec. (c) as (b).
Subsec. (d). Pub. L. 109–163, §2821(a)(6)–(9), redesignated subsecs. (a), (c), and (b) of section 2672a of this title as pars. (1), (2), and (3), respectively, of subsec. (d) of this section, inserted subsec. heading, in par. (1), redesignated former pars. (1) to (3) as subpars. (A) to (C), respectively, in par. (2), substituted “this subsection” for “this section”, and in par. (3), substituted “this subsection” for “this section” in first sentence and struck out second sentence which read as follows: “The authority to acquire an interest in land under this section includes authority to make surveys and acquire interests in land (including temporary use), by gift, purchase, exchange of land owned by the United States, or otherwise.”
Pub. L. 109–163, §2821(a)(1)(E), struck out subsec. (d) which read as follows: “The Secretary of the military department concerned may accept for the United States a gift of any interest in land, including temporary use, for any purpose named in subsection (a).”
Subsec. (e). Pub. L. 109–163, §2821(a)(10), (11), redesignated subsec. (b) of section 2676 of this title as subsec. (e) of this section and inserted heading.
Subsecs. (f), (g). Pub. L. 109–364, §2821(b)(2), added subsecs. (f) and (g).
1958—Subsec. (a). Pub. L. 85–861 struck out provisions requiring proceedings under this subsection to be in accordance with the law of the State in which the suit is brought.
Pub. L. 111–383, div. A, title X, §1075(g), Jan. 7, 2011, 124 Stat. 4376, provided that amendment by section 1075(g)(6) is effective as of Oct. 17, 2006, and as if included in Pub. L. 109–364 as enacted.
Amendment by Pub. L. 85–861 effective Aug. 10, 1956, see section 33(g) of Pub. L. 85–861, set out as a note under section 101 of this title.
Pub. L. 109–364, div. B, title XXVIII, §2821(a), Oct. 17, 2006, 120 Stat. 2473, provided that: “It is the sense of Congress that the Secretary of Defense, when acquiring land for military purposes, should—
“(1) make every effort to acquire the land by means of purchases from willing sellers; and
“(2) employ condemnation, eminent domain, or seizure procedures only as a measure of last resort in cases of compelling national security requirements or at the request of the seller.”
(a)
(b)
(c)
(2) Until subsection (d) is complied with, a land acquisition project may not be placed under contract if, based upon the agreed price for the land or, in the case of land to be acquired by condemnation, the amount to be deposited with the court as just compensation for the land—
(A) the scope of the acquisition, as approved by Congress, is proposed to be reduced by more than 25 percent; or
(B) the agreed price for the land or, in the case of land to be acquired by condemnation, the amount to be deposited with the court as just compensation for the land, exceeds the amount appropriated for the project by more than (i) 25 percent, or (ii) 200 percent of the amount specified by law as the maximum amount for a minor military construction project, whichever is lesser.
(d)
(e)
(Added Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1460, §2676; amended Pub. L. 93–166, title VI, §608(2), Nov. 29, 1973, 87 Stat. 682; Pub. L. 97–214, §5, July 12, 1982, 96 Stat. 170; Pub. L. 98–407, title VIII, §802, Aug. 28, 1984, 98 Stat. 1519; Pub. L. 99–661, div. A, title XIII, §1343(a)(17)(A), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 102–190, div. B, title XXVIII, §2870(1), Dec. 5, 1991, 105 Stat. 1562; Pub. L. 107–217, §3(b)(14), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 107–314, div. A, title X, §1062(a)(11), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 108–136, div. A, title X, §1031(a)(30), Nov. 24, 2003, 117 Stat. 1600; Pub. L. 108–375, div. A, title X, §1084(b)(4), Oct. 28, 2004, 118 Stat. 2061; renumbered §2664 and amended Pub. L. 109–163, div. B, title XXVIII, §2821(a)(10), (b)–(d), Jan. 6, 2006, 119 Stat. 3512; Pub. L. 111–350, §5(b)(45), Jan. 4, 2011, 124 Stat. 3846.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2676 | [Uncodified]. | July 27, 1954, ch. 579, §501(b) (less provisos), 68 Stat. 560. |
The word “property” is substituted for the word “estate”. The words “not owned by the United States” are substituted for the words “not in Federal ownership”. The words “or shall be” are omitted as surplusage.
The text of section 2661(c) of this title, which was transferred to this section and redesignated subsec. (b) by Pub. L. 109–163, §2821(d), was based on Pub. L. 108–375, div. B, title XXVIII, §2821(a)(1), Oct. 28, 2004, 118 Stat. 2129.
A prior section 2664, acts Aug. 10, 1956, ch. 1041, 70A Stat. 148; Pub. L. 85–861, §33(a)(15), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 96–513, title V, §511(90), Dec. 12, 1980, 94 Stat. 2928; Pub. L. 97–31, §12(3)(A), Aug. 6, 1981, 95 Stat. 153; Pub. L. 97–295, §1(32), Oct. 12, 1982, 96 Stat. 1296; Pub. L. 100–26, §7(d)(6), Apr. 21, 1987, 101 Stat. 281, related to acquisition of property for lumber production, prior to repeal by Pub. L. 108–375, div. B, title XXVIII, §2821(b), Oct. 28, 2004, 118 Stat. 2129.
2011—Subsec. (a). Pub. L. 111–350, which directed substitution “division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” for “title III of the Federal Property and Administrative Services Act of 1949, as amended (41 U.S.C. 251 et seq.)”, was executed by making the substitution for “title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)” to reflect the probable intent of Congress.
2006—Pub. L. 109–163, §2821(c), renumbered section 2676 of this title as this section and substituted “Limitations on real property acquisition” for “Acquisition: limitation” in section catchline.
Subsec. (a). Pub. L. 109–163, §2821(b)(1), inserted heading and struck out “, as amended” after “Federal Property and Administrative Services Act of 1949” in text.
Subsec. (b). Pub. L. 109–163, §2821(d), redesignated subsec. (c) of section 2661 of this title as subsec. (b) of this section.
Pub. L. 109–163, §2821(a)(10), transferred subsec. (b) to section 2663 of this title.
Subsec. (c). Pub. L. 109–163, §2821(b)(2)(A), inserted heading.
Subsec. (c)(2). Pub. L. 109–163, §2821(b)(2)(B), substituted “Until subsection (d) is complied with, a land” for “A land” in introductory provisions and “lesser.” for “lesser,” in subpar. (B) and struck out concluding provisions which read “until subsection (d) is complied with.”
Subsec. (d). Pub. L. 109–163, §2821(b)(3), inserted heading.
Subsec. (e). Pub. L. 109–163, §2821(b)(4), inserted heading.
2004—Subsec. (d). Pub. L. 108–375 substituted “congressional defense committees” for “appropriate committees of Congress”.
2003—Subsec. (d). Pub. L. 108–136 inserted before period at end “or, if over sooner, a period of 14 days elapses from the date on which a copy of that notification is provided in an electronic medium pursuant to section 480 of this title”.
2002—Subsec. (a). Pub. L. 107–314 inserted opening parenthesis before “41 U.S.C.”.
Pub. L. 107–217 inserted “subtitle I of title 40 and title III of” before “the Federal Property and Administrative Services Act of 1949” and substituted “41 U.S.C. 251 et seq.)” for “(40 U.S.C. 471 et seq.)”.
1991—Subsec. (d). Pub. L. 102–190 struck out “(1)” after “be awarded only” and “, or (2) upon the approval of those committees, if before the end of that period each such committee approves the proposed reduced scope or increased cost” before period at end.
1986—Subsec. (c)(2)(B). Pub. L. 99–661 amended generally language of subpar. (B) before “exceeds the amount”. See 1984 Amendment note below.
1984—Subsec. (c)(2). Pub. L. 98–407, §802(1), inserted “or, in the case of land to be acquired by condemnation, the amount to be deposited with the court as just compensation for the land” in provisions preceding subpar. (A).
Subsec. (c)(2)(B). Pub. L. 98–407, §802(2), inserted “or, in the case of land to be acquired by condemnation, the amount to be deposited with the court as just compensation for the land,”. Insertion of new language following “the agreed price for the land” was executed to text notwithstanding directory language of Pub. L. 98–407 that made a reference to a nonexistent comma following “the agreed price for the land”. See 1986 Amendment note above.
Subsec. (e). Pub. L. 98–407, §802(3), added subsec. (e).
1982—Pub. L. 97–214 designated existing provisions as subsec. (a) and added subsecs. (b) to (d).
1973—Pub. L. 93–166 made limitation inapplicable to property acquired under authority of Administrator of General Services to acquire property by exchange of Government property.
Section 1343(a)(17)(B) of Pub. L. 99–661 provided that: “The amendment made by subparagraph (A) [amending this section] shall take effect as if included in the enactment of section 802(2) of the Military Construction Authorization Act, 1985 (Public Law 98–407; 98 Stat. 1519) [amending this section].”
Amendment by Pub. L. 97–214 effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as an Effective Date note under section 2801 of this title.
(a) The President, through an executive department, may sell to any person or foreign government any interest in land that is acquired for the production of lumber or timber products, except land under the control of the Department of the Army or the Department of the Air Force.
(b) The President, through an executive department, may sell to any person or foreign government any forest products produced on land owned or leased by a military department or the Department in which the Coast Guard is operating.
(c) Sales under subsection (a) or (b) shall be at prices determined by the President acting through the selling agency.
(d) Appropriations of the Department of Defense may be reimbursed for all costs of production of forest products pursuant to this section from amounts received as proceeds from the sale of any such property.
(e)(1) Each State in which is located a military installation or facility from which forest products are sold in a fiscal year is entitled at the end of such year to an amount equal to 40 percent of (A) the amount received by the United States during such year as proceeds from the sale of forest products produced on such installation or facility, less (B) the amount of reimbursement of appropriations of the Department of Defense under subsection (d) during such year attributable to such installation or facility.
(2) The amount paid to a State pursuant to paragraph (1) shall be expended as the State legislature may prescribe for the benefit of the public schools and public roads of the county or counties in which the military installation or facility is situated.
(3) In a case in which a military installation or facility is located in more than one State or county, the amount paid pursuant to paragraph (1) shall be distributed in a manner proportional to the area of such installation or facility in each State or county.
(f)(1) There is in the Treasury a reserve account administered by the Secretary of Defense for the purposes of this section. Balances in the account may be used for costs of the military departments—
(A) for improvements of forest lands;
(B) for unanticipated contingencies in the administration of forest lands and the production of forest products for which other sources of funds are not available in a timely manner; and
(C) for natural resources management that implements approved plans and agreements.
(2) There shall be deposited into the reserve account the total amount received by the United States as proceeds from the sale of forest products sold under subsections (a) and (b) less—
(A) reimbursements of appropriations made under subsection (d), and
(B) payments made to States under subsection (e).
(3) The reserve account may not exceed $4,000,000 on December 31 of any calendar year. Unobligated balances exceeding $4,000,000 on that date shall be deposited into the United States Treasury.
(Aug. 10, 1956, ch. 1041, 70A Stat. 149; Pub. L. 95–82, title VI, §610, Aug. 1, 1977, 91 Stat. 378; Pub. L. 96–513, title V, §511(91), Dec. 12, 1980, 94 Stat. 2928; Pub. L. 97–31, §12(3)(B), Aug. 6, 1981, 95 Stat. 153; Pub. L. 97–99, title IX, §910(a), Dec. 23, 1981, 95 Stat. 1386; Pub. L. 97–295, §1(33), Oct. 12, 1982, 96 Stat. 1296; Pub. L. 98–407, title VIII, §809(a), Aug. 28, 1984, 98 Stat. 1522; Pub. L. 99–561, §4, Oct. 27, 1986, 100 Stat. 3151; Pub. L. 107–296, title XVII, §1704(b)(4), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 109–163, div. A, title X, §1056(c)(6), Jan. 6, 2006, 119 Stat. 3439.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2665(a) | 50:172 (last par., less 36th through 64th, and 73d through 109th, words). | July 9, 1918, ch. 143, subch. XV, §8 (last par.), 40 Stat. 888. |
| 2665(b) | 50:172 (36th through 64th words of last par.). | |
| 2665(c) | 50:172 (73d through 90th words of last par.). | |
| 2665(d) | 50:172 (91st through 109th words of last par.). |
In subsection (a), the words “an executive department or the Federal Maritime Board” are substituted for the words “any department or the United States Maritime Commission” to reflect an opinion of the Judge Advocate General of the Army (JAGA 1954/1723) and to name the successor of the United States Maritime Commission. The last 18 words are inserted to reflect that opinion (see the Act of February 20, 1931 (10 U.S.C. 1354)). The words “and dispose of” are omitted as surplusage.
In subsection (b), the words “an executive department or the Federal Maritime Board” are inserted for clarity and to name the successor of the United States Maritime Commission.
In subsections (a) and (b), the word “person” is substituted for the words “individuals, corporations,” since section 1 of title 1 defines the word “person” to cover both individuals and corporations. The words “States or” are omitted as surplusage.
In subsection (c), the words “the selling agency” are substituted for the words “his above representatives selling or disposing of the same”.
This corrects an error in an amendment to 10:2665 made by section 12(3)(B) of the Maritime Act of 1981 (Pub. L. 97–31, Aug. 6, 1981, 95 Stat. 153).
2006—Subsec. (a). Pub. L. 109–163 struck out “under section 2664 of this title” after “land that is acquired”.
2002—Subsec. (b). Pub. L. 107–296 substituted “Department in which the Coast Guard is operating” for “Department of Transportation”.
1986—Subsec. (d). Pub. L. 99–561, §4(1), struck out “available for operation and maintenance during a fiscal year” after “Defense”, substituted “costs” for “expenses”, and struck out “during such fiscal year” after “such property”.
Subsec. (e)(1). Pub. L. 99–561, §4(2), struck out “for all expenses of production of forest products” after “subsection (d)”.
Subsec. (f)(1). Pub. L. 99–561, §4(3)(A), (B), substituted “costs” for “expenses” in provisions preceding subpar. (A) and amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: “for expenses to enable operations of forest lands and the production of forest products to continue from the end of one fiscal year through the beginning of the next fiscal year without disruption.”
Subsec. (f)(2), (3). Pub. L. 99–561, §4(3)(C), amended pars. (2) and (3) generally. Prior to amendment, pars. (2) and (3) read as follows:
“(2) Subject to paragraph (3), there shall be deposited into the reserve account not later than December 31 of each year, for credit to the preceding fiscal year, an amount equal to one-half of the amount (if any) remaining of the total amount received by the United States during that fiscal year as proceeds from the sale of forest products after (A) the reimbursement of appropriations of the Department of Defense under subsection (d) for expenses of production of forest products during that fiscal year, and (B) the payment to States under subsection (e) for that fiscal year.
“(3) The balance in the reserve account may not exceed $4,000,000. If a deposit under paragraph (2) would cause the balance in the account to exceed that amount, the deposit shall be made only to the extent the amount of the deposit would not cause the balance in the account to exceed $4,000,000.”
1984—Subsec. (b). Pub. L. 98–407, §809(a)(1), substituted “forest products produced on land owned or leased by a military department or the” for “logs wholly or partly manufactured by, or otherwise procured for, the Army, Navy, or Air Force, or”.
Subsec. (d). Pub. L. 98–407, §809(a)(2), substituted “forest products” for “lumber and timber products”.
Subsec. (e)(1). Pub. L. 98–407, §809(a)(3), substituted “forest products” for “timber and timber products” in two places and “40 percent” for “25 percent”.
Subsec. (f). Pub. L. 98–407, §809(a)(4), added subsec. (f).
1982—Subsecs. (a), (b). Pub. L. 97–295 substituted “executive department, may sell” for “executive department” and all that followed through “may sell” in subsecs. (a) and (b), and substituted “Air Force, or Department of Transportation.” for “Air Force” and all that followed in subsec. (b), clarifying the ambiguity created by the conflicting language of Pub. L. 96–513 and Pub. L. 97–31.
1981—Subsecs. (a), (b). Pub. L. 97–31 struck out reference to Federal Maritime Commission in subsec. (a), and substituted “or Department of Transportation” for “or Federal Maritime Commission” and struck out “or the Federal Maritime Commission” after “department” in subsec. (b). Amendment was executed to text in accordance with the probable intent of Congress, notwithstanding amendment of section by Pub. L. 96–513 which substituted different language than language contained in amendatory provisions of Pub. L. 97–31.
Subsec. (e). Pub. L. 97–99 added subsec. (e).
1980—Subsecs. (a), (b). Pub. L. 96–513 substituted “Federal Maritime Commission” for “Federal Maritime Board”.
1977—Subsec. (d). Pub. L. 95–82 substituted provisions relating to reimbursement of production expenses during any fiscal year from proceeds from sales for property during such fiscal year, for provisions requiring proceeds from sales under subsecs. (a) or (b) of this section to be credited to the appropriations under which the property concerned was procured.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Section 809(b) of Pub. L. 98–407 provided that:
“(b)(1) Except as provided in paragraph (2), the amendments made by subsection (a) [amending this section] shall take effect on October 1, 1984.
“(2) The amendment made by subsection (a)(2)(B) [probably should be ‘(a)(3)(B)’, which amended subsec. (e)(1) of this section] shall apply with respect to payments to States for fiscal years beginning after September 30, 1984.”
Section 910(b) of Pub. L. 97–99 provided that: “Subsection (e) of section 2665 of title 10, United States Code, as added by subsection (a), shall apply with respect to timber and timber products sold after September 30, 1981.”
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Section, act Aug. 10, 1956, ch. 1041, 70A Stat. 149, related to limitation on commission on a contract for the purchase of land payable from funds appropriated for the Department of Defense.
(a)
(1) is under the control of the Secretary concerned;
(2) is not for the time needed for public use; and
(3) is not excess property, as defined by section 102 of title 40.
(b)
(1) may not be for more than five years, unless the Secretary concerned determines that a lease for a longer period will promote the national defense or be in the public interest;
(2) may give the lessee the first right to buy the property if the lease is revoked to allow the United States to sell the property under any other provision of law;
(3) shall permit the Secretary to revoke the lease at any time, unless he determines that the omission of such a provision will promote the national defense or be in the public interest;
(4) shall provide for the payment (in cash or in kind) by the lessee of consideration in an amount that is not less than the fair market value of the lease interest, as determined by the Secretary;
(5) may provide, notwithstanding section 1302 of title 40 or any other provision of law, for the alteration, repair, or improvement, by the lessee, of the property leased as the payment of part or all of the consideration for the lease;
(6) except as otherwise provided in subsection (d), shall require the lessee to provide the covered entities specified in paragraph (1) of that subsection the right to establish and operate a community support facility or provide community support services, or seek equitable compensation for morale, welfare, and recreation programs of the Department of Defense in lieu of the operation of such a facility or the provision of such services, if the Secretary determines that the lessee will provide merchandise or services in direct competition with covered entities through the lease; and
(7) may not provide for a leaseback by the Secretary concerned with an annual payment in excess of $500,000, or otherwise commit the Secretary concerned or the Department of Defense to annual payments in excess of such amount.
(c)
(A) Maintenance, protection, alteration, repair, improvement, or restoration (including environmental restoration) of property or facilities under the control of the Secretary concerned.
(B) Construction of new facilities for the Secretary concerned.
(C) Provision of facilities for use by the Secretary concerned.
(D) Provision or payment of utility services for the Secretary concerned.
(E) Provision of real property maintenance services for the Secretary concerned.
(F) Provision of such other services relating to activities that will occur on the leased property as the Secretary concerned considers appropriate.
(2) In-kind consideration under paragraph (1) may be accepted at any property or facilities under the control of the Secretary concerned that are selected for that purpose by the Secretary concerned.
(3) Sections 2662 and 2802 of this title shall not apply to any new facilities whose construction is accepted as in-kind consideration under this subsection.
(d)
(A) The Army and Air Force Exchange Service.
(B) The Navy Exchange Service Command.
(C) The Marine Corps exchanges.
(D) The Defense Commissary Agency.
(E) The revenue-generating nonappropriated fund activities of the Department of Defense conducted for the morale, welfare, and recreation of members of the armed forces.
(2) The Secretary concerned may waive the requirement in subsection (b)(6) with respect to a lease if—
(A) the lease is entered into under subsection (g); or
(B) the Secretary determines that the waiver is in the best interests of the Government.
(3) The Secretary concerned shall provide to the congressional defense committees written notice of each waiver under paragraph (2), including the reasons for the waiver.
(4) The covered entities shall exercise the right provided in subsection (b)(6) with respect to a lease, if at all, not later than 90 days after receiving notice from the Secretary concerned regarding the opportunity to exercise such right with respect to the lease. The Secretary may, at the discretion of the Secretary, extend the period under this paragraph for the exercise of the right with respect to a lease for such additional period as the Secretary considers appropriate.
(5) The Secretary of Defense shall prescribe in regulations uniform procedures and criteria for the evaluation of proposals for enhanced use leases involving the operation of community support facilities or the provision of community support services by either a lessee under this section or a covered entity.
(e)
(i) All money rentals received pursuant to leases entered into by that Secretary under this section.
(ii) All proceeds received pursuant to the granting of easements by that Secretary under section 2668 of this title.
(iii) All proceeds received by that Secretary from authorizing the temporary use of other property under the control of that Secretary.
(B) Subparagraph (A) does not apply to the following proceeds:
(i) Amounts paid for utilities and services furnished lessees by the Secretary concerned pursuant to leases entered into under this section.
(ii) Money rentals referred to in paragraph (3), (4), or (5).
(C) Subject to subparagraphs (D) and (E), the proceeds deposited in the special account established for the Secretary concerned shall be available to the Secretary, in such amounts as provided in appropriation Acts, for the following:
(i) Maintenance, protection, alteration, repair, improvement, or restoration (including environmental restoration) of property or facilities.
(ii) Construction or acquisition of new facilities.
(iii) Lease of facilities.
(iv) Payment of utility services.
(v) Real property maintenance services.
(D) At least 50 percent of the proceeds deposited in the special account established for the Secretary concerned shall be available for activities described in subparagraph (C) only at the military installation or Defense Agency location where the proceeds were derived.
(E) If the proceeds deposited in the special account established for the Secretary concerned are derived from activities associated with a military museum described in section 489(a) of this title, the proceeds shall be available for activities described in subparagraph (C) only at that museum.
(2) Payments for utilities and services furnished lessees pursuant to leases entered into under this section shall be credited to the appropriation account or working capital fund from which the cost of furnishing the utilities and services was paid.
(3) Money rentals received by the United States directly from a lease under this section for agricultural or grazing purposes of lands under the control of the Secretary concerned (other than lands acquired by the United States for flood control or navigation purposes or any related purpose, including the development of hydroelectric power) may be retained and spent by the Secretary concerned in such amounts as the Secretary considers necessary to cover the administrative expenses of leasing for such purposes and to cover the financing of multiple-land use management programs at any installation under the jurisdiction of the Secretary.
(4) Money rentals received by the United States from a lease under subsection (g) at a military installation approved for closure or realignment under a base closure law before January 1, 2005, shall be deposited into the account established under section 2906(a) of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
(5) Money rentals received by the United States from a lease under subsection (g) at a military installation approved for closure or realignment under a base closure law on or after January 1, 2005, shall be deposited into the account established under section 2906A(a) of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
(f)
(g)
(2) Notwithstanding subsection (b)(4), the Secretary concerned may accept consideration in an amount that is less than the fair market value of the lease interest if the Secretary concerned determines that—
(A) a public interest will be served as a result of the lease; and
(B) the fair market value of the lease is (i) unobtainable, or (ii) not compatible with such public benefit.
(3) Before entering into any lease under this subsection, the Secretary shall consult with the Administrator of the Environmental Protection Agency in order to determine whether the environmental condition of the property proposed for leasing is such that the lease of the property is advisable. The Secretary and the Administrator shall enter into a memorandum of understanding setting forth procedures for carrying out the determinations under this paragraph.
(4)(A) Notwithstanding the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the scope of any environmental impact analysis necessary to support an interim lease of property under this subsection shall be limited to the environmental consequences of activities authorized under the proposed lease and the cumulative impacts of other past, present, and reasonably foreseeable future actions during the period of the proposed lease.
(B) Interim leases entered into under this subsection shall be deemed not to prejudice the final disposal decision with respect to the property, even if final disposal of the property is delayed until completion of the term of the interim lease. An interim lease under this subsection shall not be entered into without prior consultation with the redevelopment authority concerned.
(C) Subparagraphs (A) and (B) shall not apply to an interim lease under this subsection if authorized activities under the lease would—
(i) significantly affect the quality of the human environment; or
(ii) irreversibly alter the environment in a way that would preclude any reasonable disposal alternative of the property concerned.
(h)
(2) Paragraph (1) does not apply if the Secretary concerned determines that—
(A) a public interest will be served as a result of the lease; and
(B) the use of competitive procedures for the selection of certain lessees is unobtainable or not compatible with the public benefit served under subparagraph (A).
(3) Paragraph (1) does not apply to a renewal or extension of a lease by the Secretary of the Navy with a selected institution for operation of a ship within the University National Oceanographic Laboratory System if, under the lease, each of the following applies:
(A) Use of the ship is restricted to federally supported research programs and to non-Federal uses under specific conditions with approval by the Secretary of the Navy.
(B) Because of the anticipated value to the Navy of the oceanographic research and training that will result from the ship's operation, no monetary lease payments are required from the lessee under the initial lease or under any renewal or extension.
(C) The lessee is required to maintain the ship in a good state of repair, readiness, and efficient operating condition, conform to all applicable regulatory requirements, and assume full responsibility for the safety of the ship, its crew, and scientific personnel aboard.
(i)
(1) The term “community support facility” includes an ancillary supporting facility (as that term is defined in section 2871(1) of this title).
(2) The term “community support services” includes revenue-generating food, recreational, lodging support services, and resale operations and other retail facilities and services intended to support a community.
(3) The term “military installation” has the meaning given such term in section 2687(e)(1) of this title.
(4) The term “Secretary concerned” means—
(A) the Secretary of a military department, with respect to matters concerning that military department; and
(B) the Secretary of Defense, with respect to matters concerning the Defense Agencies.
(j)
(Aug. 10, 1956, ch. 1041, 70A Stat. 150; Pub. L. 94–107, title VI, §607(7), Oct. 7, 1975, 89 Stat. 566; Pub. L. 94–412, title V, §501(b), Sept. 14, 1976, 90 Stat. 1258; Pub. L. 96–513, title V, §511(92), Dec. 12, 1980, 94 Stat. 2928; Pub. L. 97–295, §1(34), Oct. 12, 1982, 96 Stat. 1296; Pub. L. 97–321, title VIII, §803, Oct. 15, 1982, 96 Stat. 1572; Pub. L. 101–510, div. B, title XXVIII, §2806, Nov. 5, 1990, 104 Stat. 1787; Pub. L. 102–190, div. B, title XXVIII, §2862, Dec. 5, 1991, 105 Stat. 1559; Pub. L. 102–484, div. B, title XXVIII, §2851, Oct. 23, 1992, 106 Stat. 2625; Pub. L. 103–160, div. B, title XXIX, §2906, Nov. 30, 1993, 107 Stat. 1920; Pub. L. 104–106, div. A, title XV, §1502(a)(1), div. B, title XXVIII, §§2831(a), 2832, 2833, Feb. 10, 1996, 110 Stat. 502, 558, 559; Pub. L. 105–85, div. A, title III, §361(b)(2), title X, §1061(a)–(c)(1), Nov. 18, 1997, 111 Stat. 1701, 1891; Pub. L. 105–261, div. B, title XXVIII, §2821, Oct. 17, 1998, 112 Stat. 2208; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(a)–(e)], Oct. 30, 2000, 114 Stat. 1654, 1654A–416 to 1654A–418; Pub. L. 107–107, div. A, title X, §1013, Dec. 28, 2001, 115 Stat. 1212; Pub. L. 107–217, §3(b)(12), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 107–314, div. A, title X, §1041(a)(18), Dec. 2, 2002, 116 Stat. 2645; Pub. L. 108–136, div. A, title X, §1043(b)(15), (c)(3), Nov. 24, 2003, 117 Stat. 1611, 1612; Pub. L. 108–178, §4(b)(4), Dec. 15, 2003, 117 Stat. 2641; Pub. L. 109–364, div. A, title VI, §662, div. B, title XXVIII, §2831, Oct. 17, 2006, 120 Stat. 2263, 2480; Pub. L. 110–181, div. A, title X, §1063(c)(13), div. B, title XXVIII, §2823, Jan. 28, 2008, 122 Stat. 323, 544; Pub. L. 110–417, div. B, title XXVIII, §§2812(a)–(d), (f)(1), 2831, Oct. 14, 2008, 122 Stat. 4725, 4726, 4728, 4732; Pub. L. 111–84, div. A, title X, §1073(a)(26), Oct. 28, 2009, 123 Stat. 2474; Pub. L. 111–350, §5(b)(44), Jan. 4, 2011, 124 Stat. 3846; Pub. L. 111–383, div. A, title X, §1075(b)(41), div. B, title XXVIII, §§2811(g)–2813(a), Jan. 7, 2011, 124 Stat. 4371, 4463.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2667(a) 2667(b) |
5:626s–3 (1st sentence). 10:1270 (1st sentence). 34:522a (1st sentence). 5:626s–3 (2d through 6th sentences). 10:1270 (2d through 6th sentences). |
Aug. 5, 1947, ch. 493, §§1, 6, 61 Stat. 774, 775; Sept. 28, 1951, ch. 434. §605 (as applicable to Act of Aug. 5, 1947, ch. 493, §1), 65 Stat. 366. |
| 34:522a (2d through 6th sentences). | ||
| 2667(c) | 5:626s–3 (last sentence). | |
| 10:1270 (last sentence). | ||
| 34:522a (last sentence). | ||
| 2667(d) | 5:626s–3 (less 1st 6 sentences). | |
| 10:1270 (less 1st 6 sentences). | ||
| 34:522a (less 1st 6 sentences). | ||
| 2667(e) | 5:626s–6. 10:1270d. 34:522e. |
In subsection (a), the words “considers * * * United States” are substituted for the words “shall deem * * * Government”. The words “and conditions” are omitted as surplusage. The words “he considers” are substituted for the words “in his judgment”.
In subsection (a)(3), the words “excess property, as defined by section 472 of title 40” are substituted for the words “surplus to the needs of the Department within the meaning of the Surplus Property Act of 1944 [Act of October 3, 1944 (58 Stat. 765)]”, in 5:626s–3, 10:1270, and 34:522a, since the words “excess property” are so defined by the Federal Property and Administrative Services Act of 1949.
In subsection (b)(2), the words “may give” are substituted for the first 12 words of the third sentence of 5:626s–3, 10:1270, and 34:522a. The words “if the lease is revoked to allow the United States to sell the property” are substituted for the words “in the event of the revocation of the lease in order to permit sale thereof by the Government”. The words “under any other provision of law” are inserted for clarity. The words “the first right to buy” are substituted for the words “a right of first refusal”. The words “but this section shall not be construed as authorizing the sale of any property unless the sale thereof is otherwise authorized by law” are omitted as surplusage, since the revised section deals only with leases of property.
In subsection (b)(3), the words “must permit” are substituted for the words “Each such lease shall contain a provision permitting”. The words “from the lease” are omitted as surplusage.
In subsection (b)(5), the words “any such lease” and “of such property” are omitted as surplusage.
In subsection (c), the words “This section does” are substituted for the words “The authority herein granted shall”.
In subsection (e), the words “of property” are inserted for clarity. The words “leased under” are substituted for the words “made or created pursuant to”. The words “may be taxed by State or local governments” are substituted for the words “shall be made subject to State or local taxation”. The last sentence is substituted for the last sentence of 5:626s–6, 10:1270d, and 34:522e.
The National Environmental Policy Act of 1969, referred to in subsec. (g)(4)(A), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.
2011—Subsec. (b)(7). Pub. L. 111–383, §2813(a), inserted before period at end “, or otherwise commit the Secretary concerned or the Department of Defense to annual payments in excess of such amount”.
Subsec. (c)(4). Pub. L. 111–383, §2811(g)(1), struck out par. (4), which set forth reporting requirements for issuance of contract solicitations or other lease offerings with annual payments exceeding $750,000.
Subsec. (d)(6). Pub. L. 111–383, §2811(g)(2), struck out par. (6), which read as follows: “The Secretary concerned shall provide written notification to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives regarding all leases under this section that include the operation of a community support facility or the provision of community support services, regardless of whether the facility will be operated by a covered entity or the lessee or the services will be provided by a covered entity or the lessee.”
Subsec. (e)(1)(A)(ii). Pub. L. 111–383, §1075(b)(41)(A), substituted “section 2668” for “sections 2668 and 2669”.
Subsec. (e)(1)(E). Pub. L. 111–383, §§2811(g)(3), 2812, added subpar. (E) and struck out former subpar. (E), which read as follows: “The Secretary concerned may not expend under subparagraph (C) an amount in excess of $500,000 at a single military installation or Defense Agency location until 30 days after the date on which a report on the facts of the proposed expenditure is submitted to the congressional defense committees.”
Subsec. (e)(5). Pub. L. 111–383, §1075(b)(41)(B), substituted “subsection (g)” for “subsection (f)”.
Subsec. (g)(1). Pub. L. 111–350, which directed substitution of “Notwithstanding subtitle I of title 40 and division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41 (to the extent those provisions are inconsistent with this subsection) or subsection (a)(2) of this section” for “Notwithstanding subsection (a)(3) or subtitle I of title 40 and title III of the Federal Property and Administrative Services Act of 1949 (to the extent subtitle I and title III are inconsistent with this subsection)” in subsec. (f)(1), was executed by making the substitution for “Notwithstanding subsection (a)(2) or subtitle I of title 40 and title III of the Federal Property and Administrative Services Act of 1949 (to the extent subtitle I and title III are inconsistent with this subsection)” in subsec. (g)(1), to reflect the probable intent of Congress and the amendment by Pub. L. 109–364, §662(b)(1), (d)(6). See 2006 Amendment note below.
Subsec. (h)(3) to (5). Pub. L. 111–383, §2811(g)(4), redesignated par. (4) as (3) and struck out former pars. (3) and (5) which related to written notice to Congress describing competitive procedures for, or public benefit served by, certain proposed leases and certification requirements for energy production leases exceeding 20 years, respectively.
2009—Subsec. (g)(1). Pub. L. 111–84 substituted “law, the Secretary concerned may” for “law, the Secretary of the military department concerned may”.
2008—Pub. L. 110–417, §2812(f)(1), amended section catchline generally. Prior to amendment, catchline read as follows: “Leases: non-excess property of military departments”.
Subsec. (a). Pub. L. 110–417, §2812(a)(1), amended subsec. (a) generally. Prior to amendment, text read as follows: “Whenever the Secretary of a military department considers it advantageous to the United States, he may lease to such lessee and upon such terms as he considers will promote the national defense or be in the public interest, real or personal property that is—
“(1) under the control of that department; and
“(2) not excess property, as defined by section 102 of title 40.”
Subsec. (b)(7). Pub. L. 110–417, §2812(b), added par. (7).
Subsec. (c)(1)(D) to (F). Pub. L. 110–181, §2823(a), added subpars. (D) and (E), redesignated former subpar. (E) as (F), and struck out former subpar. (D) which read as follows: “Facilities operation support for the Secretary concerned.”
Subsec. (c)(4). Pub. L. 110–417, §2812(c), amended par. (4) generally. Prior to amendment, par. (4) read as follows: “In the case of a lease for which all or part of the consideration proposed to be accepted by the Secretary concerned under this subsection is in-kind consideration with a value in excess of $500,000, the Secretary concerned may not enter into the lease until 30 days after the date on which a report on the facts of the lease is submitted to the congressional defense committees.”
Subsec. (d)(2). Pub. L. 110–417, §2812(d)(1)(A), substituted “Secretary concerned” for “Secretary of a military department” in introductory provisions.
Subsec. (d)(3), (4), (6). Pub. L. 110–417, §2812(d)(1)(B), struck out “of the military department” after “Secretary” in pars. (3) and (6) and after “from the Secretary” in par. (4).
Subsec. (e). Pub. L. 110–181, §1063(c)(13), amended Pub. L. 109–364, §2831. See 2006 Amendment note below.
Subsec. (e)(1)(A). Pub. L. 110–417, §2812(d)(2)(A), in introductory provisions, substituted “Secretary concerned” for “Secretary of a military department” and “that Secretary” for “such military department” and, in cl. (iii), substituted “of that Secretary” for “of that military department”.
Subsec. (e)(1)(B)(i). Pub. L. 110–417, §2812(d)(2)(B), substituted “Secretary concerned” for “Secretary of a military department”.
Subsec. (e)(1)(B)(ii). Pub. L. 110–181, §2823(d)(1), substituted “paragraph (3), (4), or (5)” for “paragraph (4), (5), or (6)”.
Subsec. (e)(1)(C). Pub. L. 110–417, §2812(d)(2)(C), in introductory provisions, substituted “established for the Secretary concerned shall be available to the Secretary” for “of a military department pursuant to subparagraph (A) shall be available to the Secretary of that military department”.
Subsec. (e)(1)(C)(ii) to (v). Pub. L. 110–181, §2823(b), realigned margins of cls. (ii) and (iii), added cls. (iv) and (v), and struck out former cl. (iv) which read as follows: “Facilities operation support.”
Subsec. (e)(1)(D). Pub. L. 110–417, §2812(d)(2)(D), substituted “established for the Secretary concerned” for “of a military department under subparagraph (A)” and inserted “or Defense Agency location” after “military installation”.
Subsec. (e)(1)(E). Pub. L. 110–417, §2812(d)(2)(E), substituted “military installation or Defense Agency location” for “installation”.
Subsec. (e)(3). Pub. L. 110–417, §2812(d)(2)(F), substituted “control of the Secretary concerned” for “control of the Secretary of a military department”.
Pub. L. 110–181, §2823(d)(2), redesignated par. (4) as (3).
Subsec. (e)(4) to (6). Pub. L. 110–181, §2823(d)(2), redesignated pars. (5) and (6) as (4) and (5), respectively.
Subsec. (g)(1). Pub. L. 110–417, §2812(d)(3), which directed amendment of par. (1) by substituting “Secretary concerned” for “Secretary of a military department”, could not be executed because the phrase “Secretary of a military department” did not appear in text.
Subsec. (h)(1). Pub. L. 110–181, §2823(c)(1), substituted “exceeds one year, or the fair market value of the lease” for “exceeds one year, and the fair market value of the lease”.
Subsec. (h)(2) to (4). Pub. L. 110–181, §2823(c)(2), (3), added pars. (2) and (3), redesignated former par. (3) as (4), and struck out former par. (2) which read as follows: “Not later than 45 days before entering into a lease described in paragraph (1), the Secretary concerned shall submit to Congress written notice describing the terms of the proposed lease and the competitive procedures used to select the lessee.”
Subsec. (h)(5). Pub. L. 110–417, §2831, added par. (5).
Subsec. (i)(4). Pub. L. 110–417, §2812(a)(2), added par. (4).
2006—Subsec. (a). Pub. L. 109–364, §662(d)(1), inserted heading.
Subsec. (b). Pub. L. 109–364, §662(d)(2), inserted heading.
Subsec. (b)(6). Pub. L. 109–364, §662(a), added par. (6).
Subsec. (c). Pub. L. 109–364, §662(d)(3), inserted heading.
Subsec. (d). Pub. L. 109–364, §662(b), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 109–364, §2831, as amended by Pub. L. 110–181, §1063(c)(13), substituted “paragraph (4), (5), or (6)” for “paragraph (4) or (5)” in par. (1)(B)(ii), inserted “at a military installation approved for closure or realignment under a base closure law before January 1, 2005,” after “lease under subsection (f)” in par. (5), and added par. (6) at the end.
Pub. L. 109–364, §662(d)(4), inserted heading and substituted “(g)” for “(f)” in par. (5).
Pub. L. 109–364, §662(b)(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (f). Pub. L. 109–364, §662(b)(1), (d)(5), redesignated subsec. (e) as (f) and inserted heading. Former subsec. (f) redesignated (g).
Subsec. (g). Pub. L. 109–364, §662(b)(1), (d)(6), redesignated subsec. (f) as (g), inserted heading, and substituted “(a)(2)” for “(a)(3)” in par. (1). Former subsec. (g) redesignated (h).
Subsec. (h). Pub. L. 109–364, §662(b)(1), (d)(7), redesignated subsec. (g) as (h) and inserted heading. Former subsec. (h) redesignated (i).
Subsec. (i). Pub. L. 109–364, §662(b)(1), (c), redesignated subsec. (h) as (i), inserted heading, and amended text of subsec. (i) generally. Prior to amendment, subsec. (i) read as follows: “In this section, the term ‘military installation’ has the meaning given such term in section 2687(e)(1) of this title.” Former subsec. (i) redesignated (j).
Subsec. (j). Pub. L. 109–364, §662(b)(1), (d)(8), redesignated subsec. (i) as (j) and inserted heading.
2003—Subsec. (b)(5). Pub. L. 108–178 struck out comma after “of title 40”.
Subsec. (h). Pub. L. 108–136 redesignated introductory provisions and par. (3) as entire subsec., substituted “section,” for “section:” and “this term” for “The term”, struck out par. (1) which defined “congressional defense committees” to mean the Committees on Armed Services and Appropriations of the Senate and House of Representatives, and struck out par. (2) which defined “base closure law” to mean section 2687 of this title, the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Pub. L. 101–510), and title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Pub. L. 100–526).
2002—Subsec. (a)(2). Pub. L. 107–217, §3(b)(12)(A), substituted “section 102 of title 40” for “section 3 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 472)”.
Subsec. (b)(5). Pub. L. 107–217, §3(b)(12)(B), substituted “section 1302 of title 40” for “section 321 of the Act of June 30, 1932 (40 U.S.C. 303b)”.
Subsec. (d)(3). Pub. L. 107–314 struck out par. (3) which read as follows: “Not later than March 15 each year, the Secretary of Defense shall submit to the congressional defense committees a report which shall include—
“(A) an accounting of the receipt and use of all money rentals that were deposited and expended under this subsection during the fiscal year preceding the fiscal year in which the report is made; and
“(B) a detailed explanation of each lease entered into, and of each amendment made to existing leases, during such preceding fiscal year.”
Subsec. (f)(1). Pub. L. 107–217, §3(b)(12)(C), inserted “subtitle I of title 40 and title III of” before “the Federal Property and Administrative Services Act of 1949” and substituted “subtitle I and title III are” for “such Act is”.
2001—Subsec. (g)(3). Pub. L. 107–107 added par. (3).
2000—Subsec. (a). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(a)], inserted “and” at end of par. (1), redesignated par. (3) as (2), and struck out former par. (2) which read as follows: “not for the time needed for public use; and”.
Subsec. (b)(5). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(b)(1)], substituted “alteration, repair, or improvement,” for “improvement, maintenance, protection, repair, or restoration,” and struck out “, or of the entire unit or installation where a substantial part of it is leased,” after “of the property leased”.
Subsec. (c). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(b)(3)], added subsec. (c). Former subsec. (c) redesignated (i).
Subsec. (d)(1). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(c)], amended par. (1) generally. Prior to amendment, par. (1) read as follows:
“(1)(A) All money rentals received pursuant to leases entered into by the Secretary of a military department under this section shall be deposited in a special account in the Treasury established for such military department, except—
“(i) amounts paid for utilities and services furnished lessees by the Secretary; and
“(ii) money rentals referred to in paragraph (4) or (5).
“(B) Sums deposited in a military department's special account pursuant to subparagraph (A) shall be available to such military department, as provided in appropriation Acts, as follows:
“(i) 50 percent of such amount shall be available for facility maintenance and repair or environmental restoration at the military installation where the leased property is located.
“(ii) 50 percent of such amount shall be available for facility maintenance and repair and for environmental restoration by the military department concerned.”
Subsec. (d)(3). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(d)(1)], substituted “Not later than March 15 each year, the Secretary of Defense shall submit to the congressional defense committees a report which” for “As part of the request for authorizations of appropriations submitted to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives for each fiscal year, the Secretary of Defense” in introductory provisions.
Subsec. (d)(3)(A). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(d)(2)], substituted “report” for “request”.
Subsec. (f)(4), (5). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(b)(4)], redesignated par. (5) as (4) and struck out former par. (4) which read as follows: “The Secretary concerned may accept under subsection (b)(5) services of a lessee for an entire installation to be closed or realigned under a base closure law, or for any part of such installation, without regard to the requirement in subsection (b)(5) that a substantial part of the installation be leased.”
Subsec. (h). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(e)], amended subsec. (h) generally. Prior to amendment, subsec. (h) read as follows: “In this section, the term ‘base closure law’ means each of the following:
“(1) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
“(2) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(3) Section 2687 of this title.”
Subsec. (i). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(b)(2)], redesignated subsec. (c) as (i).
1999—Subsec. (d)(3). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security” in introductory provisions.
1998—Subsec. (f)(1). Pub. L. 105–261 inserted “or the Federal Property and Administrative Services Act of 1949 (to the extent such Act is inconsistent with this subsection)”.
1997—Pub. L. 105–85, §1061(c)(1), inserted “of military departments” after “property” in section catchline.
Subsec. (b)(4). Pub. L. 105–85, §1061(a), struck out “, in the case of the lease of real property,” after “shall provide”.
Subsec. (d)(2). Pub. L. 105–85, §361(b)(2), inserted “or working capital fund” before “from which”.
Subsecs. (g), (h). Pub. L. 105–85, §1061(b), added subsec. (g) and redesignated former subsec. (g) as (h).
1996—Subsec. (d)(1)(A)(ii). Pub. L. 104–106, §2831(a)(1), inserted “or (5)” after “paragraph (4)”.
Subsec. (d)(3). Pub. L. 104–106, §1502(a)(1), 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”.
Subsec. (d)(5). Pub. L. 104–106, §2831(a)(2), added par. (5).
Subsec. (f)(4). Pub. L. 104–106, §2832, added par. (4).
Subsec. (f)(5). Pub. L. 104–106, §2833, added par. (5).
1993—Subsec. (f). Pub. L. 103–160, §2906(a), amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: “Notwithstanding clause (3) of subsection (a), real property and associated personal property, which have been determined excess as the result of a defense installation realignment or closure, may be leased to State or local governments pending final disposition of such property if—
“(1) the Secretary concerned determines that such action would facilitate State or local economic adjustment efforts, and
“(2) the Administrator of General Services concurs in the action.”
Subsec. (g). Pub. L. 103–160, §2906(b), added subsec. (g).
1992—Subsec. (b)(4). Pub. L. 102–484 inserted “, in the case of the lease of real property,” after “shall provide”.
1991—Subsec. (b)(3). Pub. L. 102–190, §2862(a)(1), substituted “shall permit” for “must permit” and struck out “and” at end.
Subsec. (b)(4). Pub. L. 102–190, §2862(a)(2), (3), added par. (4) and redesignated former par. (4) as (5).
Subsec. (b)(5). Pub. L. 102–190, §2862(a)(2), (4), redesignated par. (4) as (5) and inserted “improvement,” before “maintenance” and “the payment of” before “part or all”.
Subsec. (d)(3). Pub. L. 102–190, §2862(b), redesignated subpar. (B) as par. (3), substituted “As part of the request for authorizations of appropriations submitted to the Committees on Armed Services of the Senate and House of Representatives for each fiscal year” for “As part of the request for authorizations of appropriations to such Committees for each fiscal year after fiscal year 1992”, redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively, and struck out former subpar. (A) which read as follows: “As part of the request for authorizations of appropriations for fiscal year 1992 to the Committees on Armed Services of the Senate and of the House of Representatives, the Secretary of Defense shall include an explanation of each lease from which money rentals will be received and deposited under this subsection during fiscal year 1991, together with an estimate of the amount to be received from each such lease and an explanation of the anticipated expenditures of such receipts.”
1990—Subsec. (d). Pub. L. 101–510 added pars. (1) to (3), redesignated former par. (2) as (4), and struck out former par. (1) which read as follows: “Except as provided in paragraph (2), money rentals received by the United States directly from a lease under this section shall be covered into the Treasury as miscellaneous receipts. Payments for utilities or services furnished to the lessee under such a lease by the department concerned may be covered into the Treasury to the credit of the appropriation from which the cost of furnishing them was paid.”
1982—Subsec. (b)(4). Pub. L. 97–295 substituted “of” for “entitled ‘An Act making appropriations for the Legislative Branch of the Government for the fiscal year ending June 30, 1933, and for other purposes’, approved” after “section 321 of the Act”.
Subsec. (d). Pub. L. 97–321 designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), money” for “Money”, and added par. (2).
1980—Subsec. (a)(3). Pub. L. 96–513, §511(92)(A), substituted “section 3 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 472)” for “section 472 of title 40”.
Subsec. (b)(4). Pub. L. 96–513, §511(92)(B), substituted “section 321 of the Act entitled ‘An act making appropriations for the Legislative Branch of the Government for the fiscal year ending June 30, 1933, and for other purposes’, approved June 30, 1932 (40 U.S.C. 303b),” for “section 303b of title 40”.
Subsec. (e). Pub. L. 96–513, §511(92)(C), substituted “Act” for “act”.
Subsec. (f). Pub. L. 96–513, §511(92)(D), substituted “the Secretary” for “The Secretary”, and substituted “the Administrator of General Services” for “The Administrator of the General Services Administration”.
1976—Subsec. (b)(4), (5). Pub. L. 94–412 struck out par. (4) which required leases of nonexcess property of a military department include a provision making the lease revocable during a national emergency declared by the President, and redesignated par. (5) as (4).
1975—Subsec. (f). Pub. L. 94–107 added subsec. (f).
Pub. L. 110–181, div. A, title X, §1063(c), Jan. 28, 2008, 122 Stat. 322, provided that the amendment made by section 1063(c)(13) is effective as of Oct. 17, 2006, and as if included in the John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. 109–364, as enacted.
Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Amendment by Pub. L. 94–412 not to affect any action taken or proceeding pending at the time of amendment, see section 501(h) of Pub. L. 94–412, set out as a note under section 1601 of Title 50, War and National Defense.
Pub. L. 108–287, title VIII, §8034, Aug. 5, 2004, 118 Stat. 978, provided that: “Amounts deposited during the current fiscal year and hereafter to the special account established under 40 U.S.C. 572(b)(5)(A) and to the special account established under 10 U.S.C. 2667(d)(1) [now 2667(e)(1)] are appropriated and shall be available until transferred by the Secretary of Defense to current applicable appropriations or funds of the Department of Defense under the terms and conditions specified by 40 U.S.C. 572(b)(5)(B) and 10 U.S.C. 2667(d)(1)(B) [now 2667(e)(1)(B)], to be merged with and to be available for the same time period and the same purposes as the appropriation to which transferred.”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 108–87, title VIII, §8035, Sept. 30, 2003, 117 Stat. 1080.
Pub. L. 107–248, title VIII, §8035, Oct. 23, 2002, 116 Stat. 1544.
Pub. L. 107–117, div. A, title VIII, §8038, Jan. 10, 2002, 115 Stat. 2255.
Pub. L. 106–259, title VIII, §8038, Aug. 9, 2000, 114 Stat. 682.
Pub. L. 106–79, title VIII, §8040, Oct. 25, 1999, 113 Stat. 1239.
Pub. L. 105–262, title VIII, §8040, Oct. 17, 1998, 112 Stat. 2306.
Pub. L. 105–56, title VIII, §8044, Oct. 8, 1997, 111 Stat. 1230.
Pub. L. 104–61, title VIII, §8056, Dec. 1, 1995, 109 Stat. 663.
Pub. L. 103–335, title VIII, §8063, Sept. 30, 1994, 108 Stat. 2634.
Pub. L. 103–139, title VIII, §8074, Nov. 11, 1993, 107 Stat. 1457.
Pub. L. 102–396, title IX, §9107, Oct. 6, 1992, 106 Stat. 1927.
Pub. L. 96–533, title I, §109(a)–(e), Dec. 16, 1980, 94 Stat. 3137, provided that before the Secretary of a military department exercised his authority under section 2667 of title 10, United States Code, in order to lease defense property to a foreign government for a period of more than six months, the President had to transmit to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate, a written notification of the particulars of the proposed lease, prior to repeal by Pub. L. 97–113, title I, §109(d)(1), Dec. 29, 1981, 95 Stat. 1526. See section 2795 et seq. of Title 22, Foreign Relations and Intercourse.
Section, added Pub. L. 105–85, div. A, title X, §1062(a), Nov. 18, 1997, 111 Stat. 1891; amended Pub. L. 107–217, §3(b)(13), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 108–136, div. A, title X, §1031(a)(28), Nov. 24, 2003, 117 Stat. 1599, related to leases of non-excess property of Defense agencies.
A prior section 2667a, added Pub. L. 98–115, title VIII, §807(a)(1), Oct. 11, 1983, 97 Stat. 786, provided for sale and replacement of nonexcess real property, prior to repeal by Pub. L. 98–115, title VIII, §807(c), Oct. 11, 1983, 97 Stat. 789, as amended by Pub. L. 99–167, title VIII, §806(a), Dec. 3, 1985, 99 Stat. 988, effective Oct. 1, 1986.
Pub. L. 110–417, div. B, title XXVIII, §2812(e)(2), (3), Oct. 14, 2008, 122 Stat. 4727, provided that:
“(2)
“(3)
“(A) remain available until expended for the purposes specified in such subsection, notwithstanding the repeal of such section by paragraph (1); or
“(B) to the extent provided in appropriations Acts, be transferred to the special account required for the Secretary of Defense by subsection (e) of section 2667 of such title, as amended by subsection (d)(2) of this section.”
(a)
(1) railroad tracks;
(2) gas, water, sewer, and oil pipe lines;
(3) substations for electric power transmission lines and pumping stations for gas, water, sewer, and oil pipe lines;
(4) canals;
(5) ditches;
(6) flumes;
(7) tunnels;
(8) dams and reservoirs in connection with fish and wildlife programs, fish hatcheries, and other improvements relating to fish-culture;
(9) roads and streets;
(10) poles and lines for the transmission or distribution of electric power;
(11) poles and lines for the transmission or distribution of communications signals (including telephone and telegraph signals);
(12) structures and facilities for the transmission, reception, and relay of such signals; and
(13) any other purpose that the Secretary considers advisable.
(b)
(c)
(1) failure to comply with the terms of the grant;
(2) nonuse for a two-year period; or
(3) abandonment.
(d)
(e)
(Aug. 10, 1956, ch. 1041, 70A Stat. 150; Pub. L. 98–525, title XIV, §1405(38), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 104–201, div. B, title XXVIII, §2861, Sept. 23, 1996, 110 Stat. 2804; Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(f)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–418; Pub. L. 108–136, div. B, title XXVIII, §2813(a), Nov. 24, 2003, 117 Stat. 1725; Pub. L. 109–163, div. A, title X, §1057(a)(3), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 109–364, div. B, title XXVIII, §2822(a), (b), Oct. 17, 2006, 120 Stat. 2474, 2475; Pub. L. 110–181, div. A, title X, §1063(a)(14), Jan. 28, 2008, 122 Stat. 322.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2668(a) 2668(b) |
43:931b (less 2d and 3d provisos of 1st sentence, and less last sentence). 43:931b (2d proviso of 1st sentence). |
July 24, 1946, ch. 596, §7, 60 Stat. 643; Oct. 25, 1951, ch. 563, §101 (31st through 43d words), 65 Stat. 641. |
| 2668(c) | 43:931b (3d proviso of 1st sentence). | |
| 2668(d) | 43:931b (last sentence) [43:931b is made applicable to the Navy by 50:171–1 (16th through 21st words)]. |
In subsection (a), the word “conditions” is omitted as covered by the word “terms”. The description of the persons covered in the opening paragraph and the lands covered in clauses (1)–(10) is restated to reflect an opinion of the Judge Advocate General of the Army (JAGR 1952/3179, 27 Mar. 1952). The exceptions to clause (10) make express the fact that the revised section does not cover certain easements authorized by earlier law. The word “over” includes the word “across”. The words “of the United States”, “and empowered”, “acquired lands”, “jurisdiction and”, and “municipality” are omitted as surplusage. The word “Commonwealth” is inserted to reflect the present status of Puerto Rico.
In subsection (b), the words “for the easement” are substituted for the words “for the purpose for which granted”.
In subsections (b) and (c), the word “easement” is substituted for the word “rights-of-way”.
In subsection (c), the word “terminate” is substituted for the words “annulled and forfeited”. The words “and conditions” are omitted as covered by the word “terms”. The words “two-year period” are substituted for the words “a period of two consecutive years”. The words “of rights granted under authority hereof” are omitted as surplusage.
2008—Subsec. (e). Pub. L. 110–181 substituted “and (e)” for “and (d)”.
2006—Subsec. (a). Pub. L. 109–364, §2822(a)(1), (b)(1), inserted heading and, in introductory provisions, substituted “the Secretary may” for “he may”, “the Secretary considers” for “he considers”, and “the Secretary's control” for “his control, to a State, Commonwealth, or possession, or political subdivision thereof, or to a citizen, association, partnership, or corporation of a State, Commonwealth, or possession,”.
Pub. L. 109–163 struck out “Territory,” after “a State,” in two places in introductory provisions.
Subsec. (a)(2). Pub. L. 109–364, §2822(a)(2), substituted “gas, water, sewer, and oil pipe lines” for “oil pipe lines”.
Subsec. (a)(13). Pub. L. 109–364, §2822(a)(3), substituted “the Secretary considers advisable” for “he considers advisable, except a purpose covered by section 2669 of this title”.
Subsecs. (b) to (e). Pub. L. 109–364, §2822(b)(2)–(5), inserted subsec. headings.
2003—Subsec. (e). Pub. L. 108–136 substituted “Subsections (c) and (d)” for “Subsection (d)” and “subsections apply to in-kind consideration and” for “subsection applies to” and inserted “in-kind consideration and” before “proceeds”.
2000—Subsec. (e). Pub. L. 106–398 added subsec. (e).
1996—Subsec. (a)(3). Pub. L. 104–201, §2861(b)(1), struck out “, telephone lines, and telegraph lines,” after “transmission lines”.
Subsec. (a)(9). Pub. L. 104–201, §2861(a)(1), struck out “and” at end.
Subsec. (a)(10) to (12). Pub. L. 104–201, §2861(a)(3), added pars. (10) to (12). Former par. (10) redesignated (13).
Subsec. (a)(13). Pub. L. 104–201, §2861(a)(2), (b)(2), redesignated par. (10) as (13) and struck out “or by the Act of March 4, 1911 (43 U.S.C. 961)” after “2669 of this title”.
1984—Subsec. (a)(10). Pub. L. 98–525 substituted “the Act of March 4, 1911 (43 U.S.C. 961)” for “section 961 of title 43”.
(a)
(b)
(1) a State or local government; or
(2) a qualified organization, as that term is defined in section 170(h) of the Internal Revenue Code of 1986 (26 U.S.C. 170(h)).
(c)
(1) the proposed recipient of the easement consents to the receipt of the easement;
(2) the Secretary concerned determines that the easement is in the public interest and the conservation purpose to be promoted by the easement cannot be effectively achieved through the application of State law by the State or a local government without the grant of restrictive easements;
(3) the jurisdiction that encompasses the property to be subject to the easement authorizes the grant of restrictive easements; and
(4) the Secretary can give or assign to a third party the responsibility for monitoring and enforcing easements granted under this section.
(d)
(e)
(f)
(Added Pub. L. 109–364, div. B, title XXVIII, §2823(a), Oct. 17, 2006, 120 Stat. 2475.)
Section, acts Aug. 10, 1956, ch. 1041, 70A Stat. 151; Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(f)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–418; Pub. L. 108–136, div. B, title XXVIII, §2813(b), Nov. 24, 2003, 117 Stat. 1725; Pub. L. 109–163, div. A, title X, §1057(a)(3), Jan. 6, 2006, 119 Stat. 3440, related to easements for gas, water, and sewer pipe lines.
(a)
(1) erect and maintain, on any military installation under his jurisdiction, buildings for the storage of supplies; or
(2) use, for the storage of supplies, buildings erected by the United States.
Supplies stored in buildings erected or used under this subsection are available to aid the civilian population in a serious national disaster.
(b)
(2) A Department of Defense facility is a qualifying facility for purposes of this subsection if as of December 31, 2000—
(A) the facility is designated as an official polling place by a State or local election official; or
(B) the facility has been used as such an official polling place since January 1, 1996.
(3) The limitation in paragraph (1) may be waived by the Secretary of Defense or Secretary of the military department concerned with respect to a particular Department of Defense facility if the Secretary of Defense or Secretary concerned determines that local security conditions require prohibition of the designation or use of that facility as an official polling place for any election.
(c)
(2) The commanding officer of a military installation allowing representatives to function on the installation under paragraph (1) shall allow the representatives to use available space and equipment at the installation.
(3) This subsection does not authorize the violation of measures of military security.
(Aug. 10, 1956, ch. 1041, 70A Stat. 151; Pub. L. 107–107, div. A, title XVI, §1607(a)–(b)(2), Dec. 28, 2001, 115 Stat. 1279, 1280; Pub. L. 108–375, div. B, title XXVIII, §2821(c)(1), (e)(2), Oct. 28, 2004, 118 Stat. 2129, 2130.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2670 | 36:12. | June 3, 1916, ch. 134, §127a (5th par.); added June 4, 1920, ch. 227, subch. I, §51 (5th par.); restated July 17, 1953, ch. 222, §3, 67 Stat. 178. |
The word “issue” is substituted for the words “grant permission”. The word “use” is substituted for the words “occupy for that purpose”.
2004—Pub. L. 108–375, §2821(e)(2), substituted “Use of facilities by private organizations; use as polling places” for “Military installations: use by American National Red Cross; use as polling places” in section catchline.
Subsec. (c). Pub. L. 108–375, §2821(c)(1), added subsec. (c).
2001—Pub. L. 107–107 substituted “Military installations: use by American National Red Cross; use as polling places” for “Licenses: military installations; erection and use of buildings; American National Red Cross” in section catchline, designated existing provisions as subsec. (a), inserted heading, substituted “this subsection” for “this section” in concluding provisions, and added subsec. (b).
Pub. L. 108–375, div. B, title XXVIII, §2821(c)(3), Oct. 28, 2004, 118 Stat. 2129, provided that: “The regulations prescribed to carry out [former] section 2679 of title 10, United States Code, as in effect on the day before the date of the enactment of this Act [Oct. 28, 2004], shall remain in effect with regard to section 2670(c) of such title, as added by paragraph (1), until changed by joint action of the Secretary concerned (as defined in section 101(9) of such title) and the Secretary of Veterans Affairs.”
(a)
(1) require that all hunting, fishing, and trapping at that installation or facility be in accordance with the fish and game laws of the State in which it is located;
(2) require that an appropriate license for hunting, fishing, or trapping on that installation or facility be obtained, except that with respect to members of the armed forces, such a license may be required only if the State authorizes the issuance of a license to a member on active duty for a period of more than thirty days at an installation or facility within that State, without regard to residence requirements, and upon terms otherwise not less favorable than the terms upon which such a license is issued to residents of that State; and
(3) develop, subject to safety requirements and military security, and in cooperation with the Governor (or his designee) of the State in which the installation or facility is located, procedures under which designated fish and game or conservation officials of that State may, at such time and under such conditions as may be agreed upon, have full access to that installation or facility to effect measures for the management, conservation, and harvesting of fish and game resources.
(b)
(2) If the Secretary determines that a waiver of fish and game laws of a State is appropriate under paragraph (1), the Secretary shall provide written notification to the appropriate State officials stating the reasons for, and extent of, the waiver. The notification shall be provided at least 30 days before implementation of the waiver.
(c)
(d)
(e)
(Added Pub. L. 85–337, §4(1), Feb. 28, 1958, 72 Stat. 29; amended Pub. L. 107–107, div. B, title XXVIII, §2811, Dec. 28, 2001, 115 Stat. 1307; Pub. L. 109–163, div. A, title X, §1057(a)(2), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 111–383, div. A, title X, §1075(b)(42), Jan. 7, 2011, 124 Stat. 4371.)
2011—Subsec. (a)(2). Pub. L. 111–383 substituted “armed forces” for “Armed Forces”.
2006—Subsecs. (a) to (c). Pub. L. 109–163 struck out “or Territory” after “State” wherever appearing.
2001—Subsec. (a). Pub. L. 107–107, §2811(b)(1), inserted heading.
Subsec. (b). Pub. L. 107–107, §2811(a)(2), added subsec. (b). Former subsec. (b) redesignated (e).
Subsec. (c). Pub. L. 107–107, §2811(b)(2), inserted heading.
Subsec. (d). Pub. L. 107–107, §2811(b)(3), inserted heading.
Subsec. (e). Pub. L. 107–107, §2811(a)(1), redesignated subsec. (b) as (e), inserted heading, and transferred subsec. to end of section.
Pub. L. 109–364, div. A, title X, §1077(a), Oct. 17, 2006, 120 Stat. 2406, provided that: “Consistent with section 2671 of title 10, United States Code, and using such funds as are made available for this purpose, the Secretary of Defense shall ensure that members of the Armed Forces, retired members, disabled veterans, and persons assisting disabled veterans are able to utilize lands under the jurisdiction of the Department of Defense that are available for hunting or fishing.”
Section 2672, added Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1459; amended Pub. L. 87–651, title I, §112(a), Sept. 7, 1962, 76 Stat. 511; Pub. L. 92–145, title VII, §707(2), (3), Oct. 27, 1971, 85 Stat. 411; Pub. L. 96–418, title VIII, §806(a), Oct. 10, 1980, 94 Stat. 1777; Pub. L. 99–167, title VIII, §810(a), (b)(1), Dec. 3, 1985, 99 Stat. 989, 990; Pub. L. 99–661, div. A, title XIII, §1343(a)(16), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 100–456, div. B, title XXVIII, §2804, Sept. 29, 1988, 102 Stat. 2115; Pub. L. 105–85, div. B, title XXVIII, §2811(a), (b)(1), Nov. 18, 1997, 111 Stat. 1991; Pub. L. 108–136, div. B, title XXVIII, §2811(a)–(b)(2), Nov. 24, 2003, 117 Stat. 1724, 1725; Pub. L. 108–375, div. B, title XXVIII, §2821(d)(1), Oct. 28, 2004, 118 Stat. 2130; Pub. L. 109–163, div. B, title XXVIII, §2821(a)(2), Jan. 6, 2006, 119 Stat. 3511, related to authority to acquire low-cost interests in land. See section 2663(c) of this title.
Section 2672a, added Pub. L. 94–107, title VI, §607(8), Oct. 7, 1975, 89 Stat. 566; amended Pub. L. 98–525, title XIV, §1405(39), Oct. 19, 1984, 98 Stat. 2624; 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; Pub. L. 108–136, div. A, title X, §1031(a)(29), Nov. 24, 2003, 117 Stat. 1599; Pub. L. 108–375, div. A, title X, §1084(d)(23), Oct. 28, 2004, 118 Stat. 2062; Pub. L. 109–163, div. B, title XXVIII, §2821(a)(6), Jan. 6, 2006, 119 Stat. 3511, related to acquisition of interests in land when need is urgent. See section 2663(d) of this title.
Section, added Pub. L. 100–370, §1(l)(1), July 19, 1988, 102 Stat. 849, related to availability of funds for acquisition of certain interests in land.
A prior section 2673, added Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1459, related to restoration or replacement of facilities damaged or destroyed, prior to repeal by Pub. L. 97–214, §7(1), July 12, 1982, 96 Stat. 173, eff. Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date. See section 2854 of this title.
(a)(1) Jurisdiction, custody, and control over, and responsibility for, the operation, maintenance, and management of the Pentagon Reservation is transferred to the Secretary of Defense.
(2) Before March 1 of each year, the Secretary of Defense shall transmit to the congressional committees specified in paragraph (3) a report on the state of the renovation of the Pentagon Reservation and a plan for the renovation work to be conducted in the fiscal year beginning in the year in which the report is transmitted.
(3) The committees referred to in paragraph (2) are—
(A) the Committee on Armed Services and the Committee on Environment and Public Works of the Senate; and
(B) the Committee on Armed Services and the Committee on Transportation and Infrastructure of the House of Representatives.
(b)(1) The Secretary may appoint military or civilian personnel or contract personnel to perform law enforcement and security functions for property occupied by, or under the jurisdiction, custody, and control of the Department of Defense, and located in the National Capital Region. Such individuals—
(A) may be armed with appropriate firearms required for personal safety and for the proper execution of their duties, whether on Department of Defense property or in travel status; and
(B) shall have the same powers (other than the service of civil process) as sheriffs and constables upon the property referred to in the first sentence to enforce the laws enacted for the protection of persons and property, to prevent breaches of the peace and suppress affrays or unlawful assemblies, and to enforce any rules or regulations with respect to such property prescribed by duly authorized officials.
(2) For positions for which the permanent duty station is the Pentagon Reservation, the Secretary, in his sole and exclusive discretion, may without regard to the pay provisions of title 5, fix the rates of basic pay for such positions occupied by civilian law enforcement and security personnel appointed under the authority of this section so as to place such personnel on a comparable basis with personnel of other similar Federal law enforcement and security organizations within the vicinity of the Pentagon Reservation, not to exceed the basic pay for personnel performing similar duties in the United States Secret Service Uniformed Division or the United States Park Police.
(c)(1) The Secretary may prescribe such rules and regulations as the Secretary considers appropriate to ensure the safe, efficient, and secure operation of the Pentagon Reservation, including rules and regulations necessary to govern the operation and parking of motor vehicles on the Pentagon Reservation.
(2) Any person who violates a rule or regulation prescribed under this subsection is liable to the United States for a civil penalty of not more than $1,000.
(3) Any person who willfully violates any rule or regulation prescribed pursuant to this subsection commits a Class B misdemeanor.
(d) The Secretary of Defense may establish rates and collect charges for space, services, protection, maintenance, construction, repairs, alterations, or facilities provided at the Pentagon Reservation.
(e)(1) There is established in the Treasury of the United States a revolving fund to be known as the Pentagon Reservation Maintenance Revolving Fund (hereafter in this section referred to as the “Fund”). There shall be deposited into the Fund funds collected by the Secretary for space and services and other items provided an organization or entity using any facility or land on the Pentagon Reservation pursuant to subsection (d).
(2) Subject to paragraphs (3) and (4), monies deposited into the Fund shall be available, without fiscal year limitation, for expenditure for real property management, operation, protection, construction, repair, alteration and related activities for the Pentagon Reservation.
(3) If the cost of a construction or alteration activity proposed to be financed in whole or in part using monies from the Fund will exceed the limitation specified in section 2805 of this title for a comparable unspecified minor military construction project, the activity shall be subject to authorization as provided by section 2802 of this title before monies from the Fund are obligated for the activity.
(4) The authority of the Secretary to use monies from the Fund to support construction or alteration activities at the Pentagon Reservation expires on September 30, 2012.
(f) In this section:
(1) The term “Pentagon Reservation” means that area of land (consisting of approximately 280 acres) and improvements thereon, located in Arlington, Virginia, on which the Pentagon Office Building, Federal Building Number 2, the Pentagon heating and sewage treatment plants, and other related facilities are located, including various areas designated for the parking of vehicles.
(2) The term “National Capital Region” means the geographic area located within the boundaries of (A) the District of Columbia, (B) Montgomery and Prince Georges Counties in the State of Maryland, (C) Arlington, Fairfax, Loudoun, and Prince William Counties and the City of Alexandria in the Commonwealth of Virginia, and (D) all cities and other units of government within the geographic areas of such District, Counties, and City.
(g) For purposes of subsections (b), (c), (d), and (e), the terms “Pentagon Reservation” and “National Capital Region” shall be treated as including the land and physical facilities at the Raven Rock Mountain Complex.
(Added Pub. L. 101–510, div. B, title XXVIII, §2804(a)(1), Nov. 5, 1990, 104 Stat. 1784; amended Pub. L. 102–190, div. A, title X, §1061(a)(18), div. B, title XXVIII, §2864, Dec. 5, 1991, 105 Stat. 1473, 1561; Pub. L. 104–106, div. A, title XV, §1502(a)(24), Feb. 10, 1996, 110 Stat. 505; Pub. L. 104–201, div. A, title III, §369(a), (b)(1), Sept. 23, 1996, 110 Stat. 2498; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title XI, §1101, Dec. 28, 2001, 115 Stat. 1234; Pub. L. 108–136, div. A, title IX, §933, Nov. 24, 2003, 117 Stat. 1581; Pub. L. 111–383, div. B, title XXVIII, §2802, Jan. 7, 2011, 124 Stat. 4458.)
A prior section 2674, added Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1459; amended Pub. L. 87–651, title I, §112(b), Sept. 7, 1962, 76 Stat. 511; Pub. L. 88–174, title VI, §608, Nov. 7, 1963, 77 Stat. 328; Pub. L. 89–188, title VI, §613, Sept. 16, 1965, 79 Stat. 819; Pub. L. 89–568, title VI, §608, Sept. 12, 1966, 80 Stat. 756; Pub. L. 91–511, title VI, §607(2)–(4), Oct. 26, 1970, 84 Stat. 1224; Pub. L. 92–145, title VII, §707(1), Oct. 27, 1971, 85 Stat. 411; Pub. L. 93–166, title VI, §608(1), Nov. 29, 1973, 87 Stat. 682; Pub. L. 94–107, title VI, §607(2)–(4), Oct. 7, 1975, 89 Stat. 566; Pub. L. 95–82, title VI, §608(a), Aug. 1, 1977, 91 Stat. 377; Pub. L. 95–356, title VI, §603(h)(1), Sept. 8, 1978, 92 Stat. 582; Pub. L. 96–125, title VIII, §801, Nov. 26, 1979, 93 Stat. 947; Pub. L. 97–99, title IX, §907, Dec. 23, 1981, 95 Stat. 1385, related to minor construction projects, prior to repeal by Pub. L. 97–214, §§7(1), 12(a), July 12, 1982, 96 Stat. 173, 176, effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date. See section 2805 of this title.
2011—Subsec. (e)(2). Pub. L. 111–383, §2802(1), substituted “Subject to paragraphs (3) and (4), monies” for “Monies”.
Subsec. (e)(3), (4). Pub. L. 111–383, §2802(2), added pars. (3) and (4).
2003—Subsec. (g). Pub. L. 108–136 added subsec. (g).
2001—Subsec. (b). Pub. L. 107–107 designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), and added par. (2).
1999—Subsec. (a)(3)(B). Pub. L. 106–65 substituted “Committee on Armed Services” for “Committee on National Security”.
1996—Pub. L. 104–201, §369(b)(1), substituted “of Pentagon Reservation and defense facilities in National Capital Region” for “of the Pentagon Reservation” in section catchline.
Subsec. (a)(2). Pub. L. 104–106, §1502(a)(24)(A), substituted “congressional committees specified in paragraph (3)” for “Committees on Armed Services of the Senate and the House of Representatives, the Committee on Environment and Public Works of the Senate, and the Committee on Public Works and Transportation of the House of Representatives”.
Subsec. (a)(3). Pub. L. 104–106, §1502(a)(24)(B), added par. (3).
Subsec. (b). Pub. L. 104–201, §369(a), substituted “in the National Capital Region” for “at the Pentagon Reservation”.
1991—Subsec. (b)(2). Pub. L. 102–190, §2864, amended par. (2) generally. Prior to amendment, par. (2) read as follows: “shall have the same powers as sheriffs and constables to enforce the laws, rules, or regulations enacted for the protection of persons and property.”
Subsec. (c)(3). Pub. L. 102–190, §1061(a)(18), substituted “misdemeanor” for “misdeameanor”.
For transfer of the functions, personnel, assets, and obligations of the United States Secret Service, including the functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 381, 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 108–287, title VIII, §8055, Aug. 5, 2004, 118 Stat. 982, provided that:
“(a)
“(b)
“(c)
“(1) any repair or reconstruction cost incurred as a result of the terrorist attack on the Pentagon that occurred on September 11, 2001;
“(2) any increase in costs for wedges 2 through 5 attributable to compliance with new requirements of Federal, State, or local laws; and
“(3) any increase in costs attributable to additional security requirements that the Secretary of Defense considers essential to provide a safe and secure working environment.
“(d)
“(1) the renovation of each wedge, including the amount adjusted or otherwise excluded for such wedge under the authority of paragraphs (2) and (3) of subsection (c) for the period covered by the certification; and
“(2) the repair and reconstruction of wedges 1 and 2 in response to the terrorist attack on the Pentagon that occurred on September 11, 2001.
“(e)
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 108–87, title VIII, §8055, Sept. 30, 2003, 117 Stat. 1084.
Pub. L. 107–248, title VIII, §8056, Oct. 23, 2002, 116 Stat. 1549.
Pub. L. 107–117, div. A, title VIII, §8060, Jan. 10, 2002, 115 Stat. 2260.
Pub. L. 107–107, div. B, title XXVIII, §2864, Dec. 28, 2001, 115 Stat. 1333, provided that:
“(a)
“(b)
“(1) the establishment of the memorial to the victims of the terrorist attack; and
“(2) the repair of the damage caused to the Pentagon Reservation by the terrorist attack.
“(c)
(a)
(b)
(Added Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1460; amended Pub. L. 91–511, title VI, §608, Oct. 26, 1970, 84 Stat. 1224; Pub. L. 94–107, title VI, §607(10), (11), Oct. 7, 1975, 89 Stat. 567; Pub. L. 95–82, title V, §505(a), Aug. 1, 1977, 91 Stat. 371; Pub. L. 95–356, title V, §503(b), Sept. 8, 1978, 92 Stat. 579; Pub. L. 96–125, title V, §502(b), Nov. 26, 1979, 93 Stat. 940; Pub. L. 96–418, title V, §504(b), Oct. 10, 1980, 94 Stat. 1765; Pub. L. 97–99, title VI, §604, Dec. 23, 1981, 95 Stat. 1374; Pub. L. 97–214, §8, July 12, 1982, 96 Stat. 174; Pub. L. 98–525, title XIV, §1405(40), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 101–510, div. A, title XIII, §1322(a)(11), Nov. 5, 1990, 104 Stat. 1671; Pub. L. 108–136, div. B, title XXVIII, §2804(b), Nov. 24, 2003, 117 Stat. 1719; Pub. L. 108–375, div. B, title XXVIII, §2821(d)(3), Oct. 28, 2004, 118 Stat. 2130; Pub. L. 109–364, div. B, title XXVIII, §2824, Oct. 17, 2006, 120 Stat. 2476.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2675 | 5:171z–3. | Aug. 3, 1956, ch. 939, §417, 70 Stat. 1018. |
The words “that are not located on a military base” are substituted for the words “off-base”.
2006—Subsec. (a). Pub. L. 109–364 substituted “10 years” for “five years”.
2004—Pub. L. 108–375 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).
2003—Pub. L. 108–136 inserted “or 15 years in the case of a lease in Korea,” after “five years,”.
1990—Pub. L. 101–510 struck out “(a)” before “The Secretary” and struck out subsec. (b) which read as follows: “A lease may not be entered into under this section for structures or related real property in any foreign country if the average estimated annual rental during the term of the lease if more than $250,000 until after the expiration of 30 days from the date upon which a report of the facts concerning the proposed lease is submitted to the Committees on Armed Services of the Senate and House of Representatives.”
1984—Subsec. (b). Pub. L. 98–525 substituted “30” for “thirty”.
1982—Subsec. (a). Pub. L. 97–214, §8(a), substituted provisions that the Secretary of a military department may acquire by lease in foreign countries, structures and real property needed for military purposes other than for military family housing for up to a period of five years with the rental to be paid from funds appropriated to that military department for that year, for former provisions that had allowed such leases including leases for military family housing and in the latter case for a period of up to 10 years.
Subsec. (b). Pub. L. 97–214, §8(b), struck out “or any other provision of law” after “into under this section”, and “, family housing facilities,” after “for structures”.
Subsecs. (c), (d). Pub. L. 97–214, §8(c), struck out subsec. (c) which provided that a statement in a lease that the requirements of this section have been met, or that the lease is not subject to this section is conclusive, and subsec. (d) which related to limitations on expenditures for the rental of family housing in foreign countries and limitations on the number of family housing units which may be leased in a foreign country at any one time.
1981—Subsec. (d)(1). Pub. L. 97–99, §604(1), substituted “250” for “150”.
Subsec. (d)(2). Pub. L. 97–99, §604(2), substituted “22,000” for “17,000”.
1980—Subsec. (d)(1). Pub. L. 96–418 substituted “Expenditures for the rental of family housing in foreign countries (including the cost of utilities and maintenance and operation) may not exceed $1,115 per month for any unit” for “The average unit rental for Department of Defense family housing acquired by lease in foreign countries may not exceed $550 per month for the Department, and in no event shall the rental for any one unit exceed $970 per month, including the costs of operation, maintenance, and utilities”.
1979—Subsec. (d)(1). Pub. L. 96–125, §502(b)(1), substituted “$550” for “$485” and “$970” for “$850”.
Subsec. (d)(2). Pub. L. 96–125, §502(b)(2), substituted “17,000” for “18,000”.
1978—Subsec. (d)(1). Pub. L. 95–356, §503(b)(1), substituted “$485” for “$435” and “$850” for “$760”.
Subsec. (d)(2). Pub. L. 95–356, §503(b)(2), substituted “18,000” for “15,000”.
1977—Subsec. (a). Pub. L. 95–82, §505(a)(1), inserted provisions relating to military family housing facilities and real property related thereto.
Subsec. (b). Pub. L. 95–82, §505(a)(2), inserted “or any other provision of law for structures, family housing facilities, or related real property in any foreign country,” after “section”.
Subsec. (d). Pub. L. 95–82, §505(a)(3), added subsec. (d).
1975—Pub. L. 94–107 struck out reference to structures not on a military base in section catchline, and struck out “that are not located on a military base and” after “structures and real property relating thereto” in subsec. (a).
1970—Pub. L. 91–511 designated existing provisions as subsec. (a) and added subsecs. (b) and (c).
Amendment by Pub. L. 97–214 effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as an Effective Date note under section 2801 of this title.
Section 608 of Pub. L. 96–418 provided that: “Titles I, II, III, IV, and V [enacting section 2775 of this title and section 1594h–3 of Title 42, The Public Health and Welfare, amending this section, section 2686 of this title, and sections 1594a–1 and 1594h–2 of Title 42, and repealing provisions set out as a note under section 4593 of this title] shall take effect on October 1, 1980.”
Section 505(c) of Pub. L. 95–82 provided that: “The amendments made by subsection (a) [amending this section] and the repeal made by subsection (b) [repealing section 507(b) of Pub. L. 93–166, which was not classified to the Code] shall take effect October 1, 1977.”
Section, added Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1460; amended Pub. L. 87–554, title VI, §607, July 27, 1962, 76 Stat. 242; Pub. L. 92–145, title VII, §707(4), Oct. 27, 1971, 85 Stat. 412; Pub. L. 94–273, §6(3), Apr. 21, 1976, 90 Stat. 377; Pub. L. 97–214, §10(a)(5)(A), (B), July 12, 1982, 96 Stat. 175; Pub. L. 97–375, title I, §104(b), Dec. 21, 1982, 96 Stat. 1819; Pub. L. 98–407, title VIII, §803, Aug. 28, 1984, 98 Stat. 1519; Pub. L. 102–190, div. B, title XXVIII, §2861, Dec. 5, 1991, 105 Stat. 1559; Pub. L. 103–35, title II, §201(c)(9), May 31, 1993, 107 Stat. 98; Pub. L. 107–314, div. A, title X, §1062(a)(12), Dec. 2, 2002, 116 Stat. 2650, related to options on property required for military construction projects.
When feral horses or burros are found on an installation under the jurisdiction of the Secretary of a military department, the Secretary may use helicopters and motorized equipment for their removal.
(Added Pub. L. 101–510, div. A, title XIV, §1481(h)(1), Nov. 5, 1990, 104 Stat. 1708.)
Provisions similar to those in this section were contained in Pub. L. 101–165, title IX, §9030, Nov. 21, 1989, 103 Stat. 1135, which was set out as a note under section 2241 of this title, prior to repeal by Pub. L. 101–510, §1481(h)(3).
A prior section 2678, added Pub. L. 85–861, §1(51), Sept. 2, 1958, 72 Stat. 1460, related to acquisition of mortgaged housing units, prior to repeal by Pub. L. 97–214, §§7(1), 12(a), July 12, 1982, 96 Stat. 173, 176, effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date.
Section, added Pub. L. 87–651, title I, §112(c), Sept. 7, 1962, 76 Stat. 511; amended Pub. L. 101–189, div. A, title XVI, §1621(a)(9), Nov. 29, 1989, 103 Stat. 1603; Pub. L. 103–337, div. A, title X, §1070(e)(9), Oct. 5, 1994, 108 Stat. 2859, related to use of space and equipment by representatives of veterans’ organizations.
Section, added Pub. L. 102–190, div. B, title XXVIII, §2863(a)(1), Dec. 5, 1991, 105 Stat. 1560; amended Pub. L. 103–160, div. B, title XXVIII, §2807(a), Nov. 30, 1993, 107 Stat. 1887; Pub. L. 104–106, div. B, title XXVIII, §2820(a), (b), Feb. 10, 1996, 110 Stat. 556; Pub. L. 106–65, div. A, title X, §1067(1), div. B, title XXVIII, §2811, Oct. 5, 1999, 113 Stat. 774, 851; Pub. L. 107–314, div. A, title X, §1062(a)(13), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 108–136, div. A, title X, §1031(a)(31), Nov. 24, 2003, 117 Stat. 1600, related to leases of land for special operations activities.
A prior section 2680, added Pub. L. 87–651, title I, §112(c), Sept. 7, 1962, 76 Stat. 511; amended Pub. L. 89–718, §20, Nov. 2, 1966, 80 Stat. 1118, authorized reimbursement of moving expenses to owners of property acquired for public works projects, prior to repeal by Pub. L. 91–646, title II, §220(a)(3), Jan. 2, 1971, 84 Stat. 1903. See section 4601 et seq. of Title 42, The Public Health and Welfare.
Pub. L. 111–383, div. B, title XXVIII, §2814(b), Jan. 7, 2011, 124 Stat. 4464, provided that: “The amendment made by subsection (a) [repealing this section] shall not affect the validity of any contract entered into under section 2680 of title 10, United States Code, on or before September 30, 2005.”
(a)
(b)
(1) to the public health and safety;
(2) to property (either public or private); or
(3) to any national security interest or foreign policy interest of the United States.
(c)
(d)
(e)
(f)
(1) The term “Major Range and Test Facility Installation” means a test and evaluation installation under the jurisdiction of the Department of Defense and designated as a Major Range and Test Facility Installation by the Secretary.
(2) The term “direct costs” includes the cost of—
(A) labor, material, facilities, utilities, equipment, supplies, and any other resources damaged or consumed during test or evaluation activities or maintained for a particular commercial entity; and
(B) construction specifically performed for a commercial entity to conduct test and evaluation activities.
(Added Pub. L. 103–160, div. A, title VIII, §846(a), Nov. 30, 1993, 107 Stat. 1722; amended Pub. L. 105–85, div. A, title VIII, §842, Nov. 18, 1997, 111 Stat. 1844; Pub. L. 105–261, div. A, title VIII, §820, Oct. 17, 1998, 112 Stat. 2090.)
A prior section, added Pub. L. 87–651, title II, §209(a), Sept. 7, 1962, 76 Stat. 523; amended Pub. L. 88–174, title V, §508, Nov. 7, 1963, 77 Stat. 326; Pub. L. 96–513, title V, §511(93), Dec. 12, 1980, 94 Stat. 2928, related to construction or acquisition of family housing and community facilities in foreign countries, prior to repeal by Pub. L. 97–214, §§7(1), 12(a), July 12, 1982, 96 Stat. 173, 176, effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date.
1998—Subsec. (g). Pub. L. 105–261, §820(a), struck out heading and text of subsec. (g). Text read as follows: “The authority provided to the Secretary of Defense by subsection (a) shall terminate on September 30, 2002.”
Subsec. (h). Pub. L. 105–261, §820(b), struck out heading and text of subsec. (h). Text read as follows: “Not later than March 1, 1998, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report identifying existing and proposed procedures to ensure that the use of Major Range and Test Facility Installations by commercial entities does not compete with private sector test and evaluation services.”
1997—Subsec. (g). Pub. L. 105–85, §842(a), substituted “2002” for “1998”.
Subsec. (h). Pub. L. 105–85, §842(b), amended subsec. (h) generally. Prior to amendment, subsec. (h) read as follows:
“(h)
The maintenance and repair of a real property facility for an activity or agency of the Department of Defense (other than a military department) financed from appropriations for military functions of the Department of Defense will be accomplished by or through a military department designated by the Secretary of Defense. A real property facility under the jurisdiction of the Department of Defense which is used by an activity or agency of the Department of Defense (other than a military department) shall be under the jurisdiction of a military department designated by the Secretary of Defense.
(Added Pub. L. 88–174, title VI, §609(a)(1), Nov. 7, 1963, 77 Stat. 329; amended Pub. L. 97–214, §10(a)(7), July 12, 1982, 96 Stat. 175.)
1982—Pub. L. 97–214 substituted “maintenance and repair” for “construction, maintenance, rehabilitation, repair, alteration, addition, expansion, or extension”.
Amendment by Pub. L. 97–214 effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as an Effective Date note under section 2801 of this title.
(a) Notwithstanding any other provision of law, the Secretary concerned may, whenever he considers it desirable, relinquish to a State, or to a Commonwealth, territory, or possession of the United States, all or part of the legislative jurisdiction of the United States over lands or interests under his control in that State, Commonwealth, territory, or possession. Relinquishment of legislative jurisdiction under this section may be accomplished (1) by filing with the Governor (or, if none exists, with the chief executive officer) of the State, Commonwealth, territory, or possession concerned a notice of relinquishment to take effect upon acceptance thereof, or (2) as the laws of the State, Commonwealth, territory, or possession may otherwise provide.
(b) The authority granted by subsection (a) is in addition to and not instead of that granted by any other provision of law.
(c)(1) Except as provided in paragraphs (2) and (3), the Secretary concerned shall establish and enforce as the minimum drinking age on a military installation located in a State the age established by the law of that State as the State minimum drinking age.
(2)(A) In the case of a military installation located—
(i) in more than one State; or
(ii) in one State but within 50 miles of another State or Mexico or Canada,
the Secretary concerned may establish and enforce as the minimum drinking age on that military installation the lowest applicable age.
(B) In subparagraph (A), the term “lowest applicable age” means the lowest minimum drinking age established by the law—
(i) of a State in which a military installation is located; or
(ii) of a State or jurisdiction of Mexico or Canada that is within 50 miles of such military installation.
(3)(A) The commanding officer of a military installation may waive the requirement of paragraph (1) if such commanding officer determines that the exemption is justified by special circumstances.
(B) The Secretary of Defense shall define by regulations what constitute special circumstances for the purposes of this paragraph.
(4) In this subsection:
(A) The term “State” includes the District of Columbia.
(B) The term “minimum drinking age” means the minimum age or ages established for persons who may purchase, possess, or consume alcoholic beverages.
(Added Pub. L. 91–511, title VI, §613(1), Oct. 26, 1970, 84 Stat. 1226; amended Pub. L. 92–545, title VIII, §707, Oct. 25, 1972, 86 Stat. 1154; Pub. L. 93–283, §3, May 14, 1974, 88 Stat. 141; Pub. L. 99–145, title XII, §1224(a), (b)(1), (c)(1), Nov. 8, 1985, 99 Stat. 728, 729; Pub. L. 99–661, div. A, title XIII, §1343(a)(18), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 100–526, title I, §106(b)(2), Oct. 24, 1988, 102 Stat. 2625.)
1988—Subsec. (c)(2)(B). Pub. L. 100–526, §106(b)(2)(A), substituted “the term ‘lowest applicable age’ ” for “ ‘lowest age’ ”.
Subsec. (c)(4)(A). Pub. L. 100–526, §106(b)(2)(B)(i), substituted “The term ‘State’ ” for “ ‘State’ ”.
Subsec. (c)(4)(B). Pub. L. 100–526, §106(b)(2)(B)(ii), substituted “The term ‘minimum’ ” for “ ‘Minimum’ ”.
1986—Subsec. (b). Pub. L. 99–661 struck out “this” before “subsection (a)”.
1985—Pub. L. 99–145, §1224(c)(1), inserted “; minimum drinking age on military installations” in section catchline.
Subsec. (b). Pub. L. 99–145, §1224(b)(1), substituted “subsection (a)” for “section”.
Subsec. (c). Pub. L. 99–145, §1224(a), added subsec. (c).
1974—Subsec. (a). Pub. L. 93–283 substituted “Secretary concerned” for “Secretary of a military department”.
1972—Subsec. (a). Pub. L. 92–545 provided for relinquishment of all or part of legislative jurisdiction of the United States over lands or interests to Commonwealths, territories, or possessions of the United States.
Section 1224(d) of Pub. L. 99–145 provided that: “The amendments made by this section [amending this section and section 473 of Title 50, Appendix, War and National Defense] shall take effect 90 days after the date of the enactment of this Act [Nov. 8, 1985].”
(a)
(b)
(1) on a military installation; or
(2) on a site outside of a military installation, but only if the cooperative agreement will directly relieve or eliminate current or anticipated restrictions that would or might restrict, impede, or otherwise interfere, whether directly or indirectly, with current or anticipated military training, testing, or operations on a military installation.
(c)
(d)
(1) A building, structure, site, district, or object eligible for or included in the National Register of Historic Places maintained under section 101(a) of the National Historic Preservation Act (16 U.S.C. 470a(a)).
(2) Cultural items, as that term is defined in section 2(3) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001(3)).
(3) An archaeological resource, as that term is defined in section 3(1) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1)).
(4) An archaeological artifact collection and associated records covered by section 79 of title 36, Code of Federal Regulations.
(5) An Indian sacred site, as defined in section 1(b)(iii) of Executive Order No. 13007.
(Added Pub. L. 104–201, div. B, title XXVIII, §2862(a), Sept. 23, 1996, 110 Stat. 2804; amended Pub. L. 105–85, div. A, title X, §1073(a)(58), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 110–181, div. B, title XXVIII, §2824, Jan. 28, 2008, 122 Stat. 545.)
Executive Order No. 13007, referred to in subsec. (d)(5), is set out under section 1996 of Title 42, The Public Health and Welfare.
A prior section 2684, added Pub. L. 93–166, title V, §509(a), Nov. 29, 1973, 87 Stat. 677, related to construction of family quarters and limitations on space, prior to repeal by Pub. L. 97–214, §§7(1), 12(a), July 12, 1982, 96 Stat. 173, 176, effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date. See section 2826 of this title.
2008—Subsec. (a). Pub. L. 110–181, §2824(a)(1), substituted “located on a site authorized by subsection (b)” for “on military installations”.
Subsecs. (b) to (d). Pub. L. 110–181, §2824(a)(2), (3), added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.
Subsec. (d)(5). Pub. L. 110–181, §2824(b), added par. (5).
1997—Subsec. (b). Pub. L. 105–85 struck out “, United States Code,” after “title 31”.
(a)
(1) limiting any development or use of the property that would be incompatible with the mission of the installation; or
(2) preserving habitat on the property in a manner that—
(A) is compatible with environmental requirements; and
(B) may eliminate or relieve current or anticipated environmental restrictions that would or might otherwise restrict, impede, or otherwise interfere, whether directly or indirectly, with current or anticipated military training, testing, or operations on the installation.
(b)
(1) A State or political subdivision of a State.
(2) A private entity that has as its stated principal organizational purpose or goal the conservation, restoration, or preservation of land and natural resources, or a similar purpose or goal, as determined by the Secretary concerned.
(c)
(d)
(A) the acquisition by the entity or entities of all right, title, and interest in and to any real property, or any lesser interest in the property, as may be appropriate for purposes of this section; and
(B) the sharing by the United States and the entity or entities of the acquisition costs in accordance with paragraph (3).
(2) Property or interests may not be acquired pursuant to the agreement unless the owner of the property or interests consents to the acquisition.
(3) An agreement with an eligible entity under this section may provide for the management of natural resources on real property in which the Secretary concerned acquires any right, title, or interest in accordance with this subsection and for the payment by the United States of all or a portion of the costs of such natural resource management if the Secretary concerned determines that there is a demonstrated need to preserve or restore habitat for the purpose described in subsection (a)(2).
(4)(A) The Secretary concerned shall determine the appropriate portion of the acquisition costs to be borne by the United States in the sharing of acquisition costs of real property, or an interest in real property, under paragraph (1)(B).
(B) In lieu of or in addition to making a monetary contribution toward the cost of acquiring a parcel of real property, or an interest therein, pursuant to an agreement under this section, the Secretary concerned may convey, using the authority provided by section 2869 of this title, real property described in paragraph (2) of subsection (a) of such section, subject to the limitation in paragraph (3) of such subsection.
(C) The portion of acquisition costs borne by the United States under subparagraph (A), either through the contribution of funds or excess real property, or both, may not exceed an amount equal to, at the discretion of the Secretary concerned—
(i) the fair market value of any property or interest in property to be transferred to the United States upon the request of the Secretary concerned under paragraph (5); or
(ii) the cumulative fair market value of all properties or interests to be transferred to the United States under paragraph (5) pursuant to an agreement under subsection (a).
(D) The portion of acquisition costs borne by the United States under subparagraph (A) may exceed the amount determined under subparagraph (C), but only if—
(i) the Secretary concerned provides written notice to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives containing—
(I) a certification by the Secretary that the military value to the United States of the property or interest to be acquired justifies a payment in excess of the fair market value of the property or interest; and
(II) a description of the military value to be obtained; and
(ii) the contribution toward the acquisition costs of the property or interest is not made until at least 14 days after the date on which the notice is submitted under clause (i) or, if earlier, at least 10 days after the date on which a copy of the notice is provided in an electronic medium pursuant to section 480 of this title.
(E) The contribution of an entity or entities to the acquisition costs of real property, or an interest in real property, under paragraph (1)(B) may include, with the approval of the Secretary concerned, the following or any combination of the following:
(i) The provision of funds, including funds received by such entity or entities from a Federal agency outside the Department of Defense or a State or local government in connection with a Federal, State, or local program.
(ii) The provision of in-kind services, including services related to the acquisition or maintenance of such real property or interest in real property.
(iii) The exchange or donation of real property or any interest in real property.
(5) The agreement shall require the entity or entities to transfer to the United States, upon the request of the Secretary concerned, all or a portion of the property or interest acquired under the agreement or a lesser interest therein. The Secretary shall limit such transfer request to the minimum property or interests necessary to ensure that the property concerned is developed and used in a manner appropriate for purposes of this section.
(6) The Secretary concerned may accept on behalf of the United States any property or interest to be transferred to the United States under the agreement.
(7) For purposes of the acceptance of property or interests under the agreement, the Secretary concerned may accept an appraisal or title documents prepared or adopted by a non-Federal entity as satisfying the applicable requirements of section 301 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4651) or section 3111 of title 40, if the Secretary concerned finds that the appraisal or title documents substantially comply with the requirements.
(e)
(f)
(g)
(2) Each report under paragraph (1) shall include the following:
(A) A description of the status of the projects undertaken under agreements under this section.
(B) An assessment of the effectiveness of such projects, and other actions taken pursuant to this section, as part of a long-term strategy to ensure the sustainability of military test and training ranges, military installations, and associated airspace.
(C) An evaluation of the methodology and criteria used to select, and to establish priorities, for projects undertaken under agreements under this section.
(D) A description of any sharing of costs by the United States and eligible entities under subsection (d) during the preceding year, including a description of each agreement under this section providing for the sharing of such costs and a statement of the eligible entity or entities with which the United States is sharing such costs.
(E) Such recommendations as the Secretary of Defense considers appropriate for legislative or administrative action in order to improve the efficiency and effectiveness of actions taken pursuant to agreements under this section.
(h)
(2) In the case of a military installation operated primarily with funds authorized to be appropriated for research, development, test, and evaluation, funds authorized to be appropriated for the Army, Navy, Marine Corps, Air Force, or Defense-wide activities for research, development, test, and evaluation may be used to enter into agreements under this section with respect to the installation.
(i)
(1) The term “Secretary concerned” means the Secretary of Defense or the Secretary of a military department.
(2) The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas, and the territories and possessions of the United States.
(Added Pub. L. 107–314, div. B, title XXVIII, §2811(a), Dec. 2, 2002, 116 Stat. 2705; amended Pub. L. 109–163, div. B, title XXVIII, §2822, Jan. 6, 2006, 119 Stat. 3513; Pub. L. 109–364, div. B, title XXVIII, §2811(g), Oct. 17, 2006, 120 Stat. 2473; Pub. L. 110–181, div. B, title XXVIII, §2825, Jan. 28, 2008, 122 Stat. 545; Pub. L. 111–84, div. A, title X, §1073(a)(27), Oct. 28, 2009, 123 Stat. 2474; Pub. L. 111–383, div. A, title X, §1075(b)(43), Jan. 7, 2011, 124 Stat. 4371.)
2011—Subsec. (g)(1). Pub. L. 111–383 substituted “March 1 each year” for “March 1, 2007, and annually thereafter”.
2009—Subsec. (g)(2). Pub. L. 111–84 substituted “the following” for “the following the following” in introductory provisions.
2008—Subsec. (d)(3), (4). Pub. L. 110–181, §2825(a), added par. (3) and redesignated former par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (d)(4)(C). Pub. L. 110–181, §2825(b)(2), substituted “equal to, at the discretion of the Secretary concerned—” and cls. (i) and (ii) for “equal to the fair market value of any property or interest to be transferred to the United States upon the request of the Secretary concerned under paragraph (4).”
Subsec. (d)(4)(D), (E). Pub. L. 110–181, §2825(b)(1), (3), added subpar. (D) and redesignated former subpar. (D) as (E).
Subsec. (d)(5) to (7). Pub. L. 110–181, §2825(a)(1), redesignated pars. (4) to (6) as (5) to (7), respectively.
2006—Subsec. (a). Pub. L. 109–163, §2822(a)(1), in introductory provisions, inserted “or entities” after “entity” and substituted “in the vicinity of, or ecologically related to, a military installation or military airspace” for “in the vicinity of a military installation”.
Subsec. (d)(1). Pub. L. 109–163, §2822(a)(2)(A)(i), (b)(1)(A), inserted “or entities” after “eligible entity” and substituted “shall provide” for “may provide” in introductory provisions.
Subsec. (d)(1)(A). Pub. L. 109–163, §2822(a)(2)(A)(ii), inserted “or entities” after “the entity”.
Subsec. (d)(1)(B). Pub. L. 109–163, §2822(b)(1)(B), added subpar. (B) and struck out former subpar. (B) which read as follows: “the sharing by the United States and the entity of the acquisition costs.”
Subsec. (d)(3). Pub. L. 109–364 added subpar. (B), redesignated former subpars. (B) and (C) as (C) and (D), respectively, and in subpar. (C) substituted “under subparagraph (A), either through the contribution of funds or excess real property, or both,” for “in the sharing of acquisition costs of real property, or an interest in real property, under paragraph (1)(B)”.
Pub. L. 109–163, §2822(b)(3), added par. (3). Former par. (3) redesignated (4).
Pub. L. 109–163, §2822(a)(2)(B), inserted “or entities” after “the entity”.
Subsec. (d)(4) to (6). Pub. L. 109–163, §2822(b)(2), redesignated pars. (3) to (5) as (4) to (6), respectively.
Subsecs. (g) to (i). Pub. L. 109–163, §2822(c), added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively.
(a)
(b)
(A) to acquire (including acquisition by lease), construct, convert, expand, improve, repair, maintain, and equip the physical infrastructure of commissary stores and central product processing facilities of the defense commissary system; and
(B) to cover environmental evaluation and construction costs related to activities described in paragraph (1), including costs for surveys, administration, overhead, planning, and design.
(2) In paragraph (1), the term “physical infrastructure” includes real property, utilities, and equipment (installed and free standing and including computer equipment), necessary to provide a complete and usable commissary store or central product processing facility.
(c)
(d)
(2) In paragraph (1), the term “construction”, with respect to a facility, includes acquisition, conversion, expansion, installation, or other improvement of the facility.
(e)
(1) Sale of recyclable materials.
(2) Sale of excess and surplus property.
(3) License fees.
(4) Royalties.
(5) Fees paid by sources of products in order to obtain favorable display of the products for resale, known as business related management fees.
(Added Pub. L. 93–552, title VI, §611, Dec. 27, 1974, 88 Stat. 1765; amended Pub. L. 95–82, title VI, §614, Aug. 1, 1977, 91 Stat. 380; Pub. L. 97–321, title VIII, §804, Oct. 15, 1982, 96 Stat. 1572; Pub. L. 103–337, div. B, title XXVIII, §2851, Oct. 5, 1994, 108 Stat. 3072; Pub. L. 105–85, div. A, title III, §374, Nov. 18, 1997, 111 Stat. 1707; Pub. L. 106–398, §1 [[div. A], title III, §333(a), (b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–60.)
2000—Subsec. (a). Pub. L. 106–398, §1 [[div. A], title III, §333(b)(1)], substituted “Secretary of Defense” for “Secretary of a military department, under regulations established by him and approved by the Secretary of Defense,”.
Subsec. (b). Pub. L. 106–398, §1 [[div. A], title III, §333(a)], amended heading and text of subsec. (b) generally. Prior to amendment, text read as follows: “The Secretary of a military department, under regulations established by him and approved by the Secretary of Defense, may use the proceeds from the adjustments or surcharges authorized by subsection (a) to acquire, construct, convert, expand, install, or otherwise improve commissary store facilities at defense installations and for related environmental evaluation and construction costs, including surveys, administration, overhead, planning, and design.”
Subsec. (c). Pub. L. 106–398, §1 [[div. A], title III, §333(b)(2)], substituted “Secretary of Defense, with the approval of” for “Secretary of a military department, with the approval of the Secretary of Defense and” and “Secretary determines” for “Secretary of the military department determines”.
Subsec. (d)(1). Pub. L. 106–398, §1 [[div. A], title III, §333(b)(3)], substituted “Secretary of Defense” for “Secretary of a military department”.
1997—Subsecs. (a) to (d). Pub. L. 105–85, §374(b), inserted subsec. headings.
Subsec. (e). Pub. L. 105–85, §374(a), added subsec. (e).
1994—Subsec. (c). Pub. L. 103–337, §2851(b), inserted “or (d)” after “subsection (b)” in two places.
Subsec. (d). Pub. L. 103–337, §2851(a), added subsec. (d).
1982—Subsec. (c). Pub. L. 97–321 added subsec. (c).
1977—Subsec. (b). Pub. L. 95–82 struck out “within the United States” after “defense installations”.
Pub. L. 106–398, §1 [[div. A], title III, §333(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–60, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on October 1, 2001.”
(a) Under such regulations and for such periods and at such prices as he may prescribe, the Secretary concerned or his designee may sell or contract to sell to purchasers within or in the immediate vicinity of an activity of the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be, any of the following utilities and related services, if it is determined that they are not available from another local source and that the sale is in the interest of national defense or in the public interest:
(1) Electric power.
(2) Steam.
(3) Compressed air.
(4) Water.
(5) Sewage and garbage disposal.
(6) Natural, manufactured, or mixed gas.
(7) Ice.
(8) Mechanical refrigeration.
(9) Telephone service.
(b) Proceeds of sales under subsection (a) shall be credited to the appropriation currently available for the supply of that utility or service.
(c) To meet local needs the Secretary concerned may make minor expansions and extensions of any distributing system or facility within an activity through which a utility or service is furnished under subsection (a).
(Aug. 10, 1956, ch. 1041, 70A Stat. 141, §2481; Pub. L. 86–156, Aug. 14, 1959, 73 Stat. 338; renumbered §2686, Pub. L. 105–85, div. A, title III, §371(b)(1), Nov. 18, 1997, 111 Stat. 1705.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2481(a) | 5:626s. 5:626s–1 (less words between semicolon and colon). 10:1269. |
July 30, 1947, ch. 394, 61 Stat. 675; Aug. 8, 1949, ch. 403, §5, 63 Stat. 576. |
| 10:1269a (less words between semicolon and colon). | ||
| 34:553a. | ||
| 34:553b (less words between semicolon and colon). | ||
| 2481(b) | 5:626s–1 (words between semicolon and colon). | |
| 10:1269a (words between semicolon and colon). | ||
| 34:553b (words between semicolon and colon). | ||
| 2481(c) | 5:626s–2. | |
| 10:1269b. | ||
| 34:553c. |
In subsection (a), the words “within his establishment”, “of time”, and the opening clauses of 5:626s–1, 10:1269a, and 34:553b, are omitted as surplusage. The words “not available from another local source” are substituted for the words “not otherwise available from local private or public sources”.
In subsection (b), the words “of sales under subsection (a)” are substituted for the words “received for any such utilities and related services sold pursuant to the authority of said sections”. The words “or appropriations” are omitted as surplusage.
A prior section 2686, added Pub. L. 95–82, title V, §504(a)(1), Aug. 1, 1977, 91 Stat. 371; amended Pub. L. 95–356, title V, §503(a), Sept. 8, 1978, 92 Stat. 579; Pub. L. 96–125, title V, §502(a), Nov. 26, 1979, 93 Stat. 940; Pub. L. 96–418, title V, §504(a), Oct. 10, 1980, 94 Stat. 1765, related to military family housing leases, prior to repeal by Pub. L. 97–214, §§7(1), 12(a), July 12, 1982, 96 Stat. 173, 176, effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date. See section 2828(a), (b) of this title.
1997—Pub. L. 105–85 renumbered section 2481 of this title as this section.
1959—Subsec. (a). Pub. L. 86–156, §1(1), substituted “concerned” for “of a military department” and inserted “or Coast Guard,” after “Marine Corps,”.
Subsec. (c). Pub. L. 86–156, §1(2), struck out “of the military department” after “Secretary”.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
(a) Notwithstanding any other provision of law, no action may be taken to effect or implement—
(1) the closure of any military installation at which at least 300 civilian personnel are authorized to be employed;
(2) any realignment with respect to any military installation referred to in paragraph (1) involving a reduction by more than 1,000, or by more than 50 percent, in the number of civilian personnel authorized to be employed at such military installation at the time the Secretary of Defense or the Secretary of the military department concerned notifies the Congress under subsection (b) of the Secretary's plan to close or realign such installation; or
(3) any construction, conversion, or rehabilitation at any military facility other than a military installation referred to in clause (1) or (2) which will or may be required as a result of the relocation of civilian personnel to such facility by reason of any closure or realignment to which clause (1) or (2) applies,
unless and until the provisions of subsection (b) are complied with.
(b) No action described in subsection (a) with respect to the closure of, or a realignment with respect to, any military installation referred to in such subsection may be taken unless and until—
(1) the Secretary of Defense or the Secretary of the military department concerned notifies the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives, as part of an annual request for authorization of appropriations to such Committees, of the proposed closing or realignment and submits with the notification an evaluation of the fiscal, local economic, budgetary, environmental, strategic, and operational consequences of such closure or realignment; and
(2) a period of 30 legislative days or 60 calendar days, whichever is longer, expires following the day on which the notice and evaluation referred to in clause (1) have been submitted to such committees, during which period no irrevocable action may be taken to effect or implement the decision.
(c) This section shall not apply to the closure of a military installation, or a realignment with respect to a military installation, if the President certifies to the Congress that such closure or realignment must be implemented for reasons of national security or a military emergency.
(d)(1) After the expiration of the period of time provided for in subsection (b)(2) with respect to the closure or realignment of a military installation, funds which would otherwise be available to the Secretary to effect the closure or realignment of that installation may be used by him for such purpose.
(2) Nothing in this section restricts the authority of the Secretary to obtain architectural and engineering services under section 2807 of this title.
(e) In this section:
(1) The term “military installation” means a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the Department of Defense, including any leased facility, which is located within any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, or Guam. Such term does not include any facility used primarily for civil works, rivers and harbors projects, or flood control projects.
(2) The term “civilian personnel” means direct-hire, permanent civilian employees of the Department of Defense.
(3) The term “realignment” includes any action which both reduces and relocates functions and civilian personnel positions, but does not include a reduction in force resulting from workload adjustments, reduced personnel or funding levels, skill imbalances, or other similar causes.
(4) The term “legislative day” means a day on which either House of Congress is in session.
(Added Pub. L. 95–82, title VI, §612(a), Aug. 1, 1977, 91 Stat. 379; amended Pub. L. 95–356, title VIII, §805, Sept. 8, 1978, 92 Stat. 586; Pub. L. 97–214, §10(a)(8), July 12, 1982, 96 Stat. 175; Pub. L. 98–525, title XIV, §1405(41), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 99–145, title XII, §1202(a), Nov. 8, 1985, 99 Stat. 716; Pub. L. 100–180, div. A, title XII, §1231(17), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 101–510, div. B, title XXIX, §2911, Nov. 5, 1990, 104 Stat. 1819; 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; Pub. L. 110–417, div. B, title XXVIII, §2823(a), Oct. 14, 2008, 122 Stat. 4730.)
2008—Subsec. (e)(1). Pub. L. 110–417 inserted “the Commonwealth of the Northern Mariana Islands,” after “Virgin Islands,”.
1999—Subsec. (b)(1). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1996—Subsec. (b)(1). 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”.
1990—Subsec. (e)(1). Pub. L. 101–510 inserted “homeport facility for any ship,” after “center,” and substituted “under the jurisdiction of the Department of Defense, including any leased facility,” for “under the jurisdiction of the Secretary of a military department”.
1987—Subsec. (e). Pub. L. 100–180 inserted “The term” after each par. designation and revised first word in quotes in each par. to make initial letter of such word lowercase.
1985—Pub. L. 99–145 amended section generally, thereby applying the section only to closure of bases with more than 300 civilian personnel authorized to be employed and to realignments involving a reduction by more than 1,000, or by more than 50 percent, in the number of civilian personnel authorized to be employed at bases with more than 300 authorized civilian employees, striking out advance public notice required by the Secretary of Defense or the Secretary of the military department concerned when an installation is a candidate for closure or realignment, requiring that all base closure or realignment proposals be submitted to the Committee on Armed Services of the Senate and of the House of Representatives as part of the annual budget request and that such proposals contain an evaluation of the fiscal, local economic, budgetary, environmental, strategic, and operational consequences of such action, providing that no irrevocable action to implement the closure to realignment could be taken until the expiration of 30 legislative days or 60 calendar days, whichever is longer, and making explicit the authority of the Secretary to obtain architectural and engineering services under section 2807 of this title and to use funds that would otherwise be available to effect the closure or realignment after expiration of the notice period.
1984—Subsec. (a)(2). Pub. L. 98–525, §1405(41)(A), substituted “1,000” for “one thousand”.
Subsec. (b)(2). Pub. L. 98–525, §1405(41)(B), inserted “(42 U.S.C. 4321 et seq.)”.
Subsec. (b)(4). Pub. L. 98–525, §1405(41)(C), substituted “60” for “sixty”.
Subsec. (d)(1)(B). Pub. L. 98–525, §1405(41)(D), substituted “300” for “three hundred”.
1982—Subsec. (d)(1). Pub. L. 97–214 substituted “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department” for “any camp, post, station, base, yard, or other facility under the authority of the Department of Defense”.
1978—Subsec. (d)(1)(B). Pub. L. 95–356 substituted “three hundred” for “five hundred”.
Section 1202(b) of Pub. L. 99–145 provided that: “The amendment made by subsection (a) [amending this section] shall apply to closures and realignments completed on or after the date of the enactment of this Act [Nov. 8, 1985], except that any action taken to effect or implement any closure or realignment for which a public announcement was made pursuant to section 2687(b)(1) of title 10, United States Code, after April 1, 1985, and before the date of enactment of this Act shall be subject to the provisions of section 2687 of such title as in effect on the day before such date of enactment.”
Amendment by Pub. L. 97–214 effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as an Effective Date note under section 2801 of this title.
Pub. L. 100–526, §1, Oct. 24, 1988, 102 Stat. 2623, provided that: “This Act [amending sections 1095a, 2324, 2683, and 4415 of this title, enacting provisions set out as notes under this section and sections 154 and 2306 of this title, and amending provisions set out as notes under section 2324 of this title] may be cited as the ‘Defense Authorization Amendments and Base Closure and Realignment Act’.”
Pub. L. 103–337, div. B, title XXVIII, §2813(d)(3), Oct. 5, 1994, 108 Stat. 3055, provided that: “The amendments made by paragraphs (1) and (2) [amending section 209(10) of Pub. L. 100–526 and section 2910(9) of Pub. L. 101–510, set out below] shall take effect as if included in the amendments made by section 2918 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160; 107 Stat. 1927).”
Pub. L. 102–190, div. A, title III, §344(c), Dec. 5, 1991, 105 Stat. 1346, provided that: “The amendments made by this section [amending provisions set out as notes below] shall apply with regard to the transfer or disposal of any real property or facility pursuant to title II of the Defense Authorization Amendments and Base Closure and Realignment Act [Pub. L. 100–526, set out below] or the Defense Base Closure and Realignment Act of 1990 [part A of title XXIX of div. B of Pub. L. 101–510, set out below] occurring on or after the date of the enactment of this Act [Dec. 5, 1991].”
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 111–84, div. B, title XXVIII, §2832(a)–(c), Oct. 28, 2009, 123 Stat. 2669, 2670, provided that:
“(a)
“(b)
“(1)
“(2)
“(c)
“(1)
“(2)
“(3)
“(A) increasing the overseas housing allowance for members of the Armed Forces serving on Guam; and
“(B) providing a direct Federal subsidy to public-private ventures.”
Pub. L. 111–84, div. B, title XXVIII, §2835, Oct. 28, 2009, 123 Stat. 2674, as amended by Pub. L. 111–383, div. A, title X, §1075(d)(24), Jan. 7, 2011, 124 Stat. 4374, provided that:
“(a)
“(1) to provide for the objective conduct and supervision of audits and investigations relating to the programs and operations funded with amounts appropriated or otherwise made available for military construction on Guam in connection with the realignment of military installations and the relocation of military personnel on Guam; and
“(2) to provide for coordination of, and recommendations on, policies designed—
“(A) to promote economic efficiency and effectiveness in the administration of the programs and operations described in paragraph (1); and
“(B) to prevent and detect waste, fraud, and abuse in such programs and operations.
“(b)
“(1)
“(2)
“(c)
“(1)
“(A) the oversight and accounting of the obligation and expenditure of such funds;
“(B) the monitoring and review of construction activities funded by such funds;
“(C) the monitoring and review of contracts funded by such funds;
“(D) the monitoring and review of the transfer of such funds and associated information between and among departments, agencies, and entities of the United States and private and nongovernmental entities;
“(E) the maintenance of records on the use of such funds to facilitate future audits and investigations of the use of such fund; and
“(F) the monitoring and review of the implementation of the Defense Posture Review Initiative relating to the realignment of military installations and the relocation of military personnel on Guam.
“(2)
“(3)
“(d)
“(1)
“(2)
“(e)
“(1)
“(A) Obligations and expenditures of appropriated funds.
“(B) A project-by-project and program-by-program accounting of the costs incurred to date for military construction in connection with the realignment of military installations and the relocation of military personnel on Guam, together with the estimate of the Department of Defense and the Department of the Interior, as applicable, of the costs to complete each project and each program.
“(C) Revenues attributable to or consisting of funds contributed by the Government of Japan in connection with the realignment of military installations and the relocation of military personnel on Guam and any obligations or expenditures of such revenues.
“(D) Operating expenses of agencies or entities receiving amounts appropriated or otherwise made available for military construction on Guam.
“(E) In the case of any contract, grant, agreement, or other funding mechanism described in paragraph (2)—
“(i) the amount of the contract, grant, agreement, or other funding mechanism;
“(ii) a brief discussion of the scope of the contract, grant, agreement, or other funding mechanism;
“(iii) a discussion of how the department or agency of the United States Government involved in the contract, grant, agreement, or other funding mechanism identified, and solicited offers from, potential individuals or entities to perform the contract, grant, agreement, or other funding mechanism, together with a list of the potential individuals or entities that were issued solicitations for the offers; and
“(iv) the justification and approval documents on which was based the determination to use procedures other than procedures that provide for full and open competition.
“(2)
“(A) is entered into by any department or agency of the United States Government with any public or private sector entity; and
“(B) involves the use of amounts appropriated or otherwise made available for military construction on Guam.
“(3)
“(4)
“(A) specifically prohibited from disclosure by any other provision of law;
“(B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or
“(C) a part of an ongoing criminal investigation.
“(5)
“(f)
“(1)
“(2)
“(3)
“(g)
“(1)
“(2)
“(h)
“(1)
“(2)
“(A) notice that the termination condition in paragraph (1) has occurred; and
“(B) a final forensic audit on programs and operations funded with amounts appropriated or otherwise made available for military construction on Guam.”
Pub. L. 110–417, div. B, title XXVIII, §2824, Oct. 14, 2008, 122 Stat. 4730, as amended by Pub. L. 111–84, div. B, title XXVIII, §§2832(c)(1), 2833, 2834(a), Oct. 28, 2009, 123 Stat. 2670–2672, provided that:
“(a)
“(b)
“(1)
“(2)
“(c)
“(1)
“(A) To carry out or facilitate the carrying out of a transaction authorized by this section in connection with the realignment of military installations and the relocation of military personnel on Guam, including military construction, military family housing, unaccompanied housing, general facilities constructions for military forces, and utilities improvements.
“(B) To carry out improvements of property or facilities on Guam as part of such a transaction.
“(C) To obtain property support services for property or facilities on Guam resulting from such a transaction.
“(D) To develop military facilities or training ranges in the Commonwealth of the Northern Mariana Islands.
“(2)
“(3)
“(4)
“(A)
“(B)
“(C)
“(D)
“(5)
“(A)
“(B)
“(C)
“(D)
“(E)
“(6)
“(A)
“(i) the application for that visa has been approved pursuant to the issuance of a temporary labor certification by the Governor of Guam as provided under section 214.2 of title 8, Code of Federal Regulations; and
“(ii) the Governor of Guam, in consultation with the Secretary of Labor, makes the certification described in subparagraph (C) to the Secretary of Defense.
“(B)
“(i) amounts in the Account used for projects associated with the realignment of military installations and the relocation of military personnel on Guam;
“(ii) funds associated with activities under section 2821 of this Act [amending section 2688 of this title]; and
“(iii) funds for authorized military construction projects.
“(C)
“(i) there are not sufficient United States workers who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the persons holding visas described in section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) are to perform such skilled or unskilled labor; and
“(ii) the employment of such persons holding visas described in section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) will not adversely affect the wages and working conditions of workers in Guam similarly employed.
“(D)
“(E)
“(F)
“(d)
“(1)
“(2)
“(e)
“(2)
“(f)
Pub. L. 109–163, div. B, title XXVIII, §2835, Jan. 6, 2006, 119 Stat. 3521, provided that: “If the base closure and realignment decisions of the 2005 round of base closures and realignments under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note) or the Integrated Global Presence and Basing Strategy would result in an increase in the number of members of the Armed Forces assigned to a military installation, the Secretary of Defense, during the development of the plans to implement the decisions or strategy with respect to that installation, shall consult with appropriate State and local entities to ensure that matters affecting the local community, including requirements for transportation, utility infrastructure, housing, education, and family support activities, are considered.”
Pub. L. 108–136, div. B, title XXVIII, §2822, Nov. 24, 2003, 117 Stat. 1726, provided that:
“(a)
“(b)
Pub. L. 105–85, div. B, title XXVIII, §2824, Nov. 18, 1997, 111 Stat. 1998, as amended by Pub. L. 105–277, div. A, §101(f) [title VIII, §405(d)(9), (f)(8)], Oct. 21, 1998, 112 Stat. 2681–337, 2681–420, 2681–430, required the Secretary of Defense to prepare and submit to the Committees on Armed Services and Appropriations of Senate and House of Representatives, not later than the date on which the President submitted to Congress the budget for fiscal year 2000, a report on the costs and savings attributable to the rounds of base closures and realignments conducted under the base closure laws and on the need, if any, for additional rounds of base closures and realignments.
Pub. L. 104–201, div. A, title XVI, §1602, Sept. 23, 1996, 110 Stat. 2734, provided that:
“(a)
“(b)
“(1) was approved for closure in 1995 under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note);
“(2) is scheduled for transfer to National Guard operation and control; and
“(3) will continue to be used, after such transfer, to provide training support to active and reserve components of the Armed Forces.
“(c)
“(d)
“(1) The date of the departure or retirement from that position by the civilian employee initially employed or retained in the position as a result of this section.
“(2) The date on which the Secretary certifies to Congress that the position is no longer required to ensure that effective support is provided at the installation for active and reserve component training.”
Section 2837(b) of Pub. L. 104–106 provided that: “Notwithstanding any other provision of law, a department or agency of the Federal Government that enters into a lease of property under section 2905(b)(4)(C) [now 2905(b)(4)(E)] of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note), as amended by subsection (a), may improve the leased property using funds appropriated or otherwise available to the department or agency for such purpose.”
Section 2840(c) of Pub. L. 104–106 provided that not later than nine months after Feb. 10, 1996, the Secretary of Defense was to prescribe any regulations necessary to carry out section 204(e) of the Defense Authorization Amendments and Base Closure and Realignment Act (Pub. L. 100–526) and section 2905(f) of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Pub. L. 101–510), set out in notes below.
Pub. L. 104–6, title I, §112, Apr. 10, 1995, 109 Stat. 82, provided that: “None of the funds made available to the Department of Defense for any fiscal year for military construction or family housing may be obligated to initiate construction projects upon enactment of this Act [Apr. 10, 1995] for any project on an installation that—
“(1) was included in the closure and realignment recommendations submitted by the Secretary of Defense to the Base Closure and Realignment Commission on February 28, 1995, unless removed by the Base Closure and Realignment Commission, or
“(2) is included in the closure and realignment recommendation as submitted to Congress in 1995 in accordance with the Defense Base Closure and Realignment Act of 1990, as amended (Public Law 101–510) [part A of title XXIX of div. B of Pub. L. 101–510, set out below]:
Provided, That the prohibition on obligation of funds for projects located on an installation cited for realignment are only to be in effect if the function or activity with which the project is associated will be transferred from the installation as a result of the realignment: Provided further, That this provision will remain in effect unless the Congress enacts a Joint Resolution of Disapproval in accordance with the Defense Base Closure and Realignment Act of 1990, as amended (Public Law 101–510).”
Pub. L. 103–421, §2(e), Oct. 25, 1994, 108 Stat. 4352, as amended by Pub. L. 104–106, div. A, title XV, §1505(f), Feb. 10, 1996, 110 Stat. 515; Pub. L. 107–107, div. A, title X, §1048(d)(5), Dec. 28, 2001, 115 Stat. 1227, provided that:
“(1)(A) Notwithstanding any provision of the 1988 base closure Act or the 1990 base closure Act, as such provision was in effect on the day before the date of the enactment of this Act [Oct. 25, 1994], and subject to subparagraphs (B) and (C), the use to assist the homeless of building and property at military installations approved for closure under the 1988 base closure Act or the 1990 base closure Act, as the case may be, before such date shall be determined in accordance with the provisions of paragraph (7) of section 2905(b) of the 1990 base closure Act, as amended by subsection (a), in lieu of the provisions of the 1988 base closure Act or the 1990 base closure Act that would otherwise apply to the installations.
“(B)(i) The provisions of such paragraph (7) shall apply to an installation referred to in subparagraph (A) only if the redevelopment authority for the installation submits a request to the Secretary of Defense not later than 60 days after the date of the enactment of this Act.
“(ii) In the case of an installation for which no redevelopment authority exists on the date of the enactment of this Act, the chief executive officer of the State in which the installation is located shall submit the request referred to in clause (i) and act as the redevelopment authority for the installation.
“(C) The provisions of such paragraph (7) shall not apply to any buildings or property at an installation referred to in subparagraph (A) for which the redevelopment authority submits a request referred to in subparagraph (B) within the time specified in such subparagraph (B) if the buildings or property, as the case may be, have been transferred or leased for use to assist the homeless under the 1988 base closure Act or the 1990 base closure Act, as the case may be, before the date of the enactment of this Act.
“(2) For purposes of the application of such paragraph (7) to the buildings and property at an installation, the date on which the Secretary receives a request with respect to the installation under paragraph (1) shall be treated as the date on which the Secretary of Defense completes the final determination referred to in subparagraph (B) of such paragraph (7).
“(3) Upon receipt under paragraph (1)(B) of a timely request with respect to an installation, the Secretary of Defense shall publish in the Federal Register and in a newspaper of general circulation in the communities in the vicinity of the installation information describing the redevelopment authority for the installation.
“(4)(A) The Secretary of Housing and Urban Development and the Secretary of Health and Human Services shall not, during the 60-day period beginning on the date of the enactment of this Act [Oct. 25, 1994], carry out with respect to any military installation approved for closure under the 1988 base closure Act or the 1990 base closure Act before such date any action required of such Secretaries under the 1988 base closure Act or the 1990 base closure Act, as the case may be, or under section 501 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411).
“(B)(i) Upon receipt under paragraph (1)(A) of a timely request with respect to an installation, the Secretary of Defense shall notify the Secretary of Housing and Urban Development and the Secretary of Health and Human Services that the disposal of buildings and property at the installation shall be determined under such paragraph (7) in accordance with this subsection.
“(ii) Upon receipt of a notice with respect to an installation under this subparagraph, the requirements, if any, of the Secretary of Housing and Urban Development and the Secretary of Health and Human Services with respect to the installation under the provisions of law referred to in subparagraph (A) shall terminate.
“(iii) Upon receipt of a notice with respect to an installation under this subparagraph, the Secretary of Health and Human Services shall notify each representative of the homeless that submitted to that Secretary an application to use buildings or property at the installation to assist the homeless under the 1988 base closure Act or the 1990 base closure Act, as the case may be, that the use of buildings and property at the installation to assist the homeless shall be determined under such paragraph (7) in accordance with this subsection.
“(5) In preparing a redevelopment plan for buildings and property at an installation covered by such paragraph (7) by reason of this subsection, the redevelopment authority concerned shall—
“(A) consider and address specifically any applications for use of such buildings and property to assist the homeless that were received by the Secretary of Health and Human Services under the 1988 base closure Act or the 1990 base closure Act, as the case may be, before the date of the enactment of this Act [Oct. 25, 1994] and are pending with that Secretary on that date; and
“(B) in the case of any application by representatives of the homeless that was approved by the Secretary of Health and Human Services before the date of enactment of this Act, ensure that the plan adequately addresses the needs of the homeless identified in the application by providing such representatives of the homeless with—
“(i) properties, on or off the installation, that are substantially equivalent to the properties covered by the application;
“(ii) sufficient funding to secure such substantially equivalent properties;
“(iii) services and activities that meet the needs identified in the application; or
“(iv) a combination of the properties, funding, and services and activities described in clauses (i), (ii), and (iii).
“(6) In the case of an installation to which the provisions of such paragraph (7) apply by reason of this subsection, the date specified by the redevelopment authority for the installation under subparagraph (D) of such paragraph (7) shall be not less than 1 month and not more than 6 months after the date of the submittal of the request with respect to the installation under paragraph (1)(B).
“(7) For purposes of this subsection:
“(A) The term ‘1988 base closure Act’ means title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(B) The term ‘1990 base closure Act’ means the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).”
Pub. L. 103–337, div. A, title VIII, §817, Oct. 5, 1994, 108 Stat. 2820, provided that:
“(a)
“(b)
“(1) The provisions of title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(2) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
“(c)
“(d)
Pub. L. 103–337, div. B, title XXVIII, §2814, Oct. 5, 1994, 108 Stat. 3056, as amended by Pub. L. 107–314, div. A, title X, §1062(l), Dec. 2, 2002, 116 Stat. 2652; Pub. L. 109–163, div. A, title X, §1056(a)(3), Jan. 6, 2006, 119 Stat. 3439, provided that:
“(a)
“(b)
Pub. L. 103–337, div. B, title XXVIII, §2815, Oct. 5, 1994, 108 Stat. 3056, required the Secretary of Defense to prepare and submit to the congressional defense committees, not later than Jan. 31, 1996, a report evaluating the effect of base closures and realignments conducted since Jan. 1, 1987, on the ability of the Armed Forces to remobilize to the end strength levels authorized for fiscal year 1987 by sections 401, 403, 411, and 421 of the National Defense Authorization Act for Fiscal Year 1987 (Pub. L. 99–661; 100 Stat. 3859).
Pub. L. 103–160, div. B, title XXIX, §2901, Nov. 30, 1993, 107 Stat. 1909, provided that: “Congress makes the following findings:
“(1) The closure and realignment of military installations within the United States is a necessary consequence of the end of the Cold War and of changed United States national security requirements.
“(2) A military installation is a significant source of employment for many communities, and the closure or realignment of an installation may cause economic hardship for such communities.
“(3) It is in the interest of the United States that the Federal Government facilitate the economic recovery of communities that experience adverse economic circumstances as a result of the closure or realignment of a military installation.
“(4) It is in the interest of the United States that the Federal Government assist communities that experience adverse economic circumstances as a result of the closure of military installations by working with such communities to identify and implement means of reutilizing or redeveloping such installations in a beneficial manner or of otherwise revitalizing such communities and the economies of such communities.
“(5) The Federal Government may best identify and implement such means by requiring that the head of each department or agency of the Federal Government having jurisdiction over a matter arising out of the closure of a military installation under a base closure law, or the reutilization and redevelopment of such an installation, designate for each installation to be closed an individual in such department or agency who shall provide information and assistance to the transition coordinator for the installation designated under section 2915 [set out below] on the assistance, programs, or other activities of such department or agency with respect to the closure or reutilization and redevelopment of the installation.
“(6) The Federal Government may also provide such assistance by accelerating environmental restoration at military installations to be closed, and by closing such installations, in a manner that best ensures the beneficial reutilization and redevelopment of such installations by such communities.
“(7) The Federal Government may best contribute to such reutilization and redevelopment by making available real and personal property at military installations to be closed to communities affected by such closures on a timely basis, and, if appropriate, at less than fair market value.”
Pub. L. 103–160, div. B, title XXIX, §2903(c), (d), Nov. 30, 1993, 107 Stat. 1915, provided that:
“(c)
“(d)
Pub. L. 103–160, div. B, title XXIX, §2908(c), Nov. 30, 1993, 107 Stat. 1924, provided that: “Not later than nine months after the date of the enactment of this Act [Nov. 30, 1993], the Secretary of Defense, in consultation with the Administrator of the Environmental Protection Agency, shall prescribe any regulations necessary to carry out subsection (d) of section 204 of the Defense Authorization Amendments and Base Closure and Realignment Act (title II of Public Law 100–526; 10 U.S.C. 2687 note), as added by subsection (a), and subsection (e) of section 2905 of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note), as added by subsection (b).”
Pub. L. 103–160, div. B, title XXIX, §2911, Nov. 30, 1993, 107 Stat. 1924, provided that: “Not later than 12 months after the date of the submittal to the Secretary of Defense of a redevelopment plan for an installation approved for closure under a base closure law, the Secretary of Defense shall, to the extent practicable, complete any environmental impact analyses required with respect to the installation, and with respect to the redevelopment plan, if any, for the installation, pursuant to the base closure law under which the installation is closed, and pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).”
Pub. L. 103–160, div. B, title XXIX, §2912, Nov. 30, 1993, 107 Stat. 1925, as amended by Pub. L. 103–337, div. A, title X, §1070(b)(14), Oct. 5, 1994, 108 Stat. 2857, provided that:
“(a)
“(b)
“(1) The term ‘small business concern’ means a business concern meeting the requirements of section 3 of the Small Business Act (15 U.S.C. 632).
“(2) The term ‘small disadvantaged business concern’ means the business concerns referred to in section 8(d)(1) of such Act (15 U.S.C. 637(d)(1)).
“(3) The term ‘base closure law’ includes section 2687 of title 10, United States Code.”
Pub. L. 103–160, div. B, title XXIX, §2915, Nov. 30, 1993, 107 Stat. 1926, as amended by Pub. L. 107–107, div. A, title X, §1048(d)(4), Dec. 28, 2001, 115 Stat. 1227, provided that:
“(a)
“(b)
“(1) Not later than 15 days after the date of approval of closure of the installation.
“(2) In the case of installations approved for closure under a base closure law before the date of the enactment of this Act [Nov. 30, 1993], not later than 15 days after such date of enactment.
“(c)
“(1) encourage, after consultation with officials of Federal and State departments and agencies concerned, the development of strategies for the expeditious environmental cleanup and restoration of the installation by the Department of Defense;
“(2) assist the Secretary of the military department concerned in designating real property at the installation that has the potential for rapid and beneficial reuse or redevelopment in accordance with the redevelopment plan for the installation;
“(3) assist such Secretary in identifying strategies for accelerating completion of environmental cleanup and restoration of the real property designated under paragraph (2);
“(4) assist such Secretary in developing plans for the closure of the installation that take into account the goals set forth in the redevelopment plan for the installation;
“(5) assist such Secretary in developing plans for ensuring that, to the maximum extent practicable, the Department of Defense carries out any activities at the installation after the closure of the installation in a manner that takes into account, and supports, the redevelopment plan for the installation;
“(6) assist the Secretary of Defense in making determinations with respect to the transferability of property at the installation under section 204(b)(5) of the Defense Authorization Amendments and Base Closure and Realignment Act (title II of Public Law 100–526; 10 U.S.C. 2687 note), as added by section 2904(a) of this Act, and under section 2905(b)(5) of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note), as added by section 2904(b) of this Act, as the case may be;
“(7) assist the local redevelopment authority with respect to the installation in identifying real property or personal property at the installation that may have significant potential for reuse or redevelopment in accordance with the redevelopment plan for the installation;
“(8) assist the Office of Economic Adjustment of the Department of Defense and other departments and agencies of the Federal Government in coordinating the provision of assistance under transition assistance and transition mitigation programs with community redevelopment activities with respect to the installation;
“(9) assist the Secretary of the military department concerned in identifying property located at the installation that may be leased in a manner consistent with the redevelopment plan for the installation; and
“(10) assist the Secretary of Defense in identifying real property or personal property at the installation that may be utilized to meet the needs of the homeless by consulting with the Secretary of Housing and Urban Development and the local lead agency of the homeless, if any, referred to in section 210(b) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11320(b)) for the State in which the installation is located.”
Pub. L. 103–160, div. B, title XXIX, §2918(a), Nov. 30, 1993, 107 Stat. 1927, provided that: “In this subtitle [subtitle A (§§2901 to 2918) of title XXIX of div. B of Pub. L. 103–160, amending sections 2391 and 2667 of this title, enacting provisions set out as notes under this section and section 9620 of Title 42, The Public Health and Welfare, and amending provisions set out as notes under this section]:
“(1) The term ‘base closure law’ means the following:
“(A) The provisions of title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(B) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
“(2) The term ‘date of approval’, with respect to a closure or realignment of an installation, means the date on which the authority of Congress to disapprove a recommendation of closure or realignment, as the case may be, of such installation under the applicable base closure law expires.
“(3) The term ‘redevelopment authority’, in the case of an installation to be closed under a base closure law, means any entity (including an entity established by a State or local government) recognized by the Secretary of Defense as the entity responsible for developing the redevelopment plan with respect to the installation and for directing the implementation of such plan.
“(4) The term ‘redevelopment plan’, in the case of an installation to be closed under a base closure law, means a plan that—
“(A) is agreed to by the redevelopment authority with respect to the installation; and
“(B) provides for the reuse or redevelopment of the real property and personal property of the installation that is available for such reuse and redevelopment as a result of the closure of the installation.”
Pub. L. 103–160, div. B, title XXIX, §2922, Nov. 30, 1993, 107 Stat. 1930, as amended by Pub. L. 104–106, div. A, title XV, §1502(c)(1), Feb. 10, 1996, 110 Stat. 506; Pub. L. 106–65, div. A, title X, §1067(7), Oct. 5, 1999, 113 Stat. 774, provided that:
“(a)
“(b)
“(1) identifies the installation to which the function is to be transferred; and
“(2) includes the justification for the transfer to such installation.
“(c)
“(1) The term ‘1990 base closure Act’ means the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
“(2) The term ‘Defense Base Closure Account 1990’ means the account established under section 2906 of the 1990 base closure Act [set out below].”
Pub. L. 103–160, div. B, title XXIX, §2925, Nov. 30, 1993, 107 Stat. 1932, as amended by Pub. L. 104–106, div. A, title XV, §1502(c)(1), Feb. 10, 1996, 110 Stat. 506, provided that:
“(a)
“(b)
“(2) The Secretary shall submit the report upon publication of the amended criteria in accordance with section 2903(b)(2)(B) of the Defense Base Closure and Realignment Act of 1990.”
Pub. L. 102–581, title I, §107(d), Oct. 31, 1992, 106 Stat. 4879, provided that within 30 days after the date on which the Secretary of Defense recommended a list of military bases for closure or realignment pursuant to section 2903(c) of the Defense Base Closure and Realignment Act of 1990 (Pub. L. 101–510, set out below), the Administrator of the Federal Aviation Administration was to submit to Congress and the Defense Base Closure and Realignment Commission a report on the effects of all those recommendations involving military airbases, including the effect on civilian airports and airways in the local community and region; potential modifications and costs necessary to convert such bases to civilian aviation use; and in the case of air traffic control or radar coverage currently provided by the Department of Defense, potential installations or adjustments of equipment and costs necessary for the Federal Aviation Administration to maintain existing levels of service for the local community and region.
Pub. L. 102–484, div. A, title III, §330, Oct. 23, 1992, 106 Stat. 2371, as amended by Pub. L. 103–160, div. A, title X, §1002, Nov. 30, 1993, 107 Stat. 1745, provided that:
“(a)
“(2) The persons and entities described in this paragraph are the following:
“(A) Any State (including any officer, agent, or employee of the State) that acquires ownership or control of any facility at a military installation (or any portion thereof) described in paragraph (1).
“(B) Any political subdivision of a State (including any officer, agent, or employee of the State) that acquires such ownership or control.
“(C) Any other person or entity that acquires such ownership or control.
“(D) Any successor, assignee, transferee, lender, or lessee of a person or entity described in subparagraphs (A) through (C).
“(3) To the extent the persons and entities described in paragraph (2) contributed to any such release or threatened release, paragraph (1) shall not apply.
“(b)
“(1) notifies the Department of Defense in writing within two years after such claim accrues or begins action within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the Department of Defense;
“(2) furnishes to the Department of Defense copies of pertinent papers the entity receives;
“(3) furnishes evidence or proof of any claim, loss, or damage covered by this section; and
“(4) provides, upon request by the Department of Defense, access to the records and personnel of the entity for purposes of defending or settling the claim or action.
“(c)
“(2) In any case described in paragraph (1), if the person to whom the Department of Defense may be required to make indemnification payments does not allow the Secretary to settle or defend the claim, the person may not be afforded indemnification with respect to that claim under this section.
“(d)
“(e)
“(f)
“(1) The terms ‘facility’, ‘hazardous substance’, ‘release’, and ‘pollutant or contaminant’ have the meanings given such terms under paragraphs (9), (14), (22), and (33) of section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, respectively (42 U.S.C. 9601(9), (14), (22), and (33)).
“(2) The term ‘military installation’ has the meaning given such term under section 2687(e)(1) of title 10, United States Code.
“(3) The term ‘base closure law’ means the following:
“(A) The Defense Base Closure and Realignment Act of 1990 [part A of title XXIX of div. B of Pub. L. 101–510] (10 U.S.C. 2687 note).
“(B) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act [Pub. L. 100–526] (10 U.S.C. 2687 note).
“(C) Section 2687 of title 10, United States Code.
“(D) Any provision of law authorizing the closure or realignment of a military installation enacted on or after the date of the enactment of this Act [Oct. 23, 1992].”
Pub. L. 102–484, div. B, title XXVIII, §2822, Oct. 23, 1992, 106 Stat. 2608, provided that, subject to the availability of appropriations therefor, the Secretary of Defense was to enter into a one-year contract, not later than 30 days after Oct. 23, 1992, with a private relocation contractor operating on a nationwide basis to test the cost-effectiveness of using national relocation contractors to administer the Homeowners Assistance Program and that, not later than one year after the date on which the Secretary of Defense entered into the contract, the Comptroller General was to submit to Congress a report containing the Comptroller General's evaluation of the effectiveness of using the national contractor for administering the program.
Pub. L. 102–190, div. A, title III, §334, Dec. 5, 1991, 105 Stat. 1340, prescribed requirements for certain installations to be closed under 1989 or 1991 base closure lists by requiring that all draft final remedial investigations and feasibility studies related to environmental restoration activities at each such military installation be submitted to Environmental Protection Agency not later than 24 months after Dec. 5, 1991, for bases on 1989 closure list and not later than 36 months after such date for bases on 1991 closure list, prior to repeal by Pub. L. 104–201, div. A, title III, §328, Sept. 23, 1996, 110 Stat. 2483.
Pub. L. 102–190, div. B, title XXVIII, §2821(i), Dec. 5, 1991, 105 Stat. 1546, provided that: “Nothing in this section [enacting and amending provisions set out below] or in the Defense Base Closure and Realignment Act of 1990 [part A of title XXIX of div. B of Pub. L. 101–510, set out below] shall be construed to authorize the withholding of information from Congress, any committee or subcommittee of Congress, or the Comptroller General of the United States.”
Pub. L. 102–190, div. B, title XXVIII, §2822, Dec. 5, 1991, 105 Stat. 1546, as amended by Pub. L. 102–484, div. B, title XXVIII, §2825, Oct. 23, 1992, 106 Stat. 2609, provided that:
“(a)
“(b)
“(c)
“(2) The Inspector General shall submit to the congressional defense committees a report describing the results of each investigation conducted under paragraph (1).”
Pub. L. 102–190, div. B, title XXVIII, §2825, Dec. 5, 1991, 105 Stat. 1549, as amended by Pub. L. 103–160, div. B, title XXIX, §2928(a), (b)(1), (c), Nov. 30, 1993, 107 Stat. 1934, 1935, provided that:
“(a)
“(A) conducts business in the facility; and
“(B) constructed or substantially renovated the facility using funds of the depository institution.
“(2) In the case of the conveyance under paragraph (1) of a facility that was not constructed by the depository institution but was substantially renovated by the depository institution, the Secretary shall require the depository institution to pay an amount determined by the Secretary to be equal to the value of the facility in the absence of the renovations.
“(b)
“(c)
“(d)
“(1) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 104 Stat. 1808; 10 U.S.C. 2687 note).
“(2) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 102 Stat. 2627; 10 U.S.C. 2687 note).
“(3) Section 2687 of title 10, United States Code.
“(4) Any other similar law enacted after the date of the enactment of this Act [Dec. 5, 1991].
“(e)
Pub. L. 102–190, div. B, title XXVIII, §2827(b), Dec. 5, 1991, 105 Stat. 1551, directed the Secretary of Defense to submit an annual report to Congress on the funding needed for environmental restoration activities at certain designated military installations for the fiscal year for which a budget was submitted and for each of the four following fiscal years, prior to repeal by Pub. L. 104–106, div. A, title X, §1061(m), Feb. 10, 1996, 110 Stat. 443.
Pub. L. 102–172, title VIII, §8131, Nov. 26, 1991, 105 Stat. 1208, provided that: “It is the sense of the Congress that in acting on the Joint Resolution of Disapproval of the 1991 Base Closure Commission's recommendation, the Congress takes no position on whether there has been compliance by the Base Closure Commission, and the Department of Defense with the requirements of the Defense Base Closure and Realignment Act of 1990 [part A of title XXIX of div. B of Pub. L. 101–510, set out below]. Further, the vote on the resolution of disapproval shall not be interpreted to imply Congressional approval of all actions taken by the Base Closure Commission and the Department of Defense in fulfillment of the responsibilities and duties conferred upon them by the Defense Base Closure and Realignment Act of 1990, but only the approval of the recommendations issued by the Base Closure Commission.”
Pub. L. 103–335, title VIII, §8040, Sept. 30, 1994, 108 Stat. 2626, which directed Secretary of Defense to include in any base closure and realignment plan submitted to Congress after Sept. 30, 1994, a complete review of expectations for the five-year period beginning on Oct. 1, 1994, including force structure and levels, installation requirements, a budget plan, cost savings to be realized through realignments and closures of military installations, and the economic impact on local areas affected, was from the Department of Defense Appropriations Act, 1995, and was not repeated in subsequent appropriation acts. Similar provisions were contained in the following prior appropriation acts:
Pub. L. 103–139, title VIII, §8045, Nov. 11, 1993, 107 Stat. 1450.
Pub. L. 102–396, title IX, §9060, Oct. 6, 1992, 106 Stat. 1915.
Pub. L. 102–172, title VIII, §8063, Nov. 26, 1991, 105 Stat. 1185.
Pub. L. 101–511, title VIII, §8081, Nov. 5, 1990, 104 Stat. 1894.
Pub. L. 101–510, div. B, title XXIX, part A, Nov. 5, 1990, 104 Stat. 1808, as amended by Pub. L. 102–190, div. A, title III, §344(b)(1), div. B, title XXVIII, §§2821(a)–(h)(1), 2827(a)(1), (2), Dec. 5, 1991, 105 Stat. 1345, 1544–1546, 1551; Pub. L. 102–484, div. A, title X, §1054(b), div. B, title XXVIII, §§2821(b), 2823, Oct. 23, 1992, 106 Stat. 2502, 2607, 2608; Pub. L. 103–160, div. B, title XXIX, §§2902(b), 2903(b), 2904(b), 2905(b), 2907(b), 2908(b), 2918(c), 2921(b), (c), 2923, 2926, 2930(a), Nov. 30, 1993, 107 Stat. 1911, 1914, 1916, 1918, 1921, 1923, 1928–1930, 1932, 1935; Pub. L. 103–337, div. A, title X, §1070(b)(15), (d)(2), div. B, title XXVIII, §§2811, 2812(b), 2813(c)(2), (d)(2), (e)(2), Oct. 5, 1994, 108 Stat. 2857, 2858, 3053–3056; Pub. L. 103–421, §2(a)–(c), (f)(2), Oct. 25, 1994, 108 Stat. 4346–4352, 4354; Pub. L. 104–106, div. A, title XV, §§1502(d), 1504(a)(9), 1505(e)(1), div. B, title XXVIII, §§2831(b)(2), 2835, 2836, 2837(a), 2838, 2839(b), 2840(b), Feb. 10, 1996, 110 Stat. 508, 513, 514, 558, 560, 561, 564, 565; Pub. L. 104–201, div. B, title XXVIII, §§2812(b), 2813(b), Sept. 23, 1996, 110 Stat. 2789; Pub. L. 105–85, div. A, title X, §1073(d)(4)(B), div. B, title XXVIII, §2821(b), Nov. 18, 1997, 111 Stat. 1905, 1997; Pub. L. 106–65, div. A, title X, §1067(10), div. B, title XVIII, §§2821(a), 2822, Oct. 5, 1999, 113 Stat. 774, 853, 856; Pub. L. 106–398, §1 [[div. A], title X, §1087(g)(2), div. B, title XXVIII, §2821(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–293, 1654A–419; Pub. L. 107–107, div. A, title X, §1048(d)(2), div. B, title XXVIII, §2821(b), title XXX, §§3001–3007, Dec. 28, 2001, 115 Stat. 1227, 1312, 1342–1351; Pub. L. 107–314, div. A, title X, §1062(f)(4), (m)(1)–(3), div. B, title XXVIII, §§2814(b), 2854, Dec. 2, 2002, 116 Stat. 2651, 2652, 2710, 2728; Pub. L. 108–136, div. A, title VI, §655(b), div. B, title XXVIII, §§2805(d)(2), 2821, Nov. 24, 2003, 117 Stat. 1523, 1721, 1726; Pub. L. 108–375, div. A, title X, §1084(i), div. B, title XXVIII, §§2831–2834, Oct. 28, 2004, 118 Stat. 2064, 2132–2134; Pub. L. 109–163, div. B, title XXVIII, §2831, Jan. 6, 2006, 119 Stat. 3518; Pub. L. 110–181, div. B, title XXVII, §2704(a), Jan. 28, 2008, 122 Stat. 532; Pub. L. 110–417, div. B, title XXVII, §§2711, 2712(a)(1)(A), (b), Oct. 14, 2008, 122 Stat. 4715, 4716; Pub. L. 111–84, div. B, title XXVII, §2715(a), Oct. 28, 2009, 123 Stat. 2658, provided that:
“(a)
“(b)
“(a)
“(b)
“(c)
“(B) The President shall transmit to the Senate the nominations for appointment to the Commission—
“(i) by no later than January 3, 1991, in the case of members of the Commission whose terms will expire at the end of the first session of the 102nd Congress;
“(ii) by no later than January 25, 1993, in the case of members of the Commission whose terms will expire at the end of the first session of the 103rd Congress; and
“(iii) by no later than January 3, 1995, in the case of members of the Commission whose terms will expire at the end of the first session of the 104th Congress.
“(C) If the President does not transmit to Congress the nominations for appointment to the Commission on or before the date specified for 1993 in clause (ii) of subparagraph (B) or for 1995 in clause (iii) of such subparagraph, the process by which military installations may be selected for closure or realignment under this part with respect to that year shall be terminated.
“(2) In selecting individuals for nominations for appointments to the Commission, the President should consult with—
“(A) the Speaker of the House of Representatives concerning the appointment of two members;
“(B) the majority leader of the Senate concerning the appointment of two members;
“(C) the minority leader of the House of Representatives concerning the appointment of one member; and
“(D) the minority leader of the Senate concerning the appointment of one member.
“(3) At the time the President nominates individuals for appointment to the Commission for each session of Congress referred to in paragraph (1)(B), the President shall designate one such individual who shall serve as Chairman of the Commission.
“(d)
“(2) The Chairman of the Commission shall serve until the confirmation of a successor.
“(e)
“(2)(A) Each meeting of the Commission, other than meetings in which classified information is to be discussed, shall be open to the public.
“(B) All the proceedings, information, and deliberations of the Commission shall be open, upon request, to the following:
“(i) The Chairman and the ranking minority party member of the Subcommittee on Readiness and Management Support of the Committee on Armed Services of the Senate, or such other members of the Subcommittee designated by such Chairman or ranking minority party member.
“(ii) The Chairman and the ranking minority party member of the Subcommittee on Readiness of the Committee on Armed Services of the House of Representatives, or such other members of the Subcommittee designated by such Chairman or ranking minority party member.
“(iii) The Chairmen and ranking minority party members of the Subcommittees on Military Construction of the Committees on Appropriations of the Senate and of the House of Representatives, or such other members of the Subcommittees designated by such Chairmen or ranking minority party members.
“(f)
“(g)
“(B) The Chairman shall be paid for each day referred to in subparagraph (A) at a rate equal to the daily equivalent of the minimum annual rate of basic pay payable for level III of the Executive Schedule under section 5314 of title 5, United States Code.
“(2) Members shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.
“(h)
“(2) The Director shall be paid at the rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5, United States Code.
“(i)
“(2) The Director may make such appointments without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and any personnel so appointed may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates, except that an individual so appointed may not receive pay in excess of the annual rate of basic pay payable for GS–18 of the General Schedule.
“(3)(A) Not more than one-third of the personnel employed by or detailed to the Commission may be on detail from the Department of Defense.
“(B)(i) Not more than one-fifth of the professional analysts of the Commission staff may be persons detailed from the Department of Defense to the Commission.
“(ii) No person detailed from the Department of Defense to the Commission may be assigned as the lead professional analyst with respect to a military department or defense agency.
“(C) A person may not be detailed from the Department of Defense to the Commission if, within 12 months before the detail is to begin, that person participated personally and substantially in any matter within the Department of Defense concerning the preparation of recommendations for closures or realignments of military installations.
“(D) No member of the Armed Forces, and no officer or employee of the Department of Defense, may—
“(i) prepare any report concerning the effectiveness, fitness, or efficiency of the performance on the staff of the Commission of any person detailed from the Department of Defense to that staff;
“(ii) review the preparation of such a report; or
“(iii) approve or disapprove such a report.
“(4) Upon request of the Director, the head of any Federal department or agency may detail any of the personnel of that department or agency to the Commission to assist the Commission in carrying out its duties under this part.
“(5) The Comptroller General of the United States shall provide assistance, including the detailing of employees, to the Commission in accordance with an agreement entered into with the Commission.
“(6) The following restrictions relating to the personnel of the Commission shall apply during 1992 and 1994:
“(A) There may not be more than 15 persons on the staff at any one time.
“(B) The staff may perform only such functions as are necessary to prepare for the transition to new membership on the Commission in the following year.
“(C) No member of the Armed Forces and no employee of the Department of Defense may serve on the staff.
“(j)
“(2) The Commission may lease space and acquire personal property to the extent funds are available.
“(k)
“(2) If no funds are appropriated to the Commission by the end of the second session of the 101st Congress, the Secretary of Defense may transfer, for fiscal year 1991, to the Commission funds from the Department of Defense Base Closure Account established by section 207 of Public Law 100–526 [set out below]. Such funds shall remain available until expended.
“(3)(A) The Secretary may transfer not more than $300,000 from unobligated funds in the account referred to in subparagraph (B) for the purpose of assisting the Commission in carrying out its duties under this part during October, November, and December 1995. Funds transferred under the preceding sentence shall remain available until December 31, 1995.
“(B) The account referred to in subparagraph (A) is the Department of Defense Base Closure Account established under section 207(a) of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(l)
“(m)
“(a)
“(2) Such plan shall include, without any reference (directly or indirectly) to military installations inside the United States that may be closed or realigned under such plan—
“(A) a description of the assessment referred to in paragraph (1);
“(B) a description (i) of the anticipated force structure during and at the end of each such period for each military department (with specifications of the number and type of units in the active and reserve forces of each such department), and (ii) of the units that will need to be forward based (with a justification thereof) during and at the end of each such period; and
“(C) a description of the anticipated implementation of such force-structure plan.
“(3) The Secretary shall also transmit a copy of each such force-structure plan to the Commission.
“(b)
“(2)(A) The Secretary shall, by no later than February 15, 1991, publish in the Federal Register and transmit to the congressional defense committees the final criteria to be used in making recommendations for the closure or realignment of military installations inside the United States under this part. Except as provided in subparagraph (B), such criteria shall be the final criteria to be used, along with the force-structure plan referred to in subsection (a), in making such recommendations unless disapproved by a joint resolution of Congress enacted on or before March 15, 1991.
“(B) The Secretary may amend such criteria, but such amendments may not become effective until they have been published in the Federal Register, opened to public comment for at least 30 days, and then transmitted to the congressional defense committees in final form by no later than January 15 of the year concerned. Such amended criteria shall be the final criteria to be used, along with the force-structure plan referred to in subsection (a), in making such recommendations unless disapproved by a joint resolution of Congress enacted on or before February 15 of the year concerned.
“(c)
“(2) The Secretary shall include, with the list of recommendations published and transmitted pursuant to paragraph (1), a summary of the selection process that resulted in the recommendation for each installation, including a justification for each recommendation. The Secretary shall transmit the matters referred to in the preceding sentence not later than 7 days after the date of the transmittal to the congressional defense committees and the Commission of the list referred to in paragraph (1).
“(3)(A) In considering military installations for closure or realignment, the Secretary shall consider all military installations inside the United States equally without regard to whether the installation has been previously considered or proposed for closure or realignment by the Department.
“(B) In considering military installations for closure or realignment, the Secretary may not take into account for any purpose any advance conversion planning undertaken by an affected community with respect to the anticipated closure or realignment of an installation.
“(C) For purposes of subparagraph (B), in the case of a community anticipating the economic effects of a closure or realignment of a military installation, advance conversion planning—
“(i) shall include community adjustment and economic diversification planning undertaken by the community before an anticipated selection of a military installation in or near the community for closure or realignment; and
“(ii) may include the development of contingency redevelopment plans, plans for economic development and diversification, and plans for the joint use (including civilian and military use, public and private use, civilian dual use, and civilian shared use) of the property or facilities of the installation after the anticipated closure or realignment.
“(4) In addition to making all information used by the Secretary to prepare the recommendations under this subsection available to Congress (including any committee or member of Congress), the Secretary shall also make such information available to the Commission and the Comptroller General of the United States.
“(5)(A) Each person referred to in subparagraph (B), when submitting information to the Secretary of Defense or the Commission concerning the closure or realignment of a military installation, shall certify that such information is accurate and complete to the best of that person's knowledge and belief.
“(B) Subparagraph (A) applies to the following persons:
“(i) The Secretaries of the military departments.
“(ii) The heads of the Defense Agencies.
“(iii) Each person who is in a position the duties of which include personal and substantial involvement in the preparation and submission of information and recommendations concerning the closure or realignment of military installations, as designated in regulations which the Secretary of Defense shall prescribe, regulations which the Secretary of each military department shall prescribe for personnel within that military department, or regulations which the head of each Defense Agency shall prescribe for personnel within that Defense Agency.
“(6) Any information provided to the Commission by a person described in paragraph (5)(B) shall also be submitted to the Senate and the House of Representatives to be made available to the Members of the House concerned in accordance with the rules of that House. The information shall be submitted to the Senate and House of Representatives within 24 hours after the submission of the information to the Commission.
“(d)
“(2)(A) The Commission shall, by no later than July 1 of each year in which the Secretary transmits recommendations to it pursuant to subsection (c), transmit to the President a report containing the Commission's findings and conclusions based on a review and analysis of the recommendations made by the Secretary, together with the Commission's recommendations for closures and realignments of military installations inside the United States.
“(B) Subject to subparagraph (C), in making its recommendations, the Commission may make changes in any of the recommendations made by the Secretary if the Commission determines that the Secretary deviated substantially from the force-structure plan and final criteria referred to in subsection (c)(1) in making recommendations.
“(C) In the case of a change described in subparagraph (D) in the recommendations made by the Secretary, the Commission may make the change only if the Commission—
“(i) makes the determination required by subparagraph (B);
“(ii) determines that the change is consistent with the force-structure plan and final criteria referred to in subsection (c)(1);
“(iii) publishes a notice of the proposed change in the Federal Register not less than 45 days before transmitting its recommendations to the President pursuant to paragraph (2); and
“(iv) conducts public hearings on the proposed change.
“(D) Subparagraph (C) shall apply to a change by the Commission in the Secretary's recommendations that would—
“(i) add a military installation to the list of military installations recommended by the Secretary for closure;
“(ii) add a military installation to the list of military installations recommended by the Secretary for realignment; or
“(iii) increase the extent of a realignment of a particular military installation recommended by the Secretary.
“(E) In making recommendations under this paragraph, the Commission may not take into account for any purpose any advance conversion planning undertaken by an affected community with respect to the anticipated closure or realignment of a military installation.
“(3) The Commission shall explain and justify in its report submitted to the President pursuant to paragraph (2) any recommendation made by the Commission that is different from the recommendations made by the Secretary pursuant to subsection (c). The Commission shall transmit a copy of such report to the congressional defense committees on the same date on which it transmits its recommendations to the President under paragraph (2).
“(4) After July 1 of each year in which the Commission transmits recommendations to the President under this subsection, the Commission shall promptly provide, upon request, to any Member of Congress information used by the Commission in making its recommendations.
“(5) The Comptroller General of the United States shall—
“(A) assist the Commission, to the extent requested, in the Commission's review and analysis of the recommendations made by the Secretary pursuant to subsection (c); and
“(B) by no later than April 15 of each year in which the Secretary makes such recommendations, transmit to the Congress and to the Commission a report containing a detailed analysis of the Secretary's recommendations and selection process.
“(e)
“(2) If the President approves all the recommendations of the Commission, the President shall transmit a copy of such recommendations to the Congress, together with a certification of such approval.
“(3) If the President disapproves the recommendations of the Commission, in whole or in part, the President shall transmit to the Commission and the Congress the reasons for that disapproval. The Commission shall then transmit to the President, by no later than August 15 of the year concerned, a revised list of recommendations for the closure and realignment of military installations.
“(4) If the President approves all of the revised recommendations of the Commission transmitted to the President under paragraph (3), the President shall transmit a copy of such revised recommendations to the Congress, together with a certification of such approval.
“(5) If the President does not transmit to the Congress an approval and certification described in paragraph (2) or (4) by September 1 of any year in which the Commission has transmitted recommendations to the President under this part, the process by which military installations may be selected for closure or realignment under this part with respect to that year shall be terminated.
“(a)
“(1) close all military installations recommended for closure by the Commission in each report transmitted to the Congress by the President pursuant to section 2903(e);
“(2) realign all military installations recommended for realignment by such Commission in each such report;
“(3) carry out the privatization in place of a military installation recommended for closure or realignment by the Commission in the 2005 report only if privatization in place is a method of closure or realignment of the military installation specified in the recommendations of the Commission in such report and is determined by the Commission to be the most cost-effective method of implementation of the recommendation;
“(4) initiate all such closures and realignments no later than two years after the date on which the President transmits a report to the Congress pursuant to section 2903(e) containing the recommendations for such closures or realignments; and
“(5) complete all such closures and realignments no later than the end of the six-year period beginning on the date on which the President transmits the report pursuant to section 2903(e) containing the recommendations for such closures or realignments.
“(b)
“(A) the end of the 45-day period beginning on the date on which the President transmits such report; or
“(B) the adjournment of Congress sine die for the session during which such report is transmitted.
“(2) For purposes of paragraph (1) of this subsection and subsections (a) and (c) of section 2908, the days on which either House of Congress is not in session because of an adjournment of more than three days to a day certain shall be excluded in the computation of a period.
“(a)
“(A) take such actions as may be necessary to close or realign any military installation, including the acquisition of such land, the construction of such replacement facilities, the performance of such activities, and the conduct of such advance planning and design as may be required to transfer functions from a military installation being closed or realigned to another military installation, and may use for such purpose funds in the Account or funds appropriated to the Department of Defense for use in planning and design, minor construction, or operation and maintenance;
“(B) provide—
“(i) economic adjustment assistance to any community located near a military installation being closed or realigned, and
“(ii) community planning assistance to any community located near a military installation to which functions will be transferred as a result of the closure or realignment of a military installation,
if the Secretary of Defense determines that the financial resources available to the community (by grant or otherwise) for such purposes are inadequate, and may use for such purposes funds in the Account or funds appropriated to the Department of Defense for economic adjustment assistance or community planning assistance;
“(C) carry out activities for the purposes of environmental restoration and mitigation at any such installation, and shall use for such purposes funds in the Account;
“(D) provide outplacement assistance to civilian employees employed by the Department of Defense at military installations being closed or realigned, and may use for such purpose funds in the Account or funds appropriated to the Department of Defense for outplacement assistance to employees; and
“(E) reimburse other Federal agencies for actions performed at the request of the Secretary with respect to any such closure or realignment, and may use for such purpose funds in the Account or funds appropriated to the Department of Defense and available for such purpose.
“(2) In carrying out any closure or realignment under this part, the Secretary shall ensure that environmental restoration of any property made excess to the needs of the Department of Defense as a result of such closure or realignment be carried out as soon as possible with funds available for such purpose.
“(b)
“(A) the authority of the Administrator to utilize excess property under subchapter II of chapter 5 of title 40, United States Code;
“(B) the authority of the Administrator to dispose of surplus property under subchapter III of chapter 5 of title 40, United States Code;
“(C) the authority to dispose of surplus property for public airports under sections 47151 through 47153 of title 49, United States Code; and
“(D) the authority of the Administrator to determine the availability of excess or surplus real property for wildlife conservation purposes in accordance with the Act of May 19, 1948 (16 U.S.C. 667b).
“(2)(A) Subject to subparagraph (B) and paragraphs (3), (4), (5), and (6), the Secretary of Defense shall exercise the authority delegated to the Secretary pursuant to paragraph (1) in accordance with—
“(i) all regulations governing the utilization of excess property and the disposal of surplus property under the Federal Property and Administrative Services Act of 1949 [see chapters 1 to 11 of Title 40, Public Buildings, Property, and Works and division C (except sections 3302, 3306(f), 3307(e), 3501(b), 3509, 3906, 4104, 4710, and 4711) of subtitle I of Title 41, Public Contracts]; and
“(ii) all regulations governing the conveyance and disposal of property under section 13(g) of the Surplus Property Act of 1944 (50 U.S.C. App. 1622(g)).
“(B) The Secretary may, with the concurrence of the Administrator of General Services—
“(i) prescribe general policies and methods for utilizing excess property and disposing of surplus property pursuant to the authority delegated under paragraph (1); and
“(ii) issue regulations relating to such policies and methods, which shall supersede the regulations referred to in subparagraph (A) with respect to that authority.
“(C) The Secretary of Defense may transfer real property or facilities located at a military installation to be closed or realigned under this part, with or without reimbursement, to a military department or other entity (including a nonappropriated fund instrumentality) within the Department of Defense or the Coast Guard.
“(D) Before any action may be taken with respect to the disposal of any surplus real property or facility located at any military installation to be closed or realigned under this part, the Secretary of Defense shall consult with the Governor of the State and the heads of the local governments concerned for the purpose of considering any plan for the use of such property by the local community concerned.
“(E) If a military installation to be closed, realigned, or placed in an inactive status under this part includes a road used for public access through, into, or around the installation, the Secretary of Defense shall consult with the Governor of the State and the heads of the local governments concerned for the purpose of considering the continued availability of the road for public use after the installation is closed, realigned, or placed in an inactive status.
“(3)(A) Not later than 6 months after the date of approval of the closure or realignment of a military installation under this part, the Secretary, in consultation with the redevelopment authority with respect to the installation, shall—
“(i) inventory the personal property located at the installation; and
“(ii) identify the items (or categories of items) of such personal property that the Secretary determines to be related to real property and anticipates will support the implementation of the redevelopment plan with respect to the installation.
“(B) If no redevelopment authority referred to in subparagraph (A) exists with respect to an installation, the Secretary shall consult with—
“(i) the local government in whose jurisdiction the installation is wholly located; or
“(ii) a local government agency or State government agency designated for the purpose of such consultation by the chief executive officer of the State in which the installation is located.
“(C)(i) Except as provided in subparagraphs (E) and (F), the Secretary may not carry out any of the activities referred to in clause (ii) with respect to an installation referred to in that clause until the earlier of—
“(I) one week after the date on which the redevelopment plan for the installation is submitted to the Secretary;
“(II) the date on which the redevelopment authority notifies the Secretary that it will not submit such a plan;
“(III) twenty-four months after the date of approval of the closure or realignment of the installation; or
“(IV) ninety days before the date of the closure or realignment of the installation.
“(ii) The activities referred to in clause (i) are activities relating to the closure or realignment of an installation to be closed or realigned under this part as follows:
“(I) The transfer from the installation of items of personal property at the installation identified in accordance with subparagraph (A).
“(II) The reduction in maintenance and repair of facilities or equipment located at the installation below the minimum levels required to support the use of such facilities or equipment for nonmilitary purposes.
“(D) Except as provided in paragraph (4), the Secretary may not transfer items of personal property located at an installation to be closed or realigned under this part to another installation, or dispose of such items, if such items are identified in the redevelopment plan for the installation as items essential to the reuse or redevelopment of the installation. In connection with the development of the redevelopment plan for the installation, the Secretary shall consult with the entity responsible for developing the redevelopment plan to identify the items of personal property located at the installation, if any, that the entity desires to be retained at the installation for reuse or redevelopment of the installation.
“(E) This paragraph shall not apply to any personal property located at an installation to be closed or realigned under this part if the property—
“(i) is required for the operation of a unit, function, component, weapon, or weapons system at another installation;
“(ii) is uniquely military in character, and is likely to have no civilian use (other than use for its material content or as a source of commonly used components);
“(iii) is not required for the reutilization or redevelopment of the installation (as jointly determined by the Secretary and the redevelopment authority);
“(iv) is stored at the installation for purposes of distribution (including spare parts or stock items); or
“(v)(I) meets known requirements of an authorized program of another Federal department or agency for which expenditures for similar property would be necessary, and (II) is the subject of a written request by the head of the department or agency.
“(F) Notwithstanding subparagraphs (C)(i) and (D), the Secretary may carry out any activity referred to in subparagraph (C)(ii) or (D) if the Secretary determines that the carrying out of such activity is in the national security interest of the United States.
“(4)(A) The Secretary may transfer real property and personal property located at a military installation to be closed or realigned under this part to the redevelopment authority with respect to the installation for purposes of job generation on the installation.
“(B) The transfer of property located at a military installation under subparagraph (A) may be for consideration at or below the estimated fair market value or without consideration. The determination of such consideration may account for the economic conditions of the local affected community and the estimated costs to redevelop the property. The Secretary may accept, as consideration, a share of the revenues that the redevelopment authority receives from third-party buyers or lessees from sales and long-term leases of the conveyed property, consideration in kind (including goods and services), real property and improvements, or such other consideration as the Secretary considers appropriate. The transfer of property located at a military installation under subparagraph (A) may be made for consideration below the estimated fair market value or without consideration only if the redevelopment authority with respect to the installation—
“(i) agrees that the proceeds from any sale or lease of the property (or any portion thereof) received by the redevelopment authority during at least the first seven years after the date of the initial transfer of property under subparagraph (A) shall be used to support the economic redevelopment of, or related to, the installation; and
“(ii) executes the agreement for transfer of the property and accepts control of the property within a reasonable time after the date of the property disposal record of decision or finding of no significant impact under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
“(C) For purposes of subparagraph (B)(i), the use of proceeds from a sale or lease described in such subparagraph to pay for, or offset the costs of, public investment on or related to the installation for any of the following purposes shall be considered a use to support the economic redevelopment of, or related to, the installation:
“(i) Road construction.
“(ii) Transportation management facilities.
“(iii) Storm and sanitary sewer construction.
“(iv) Police and fire protection facilities and other public facilities.
“(v) Utility construction.
“(vi) Building rehabilitation.
“(vii) Historic property preservation.
“(viii) Pollution prevention equipment or facilities.
“(ix) Demolition.
“(x) Disposal of hazardous materials generated by demolition.
“(xi) Landscaping, grading, and other site or public improvements.
“(xii) Planning for or the marketing of the development and reuse of the installation.
“(D) The Secretary may recoup from a redevelopment authority such portion of the proceeds from a sale or lease described in subparagraph (B) as the Secretary determines appropriate if the redevelopment authority does not use the proceeds to support economic redevelopment of, or related to, the installation for the period specified in subparagraph (B).
“(E)(i) The Secretary may transfer real property at an installation approved for closure or realignment under this part (including property at an installation approved for realignment which will be retained by the Department of Defense or another Federal agency after realignment) to the redevelopment authority for the installation if the redevelopment authority agrees to lease, directly upon transfer, one or more portions of the property transferred under this subparagraph to the Secretary or to the head of another department or agency of the Federal Government. Subparagraph (B) shall apply to a transfer under this subparagraph.
“(ii) A lease under clause (i) shall be for a term of not to exceed 50 years, but may provide for options for renewal or extension of the term by the department or agency concerned.
“(iii) A lease under clause (i) may not require rental payments by the United States.
“(iv) A lease under clause (i) shall include a provision specifying that if the department or agency concerned ceases requiring the use of the leased property before the expiration of the term of the lease, the remainder of the lease term may be satisfied by the same or another department or agency of the Federal Government using the property for a use similar to the use under the lease. Exercise of the authority provided by this clause shall be made in consultation with the redevelopment authority concerned.
“(v) Notwithstanding clause (iii), if a lease under clause (i) involves a substantial portion of the installation, the department or agency concerned may obtain facility services for the leased property and common area maintenance from the redevelopment authority or the redevelopment authority's assignee as a provision of the lease. The facility services and common area maintenance shall be provided at a rate no higher than the rate charged to non-Federal tenants of the transferred property. Facility services and common area maintenance covered by the lease shall not include—
“(I) municipal services that a State or local government is required by law to provide to all landowners in its jurisdiction without direct charge; or
“(II) firefighting or security-guard functions.
“(F) The transfer of personal property under subparagraph (A) shall not be subject to the provisions of subchapters II and III of chapter 5 of title 40, United States Code, if the Secretary determines that the transfer of such property is necessary for the effective implementation of a redevelopment plan with respect to the installation at which such property is located.
“(G) The provisions of section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9620(h)) shall apply to any transfer of real property under this paragraph.
“(H)(i) In the case of an agreement for the transfer of property of a military installation under this paragraph that was entered into before April 21, 1999, the Secretary may modify the agreement, and in so doing compromise, waive, adjust, release, or reduce any right, title, claim, lien, or demand of the United States, if—
“(I) the Secretary determines that as a result of changed economic circumstances, a modification of the agreement is necessary;
“(II) the terms of the modification do not require the return of any payments that have been made to the Secretary;
“(III) the terms of the modification do not compromise, waive, adjust, release, or reduce any right, title, claim, lien, or demand of the United States with respect to in-kind consideration; and
“(IV) the cash consideration to which the United States is entitled under the modified agreement, when combined with the cash consideration to be received by the United States for the disposal of other real property assets on the installation, are as sufficient as they were under the original agreement to fund the reserve account established under section 204(b)(7)(C) of the Defense Authorization Amendments and Base Closure and Realignment Act [Pub. L. 100–526, 10 U.S.C. 2687 note], with the depreciated value of the investment made with commissary store funds or nonappropriated funds in property disposed of pursuant to the agreement being modified, in accordance with section 2906(d).
“(ii) When exercising the authority granted by clause (i), the Secretary may waive some or all future payments if, and to the extent that, the Secretary determines such waiver is necessary.
“(iii) With the exception of the requirement that the transfer be without consideration, the requirements of subparagraphs (B), (C), and (D) shall be applicable to any agreement modified pursuant to clause (i).
“(I) In the case of an agreement for the transfer of property of a military installation under this paragraph that was entered into during the period beginning on April 21, 1999, and ending on the date of enactment of the National Defense Authorization Act for Fiscal Year 2000 [Oct. 5, 1999], at the request of the redevelopment authority concerned, the Secretary shall modify the agreement to conform to all the requirements of subparagraphs (B), (C), and (D). Such a modification may include the compromise, waiver, adjustment, release, or reduction of any right, title, claim, lien, or demand of the United States under the agreement.
“(J) The Secretary may require any additional terms and conditions in connection with a transfer under this paragraph as such Secretary considers appropriate to protect the interests of the United States.
“(5)(A) Except as provided in subparagraphs (B) and (C), the Secretary shall take such actions as the Secretary determines necessary to ensure that final determinations under paragraph (1) regarding whether another department or agency of the Federal Government has identified a use for any portion of a military installation to be closed or realigned under this part, or will accept transfer of any portion of such installation, are made not later than 6 months after the date of approval of closure or realignment of that installation.
“(B) The Secretary may, in consultation with the redevelopment authority with respect to an installation, postpone making the final determinations referred to in subparagraph (A) with respect to the installation for such period as the Secretary determines appropriate if the Secretary determines that such postponement is in the best interests of the communities affected by the closure or realignment of the installation.
“(C)(i) Before acquiring non-Federal real property as the location for a new or replacement Federal facility of any type, the head of the Federal agency acquiring the property shall consult with the Secretary regarding the feasibility and cost advantages of using Federal property or facilities at a military installation closed or realigned or to be closed or realigned under this part as the location for the new or replacement facility. In considering the availability and suitability of a specific military installation, the Secretary and the head of the Federal agency involved shall obtain the concurrence of the redevelopment authority with respect to the installation and comply with the redevelopment plan for the installation.
“(ii) Not later than 30 days after acquiring non-Federal real property as the location for a new or replacement Federal facility, the head of the Federal agency acquiring the property shall submit to Congress a report containing the results of the consultation under clause (i) and the reasons why military installations referred to in such clause that are located within the area to be served by the new or replacement Federal facility or within a 200-mile radius of the new or replacement facility, whichever area is greater, were considered to be unsuitable or unavailable for the site of the new or replacement facility.
“(iii) This subparagraph shall apply during the period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998 [Nov. 18, 1997] and ending on July 31, 2001.
“(6)(A) Except as provided in this paragraph, nothing in this section shall limit or otherwise affect the application of the provisions of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11301 et seq.) to military installations closed under this part. For procedures relating to the use to assist the homeless of buildings and property at installations closed under this part after the date of the enactment of this sentence [Oct. 25, 1994], see paragraph (7).
“(B)(i) Not later than the date on which the Secretary of Defense completes the determination under paragraph (5) of the transferability of any portion of an installation to be closed under this part, the Secretary shall—
“(I) complete any determinations or surveys necessary to determine whether any building or property referred to in clause (ii) is excess property, surplus property, or unutilized or underutilized property for the purpose of the information referred to in section 501(a) of such Act (42 U.S.C. 11411(a)); and
“(II) submit to the Secretary of Housing and Urban Development information on any building or property that is so determined.
“(ii) The buildings and property referred to in clause (i) are any buildings or property located at an installation referred to in that clause for which no use is identified, or of which no Federal department or agency will accept transfer, pursuant to the determination of transferability referred to in that clause.
“(C) Not later than 60 days after the date on which the Secretary of Defense submits information to the Secretary of Housing and Urban Development under subparagraph (B)(ii), the Secretary of Housing and Urban Development shall—
“(i) identify the buildings and property described in such information that are suitable for use to assist the homeless;
“(ii) notify the Secretary of Defense of the buildings and property that are so identified;
“(iii) publish in the Federal Register a list of the buildings and property that are so identified, including with respect to each building or property the information referred to in section 501(c)(1)(B) of such Act [42 U.S.C. 11411(c)(1)(B)]; and
“(iv) make available with respect to each building and property the information referred to in section 501(c)(1)(C) of such Act in accordance with such section 501(c)(1)(C).
“(D) Any buildings and property included in a list published under subparagraph (C)(iii) shall be treated as property available for application for use to assist the homeless under section 501(d) of such Act.
“(E) The Secretary of Defense shall make available in accordance with section 501(f) of such Act any buildings or property referred to in subparagraph (D) for which—
“(i) a written notice of an intent to use such buildings or property to assist the homeless is received by the Secretary of Health and Human Services in accordance with section 501(d)(2) of such Act;
“(ii) an application for use of such buildings or property for such purpose is submitted to the Secretary of Health and Human Services in accordance with section 501(e)(2) of such Act; and
“(iii) the Secretary of Health and Human Services—
“(I) completes all actions on the application in accordance with section 501(e)(3) of such Act; and
“(II) approves the application under section 501(e) of such Act.
“(F)(i) Subject to clause (ii), a redevelopment authority may express in writing an interest in using buildings and property referred to subparagraph (D), and buildings and property referred to in subparagraph (B)(ii) which have not been identified as suitable for use to assist the homeless under subparagraph (C), or use such buildings and property, in accordance with the redevelopment plan with respect to the installation at which such buildings and property are located as follows:
“(I) If no written notice of an intent to use such buildings or property to assist the homeless is received by the Secretary of Health and Human Services in accordance with section 501(d)(2) of such Act during the 60-day period beginning on the date of the publication of the buildings and property under subparagraph (C)(iii).
“(II) In the case of buildings and property for which such notice is so received, if no completed application for use of the buildings or property for such purpose is received by the Secretary of Health and Human Services in accordance with section 501(e)(2) of such Act during the 90-day period beginning on the date of the receipt of such notice.
“(III) In the case of buildings and property for which such application is so received, if the Secretary of Health and Human Services rejects the application under section 501(e) of such Act.
“(ii) Buildings and property shall be available only for the purpose of permitting a redevelopment authority to express in writing an interest in the use of such buildings and property, or to use such buildings and property, under clause (i) as follows:
“(I) In the case of buildings and property referred to in clause (i)(I), during the one-year period beginning on the first day after the 60-day period referred to in that clause.
“(II) In the case of buildings and property referred to in clause (i)(II), during the one-year period beginning on the first day after the 90-day period referred to in that clause.
“(III) In the case of buildings and property referred to in clause (i)(III), during the one-year period beginning on the date of the rejection of the application referred to in that clause.
“(iii) A redevelopment authority shall express an interest in the use of buildings and property under this subparagraph by notifying the Secretary of Defense, in writing, of such an interest.
“(G)(i) Buildings and property available for a redevelopment authority under subparagraph (F) shall not be available for use to assist the homeless under section 501 of such Act [42 U.S.C. 11411] while so available for a redevelopment authority.
“(ii) If a redevelopment authority does not express an interest in the use of buildings or property, or commence the use of buildings or property, under subparagraph (F) within the applicable time periods specified in clause (ii) of such subparagraph, such buildings or property shall be treated as property available for use to assist the homeless under section 501(a) of such Act.
“(7)(A) The disposal of buildings and property located at installations approved for closure or realignment under this part after October 25, 1994, shall be carried out in accordance with this paragraph rather than paragraph (6).
“(B)(i) Not later than the date on which the Secretary of Defense completes the final determinations referred to in paragraph (5) relating to the use or transferability of any portion of an installation covered by this paragraph, the Secretary shall—
“(I) identify the buildings and property at the installation for which the Department of Defense has a use, for which another department or agency of the Federal Government has identified a use, or of which another department or agency will accept a transfer;
“(II) take such actions as are necessary to identify any building or property at the installation not identified under subclause (I) that is excess property or surplus property;
“(III) submit to the Secretary of Housing and Urban Development and to the redevelopment authority for the installation (or the chief executive officer of the State in which the installation is located if there is no redevelopment authority for the installation at the completion of the determination described in the stem of this sentence) information on any building or property that is identified under subclause (II); and
“(IV) publish in the Federal Register and in a newspaper of general circulation in the communities in the vicinity of the installation information on the buildings and property identified under subclause (II).
“(ii) Upon the recognition of a redevelopment authority for an installation covered by this paragraph, the Secretary of Defense shall publish in the Federal Register and in a newspaper of general circulation in the communities in the vicinity of the installation information on the redevelopment authority.
“(C)(i) State and local governments, representatives of the homeless, and other interested parties located in the communities in the vicinity of an installation covered by this paragraph shall submit to the redevelopment authority for the installation a notice of the interest, if any, of such governments, representatives, and parties in the buildings or property, or any portion thereof, at the installation that are identified under subparagraph (B)(i)(II). A notice of interest under this clause shall describe the need of the government, representative, or party concerned for the buildings or property covered by the notice.
“(ii) The redevelopment authority for an installation shall assist the governments, representatives, and parties referred to in clause (i) in evaluating buildings and property at the installation for purposes of this subparagraph.
“(iii) In providing assistance under clause (ii), a redevelopment authority shall—
“(I) consult with representatives of the homeless in the communities in the vicinity of the installation concerned; and
“(II) undertake outreach efforts to provide information on the buildings and property to representatives of the homeless, and to other persons or entities interested in assisting the homeless, in such communities.
“(iv) It is the sense of Congress that redevelopment authorities should begin to conduct outreach efforts under clause (iii)(II) with respect to an installation as soon as is practicable after the date of approval of closure or realignment of the installation.
“(D)(i) State and local governments, representatives of the homeless, and other interested parties shall submit a notice of interest to a redevelopment authority under subparagraph (C) not later than the date specified for such notice by the redevelopment authority.
“(ii) The date specified under clause (i) shall be—
“(I) in the case of an installation for which a redevelopment authority has been recognized as of the date of the completion of the determinations referred to in paragraph (5), not earlier than 3 months and not later than 6 months after the date of publication of such determination in a newspaper of general circulation in the communities in the vicinity of the installation under subparagraph (B)(i)(IV); and
“(II) in the case of an installation for which a redevelopment authority is not recognized as of such date, not earlier than 3 months and not later than 6 months after the date of the recognition of a redevelopment authority for the installation.
“(iii) Upon specifying a date for an installation under this subparagraph, the redevelopment authority for the installation shall—
“(I) publish the date specified in a newspaper of general circulation in the communities in the vicinity of the installation concerned; and
“(II) notify the Secretary of Defense of the date.
“(E)(i) In submitting to a redevelopment authority under subparagraph (C) a notice of interest in the use of buildings or property at an installation to assist the homeless, a representative of the homeless shall submit the following:
“(I) A description of the homeless assistance program that the representative proposes to carry out at the installation.
“(II) An assessment of the need for the program.
“(III) A description of the extent to which the program is or will be coordinated with other homeless assistance programs in the communities in the vicinity of the installation.
“(IV) A description of the buildings and property at the installation that are necessary in order to carry out the program.
“(V) A description of the financial plan, the organization, and the organizational capacity of the representative to carry out the program.
“(VI) An assessment of the time required in order to commence carrying out the program.
“(ii) A redevelopment authority may not release to the public any information submitted to the redevelopment authority under clause (i)(V) without the consent of the representative of the homeless concerned unless such release is authorized under Federal law and under the law of the State and communities in which the installation concerned is located.
“(F)(i) The redevelopment authority for each installation covered by this paragraph shall prepare a redevelopment plan for the installation. The redevelopment authority shall, in preparing the plan, consider the interests in the use to assist the homeless of the buildings and property at the installation that are expressed in the notices submitted to the redevelopment authority under subparagraph (C).
“(ii)(I) In connection with a redevelopment plan for an installation, a redevelopment authority and representatives of the homeless shall prepare legally binding agreements that provide for the use to assist the homeless of buildings and property, resources, and assistance on or off the installation. The implementation of such agreements shall be contingent upon the decision regarding the disposal of the buildings and property covered by the agreements by the Secretary of Defense under subparagraph (K) or (L).
“(II) Agreements under this clause shall provide for the reversion to the redevelopment authority concerned, or to such other entity or entities as the agreements shall provide, of buildings and property that are made available under this paragraph for use to assist the homeless in the event that such buildings and property cease being used for that purpose.
“(iii) A redevelopment authority shall provide opportunity for public comment on a redevelopment plan before submission of the plan to the Secretary of Defense and the Secretary of Housing and Urban Development under subparagraph (G).
“(iv) A redevelopment authority shall complete preparation of a redevelopment plan for an installation and submit the plan under subparagraph (G) not later than 9 months after the date specified by the redevelopment authority for the installation under subparagraph (D).
“(G)(i) Upon completion of a redevelopment plan under subparagraph (F), a redevelopment authority shall submit an application containing the plan to the Secretary of Defense and to the Secretary of Housing and Urban Development.
“(ii) A redevelopment authority shall include in an application under clause (i) the following:
“(I) A copy of the redevelopment plan, including a summary of any public comments on the plan received by the redevelopment authority under subparagraph (F)(iii).
“(II) A copy of each notice of interest of use of buildings and property to assist the homeless that was submitted to the redevelopment authority under subparagraph (C), together with a description of the manner, if any, in which the plan addresses the interest expressed in each such notice and, if the plan does not address such an interest, an explanation why the plan does not address the interest.
“(III) A summary of the outreach undertaken by the redevelopment authority under subparagraph (C)(iii)(II) in preparing the plan.
“(IV) A statement identifying the representatives of the homeless and the homeless assistance planning boards, if any, with which the redevelopment authority consulted in preparing the plan, and the results of such consultations.
“(V) An assessment of the manner in which the redevelopment plan balances the expressed needs of the homeless and the need of the communities in the vicinity of the installation for economic redevelopment and other development.
“(VI) Copies of the agreements that the redevelopment authority proposes to enter into under subparagraph (F)(ii).
“(H)(i) Not later than 60 days after receiving a redevelopment plan under subparagraph (G), the Secretary of Housing and Urban Development shall complete a review of the plan. The purpose of the review is to determine whether the plan, with respect to the expressed interest and requests of representatives of the homeless—
“(I) takes into consideration the size and nature of the homeless population in the communities in the vicinity of the installation, the availability of existing services in such communities to meet the needs of the homeless in such communities, and the suitability of the buildings and property covered by the plan for the use and needs of the homeless in such communities;
“(II) takes into consideration any economic impact of the homeless assistance under the plan on the communities in the vicinity of the installation;
“(III) balances in an appropriate manner the needs of the communities in the vicinity of the installation for economic redevelopment and other development with the needs of the homeless in such communities;
“(IV) was developed in consultation with representatives of the homeless and the homeless assistance planning boards, if any, in the communities in the vicinity of the installation; and
“(V) specifies the manner in which buildings and property, resources, and assistance on or off the installation will be made available for homeless assistance purposes.
“(ii) It is the sense of Congress that the Secretary of Housing and Urban Development shall, in completing the review of a plan under this subparagraph, take into consideration and be receptive to the predominant views on the plan of the communities in the vicinity of the installation covered by the plan.
“(iii) The Secretary of Housing and Urban Development may engage in negotiations and consultations with a redevelopment authority before or during the course of a review under clause (i) with a view toward resolving any preliminary determination of the Secretary that a redevelopment plan does not meet a requirement set forth in that clause. The redevelopment authority may modify the redevelopment plan as a result of such negotiations and consultations.
“(iv) Upon completion of a review of a redevelopment plan under clause (i), the Secretary of Housing and Urban Development shall notify the Secretary of Defense and the redevelopment authority concerned of the determination of the Secretary of Housing and Urban Development under that clause.
“(v) If the Secretary of Housing and Urban Development determines as a result of such a review that a redevelopment plan does not meet the requirements set forth in clause (i), a notice under clause (iv) shall include—
“(I) an explanation of that determination; and
“(II) a statement of the actions that the redevelopment authority must undertake in order to address that determination.
“(I)(i) Upon receipt of a notice under subparagraph (H)(iv) of a determination that a redevelopment plan does not meet a requirement set forth in subparagraph (H)(i), a redevelopment authority shall have the opportunity to—
“(I) revise the plan in order to address the determination; and
“(II) submit the revised plan to the Secretary of Defense and the Secretary of Housing and Urban Development.
“(ii) A redevelopment authority shall submit a revised plan under this subparagraph to such Secretaries, if at all, not later than 90 days after the date on which the redevelopment authority receives the notice referred to in clause (i).
“(J)(i) Not later than 30 days after receiving a revised redevelopment plan under subparagraph (I), the Secretary of Housing and Urban Development shall review the revised plan and determine if the plan meets the requirements set forth in subparagraph (H)(i).
“(ii) The Secretary of Housing and Urban Development shall notify the Secretary of Defense and the redevelopment authority concerned of the determination of the Secretary of Housing and Urban Development under this subparagraph.
“(K)(i) Upon receipt of a notice under subparagraph (H)(iv) or (J)(ii) of the determination of the Secretary of Housing and Urban Development that a redevelopment plan for an installation meets the requirements set forth in subparagraph (H)(i), the Secretary of Defense shall dispose of the buildings and property at the installation.
“(ii) For purposes of carrying out an environmental assessment of the closure or realignment of an installation, the Secretary of Defense shall treat the redevelopment plan for the installation (including the aspects of the plan providing for disposal to State or local governments, representatives of the homeless, and other interested parties) as part of the proposed Federal action for the installation.
“(iii) The Secretary of Defense shall dispose of buildings and property under clause (i) in accordance with the record of decision or other decision document prepared by the Secretary in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). In preparing the record of decision or other decision document, the Secretary shall give substantial deference to the redevelopment plan concerned.
“(iv) The disposal under clause (i) of buildings and property to assist the homeless shall be without consideration.
“(v) In the case of a request for a conveyance under clause (i) of buildings and property for public benefit under section 550 of title 40, United States Code, or sections 47151 through 47153 of title 49, United States Code, the sponsoring Federal agency shall use the eligibility criteria set forth in such section or such subchapter [probably means subchapter II (§47151 et seq.) of chapter 471 of Title 49, Transportation] (as the case may be) to determine the eligibility of the applicant and use proposed in the request for the public benefit conveyance. The determination of such eligibility should be made before submission of the redevelopment plan concerned under subparagraph (G).
“(L)(i) If the Secretary of Housing and Urban Development determines under subparagraph (J) that a revised redevelopment plan for an installation does not meet the requirements set forth in subparagraph (H)(i), or if no revised plan is so submitted, that Secretary shall—
“(I) review the original redevelopment plan submitted to that Secretary under subparagraph (G), including the notice or notices of representatives of the homeless referred to in clause (ii)(II) of that subparagraph;
“(II) consult with the representatives referred to in subclause (I), if any, for purposes of evaluating the continuing interest of such representatives in the use of buildings or property at the installation to assist the homeless;
“(III) request that each such representative submit to that Secretary the items described in clause (ii); and
“(IV) based on the actions of that Secretary under subclauses (I) and (II), and on any information obtained by that Secretary as a result of such actions, indicate to the Secretary of Defense the buildings and property at the installation that meet the requirements set forth in subparagraph (H)(i).
“(ii) The Secretary of Housing and Urban Development may request under clause (i)(III) that a representative of the homeless submit to that Secretary the following:
“(I) A description of the program of such representative to assist the homeless.
“(II) A description of the manner in which the buildings and property that the representative proposes to use for such purpose will assist the homeless.
“(III) Such information as that Secretary requires in order to determine the financial capacity of the representative to carry out the program and to ensure that the program will be carried out in compliance with Federal environmental law and Federal law against discrimination.
“(IV) A certification that police services, fire protection services, and water and sewer services available in the communities in the vicinity of the installation concerned are adequate for the program.
“(iii) Not later than 90 days after the date of the receipt of a revised plan for an installation under subparagraph (J), the Secretary of Housing and Urban Development shall—
“(I) notify the Secretary of Defense and the redevelopment authority concerned of the buildings and property at an installation under clause (i)(IV) that the Secretary of Housing and Urban Development determines are suitable for use to assist the homeless; and
“(II) notify the Secretary of Defense of the extent to which the revised plan meets the criteria set forth in subparagraph (H)(i).
“(iv)(I) Upon notice from the Secretary of Housing and Urban Development with respect to an installation under clause (iii), the Secretary of Defense shall dispose of buildings and property at the installation in consultation with the Secretary of Housing and Urban Development and the redevelopment authority concerned.
“(II) For purposes of carrying out an environmental assessment of the closure or realignment of an installation, the Secretary of Defense shall treat the redevelopment plan submitted by the redevelopment authority for the installation (including the aspects of the plan providing for disposal to State or local governments, representatives of the homeless, and other interested parties) as part of the proposed Federal action for the installation. The Secretary of Defense shall incorporate the notification of the Secretary of Housing and Urban Development under clause (iii)(I) as part of the proposed Federal action for the installation only to the extent, if any, that the Secretary of Defense considers such incorporation to be appropriate and consistent with the best and highest use of the installation as a whole, taking into consideration the redevelopment plan submitted by the redevelopment authority.
“(III) The Secretary of Defense shall dispose of buildings and property under subclause (I) in accordance with the record of decision or other decision document prepared by the Secretary in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). In preparing the record of decision or other decision document, the Secretary shall give deference to the redevelopment plan submitted by the redevelopment authority for the installation.
“(IV) The disposal under subclause (I) of buildings and property to assist the homeless shall be without consideration.
“(V) In the case of a request for a conveyance under subclause (I) of buildings and property for public benefit under section 550 of title 40, United States Code, or sections 47151 through 47153 of title 49, United States Code, the sponsoring Federal agency shall use the eligibility criteria set forth in such section or such subchapter [probably means subchapter II (§47151 et seq.) of Title 49, Transportation] (as the case may be) to determine the eligibility of the applicant and use proposed in the request for the public benefit conveyance. The determination of such eligibility should be made before submission of the redevelopment plan concerned under subparagraph (G).
“(M)(i) In the event of the disposal of buildings and property of an installation pursuant to subparagraph (K) or (L), the redevelopment authority for the installation shall be responsible for the implementation of and compliance with agreements under the redevelopment plan described in that subparagraph for the installation.
“(ii) If a building or property reverts to a redevelopment authority under such an agreement, the redevelopment authority shall take appropriate actions to secure, to the maximum extent practicable, the utilization of the building or property by other homeless representatives to assist the homeless. A redevelopment authority may not be required to utilize the building or property to assist the homeless.
“(N) The Secretary of Defense may postpone or extend any deadline provided for under this paragraph in the case of an installation covered by this paragraph for such period as the Secretary considers appropriate if the Secretary determines that such postponement is in the interests of the communities affected by the closure or realignment of the installation. The Secretary shall make such determinations in consultation with the redevelopment authority concerned and, in the case of deadlines provided for under this paragraph with respect to the Secretary of Housing and Urban Development, in consultation with the Secretary of Housing and Urban Development.
“(O) For purposes of this paragraph, the term ‘communities in the vicinity of the installation’, in the case of an installation, means the communities that constitute the political jurisdictions (other than the State in which the installation is located) that comprise the redevelopment authority for the installation.
“(P) For purposes of this paragraph, the term ‘other interested parties’, in the case of an installation, includes any parties eligible for the conveyance of property of the installation under section 550 of title 40, United States Code, or sections 47151 through 47153 of title 49, United States Code, whether or not the parties assist the homeless.
“(8)(A) Subject to subparagraph (C), the Secretary may enter into agreements (including contracts, cooperative agreements, or other arrangements for reimbursement) with local governments for the provision of police or security services, fire protection services, airfield operation services, or other community services by such governments at military installations to be closed under this part, or at facilities not yet transferred or otherwise disposed of in the case of installations closed under this part, if the Secretary determines that the provision of such services under such agreements is in the best interests of the Department of Defense.
“(B) The Secretary may exercise the authority provided under this paragraph without regard to the provisions of chapter 146 of title 10, United States Code.
“(C) The Secretary may not exercise the authority under subparagraph (A) with respect to an installation earlier than 180 days before the date on which the installation is to be closed.
“(D) The Secretary shall include in a contract for services entered into with a local government under this paragraph a clause that requires the use of professionals to furnish the services to the extent that professionals are available in the area under the jurisdiction of such government.
“(c)
“(2)(A) The provisions of the National Environmental Policy Act of 1969 shall apply to actions of the Department of Defense under this part (i) during the process of property disposal, and (ii) during the process of relocating functions from a military installation being closed or realigned to another military installation after the receiving installation has been selected but before the functions are relocated.
“(B) In applying the provisions of the National Environmental Policy Act of 1969 to the processes referred to in subparagraph (A), the Secretary of Defense and the Secretary of the military departments concerned shall not have to consider—
“(i) the need for closing or realigning the military installation which has been recommended for closure or realignment by the Commission;
“(ii) the need for transferring functions to any military installation which has been selected as the receiving installation; or
“(iii) military installations alternative to those recommended or selected.
“(3) A civil action for judicial review, with respect to any requirement of the National Environmental Policy Act of 1969 to the extent such Act is applicable under paragraph (2), of any act or failure to act by the Department of Defense during the closing, realigning, or relocating of functions referred to in clauses (i) and (ii) of paragraph (2)(A), may not be brought more than 60 days after the date of such act or failure to act.
“(d)
“(1) any provision of law restricting the use of funds for closing or realigning military installations included in any appropriations or authorization Act; and
“(2) sections 2662 and 2687 of title 10, United States Code.
“(e)
“(B) The real property and facilities referred to in subparagraph (A) are the real property and facilities located at an installation closed or to be closed, or realigned or to be realigned, under this part that are available exclusively for the use, or expression of an interest in a use, of a redevelopment authority under subsection (b)(6)(F) during the period provided for that use, or expression of interest in use, under that subsection. The real property and facilities referred to in subparagraph (A) are also the real property and facilities located at an installation approved for closure or realignment under this part after 2001 that are available for purposes other than to assist the homeless.
“(C) The Secretary may require any additional terms and conditions in connection with an agreement authorized by subparagraph (A) as the Secretary considers appropriate to protect the interests of the United States.
“(2) A transfer of real property or facilities may be made under paragraph (1) only if the Secretary certifies to Congress that—
“(A) the costs of all environmental restoration, waste management, and environmental compliance activities otherwise to be paid by the Secretary with respect to the property or facilities are equal to or greater than the fair market value of the property or facilities to be transferred, as determined by the Secretary; or
“(B) if such costs are lower than the fair market value of the property or facilities, the recipient of the property or facilities agrees to pay the difference between the fair market value and such costs.
“(3) In the case of property or facilities covered by a certification under paragraph (2)(A), the Secretary may pay the recipient of such property or facilities an amount equal to the lesser of—
“(A) the amount by which the costs incurred by the recipient of such property or facilities for all environmental restoration, waste, management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as specified in such certification; or
“(B) the amount by which the costs (as determined by the Secretary) that would otherwise have been incurred by the Secretary for such restoration, management, and activities with respect to such property or facilities exceed the fair market value of such property or facilities as so specified.
“(4) As part of an agreement under paragraph (1), the Secretary shall disclose to the person to whom the property or facilities will be transferred any information of the Secretary regarding the environmental restoration, waste management, and environmental compliance activities described in paragraph (1) that relate to the property or facilities. The Secretary shall provide such information before entering into the agreement.
“(5) Nothing in this subsection shall be construed to modify, alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) or the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).
“(6) Section 330 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102–484; 10 U.S.C. 2687 note) shall not apply to any transfer under this subsection to persons or entities described in subsection (a)(2) of such section 330, except in the case of releases or threatened releases not disclosed pursuant to paragraph (4).
“[(f) Repealed. Pub. L. 108–136, div. B, title XXVIII, §2805(d)(2), Nov. 24, 2003, 117 Stat. 1721.]
“(g)
“(A) it is in the best interests of the Federal Government to eliminate or relocate the manufactured housing park; and
“(B) the elimination or relocation of the manufactured housing park would result in an unreasonable financial hardship to the owners of the manufactured housing.
“(2) Any payment made under this subsection shall not exceed 90 percent of the purchase price of the manufactured housing, as paid by the member or any spouse of the member, plus the cost of any permanent improvements subsequently made to the manufactured housing by the member or spouse of the member.
“(3) The Secretary shall dispose of manufactured housing acquired under this subsection through resale, donation, trade or otherwise within one year of acquisition.
“(a)
“(2) There shall be deposited into the Account—
“(A) funds authorized for and appropriated to the Account;
“(B) any funds that the Secretary may, subject to approval in an appropriation Act, transfer to the Account from funds appropriated to the Department of Defense for any purpose, except that such funds may be transferred only after the date on which the Secretary transmits written notice of, and justification for, such transfer to the congressional defense committees;
“(C) except as provided in subsection (d), proceeds received from the lease, transfer, or disposal of any property at a military installation closed or realigned under this part[,] the date of approval of closure or realignment of which is before January 1, 2005; and
“(D) proceeds received after September 30, 1995, from the lease, transfer, or disposal of any property at a military installation closed or realigned under title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(3) The Account shall be closed at the time and in the manner provided for appropriation accounts under section 1555 of title 31, United States Code. Unobligated funds which remain in the Account upon closure shall be held by the Secretary of the Treasury until transferred by law after the congressional defense committees receive the final report transmitted under subsection (c)(2).
“(b)
“(2) When a decision is made to use funds in the Account to carry out a construction project under section 2905(a) and the cost of the project will exceed the maximum amount authorized by law for a minor military construction project, the Secretary shall notify in writing the congressional defense committees of the nature of, and justification for, the project and the amount of expenditures for such project. Any such construction project may be carried out without regard to section 2802(a) of title 10, United States Code.
“(c)
“(i) the amount and nature of the deposits into, and the expenditures from, the Account during such fiscal year;
“(ii) the amount and nature of other expenditures made pursuant to section 2905(a) during such fiscal year;
“(iii) the amount and nature of anticipated deposits to be made into, and the anticipated expenditures to be made from, the Account during the first fiscal year commencing after the submission of the report; and
“(iv) the amount and nature of anticipated expenditures to be made pursuant to section 2905(a) during the first fiscal year commencing after the submission of the report.
“(B) The report for a fiscal year shall include the following:
“(i) The obligations and expenditures from the Account during the fiscal year, identified by subaccount and installation, for each military department and Defense Agency.
“(ii) The fiscal year in which appropriations for such expenditures were made and the fiscal year in which funds were obligated for such expenditures.
“(iii) Each military construction project for which such obligations and expenditures were made, identified by installation and project title.
“(iv) A description and explanation of the extent, if any, to which expenditures for military construction projects for the fiscal year differed from proposals for projects and funding levels that were included in the justification transmitted to Congress under section 2907(1), or otherwise, for the funding proposals for the Account for such fiscal year, including an explanation of—
“(I) any failure to carry out military construction projects that were so proposed; and
“(II) any expenditures for military construction projects that were not so proposed.
“(v) An estimate of the net revenues to be received from property disposals to be completed during the first fiscal year commencing after the submission of the report at military installations the date of approval of closure or realignment of which is before January 1, 2005.
“(2) No later than 60 days after the termination of the authority of the Secretary to carry out a closure or realignment under this part with respect to military installations the date of approval of closure or realignment of which is before January 1, 2005, and no later than 60 days after the closure of the Account under subsection (a)(3), the Secretary shall transmit to the congressional defense committees a report containing an accounting of—
“(A) all the funds deposited into and expended from the Account or otherwise expended under this part with respect to such installations; and
“(B) any amount remaining in the Account.
“(d)
“(2) The amount so deposited shall be equal to the depreciated value of the investment made with such funds in the acquisition, construction, or improvement of that particular real property or facility. The depreciated value of the investment shall be computed in accordance with regulations prescribed by the Secretary of Defense.
“(3) Subject to the limitation contained in section 204(b)(7)(C)(iii) of the Defense Authorization Amendments and Base Closure and Realignment Act [Pub. L. 100–526, title II, set out below], amounts in the reserve account are hereby made available to the Secretary, without appropriation and until expended, for the purpose of acquiring, constructing, and improving—
“(A) commissary stores; and
“(B) real property and facilities for nonappropriated fund instrumentalities.
“(4) As used in this subsection:
“(A) The term ‘commissary store funds’ means funds received from the adjustment of, or surcharge on, selling prices at commissary stores fixed under section 2685 of title 10, United States Code.
“(B) The term ‘nonappropriated funds’ means funds received from a nonappropriated fund instrumentality.
“(C) The term ‘nonappropriated fund instrumentality’ means an instrumentality of the United States under the jurisdiction of the Armed Forces (including the Army and Air Force Exchange Service, the Navy Resale and Services Support Office, and the Marine Corps exchanges) which is conducted for the comfort, pleasure, contentment, or physical or mental improvement of members of the Armed Forces.
“(e)
“(a)
“(2) There shall be deposited into the Account—
“(A) funds authorized for and appropriated to the Account;
“(B) any funds that the Secretary may, subject to approval in an appropriation Act, transfer to the Account from funds appropriated to the Department of Defense for any purpose, except that such funds may be transferred only after the date on which the Secretary transmits written notice of, and justification for, such transfer to the congressional defense committees; and
“(C) except as provided in subsection (d), proceeds received from the lease, transfer, or disposal of any property at a military installation that is closed or realigned under this part pursuant to a closure or realignment the date of approval of which is after January 1, 2005.
“(3) The Account shall be closed at the time and in the manner provided for appropriation accounts under section 1555 of title 31, United States Code. Unobligated funds which remain in the Account upon closure shall be held by the Secretary of the Treasury until transferred by law after the congressional defense committees receive the final report transmitted under subsection (c)(2).
“(b)
“(2) When a decision is made to use funds in the Account to carry out a construction project under section 2905(a) and the cost of the project will exceed the maximum amount authorized by law for a minor military construction project, the Secretary shall notify in writing the congressional defense committees of the nature of, and justification for, the project and the amount of expenditures for such project. Any such construction project may be carried out without regard to section 2802(a) of title 10, United States Code.
“(c)
“(i) the amount and nature of the deposits into, and the expenditures from, the Account during such fiscal year;
“(ii) the amount and nature of other expenditures made pursuant to section 2905(a) during such fiscal year;
“(iii) the amount and nature of anticipated deposits to be made into, and the anticipated expenditures to be made from, the Account during the first fiscal year commencing after the submission of the report; and
“(iv) the amount and nature of anticipated expenditures to be made pursuant to section 2905(a) during the first fiscal year commencing after the submission of the report.
“(B) The report for a fiscal year shall include the following:
“(i) The obligations and expenditures from the Account during the fiscal year, identified by subaccount and installation, for each military department and Defense Agency.
“(ii) The fiscal year in which appropriations for such expenditures were made and the fiscal year in which funds were obligated for such expenditures.
“(iii) Each military construction project for which such obligations and expenditures were made, identified by installation and project title.
“(iv) A description and explanation of the extent, if any, to which expenditures for military construction projects for the fiscal year differed from proposals for projects and funding levels that were included in the justification transmitted to Congress under section 2907(1), or otherwise, for the funding proposals for the Account for such fiscal year, including an explanation of—
“(I) any failure to carry out military construction projects that were so proposed; and
“(II) any expenditures for military construction projects that were not so proposed.
“(v) An estimate of the net revenues to be received from property disposals to be completed during the first fiscal year commencing after the submission of the report at military installations the date of approval of closure or realignment of which is after January 1, 2005.
“(2) No later than 60 days after the termination of the authority of the Secretary to carry out a closure or realignment under this part with respect to military installations the date of approval of closure or realignment of which is after January 1, 2005, and no later than 60 days after the closure of the Account under subsection (a)(3), the Secretary shall transmit to the congressional defense committees a report containing an accounting of—
“(A) all the funds deposited into and expended from the Account or otherwise expended under this part with respect to such installations; and
“(B) any amount remaining in the Account.
“(d)
“(2) The amount so deposited shall be equal to the depreciated value of the investment made with such funds in the acquisition, construction, or improvement of that particular real property or facility. The depreciated value of the investment shall be computed in accordance with regulations prescribed by the Secretary.
“(3) The Secretary may use amounts in the reserve account, without further appropriation, for the purpose of acquiring, constructing, and improving—
“(A) commissary stores; and
“(B) real property and facilities for nonappropriated fund instrumentalities.
“(4) In this subsection, the terms ‘commissary store funds’, ‘nonappropriated funds’, and ‘nonappropriated fund instrumentality’ shall have the meaning given those terms in section 2906(d)(4).
“(e)
“(f)
“(2) Paragraph (1) shall not apply to a military construction project or military family housing project to be carried out using funds in the Account with an estimated cost of less than $5,000,000, unless the project has not been previously identified in any budget submission for the Account and exceeds the applicable minor construction threshold under section 2805 of title 10, United States Code.
“(3) The limitation on cost or scope variation in paragraph (1) shall not apply if the Secretary of Defense makes a determination that an increase or reduction in cost or a reduction in the scope of work for a military construction project or military family housing project to be carried out using funds in the Account needs to be made for the sole purpose of meeting unusual variations in cost or scope. If the Secretary makes such a determination, the Secretary shall notify the congressional defense committees of the variation in cost or scope not later than 21 days before the date on which the variation is made in connection with the project or, if the notification is provided in an electronic medium pursuant to section 480 of title 10, United States Code, not later than 14 days before the date on which the variation is made. The Secretary shall include the reasons for the variation in the notification.
“(a)
“(1) a schedule of the closure actions to be carried out under this part in the fiscal year for which the request is made and an estimate of the total expenditures required and cost savings to be achieved by each such closure and of the time period in which these savings are to be achieved in each case, together with the Secretary's assessment of the environmental effects of such actions;
“(2) a description of the military installations, including those under construction and those planned for construction, to which functions are to be transferred as a result of such closures, together with the Secretary's assessment of the environmental effects of such transfers;
“(3) a description of the closure actions already carried out at each military installation since the date of the installation's approval for closure under this part and the current status of the closure of the installation, including whether—
“(A) a redevelopment authority has been recognized by the Secretary for the installation;
“(B) the screening of property at the installation for other Federal use has been completed; and
“(C) a redevelopment plan has been agreed to by the redevelopment authority for the installation;
“(4) a description of redevelopment plans for military installations approved for closure under this part, the quantity of property remaining to be disposed of at each installation as part of its closure, and the quantity of property already disposed of at each installation;
“(5) a list of the Federal agencies that have requested property during the screening process for each military installation approved for closure under this part, including the date of transfer or anticipated transfer of the property to such agencies, the acreage involved in such transfers, and an explanation for any delays in such transfers;
“(6) a list of known environmental remediation issues at each military installation approved for closure under this part, including the acreage affected by these issues, an estimate of the cost to complete such environmental remediation, and the plans (and timelines) to address such environmental remediation; and
“(7) an estimate of the date for the completion of all closure actions at each military installation approved for closure under this part.
“(b)
“(a)
“(1) which does not have a preamble;
“(2) the matter after the resolving clause of which is as follows: ‘That Congress disapproves the recommendations of the Defense Base Closure and Realignment Commission as submitted by the President on ———’, the blank space being filled in with the appropriate date; and
“(3) the title of which is as follows: ‘Joint resolution disapproving the recommendations of the Defense Base Closure and Realignment Commission.’.
“(b)
“(c)
“(d)
“(2) Debate on the resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 2 hours, which shall be divided equally between those favoring and those opposing the resolution. An amendment to the resolution is not in order. A motion further to limit debate is in order and not debatable. A motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the resolution is not in order. A motion to reconsider the vote by which the resolution is agreed to or disagreed to is not in order.
“(3) Immediately following the conclusion of the debate on a resolution described in subsection (a) and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the appropriate House, the vote on final passage of the resolution shall occur.
“(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a resolution described in subsection (a) shall be decided without debate.
“(e)
“(A) The resolution of the other House shall not be referred to a committee and may not be considered in the House receiving it except in the case of final passage as provided in subparagraph (B)(ii).
“(B) With respect to a resolution described in subsection (a) of the House receiving the resolution—
“(i) the procedure in that House shall be the same as if no resolution had been received from the other House; but
“(ii) the vote on final passage shall be on the resolution of the other House.
“(2) Upon disposition of the resolution received from the other House, it shall no longer be in order to consider the resolution that originated in the receiving House.
“(f)
“(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a resolution described in subsection (a), and it supersedes other rules only to the extent that it is inconsistent with such rules; and
“(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.
“(a)
“(b)
“(1) to identify, through any transmittal to the Congress or through any other public announcement or notification, any military installation inside the United States as an installation to be closed or realigned or as an installation under consideration for closure or realignment; or
“(2) to carry out any closure or realignment of a military installation inside the United States.
“(c)
“(1) closures and realignments under title II of Public Law 100–526 [set out below]; and
“(2) closures and realignments to which section 2687 of title 10, United States Code, is not applicable, including closures and realignments carried out for reasons of national security or a military emergency referred to in subsection (c) of such section.
“As used in this part:
“(1) The term ‘Account’ means the Department of Defense Base Closure Account 1990 established by section 2906(a)(1).
“(2) The term ‘congressional defense committees’ means the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.
“(3) The term ‘Commission’ means the Commission established by section 2902.
“(4) The term ‘military installation’ means a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the Department of Defense, including any leased facility. Such term does not include any facility used primarily for civil works, rivers and harbors projects, flood control, or other projects not under the primary jurisdiction or control of the Department of Defense.
“(5) The term ‘realignment’ includes any action which both reduces and relocates functions and civilian personnel positions but does not include a reduction in force resulting from workload adjustments, reduced personnel or funding levels, or skill imbalances.
“(6) The term ‘Secretary’ means the Secretary of Defense.
“(7) The term ‘United States’ means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, and any other commonwealth, territory, or possession of the United States.
“(8) The term ‘date of approval’, with respect to a closure or realignment of an installation, means the date on which the authority of Congress to disapprove a recommendation of closure or realignment, as the case may be, of such installation under this part expires.
“(9) The term ‘redevelopment authority’, in the case of an installation to be closed or realigned under this part, means any entity (including an entity established by a State or local government) recognized by the Secretary of Defense as the entity responsible for developing the redevelopment plan with respect to the installation or for directing the implementation of such plan.
“(10) The term ‘redevelopment plan’ in the case of an installation to be closed or realigned under this part, means a plan that—
“(A) is agreed to by the local redevelopment authority with respect to the installation; and
“(B) provides for the reuse or redevelopment of the real property and personal property of the installation that is available for such reuse and redevelopment as a result of the closure or realignment of the installation.
“(11) The term ‘representative of the homeless’ has the meaning given such term in section 501(i)(4) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411(i)(4)).
“[Amended this section.]
“(a)
“(1)
“(A) A force-structure plan for the Armed Forces based on an assessment by the Secretary of the probable threats to the national security during the 20-year period beginning with fiscal year 2005, the probable end-strength levels and major military force units (including land force divisions, carrier and other major combatant vessels, air wings, and other comparable units) needed to meet these threats, and the anticipated levels of funding that will be available for national defense purposes during such period.
“(B) A comprehensive inventory of military installations world-wide for each military department, with specifications of the number and type of facilities in the active and reserve forces of each military department.
“(2)
“(A) A description of the infrastructure necessary to support the force structure described in the force-structure plan.
“(B) A discussion of categories of excess infrastructure and infrastructure capacity.
“(C) An economic analysis of the effect of the closure or realignment of military installations to reduce excess infrastructure.
“(3)
“(A) The anticipated continuing need for and availability of military installations outside the United States, taking into account current restrictions on the use of military installations outside the United States and the potential for future prohibitions or restrictions on the use of such military installations.
“(B) Any efficiencies that may be gained from joint tenancy by more than one branch of the Armed Forces at a military installation.
“(4)
“(b)
“(1)
“(A) a certification regarding whether the need exists for the closure or realignment of additional military installations; and
“(B) if such need exists, a certification that the additional round of closures and realignments would result in annual net savings for each of the military departments beginning not later than fiscal year 2011.
“(2)
“(c)
“(1)
“(A) The force-structure plan and infrastructure inventory prepared under subsection (a) and the final selection criteria specified in section 2913, including an evaluation of the accuracy and analytical sufficiency of such plan, inventory, and criteria.
“(B) The need for the closure or realignment of additional military installations.
“(2)
“(d)
“(1)
“(2)
“(3)
“(4)
“(5)
“(a)
“(b)
“(1) The current and future mission capabilities and the impact on operational readiness of the total force of the Department of Defense, including the impact on joint warfighting, training, and readiness.
“(2) The availability and condition of land, facilities, and associated airspace (including training areas suitable for maneuver by ground, naval, or air forces throughout a diversity of climate and terrain areas and staging areas for the use of the Armed Forces in homeland defense missions) at both existing and potential receiving locations.
“(3) The ability to accommodate contingency, mobilization, surge, and future total force requirements at both existing and potential receiving locations to support operations and training.
“(4) The cost of operations and the manpower implications.
“(c)
“(1) The extent and timing of potential costs and savings, including the number of years, beginning with the date of completion of the closure or realignment, for the savings to exceed the costs.
“(2) The economic impact on existing communities in the vicinity of military installations.
“(3) The ability of the infrastructure of both the existing and potential receiving communities to support forces, missions, and personnel.
“(4) The environmental impact, including the impact of costs related to potential environmental restoration, waste management, and environmental compliance activities.
“(d)
“(e)
“(f)
“(g)
“(a)
“(b)
“(1)
“(2)
“(B) Notwithstanding the requirement in subparagraph (A), the Secretary shall make the recommendations referred to in that subparagraph based on the force-structure plan, infrastructure inventory, and final selection criteria otherwise applicable to such recommendations.
“(C) The recommendations shall include a statement of the result of the consideration of any notice described in subparagraph (A) that is received with respect to a military installation covered by such recommendations. The statement shall set forth the reasons for the result.
“[(c) Repealed. Pub. L. 108–375, div. B, title XXVIII, §2833, Oct. 28, 2004, 118 Stat. 2134.]
“(d)
“(1)
“(2)
“(3)
“(A) the Commission provides the Secretary with at least a 15-day period, before making the change, in which to submit an explanation of the reasons why the installation was not included on the closure or realignment list by the Secretary; and
“(B) the decision to add the installation for Commission consideration is supported by at least seven members of the Commission.
“(4)
“(5)
“(A) at least two members of the Commission visit the military installation before the date of the transmittal of the report; and
“(B) the decision of the Commission to make the change to recommend the closure of the military installation, the realignment of the installation, or the expanded realignment of the installation is supported by at least seven members of the Commission.
“(6)
“(e)
“(1)
“(2)
“(3)
“(4)
[Pub. L. 110–417, div. B, title XXVII, §2712(a)(2), Oct. 14, 2008, 122 Stat. 4716, provided that: “The amendments made by paragraph (1) [amending Pub. L. 110–181, §2704(a), set out above] shall take effect on January 28, 2008, as if included in the enactment of section 2704 of the Military Construction Authorization Act for Fiscal Year 2008 [Pub. L. 110–181].”]
[Pub. L. 110–417, div. B, §2003, Oct. 14, 2008, 122 Stat. 4658, provided that: “Titles XXI, XXII, XXIII, XXIV, XXV, XXVI [122 Stat. 4658, 4669, 4675, 4687, 4698], XXVII [enacting Pub. L. 110–417, §2712(a)(2), set out above, and amending Pub. L. 110–510, div. B, title XXIX, part A, and Pub. L. 110–181, §2704, which amended Pub. L. 110–510, div. B, title XXIX, part A, set out above], and XXIX [122 Stat. 4741] shall take effect on the later of—
[“(1) October 1, 2008; or
[“(2) the date of the enactment of this Act [Oct. 14, 2008].”]
[Pub. L. 107–314, div. A, title X, §1062(f), Dec. 2, 2002, 116 Stat. 2651, provided that the amendment made by section 1062(f)(4) is effective as of Dec. 28, 2001, and as if included in Pub. L. 107–107 as enacted.]
[For effective date of amendment by section 2813(d)(2) of Pub. L. 103–337 to section 2910 of Pub. L. 101–510, set out above, see Effective Date of 1994 Amendments by Section 2813(d)(1) and (2) of Pub. L. 103–337 note set out above.]
[Section 2902(c) of Pub. L. 103–160 provided that: “For the purposes of section 2905(b)(3) of the Defense Base Closure and Realignment Act of 1990 [Pub. L. 101–510, set out above], as added by subsection (b), the date of approval of closure of any installation approved for closure before the date of the enactment of this Act [Nov. 30, 1993] shall be deemed to be the date of the enactment of this Act.”]
[Section 2904(c) of Pub. L. 103–160 provided that: “The Secretary of Defense shall make the determinations required under section 2905(b)(5) of the Defense Base Closure and Realignment Act of 1990 [Pub. L. 101–510, set out above], as added by subsection (b), in the case of installations approved for closure under such Act [part A of title XXIX of div. B of Pub. L. 101–510, set out above] before the date of the enactment of this Act [Nov. 30, 1993], not later than 6 months after the date of the enactment of this Act.”]
[Section 2930(b) of Pub. L. 103–160 provided that: “The amendment made by this section [amending section 2903(d)(1) of Pub. L. 101–510 set out above] shall apply with respect to all public hearings conducted by the Defense Base Closure and Realignment Commission after the date of the enactment of this Act [Nov. 30, 1993].”]
[For effective date of amendments by section 344(b)(1) of Pub. L. 102–190 to section 2906 of Pub. L. 101–510, set out above, see Effective Date of 1991 Amendments by Section 344 of Pub. L. 102–190 note set out above.]
[Section 2821(h)(2) of Pub. L. 102–190 provided that: “The amendment made by paragraph (1) [amending section 2910 of Pub. L. 101–510 set out above] shall take effect as of November 5, 1990, and shall apply as if it had been included in section 2910(4) of the Defense Base Closure and Realignment Act of 1990 [section 2910 of Pub. L. 101–510] on that date.”]
[Section 2827(a)(3) of Pub. L. 102–190 provided that: “The amendments made by this subsection [amending sections 2905 and 2906 of Pub. L. 101–510 set out above] shall take effect on the date of the enactment of this Act [Dec. 5, 1991].”]
[References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.]
Pub. L. 108–287, title VIII, §8018, Aug. 5, 2004, 118 Stat. 974, provided that: “Notwithstanding any other provision of law, during the current fiscal year and hereafter, the Secretary of Defense may, by executive agreement, establish with host nation governments in NATO member states a separate account into which such residual value amounts negotiated in the return of United States military installations in NATO member states may be deposited, in the currency of the host nation, in lieu of direct monetary transfers to the United States Treasury: Provided, That such credits may be utilized only for the construction of facilities to support United States military forces in that host nation, or such real property maintenance and base operating costs that are currently executed through monetary transfers to such host nations: Provided further, That the Department of Defense's budget submission for subsequent fiscal years shall identify such sums anticipated in residual value settlements, and identify such construction, real property maintenance or base operating costs that shall be funded by the host nation through such credits: Provided further, That all military construction projects to be executed from such accounts must be previously approved in a prior Act of Congress: Provided further, That each such executive agreement with a NATO member host nation shall be reported to the congressional defense committees [Committees on Armed Services of the Senate and House of Representatives and Subcommittees on Defense of the Committees on Appropriations of the Senate and House of Representatives], the Committee on International Relations [now Committee on Foreign Affairs] of the House of Representatives and the Committee on Foreign Relations of the Senate 30 days prior to the conclusion and endorsement of any such agreement established under this provision.”
Similar provisions for specified fiscal years were contained in the following appropriation acts:
Pub. L. 108–87, title VIII, §8018, Sept. 30, 2003, 117 Stat. 1075.
Pub. L. 107–248, title VIII, §8018, Oct. 23, 2002, 116 Stat. 1540.
Pub. L. 107–117, div. A, title VIII, §8019, Jan. 10, 2002, 115 Stat. 2251.
Pub. L. 106–259, title VIII, §8019, Aug. 9, 2000, 114 Stat. 678.
Pub. L. 106–79, title VIII, §8019, Oct. 25, 1999, 113 Stat. 1235.
Pub. L. 105–262, title VIII, §8019, Oct. 17, 1998, 112 Stat. 2301.
Pub. L. 105–56, title VIII, §8019, Oct. 8, 1997, 111 Stat. 1224.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8020], Sept. 30, 1996, 110 Stat. 3009–71, 3009–92.
Pub. L. 104–61, title VIII, §8027, Dec. 1, 1995, 109 Stat. 657.
Pub. L. 103–335, title VIII, §8033, Sept. 30, 1994, 108 Stat. 2625.
Pub. L. 103–139, title VIII, §8036, Nov. 11, 1993, 107 Stat. 1448.
Pub. L. 102–396, title IX, §9047A, Oct. 6, 1992, 106 Stat. 1913, as amended by Pub. L. 104–106, div. A, title XV, §1502(f)(2), Feb. 10, 1996, 110 Stat. 509.
Section 2921 of Pub. L. 101–510, as amended by Pub. L. 102–190, div. A, title III, §344(b)(2), Dec. 5, 1991, 105 Stat. 1345; Pub. L. 102–484, div. B, title XXVIII, §§2821(c), 2827, Oct. 23, 1992, 106 Stat. 2608, 2609; Pub. L. 103–160, div. B, title XXIX, §2924(b), Nov. 30, 1993, 107 Stat. 1931; Pub. L. 103–337, div. A, title XIII, §1305(c), div. B, title XXVIII, §2817, Oct. 5, 1994, 108 Stat. 2891, 3057; Pub. L. 104–106, div. A, title X, §1063(b), title XV, §§1502(c)(4)(D), 1505(e)(2), Feb. 10, 1996, 110 Stat. 444, 508, 515; Pub. L. 105–85, div. A, title X, §1073(d)(4)(C), Nov. 18, 1997, 111 Stat. 1905; Pub. L. 106–65, div. A, title X, §1067(10), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–136, div. A, title X, §1031(b), Nov. 24, 2003, 117 Stat. 1603, provided that:
“(a)
“(1) the termination of military operations by the United States at military installations outside the United States should be accomplished at the discretion of the Secretary of Defense at the earliest opportunity;
“(2) in providing for such termination, the Secretary of Defense should take steps to ensure that the United States receives, through direct payment or otherwise, consideration equal to the fair market value of the improvements made by the United States at facilities that will be released to host countries;
“(3) the Secretary of Defense, acting through the military component commands or the sub-unified commands to the combatant commands, should be the lead official in negotiations relating to determining and receiving such consideration; and
“(4) the determination of the fair market value of such improvements released to host countries in whole or in part by the United States should be handled on a facility-by-facility basis.
“(b)
“(2) For purposes of this section:
“(A) The term ‘fair market value of the improvements’ means the value of improvements determined by the Secretary on the basis of their highest use.
“(B) The term ‘improvements’ includes new construction of facilities and all additions, improvements, modifications, or renovations made to existing facilities or to real property, without regard to whether they were carried out with appropriated or nonappropriated funds.
“(c)
“(2) Money deposited in the Department of Defense Overseas Military Facility Investment Recovery Account shall be available to the Secretary of Defense for payment, as provided in appropriation Acts, of costs incurred by the Department of Defense in connection with—
“(A) facility maintenance and repair and environmental restoration at military installations in the United States; and
“(B) facility maintenance and repair and compliance with applicable environmental laws at military installations outside the United States that the Secretary anticipates will be occupied by the Armed Forces for a long period.
“(3) Funds in the Department of Defense Overseas Facility Investment Recovery Account shall remain available until expended.
“(d)
“(2) As used in this subsection:
“(A) The term ‘nonappropriated funds’ means funds received from—
“(i) the adjustment of, or surcharge on, selling prices at commissary stores fixed under section 2685 of title 10, United States Code; or
“(ii) a nonappropriated fund instrumentality.
“(B) The term ‘nonappropriated fund instrumentality’ means an instrumentality of the United States under the jurisdiction of the Armed Forces (including the Army and Air Force Exchange Service, the Navy Resale and Services Support Office, and the Marine Corps exchanges) which is conducted for the comfort, pleasure, contentment, or physical or mental improvement of members of the Armed Forces.
“(e)
“(2) The notice shall contain the following:
“(A) A justification for entering into negotiations for payments-in-kind with the host country.
“(B) The types of benefit options to be pursued by the Secretary in the negotiations.
“(C) A discussion of the adjustments that are intended to be made in the future-years defense program or in the budget of the Department of Defense for the fiscal year in which the notice is submitted or the following fiscal year in order to reflect costs that it may no longer be necessary for the United States to incur as a result of the payments-in-kind to be sought in the negotiations.
“(3) For purposes of this subsection, the appropriate congressional committees are—
“(A) the Committee on Armed Services, the Committee on Appropriations, and the National Security Subcommittee of the Committee on Appropriations of the House of Representatives; and
“(B) the Committee on Armed Services, the Committee on Appropriations, and the Subcommittee on Defense of the Committee on Appropriations of the Senate.
“(f) OMB
“(2) Each year, the Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on each proposed agreement of settlement that was not submitted by the Secretary to the Director of the Office of Management and Budget in the previous year under paragraph (1) because the value of the improvements to be released pursuant to the proposed agreement did not exceed $10,000,000.
“(g)
“(A) A description of the military construction project or facility improvement project, as the case may be.
“(B) A certification that the project is needed by United States forces.
“(C) An explanation of how the project will aid in the achievement of the mission of those forces.
“(D) A certification that, if the project were to be carried out by the Department of Defense, appropriations would be necessary for the project and it would be necessary to provide for the project in the next future-years defense program.
“(2) Before concluding an agreement for acceptance of host nation support or host nation payment of operating costs of United States forces as a payment-in-kind, the Secretary of Defense shall submit to Congress a notification on the proposed agreement. Any such notification shall contain the following:
“(A) A description of each activity to be covered by the payment-in-kind.
“(B) A certification that the costs to be covered by the payment-in-kind are included in the budget of one or more of the military departments or that it will otherwise be necessary to provide for payment of such costs in a budget of one or more of the military departments.
“(C) A certification that, unless the payment-in-kind is accepted or funds are appropriated for payment of such costs, the military mission of the United States forces with respect to the host nation concerned will be adversely affected.
“(3) When the Secretary submits a notification of a proposed agreement under paragraph (1) or (2), the Secretary may then enter into the agreement described in the notification only after the end of the 30-day period beginning on the date on which the notification is submitted or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of title 10, United States Code.”
[For effective date of amendment by section 344(b)(2) of Pub. L. 102–190 to section 2921 of Pub. L. 101–510, set out above, see Effective Date of 1991 Amendments by Section 344 of Pub. L. 102–190 note set out above.]
Pub. L. 102–380, §125, Oct. 5, 1992, 106 Stat. 1372, provided that:
“(a) The environmental response task force established in section 2923(c) of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 104 Stat. 1821) [set out below] shall reconvene and shall, until the date (as determined by the Secretary of Defense) on which all base closure activities required under title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 102 Stat. 2627) [set out below] are completed—
“(1) monitor the progress of relevant Federal and State agencies in implementing the recommendations of the task force contained in the report submitted under paragraph (1) of such section; and
“(2) annually submit to the Congress a report containing—
“(A) recommendations concerning ways to expedite and improve environmental response actions at military installations (or portions of installations) that are being closed or subject to closure under such title;
“(B) any additional recommendations that the task force considers appropriate; and
“(C) a summary of the progress made by relevant Federal and State agencies in implementing the recommendations of the task force.
“(b) The task force shall consist of—
“(1) the individuals (or their designees) described in section 2923(c)(2) of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 104 Stat. 1821); and
“(2) a representative of the Urban Land Institute (or such representative's designee), appointed by the Speaker of the House of Representatives and the Majority Leader of the Senate.”
Section 2923(c) of Pub. L. 101–510 provided that:
“(1) Not later than 12 months after the date of the enactment of this Act [Nov. 5, 1990], the Secretary of Defense shall submit to Congress a report containing the findings and recommendations of the task force established under paragraph (2) concerning—
“(A) ways to improve interagency coordination, within existing laws, regulations, and administrative policies, of environmental response actions at military installations (or portions of installations) that are being closed, or are scheduled to be closed, pursuant to title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526) [set out below]; and
“(B) ways to consolidate and streamline, within existing laws and regulations, the practices, policies, and administrative procedures of relevant Federal and State agencies with respect to such environmental response actions so as to enable those actions to be carried out more expeditiously.
“(2) There is hereby established an environmental response task force to make the findings and recommendations, and to prepare the report, required by paragraph (1). The task force shall consist of the following (or their designees):
“(A) The Secretary of Defense, who shall be chairman of the task force.
“(B) The Attorney General.
“(C) The Administrator of the General Services Administration.
“(D) The Administrator of the Environmental Protection Agency.
“(E) The Chief of Engineers, Department of the Army.
“(F) A representative of a State environmental protection agency, appointed by the head of the National Governors Association.
“(G) A representative of a State attorney general's office, appointed by the head of the National Association of Attorney Generals.
“(H) A representative of a public-interest environmental organization, appointed by the Speaker of the House of Representatives.”
Section 2924 of Pub. L. 101–510 provided that: “In any process of selecting any military installation inside the United States for closure or realignment, the Secretary of Defense shall take such steps as are necessary to assure that special consideration and emphasis is given to any official statement from a unit of general local government adjacent to or within a military installation requesting the closure or realignment of such installation.”
Section 2926 of Pub. L. 101–510, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729; Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717; Pub. L. 107–314, div. A, title X, §1062(m)(4), Dec. 2, 2002, 116 Stat. 2652, provided for a model program for base closure environmental restoration, prior to repeal by Pub. L. 108–136, div. A, title III, §316, Nov. 24, 2003, 117 Stat. 1432.
Pub. L. 101–225, title II, §216, Dec. 12, 1989, 103 Stat. 1915, provided that: “Notwithstanding any other provision of law, the Coast Guard is deemed to be an instrumentality within the Department of Defense for the purposes of section 204(b) of the Defense Authorization Amendments and Base Closure and Realignment Act [Pub. L. 100–526] (10 U.S.C. 2687 [note]).”
Pub. L. 101–189, div. A, title III, §353, Nov. 29, 1989, 103 Stat. 1423, directed Secretary of Defense to develop a comprehensive five-year plan for environmental restoration at military installations that would be closed or realigned during fiscal years 1991 through 1995, pursuant to title II of the Defense Authorization Amendments and Base Closure and Realignment Act, Pub. L. 100–526, set out below, and, at same time President submits to Congress budget for fiscal year 1991 pursuant to 31 U.S.C. 1105, to submit to Congress a report on the five-year plan.
Pub. L. 101–189, div. A, title VII, §723, Nov. 29, 1989, 103 Stat. 1478, provided that:
“(a)
“(b)
Pub. L. 101–189, div. B, title XXVIII, §2832, Nov. 29, 1989, 103 Stat. 1660, provided that:
“(a)
“(1) the war on drugs is one of the highest priorities of the Federal Government;
“(2) to effectively wage the war on drugs, adequate penal and correctional facilities and a substantial increase in the number and capacity of drug treatment facilities are needed;
“(3) under the base closure process, authorized by title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 102 Stat. 2627) [set out below], 86 military bases are scheduled for closure; and
“(4) facilities rendered excess by the base closure process should be seriously considered for use as prisons and drug treatment facilities, as appropriate.
“(b)
Pub. L. 101–189, div. B, title XXVIII, §2833, Nov. 29, 1989, 103 Stat. 1661, provided that:
“(a)
“(2) The Secretary shall carry out this subsection in consultation with the Secretary of Education.
“(b)
Pub. L. 100–526, title II, Oct. 24, 1988, 102 Stat. 2627, as amended by Pub. L. 101–510, div. B, title XXIX, §2923(b)(1), Nov. 5, 1990, 104 Stat. 1821; Pub. L. 102–190, div. A, title III, §344(a), Dec. 5, 1991, 105 Stat. 1344; Pub. L. 102–484, div. B, title XXVIII, §2821(a), Oct. 23, 1992, 106 Stat. 2606; Pub. L. 103–160, div. B, title XXIX, §§2902(a), 2903(a), 2904(a), 2905(a), 2907(a), 2908(a), 2918(b), 2921(a), Nov. 30, 1993, 107 Stat. 1909, 1912, 1915, 1916, 1921, 1922, 1928, 1929; Pub. L. 103–337, div. A, title X, §1070(b)(13), div. B, title XXVIII, §§2812(a), 2813(a)–(c)(1), (d)(1), (e)(1), Oct. 5, 1994, 108 Stat. 2857, 3054, 3055; Pub. L. 103–421, §2(f)(1), Oct. 25, 1994, 108 Stat. 4354; Pub. L. 104–106, div. A, title XV, §§1504(a)(9), 1505(e)(3), div. B, title XXVIII, §§2831(b)(1), 2839(a), 2840(a), Feb. 10, 1996, 110 Stat. 513, 515, 558, 563, 564; Pub. L. 104–201, div. B, title XXVIII, §§2811, 2812(a), 2813(a), Sept. 23, 1996, 110 Stat. 2788, 2789; Pub. L. 105–85, div. A, title X, §1073(d)(6), div. B, title XXVIII, §2821(a), Nov. 18, 1997, 111 Stat. 1906, 1996; Pub. L. 106–65, div. B, title XXVIII, §2821(b), Oct. 5, 1999, 113 Stat. 855; Pub. L. 106–398, §1 [div. B, title XXVIII, §2821(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–419; Pub. L. 107–107, div. A, title X, §1048(d)(3), div. B, title XXVIII, §2821(a), Dec. 28, 2001, 115 Stat. 1227, 1311; Pub. L. 107–314, div. A, title X, §1062(n), div. B, title XXVIII, §2814(a), Dec. 2, 2002, 116 Stat. 2652, 2710; Pub. L. 108–136, div. A, title VI, §655(a), div. B, title XXVIII, §2805(d)(1), Nov. 24, 2003, 117 Stat. 1523, 1721, provided that:
“The Secretary shall—
“(1) close all military installations recommended for closure by the Commission on Base Realignment and Closure in the report transmitted to the Secretary pursuant to the charter establishing such Commission;
“(2) realign all military installations recommended for realignment by such Commission in such report; and
“(3) initiate all such closures and realignments no later than September 30, 1991, and complete all such closures and realignments no later than September 30, 1995, except that no such closure or realignment may be initiated before January 1, 1990.
“(a)
“(1) no later than January 16, 1989, the Secretary transmits to the Committees on Armed Services of the Senate and the House of Representatives a report containing a statement that the Secretary has approved, and the Department of Defense will implement, all of the military installation closures and realignments recommended by the Commission in the report referred to in section 201(1);
“(2) the Commission has recommended, in the report referred to in section 201(1), the closure or realignment, as the case may be, of the installation, and has transmitted to the Committees on Armed Services of the Senate and the House of Representatives a copy of such report and the statement required by section 203(b)(2); and
“(3) the Secretary of Defense has transmitted to the Commission the study required by section 206(b).
“(b)
“(c)
“(2) The termination of authority set forth in paragraph (1) shall not apply to the authority of the Secretary to carry out environmental restoration and waste management at, or disposal of property of, military installations closed or realigned under this title.
“(a)
“(b)
“(1) transmit the report referred to in section 201(1) to the Secretary no later than December 31, 1988, and shall include in such report a description of the Commission's recommendations of the military installations to which functions will be transferred as a result of the closures and realignments recommended by the Commission; and
“(2) on the same date on which the Commission transmits such report to the Secretary, transmit to Committees on Armed Services of the Senate and the House of Representatives—
“(A) a copy of such report; and
“(B) a statement certifying that the Commission has identified the military installations to be closed or realigned by reviewing all military installations inside the United States, including all military installations under construction and all those planned for construction.
“(c)
“(a)
“(1) subject to the availability of funds authorized for and appropriated to the Department of Defense for use in planning and design, minor construction, or operation and maintenance and the availability of funds in the Account, may carry out actions necessary to implement such closure or realignment, including the acquisition of such land, the construction of such replacement facilities, the performance of such activities, and the conduct of such advance planning and design as may be required to transfer functions from such military installation to another military installation;
“(2) subject to the availability of funds authorized for and appropriated to the Department of Defense for economic adjustment assistance or community planning assistance and the availability of funds in the Account, shall provide—
“(A) economic adjustment assistance to any community located near a military installation being closed or realigned; and
“(B) community planning assistance to any community located near a military installation to which functions will be transferred as a result of such closure or realignment,
if the Secretary determines that the financial resources available to the community (by grant or otherwise) for such purposes are inadequate; and
“(3) subject to the availability of funds authorized for and appropriated to the Department of Defense for environmental restoration and the availability of funds in the Account, may carry out activities for the purpose of environmental restoration, including reducing, removing, and recycling hazardous wastes and removing unsafe buildings and debris.
“(b)
“(A) the authority of the Administrator to utilize excess property under subchapter II of chapter 5 of title 40, United States Code;
“(B) the authority of the Administrator to dispose of surplus property under subchapter III of chapter 5 of title 40, United States Code; and
“(C) the authority to dispose of surplus property for public airports under sections 47151 through 47153 of title 49, United States Code.
“(2)(A) Subject to subparagraph (B), the Secretary shall exercise authority delegated to the Secretary pursuant to paragraph (1) in accordance with—
“(i) all regulations in effect on the date of the enactment of this title [Oct. 24, 1988] governing utilization of excess property and disposal of surplus property under the Federal Property and Administrative Services Act of 1949 [see chapters 1 to 11 of Title 40, Public Buildings, Property, and Works, and division C (except sections 3302, 3306(f), 3307(e), 3501(b), 3509, 3906, 4104, 4710, and 4711) of subtitle I of Title 41, Public Contracts]; and
“(ii) all regulations in effect on the date of the enactment of this title governing the conveyance and disposal of property under section 13(g) of the Surplus Property Act of 1944 (50 U.S.C. App. 1622(g)).
“(B) The Secretary, after consulting with the Administrator of General Services, may issue regulations that are necessary to carry out the delegation of authority required by paragraph (1).
“(C) The authority required to be delegated by paragraph (1) to the Secretary by the Administrator of General Services shall not include the authority to prescribe general policies and methods for utilizing excess property and disposing of surplus property.
“(D) The Secretary of Defense may transfer real property or facilities located at a military installation to be closed or realigned under this title, with or without reimbursement, to a military department or other entity (including a nonappropriated fund instrumentality) within the Department of Defense or the Coast Guard.
“(E) Before any action may be taken with respect to the disposal of any surplus real property or facility located at any military installation to be closed or realigned under this title, the Secretary shall consult with the Governor of the State and the heads of the local governments concerned for the purpose of considering any plan for the use of such property by the local community concerned.
“(F) The provisions of this paragraph and paragraph (1) are subject to paragraphs (3) through (6).
“(3)(A) Not later than 6 months after the date of the enactment of the National Defense Authorization Act for Fiscal Year 1994 [Nov. 30, 1993], the Secretary, in consultation with the redevelopment authority with respect to each military installation to be closed under this title after such date of enactment, shall—
“(i) inventory the personal property located at the installation; and
“(ii) identify the items (or categories of items) of such personal property that the Secretary determines to be related to real property and anticipates will support the implementation of the redevelopment plan with respect to the installation.
“(B) If no redevelopment authority referred to in subparagraph (A) exists with respect to an installation, the Secretary shall consult with—
“(i) the local government in whose jurisdiction the installation is wholly located; or
“(ii) a local government agency or State government agency designated for the purpose of such consultation by the chief executive officer of the State in which the installation is located.
“(C)(i) Except as provided in subparagraphs (E) and (F), the Secretary may not carry out any of the activities referred to in clause (ii) with respect to an installation referred to in that clause until the earlier of—
“(I) one week after the date on which the redevelopment plan for the installation is submitted to the Secretary;
“(II) the date on which the redevelopment authority notifies the Secretary that it will not submit such a plan;
“(III) twenty-four months after the date referred to in subparagraph (A); or
“(IV) ninety days before the date of the closure of the installation.
“(ii) The activities referred to in clause (i) are activities relating to the closure of an installation to be closed under this title as follows:
“(I) The transfer from the installation of items of personal property at the installation identified in accordance with subparagraph (A).
“(II) The reduction in maintenance and repair of facilities or equipment located at the installation below the minimum levels required to support the use of such facilities or equipment for nonmilitary purposes.
“(D) Except as provided in paragraph (4), the Secretary may not transfer items of personal property located at an installation to be closed under this title to another installation, or dispose of such items, if such items are identified in the redevelopment plan for the installation as items essential to the reuse or redevelopment of the installation. In connection with the development of the redevelopment plan for the installation, the Secretary shall consult with the entity responsible for developing the redevelopment plan to identify the items of personal property located at the installation, if any, that the entity desires to be retained at the installation for reuse or redevelopment of the installation.
“(E) This paragraph shall not apply to any related personal property located at an installation to be closed under this title if the property—
“(i) is required for the operation of a unit, function, component, weapon, or weapons system at another installation;
“(ii) is uniquely military in character, and is likely to have no civilian use (other than use for its material content or as a source of commonly used components);
“(iii) is not required for the reutilization or redevelopment of the installation (as jointly determined by the Secretary and the redevelopment authority);
“(iv) is stored at the installation for purposes of distribution (including spare parts or stock items); or
“(v)(I) meets known requirements of an authorized program of another Federal department or agency for which expenditures for similar property would be necessary, and (II) is the subject of a written request by the head of the department or agency.
“(F) Notwithstanding subparagraphs (C)(i) and (D), the Secretary may carry out any activity referred to in subparagraph (C)(ii) or (D) if the Secretary determines that the carrying out of such activity is in the national security interest of the United States.
“(4)(A) The Secretary may transfer real property and personal property located at a military installation to be closed or realigned under this title to the redevelopment authority with respect to the installation for purposes of job generation on the installation.
“(B) The transfer of property of a military installation under subparagraph (A) shall be without consideration if the redevelopment authority with respect to the installation—
“(i) agrees that the proceeds from any sale or lease of the property (or any portion thereof) received by the redevelopment authority during at least the first seven years after the date of the initial transfer of property under subparagraph (A) shall be used to support the economic redevelopment of, or related to, the installation; and
“(ii) executes the agreement for transfer of the property and accepts control of the property within a reasonable time after the date of the property disposal record of decision or finding of no significant impact under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
“(C) For purposes of subparagraph (B), the use of proceeds from a sale or lease described in such subparagraph to pay for, or offset the costs of, public investment on or related to the installation for any of the following purposes shall be considered a use to support the economic redevelopment of, or related to, the installation:
“(i) Road construction.
“(ii) Transportation management facilities.
“(iii) Storm and sanitary sewer construction.
“(iv) Police and fire protection facilities and other public facilities.
“(v) Utility construction.
“(vi) Building rehabilitation.
“(vii) Historic property preservation.
“(viii) Pollution prevention equipment or facilities.
“(ix) Demolition.
“(x) Disposal of hazardous materials generated by demolition.
“(xi) Landscaping, grading, and other site or public improvements.
“(xii) Planning for or the marketing of the development and reuse of the installation.
“(D) The Secretary may recoup from a redevelopment authority such portion of the proceeds from a sale or lease described in subparagraph (B) as the Secretary determines appropriate if the redevelopment authority does not use the proceeds to support economic redevelopment of, or related to, the installation for the period specified in subparagraph (B).
“(E)(i) The Secretary may transfer real property at an installation approved for closure or realignment under this title (including property at an installation approved for realignment which will be retained by the Department of Defense or another Federal agency after realignment) to the redevelopment authority for the installation if the redevelopment authority agrees to lease, directly upon transfer, one or more portions of the property transferred under this subparagraph to the Secretary or to the head of another department or agency of the Federal Government. Subparagraph (B) shall apply to a transfer under this subparagraph.
“(ii) A lease under clause (i) shall be for a term of not to exceed 50 years, but may provide for options for renewal or extension of the term by the department or agency concerned.
“(iii) A lease under clause (i) may not require rental payments by the United States.
“(iv) A lease under clause (i) shall include a provision specifying that if the department or agency concerned ceases requiring the use of the leased property before the expiration of the term of the lease, the remainder of the lease term may be satisfied by the same or another department or agency of the Federal Government using the property for a use similar to the use under the lease. Exercise of the authority provided by this clause shall be made in consultation with the redevelopment authority concerned.
“(v) Notwithstanding clause (iii), if a lease under clause (i) involves a substantial portion of the installation, the department or agency concerned may obtain facility services for the leased property and common area maintenance from the redevelopment authority or the redevelopment authority's assignee as a provision of the lease. The facility services and common area maintenance shall be provided at a rate no higher than the rate charged to non-Federal tenants of the transferred property. Facility services and common area maintenance covered by the lease shall not include—
“(I) municipal services that a State or local government is required by law to provide to all landowners in its jurisdiction without direct charge; or
“(II) firefighting or security-guard functions.
“(F) The transfer of personal property under subparagraph (A) shall not be subject to the provisions of subchapters II and III of chapter 5 of title 40, United States Code, if the Secretary determines that the transfer of such property is necessary for the effective implementation of a redevelopment plan with respect to the installation at which such property is located.
“(G) The provisions of section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9620(h)) shall apply to any transfer of real property under this paragraph.
“(H)(i) In the case of an agreement for the transfer of property of a military installation under this paragraph that was entered into before April 21, 1999, the Secretary may modify the agreement, and in so doing compromise, waive, adjust, release, or reduce any right, title, claim, lien, or demand of the United States, if—
“(I) the Secretary determines that as a result of changed economic circumstances, a modification of the agreement is necessary;
“(II) the terms of the modification do not require the return of any payments that have been made to the Secretary;
“(III) the terms of the modification do not compromise, waive, adjust, release, or reduce any right, title, claim, lien, or demand of the United States with respect to in-kind consideration; and
“(IV) the cash consideration to which the United States is entitled under the modified agreement, when combined with the cash consideration to be received by the United States for the disposal of other real property assets on the installation, are as sufficient as they were under the original agreement to fund the reserve account established under paragraph (7)(C), with the depreciated value of the investment made with commissary store funds or nonappropriated funds in property disposed of pursuant to the agreement being modified, in accordance with section 2906(d) of the Defense Base Closure and Realignment Act of 1990 [Pub. L. 101–510, 10 U.S.C. 2687 note].
“(ii) When exercising the authority granted by clause (i), the Secretary may waive some or all future payments if, and to the extent that, the Secretary determines such waiver is necessary.
“(iii) With the exception of the requirement that the transfer be without consideration, the requirements of subparagraphs (B), (C), and (D) shall be applicable to any agreement modified pursuant to clause (i).
“(I) In the case of an agreement for the transfer of property of a military installation under this paragraph that was entered into during the period beginning on April 21, 1999, and ending on the date of enactment of the National Defense Authorization Act for Fiscal Year 2000 [Oct. 5, 1999], at the request of the redevelopment authority concerned, the Secretary shall modify the agreement to conform to all the requirements of subparagraphs (B), (C), and (D). Such a modification may include the compromise, waiver, adjustment, release, or reduction of any right, title, claim, lien, or demand of the United States under the agreement.
“(J) The Secretary may require any additional terms and conditions in connection with a transfer under this paragraph as such Secretary considers appropriate to protect the interests of the United States.
“(5)(A) Except as provided in subparagraphs (B) and (C), the Secretary shall take such actions as the Secretary determines necessary to ensure that final determinations under paragraph (1) regarding whether another department or agency of the Federal Government has identified a use for any portion of a military installation to be closed under this title after the date of the enactment of the National Defense Authorization Act for Fiscal Year 1994 [Nov. 30, 1993], or will accept transfer of any portion of such installation, are made not later than 6 months after such date of enactment.
“(B) The Secretary may, in consultation with the redevelopment authority with respect to an installation, postpone making the final determinations referred to in subparagraph (A) with respect to the installation for such period as the Secretary determines appropriate if the Secretary determines that such postponement is in the best interests of the communities affected by the closure of the installation.
“(C)(i) Before acquiring non-Federal real property as the location for a new or replacement Federal facility of any type, the head of the Federal agency acquiring the property shall consult with the Secretary regarding the feasibility and cost advantages of using Federal property or facilities at a military installation closed or realigned or to be closed or realigned under this title as the location for the new or replacement facility. In considering the availability and suitability of a specific military installation, the Secretary and the head of the Federal agency involved shall obtain the concurrence of the redevelopment authority with respect to the installation and comply with the redevelopment plan for the installation.
“(ii) Not later than 30 days after acquiring non-Federal real property as the location for a new or replacement Federal facility, the head of the Federal agency acquiring the property shall submit to Congress a report containing the results of the consultation under clause (i) and the reasons why military installations referred to in such clause that are located within the area to be served by the new or replacement Federal facility or within a 200-mile radius of the new or replacement facility, whichever area is greater, were considered to be unsuitable or unavailable for the site of the new or replacement facility.
“(iii) This subparagraph shall apply during the period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998 [Nov. 18, 1997] and ending on July 31, 2001.
“(6)(A) Except as provided in this paragraph, nothing in this section shall limit or otherwise affect the application of the provisions of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11301 et seq.) to military installations closed under this title.
“(B)(i) Not later than the date on which the Secretary of Defense completes the determination under paragraph (5) of the transferability of any portion of an installation to be closed under this title, the Secretary shall—
“(I) complete any determinations or surveys necessary to determine whether any building or property referred to in clause (ii) is excess property, surplus property, or unutilized or underutilized property for the purpose of the information referred to in section 501(a) of such Act (42 U.S.C. 11411(a)); and
“(II) submit to the Secretary of Housing and Urban Development information on any building or property that is so determined.
“(ii) The buildings and property referred to in clause (i) are any buildings or property located at an installation referred to in that clause for which no use is identified, or of which no Federal department or agency will accept transfer, pursuant to the determination of transferability referred to in that clause.
“(C) Not later than 60 days after the date on which the Secretary of Defense submits information to the Secretary of Housing and Urban Development under subparagraph (B)(ii), the Secretary of Housing and Urban Development shall—
“(i) identify the buildings and property described in such information that are suitable for use to assist the homeless;
“(ii) notify the Secretary of Defense of the buildings and property that are so identified;
“(iii) publish in the Federal Register a list of the buildings and property that are so identified, including with respect to each building or property the information referred to in section 501(c)(1)(B) of such Act [42 U.S.C. 11411(c)(1)(B)]; and
“(iv) make available with respect to each building and property the information referred to in section 501(c)(1)(C) of such Act in accordance with such section 501(c)(1)(C).
“(D) Any buildings and property included in a list published under subparagraph (C)(iii) shall be treated as property available for application for use to assist the homeless under section 501(d) of such Act.
“(E) The Secretary of Defense shall make available in accordance with section 501(f) of such Act any buildings or property referred to in subparagraph (D) for which—
“(i) a written notice of an intent to use such buildings or property to assist the homeless is received by the Secretary of Health and Human Services in accordance with section 501(d)(2) of such Act;
“(ii) an application for use of such buildings or property for such purpose is submitted to the Secretary of Health and Human Services in accordance with section 501(e)(2) of such Act; and
“(iii) the Secretary of Health and Human Services—
“(I) completes all actions on the application in accordance with section 501(e)(3) of such Act; and
“(II) approves the application under section 501(e) of such Act.
“(F)(i) Subject to clause (ii), a redevelopment authority may express in writing an interest in using buildings and property referred to in subparagraph (D), and buildings and property referred to in subparagraph (B)(ii) which have not been identified as suitable for use to assist the homeless under subparagraph (C), or use such buildings and property, in accordance with the redevelopment plan with respect to the installation at which such buildings and property are located as follows:
“(I) If no written notice of an intent to use such buildings or property to assist the homeless is received by the Secretary of Health and Human Services in accordance with section 501(d)(2) of such Act during the 60-day period beginning on the date of the publication of the buildings and property under subparagraph (C)(iii).
“(II) In the case of buildings and property for which such notice is so received, if no completed application for use of the buildings or property for such purpose is received by the Secretary of Health and Human Services in accordance with section 501(e)(2) of such Act during the 90-day period beginning on the date of the receipt of such notice.
“(III) In the case of building and property for which such application is so received, if the Secretary of Health and Human Services rejects the application under section 501(e) of such Act.
“(ii) Buildings and property shall be available only for the purpose of permitting a redevelopment authority to express in writing an interest in the use of such buildings and property, or to use such buildings and property, under clause (i) as follows:
“(I) In the case of buildings and property referred to in clause (i)(I), during the one-year period beginning on the first day after the 60-day period referred to in that clause.
“(II) In the case of buildings and property referred to in clause (i)(II), during the one-year period beginning on the first day after the 90-day period referred to in that clause.
“(III) In the case of buildings and property referred to in clause (i)(III), during the one-year period beginning on the date of the rejection of the application referred to in that clause.
“(iii) A redevelopment authority shall express an interest in the use of buildings and property under this subparagraph by notifying the Secretary of Defense, in writing, of such an interest.
“(G)(i) Buildings and property available for a redevelopment authority under subparagraph (F) shall not be available for use to assist the homeless under section 501 of such Act [42 U.S.C. 11411] while so available for a redevelopment authority.
“(ii) If a redevelopment authority does not express an interest in the use of buildings or property, or commence the use of buildings or property, under subparagraph (F) within the applicable time periods specified in clause (ii) of such subparagraph, such buildings or property shall be treated as property available for use to assist the homeless under section 501(a) of such Act.
“(7)(A) Except as provided in subparagraph (B) or (C), all proceeds—
“(i) from any transfer under paragraphs (3) through (6); and
“(ii) from the transfer or disposal of any other property or facility made as a result of a closure or realignment under this title,
shall be deposited into the Account established by section 207(a)(1).
“(B) In any case in which the General Services Administration is involved in the management or disposal of such property or facility, the Secretary shall reimburse the Administrator of General Services from the proceeds of such disposal, in accordance with section 1535 of title 31, United States Code, for any expenses incurred in such activities.
“(C)(i) If any real property or facility acquired, constructed, or improved (in whole or in part) with commissary store funds or nonappropriated funds is transferred or disposed of in connection with the closure or realignment of a military installation under this title, a portion of the proceeds of the transfer or other disposal of property on that installation shall be deposited in a reserve account established in the Treasury to be administered by the Secretary. Subject to the limitation in clause (iii), amounts in the reserve account are hereby made available to the Secretary, without appropriation and until expended, for the purpose of acquiring, constructing, and improving—
“(I) commissary stores; and
“(II) real property and facilities for nonappropriated fund instrumentalities.
“(ii) The amount deposited under clause (i) shall be equal to the depreciated value of the investment made with such funds in the acquisition, construction, or improvement of that particular real property or facility. The depreciated value of the investment shall be computed in accordance with regulations prescribed by the Secretary of Defense.
“(iii) The aggregate amount obligated from the reserve account established under clause (i) may not exceed the following:
“(I) In fiscal year 2004, $31,000,000.
“(II) In fiscal year 2005, $24,000,000.
“(III) In fiscal year 2006, $15,000,000.
“(iv) As used in this subparagraph:
“(I) The term ‘commissary store funds’ means funds received from the adjustment of, or surcharge on, selling prices at commissary stores fixed under section 2685 of title 10, United States Code.
“(II) The term ‘nonappropriated funds’ means funds received from a nonappropriated fund instrumentality.
“(III) The term ‘nonappropriated fund instrumentality’ means an instrumentality of the United States under the jurisdiction of the Armed Forces (including the Army and Air Force Exchange Service, the Navy Resale and Services Support Office, and the Marine Corps exchanges) which is conducted for the comfort, pleasure, contentment, or physical or mental improvement of members of the Armed Forces.
“(8)(A) Subject to subparagraph (C), the Secretary may enter into agreements (including contracts, cooperative agreements, or other arrangements for reimbursement) with local governments for the provision of police or security services, fire protection services, airfield operation services, or other community services by such governments at military installations to be closed under this title, or at facilities not yet transferred or otherwise disposed of in the case of installations closed under this title, if the Secretary determines that the provision of such services under such agreements is in the best interests of the Department of Defense.
“(B) The Secretary may exercise the authority provided under this paragraph without regard to the provisions of chapter 146 of title 10, United States Code.
“(C) The Secretary may not exercise the authority under subparagraph (A) with respect to an installation earlier than 180 days before the date on which the installation is to be closed.
“(D) The Secretary shall include in a contract for services entered into with a local government under this paragraph a clause that requires the use of professionals to furnish the services to the extent that professionals are available in the area under the jurisdiction of such government.
“(c)
“(A) the actions of the Commission, including selecting the military installations which the Commission recommends for closure or realignment under this title, recommending any military installation to receive functions from an installation to be closed or realigned, and making its report to the Secretary and the committees under section 203(b); and
“(B) the actions of the Secretary in establishing the Commission, in determining whether to accept the recommendations of the Commission, in selecting any military installation to receive functions from an installation to be closed or realigned, and in transmitting the report to the Committees referred to in section 202(a)(1).
“(2) The provisions of the National Environmental Policy Act of 1969 shall apply to the actions of the Secretary (A) during the process of the closing or realigning of a military installation after such military installation has been selected for closure or realignment but before the installation is closed or realigned and the functions relocated, and (B) during the process of the relocating of functions from a military installation being closed or realigned to another military installation after the receiving installation has been selected but before the functions are relocated. In applying the provisions of such Act, the Secretary shall not have to consider—
“(i) the need for closing or realigning a military installation which has been selected for closure or realignment by the Commission;
“(ii) the need for transferring functions to another military installation which has been selected as the receiving installation; or
“(iii) alternative military installations to those selected.
“(3) A civil action for judicial review, with respect to any requirement of the National Environmental Policy Act of 1969 to the extent such Act is applicable under paragraph (2), or with respect to any requirement of the Commission made by this title, of any action or failure to act by the Secretary during the closing, realigning, or relocating referred to in clauses (A) and (B) of paragraph (2), or of any action or failure to act by the Commission under this title, may not be brought later than the 60th day after the date of such action or failure to act.
“(d)
“(B) The real property and facilities referred to in subparagraph (A) are the real property and facilities located at an installation closed or to be closed under this title that are available exclusively for the use, or expression of an interest in a use, of a redevelopment authority under subsection (b)(6)(F) during the period provided for that use, or expression of interest in use, under that subsection.
“(C) The Secretary may require any additional terms and conditions in connection with an agreement authorized by subparagraph (A) as the Secretary considers appropriate to protect the interests of the United States.
“(2) A transfer of real property or facilities may be made under paragraph (1) only if the Secretary certifies to Congress that—
“(A) the costs of all environmental restoration, waste management, and environmental compliance activities to be paid by the recipient of the property or facilities are equal to or greater than the fair market value of the property or facilities to be transferred, as determined by the Secretary; or
“(B) if such costs are lower than the fair market value of the property or facilities, the recipient of the property or facilities agrees to pay the difference between the fair market value and such costs.
“(3) As part of an agreement under paragraph (1), the Secretary shall disclose to the person to whom the property or facilities will be transferred any information of the Secretary regarding the environmental restoration, waste management, and environmental compliance activities described in paragraph (1) that relate to the property or facilities. The Secretary shall provide such information before entering into the agreement.
“(4) Nothing in this subsection shall be construed to modify, alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) or the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).
“(5) Section 330 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102–484; 10 U.S.C. 2687 note) shall not apply to any transfer under this subsection to persons or entities described in subsection (a)(2) of such section 330.
“(6) The Secretary may not enter into an agreement to transfer property or facilities under this subsection after the expiration of the five-year period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 1994 [Nov. 30, 1993].
“[(e) Repealed. Pub. L. 108–136, div. B, title XXVIII, §2805(d)(1), Nov. 24, 2003, 117 Stat. 1721.]
“(f)
“(A) it is in the best interests of the Federal Government to eliminate or relocate the manufactured housing park; and
“(B) the elimination or relocation of the manufactured housing park would result in an unreasonable financial hardship to the owners of the manufactured housing.
“(2) Any payment made under this subsection shall not exceed 90 percent of the purchase price of the manufactured housing, as paid by the member or any spouse of the member, plus the cost of any permanent improvements subsequently made to the manufactured housing by the member or spouse of the member.
“(3) The Secretary shall dispose of manufactured housing acquired under this subsection through resale, donation, trade or otherwise within one year of acquisition.
“The Secretary may carry out this title without regard to—
“(1) any provision of law restricting the use of funds for closing or realigning military installations included in any appropriation or authorization Act; and
“(2) the procedures set forth in sections 2662 and 2687 of title 10, United States Code.
“(a)
“(1) a schedule of the closure and realignment actions to be carried out under this title in the fiscal year for which the request is made and an estimate of the total expenditures required and cost savings to be achieved by each such closure and realignment and of the time period in which these savings are to be achieved in each case, together with the Secretary's assessment of the environmental effects of such actions; and
“(2) a description of the military installations, including those under construction and those planned for construction, to which functions are to be transferred as a result of such closures and realignments, together with the Secretary's assessment of the environmental effects of such transfers.
“(b)
“(2) Upon request of the Commission, the Secretary shall provide the Commission with such information about overseas bases as may be helpful to the Commission in its deliberations.
“(3) The Commission, based on its analysis of military installations in the United States and its review of the Secretary's study of the overseas base structure, may provide the Secretary with such comments and suggestions as it considers appropriate regarding the Secretary's study of the overseas base structure.
“(a)
“(2) There shall be deposited into the Account—
“(A) funds authorized for and appropriated to the Account with respect to fiscal year 1990 and fiscal years beginning thereafter;
“(B) any funds that the Secretary may, subject to approval in an appropriation Act, transfer to the Account from funds appropriated to the Department of Defense for any purpose, except that such funds may be transferred only after the date on which the Secretary transmits written notice of, and justification for, such transfer to the appropriate committees of Congress; and
“(C) proceeds described in section 204(b)(4)(A).
“(3)(A) The Secretary may use the funds in the Account only for the purposes described in section 204(a).
“(B) When a decision is made to use funds in the Account to carry out a construction project under section 204(a)(1) and the cost of the project will exceed the maximum amount authorized by law for a minor construction project, the Secretary shall notify in writing the appropriate committees of Congress of the nature of, and justification for, the project and the amount of expenditures for such project. Any such construction project may be carried out without regard to section 2802(a) of title 10, United States Code.
“(4) No later than 60 days after the end of each fiscal year in which the Secretary carries out activities under this title, the Secretary shall transmit a report to the appropriate committees of Congress of the amount and nature of the deposits into, and the expenditures from, the Account during such fiscal year and of the amount and nature of other expenditures made pursuant to section 204(a) during such fiscal year.
“(5)(A) Except as provided in subparagraph (B), unobligated funds which remain in the Account after the termination of the authority of the Secretary to carry out a closure or realignment under this title shall be held in the Account until transferred by law after the appropriate committees of Congress receive the report transmitted under paragraph (6).
“(B) The Secretary may, after the termination of authority referred to in subparagraph (A), use any unobligated funds referred to in that subparagraph that are not transferred in accordance with that subparagraph to carry out environmental restoration and waste management at, or disposal of property of, military installations closed or realigned under this title.
“(6) No later than 60 days after the termination of the authority of the Secretary to carry out a closure or realignment under this title, the Secretary shall transmit to the appropriate committees of Congress a report containing an accounting of—
“(A) all the funds deposited into and expended from the Account or otherwise expended under this title; and
“(B) any amount remaining in the Account.
“(7) Proceeds received after September 30, 1995, from the lease, transfer, or disposal of any property at a military installation closed or realigned under this title shall be deposited directly into the Department of Defense Base Closure Account 1990 established by section 2906(a) of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
“(b)
“(a)
“(1) which does not have a preamble;
“(2) the matter after the resolving clause of which is as follows: ‘That Congress disapproves the recommendations of the Commission on Base Realignment and Closure established by the Secretary of Defense as submitted to the Secretary of Defense on ’, the blank space being appropriately filled in; and
“(3) the title of which is as follows: ‘Joint resolution disapproving the recommendations of the Commission on Base Realignment and Closure.’.
“(b)
“(c)
“(d)
“(2) Debate on the resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the resolution. An amendment to the resolution is not in order. A motion further to limit debate is in order and not debatable. A motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the resolution is not in order. A motion to reconsider the vote by which the resolution is agreed to or disagreed to is not in order.
“(3) Immediately following the conclusion of the debate on a resolution described in subsection (a) and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the appropriate House, the vote on final passage of the resolution shall occur.
“(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a resolution described in subsection (a) shall be decided without debate.
“(e)
“(A) The resolution of the other House shall not be referred to a committee and may not be considered in the House receiving it except in the case of final passage as provided in subparagraph (B)(ii).
“(B) With respect to a resolution described in subsection (a) of the House receiving the resolution—
“(i) the procedure in that House shall be the same as if no resolution had been received from the other House; but
“(ii) the vote on final passage shall be on the resolution of the other House.
“(2) Upon disposition of the resolution received from the other House, it shall no longer be in order to consider the resolution that originated in the receiving House.
“(f)
“(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a resolution described in subsection (a), and it supersedes other rules only to the extent that it is inconsistent with such rules; and
“(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.
“In this title:
“(1) The term ‘Account’ means the Department of Defense Base Closure Account established by section 207(a)(1).
“(2) The term ‘appropriate committees of Congress’ means the Committees on Armed Services and the Committees on Appropriations of the Senate and the House of Representatives.
“(3) The terms ‘Commission on Base Realignment and Closure’ and ‘Commission’ mean the Commission established by the Secretary of Defense in the charter signed by the Secretary on May 3, 1988, and as altered thereafter with respect to the membership and voting.
“(4) The term ‘charter establishing such Commission’ means the charter referred to in paragraph (3).
“(5) The term ‘initiate’ includes any action reducing functions or civilian personnel positions but does not include studies, planning, or similar activities carried out before there is a reduction of such functions or positions.
“(6) The term ‘military installation’ means a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the Secretary of a military department.
“(7) The term ‘realignment’ includes any action which both reduces and relocates functions and civilian personnel positions.
“(8) The term ‘Secretary’ means the Secretary of Defense.
“(9) The term ‘United States’ means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, and any other commonwealth, territory, or possession of the United States.
“(10) The term ‘redevelopment authority’, in the case of an installation to be closed under this title, means any entity (including an entity established by a State or local government) recognized by the Secretary of Defense as the entity responsible for developing the redevelopment plan with respect to the installation or for directing the implementation of such plan.
“(11) The term ‘redevelopment plan’ in the case of an installation to be closed under this title, means a plan that—
“(A) is agreed to by the redevelopment authority with respect to the installation; and
“(B) provides for the reuse or redevelopment of the real property and personal property of the installation that is available for such reuse or redevelopment as a result of the closure of the installation.”
[For effective date of amendment by section 2813(d)(1) of Pub. L. 103–337 to section 209 of Pub. L. 100–526, set out above, see Effective Date of Amendment by Section 2813(d)(1) and (2) of Pub. L. 103–337 note set out above.]
[For effective date of amendment by section 344(a) of Pub. L. 102–190 to sections 204 and 209 of Pub. L. 100–526, set out above, see Effective Date of 1991 Amendments by Section 344 of Pub. L. 102–190 note set out above.]
[Section 2923(b)(2) of Pub. L. 101–510 provided that: “The amendment made by paragraph (1) [amending section 207 of Pub. L. 100–526 set out above] does not apply with respect to the availability of funds appropriated before the date of the enactment of this Act [Nov. 5, 1990].”]
(a)
(1) the status of overseas base closure and realignment actions undertaken as part of a global defense posture realignment strategy; and
(2) the status of development and execution of comprehensive master plans for overseas military main operating bases, forward operating sites, and cooperative security locations.
(b)
(1) How the master plans described in subsection (a)(2) would support the security commitments undertaken by the United States pursuant to any international security treaty, including, the North Atlantic Treaty, The 1 Treaty of Mutual Cooperation and Security between the United States and Japan, and the Security Treaty Between Australia, New Zealand, and the United States of America.
(2) The impact of such plans on the current security environments in the combatant commands, including United States participation in theater security cooperation activities and bilateral partnership, exchanges, and training exercises.
(3) Any comments of the Secretary of Defense resulting from an interagency review of these plans that includes the Department of State and other Federal departments and agencies that the Secretary of Defense considers necessary for national security.
(Added Pub. L. 111–84, div. B, title XXVIII, §2822(a)(1), Oct. 28, 2009, 123 Stat. 2665; amended Pub. L. 111–383, div. A, title X, §1075(b)(44), Jan. 7, 2011, 124 Stat. 4371.)
2011—Subsec. (a). Pub. L. 111–383 substituted “31 for” for “31for” in introductory provisions.
1 So in original. Probably should not be capitalized.
(a)
(2) The Secretary concerned may not enter into a contract to convey a utility system, or part of a utility system, under this subsection until—
(A) the Secretary submits to the congressional defense committees an economic analysis, based upon accepted life-cycle costing procedures approved by the Secretary of Defense, that demonstrates that—
(i) the long-term economic benefit to the United States of the conveyance of the utility system, or part thereof, exceeds the long-term economic cost to the United States of the conveyance;
(ii) the conveyance of the utility system, or part thereof, will reduce the long-term cost to the United States of utility services provided by the utility system by 10 percent of the long-term cost for provision of those utility services in the agency tender; and
(iii) the economic benefit analysis under clause (i) and the cost reduction analysis under clause (ii) incorporate margins of error in the estimates, based upon guidance approved by the Secretary of Defense that minimize any underestimation of the costs resulting from privatization of the utility system, or part thereof, or any overestimation of the costs resulting from continued Government ownership and management of the utility system, or part thereof; and
(B) the end of the 21-day period beginning on the date on which the economic analysis prepared under subparagraph (A) with respect to the conveyance of the utility system, or part thereof, is received by the congressional defense committees or, if over earlier, the end of the 14-day period beginning on the date on which a copy of the economic analysis is provided in an electronic medium pursuant to section 480 of this title.
(3)(A) If, as a result of the economic analysis required by paragraph (2)(A), the Secretary concerned determines that a utility system, or part of a utility system, is not eligible for conveyance under this subsection, the Secretary concerned may not further reconsider the utility system, or part of a utility system, for conversion to contractor operation under section 2461 of this title for a period of five years beginning on the date of the determination.
(B) If the results of a public-private competition for conversion of a utility system, or part of a utility system, to operation by a contractor favors continued operation by civilian employees of the Department of Defense, the Secretary concerned may not reconsider the utility system, or part of a utility system, for conversion under section 2461 of this title or for conveyance under this subsection for a period of five years beginning on the date of the completion of the public-private competition.
(b)
(2) Notwithstanding paragraph (1), the Secretary concerned may use procedures other than competitive procedures, but only in accordance with subsections (c) through (f) of section 2304 of this title, to select the conveyee of a utility system (or part of a utility system) under subsection (a).
(3) With respect to the solicitation process used in connection with the conveyance of a utility system (or part of a utility system) under subsection (a), the Secretary concerned shall ensure that the process is conducted in a manner consistent with the laws and regulations of the State in which the utility system is located to the extent necessary to ensure that all interested regulated and unregulated utility companies and other interested entities receive an opportunity to acquire and operate the utility system to be conveyed.
(c)
(A) a lump sum payment; or
(B) a reduction in charges for utility services provided by the utility or entity concerned to the military installation at which the utility system is located.
(2) If the utility services proposed to be provided as consideration under paragraph (1) are subject to regulation by a Federal or State agency, any reduction in the rate charged for the utility services shall be subject to establishment or approval by that agency.
(d)
(2) The Secretary of Defense, or the designee of the Secretary, may authorize a contract for utility services described in paragraph (1) to have a term in excess of 10 years, but not to exceed 50 years, if the Secretary determines that a contract for a longer term will be cost effective. The economic analysis submitted to the congressional defense committees under subsection (a)(2) for the conveyance of the utility system, or part thereof, with regard to which the utility services contract will be entered into by the Secretary concerned shall include the determination required by this paragraph, an explanation of the need for the longer term contract, and a comparison of costs between a 10-year contract and the longer-term contract.
(e)
(A) to an appropriation of the military department concerned available for the procurement of the same utility services as are provided by the utility system conveyed under this section;
(B) to an appropriation of the military department available for carrying out energy savings projects or water conservation projects; or
(C) to an appropriation of the military department available for improvements to other utility systems.
(2) Amounts so credited shall be merged with funds in the appropriation to which credited and shall be available for the same purposes, and subject to the same conditions and limitations, as the appropriation with which merged.
(f)
(g)
(2) The Secretary concerned shall require in any contract for the conveyance of a utility system (or part of a utility system) under subsection (a) that the conveyee manage and operate the utility system in a manner consistent with applicable Federal and State regulations pertaining to health, safety, fire, and environmental requirements.
(h)
(i)
(A) A system for the generation and supply of electric power.
(B) A system for the treatment or supply of water.
(C) A system for the collection or treatment of wastewater.
(D) A system for the generation or supply of steam, hot water, and chilled water.
(E) A system for the supply of natural gas.
(F) A system for the transmission of telecommunications.
(2) The term “utility system” includes the following:
(A) Equipment, fixtures, structures, and other improvements utilized in connection with a system referred to in paragraph (1).
(B) Real property, easements, and rights-of-way associated with a system referred to in that paragraph.
(j)
(A) the additional utility infrastructure was constructed or installed after the date of the conveyance of the utility system;
(B) the additional utility infrastructure cannot operate without being a part of the conveyed utility system;
(C) the additional utility infrastructure was planned and coordinated with the entity operating the conveyed utility system; and
(D) the military department receives as consideration an amount equal to the fair market value of the utility infrastructure determined in the same manner as the consideration the Secretary could require under subsection (c) for a conveyance under subsection (a).
(2) The conveyance under this paragraph may consist of all right, title, and interest of the United States or such lesser estate as the Secretary considers appropriate to serve the interests of the United States.
(k)
(Added Pub. L. 105–85, div. B, title XXVIII, §2812(a), Nov. 18, 1997, 111 Stat. 1992; amended Pub. L. 106–65, div. A, title X, §1067(1), div. B, title XXVIII, §2812, Oct. 5, 1999, 113 Stat. 774, 851; Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(15), div. B, title XXVIII, §2813], Oct. 30, 2000, 114 Stat. 1654, 1654A–291, 1654A–418; Pub. L. 108–136, div. A, title X, §1031(a)(32), Nov. 24, 2003, 117 Stat. 1600; Pub. L. 109–163, div. B, title XXVIII, §2823(a)–(d), Jan. 6, 2006, 119 Stat. 3514–3516; Pub. L. 110–417, div. B, title XXVIII, §2813, Oct. 14, 2008, 122 Stat. 4728; Pub. L. 111–84, div. B, title XXVIII, §2821, Oct. 28, 2009, 123 Stat. 2664.)
A prior section 2688, added Pub. L. 96–125, title VIII, §804(a)(1), Nov. 26, 1979, 93 Stat. 948; amended Pub. L. 96–418, title VIII, §804, Oct. 10, 1980, 94 Stat. 1777; Pub. L. 97–22, §11(a)(9), July 10, 1981, 95 Stat. 138; Pub. L. 97–99, title IX, §901, Dec. 23, 1981, 95 Stat. 1381, related to use of solar energy systems in new facilities, prior to repeal by Pub. L. 97–214, §§7(1), 12(a), July 12, 1982, 96 Stat. 173, 176, effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date. See section 2915 of this title.
2009—Subsec. (a)(2)(A)(ii). Pub. L. 111–84, §2821(a), substituted “system by 10 percent of the long-term cost for provision of those utility services in the agency tender; and” for “system; and”.
Subsec. (a)(3). Pub. L. 111–84, §2821(b), added par. (3).
2008—Subsecs. (j), (k). Pub. L. 110–417 added subsec. (j) and redesignated former subsec. (j) as (k).
2006—Subsec. (a). Pub. L. 109–163, §2823(a), designated existing provisions as par. (1) and added par. (2).
Subsec. (c)(1). Pub. L. 109–163, §2823(b), substituted “may require” for “shall require” in introductory provisions.
Subsec. (c)(3). Pub. L. 109–163, §2823(c)(2), redesignated subsec. (c)(3) as (d).
Subsec. (d). Pub. L. 109–163, §2823(c)(2), redesignated subsec. (c)(3) as (d), substituted “
Subsec. (e). Pub. L. 109–163, §2823(c)(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (f). Pub. L. 109–163, §2823(d)(1), struck out at end “The report shall include, for each such conveyance, an economic analysis (based upon accepted life-cycle costing procedures approved by the Secretary of Defense) demonstrating that—
“(1) the long-term economic benefit of the conveyance to the United States exceeds the long-term economic cost of the conveyance to the United States; and
“(2) the conveyance will reduce the long-term costs of the United States for utility services provided by the utility system concerned.”
Pub. L. 109–163, §2823(c)(1), redesignated subsec. (e) as (f). Former subsec. (f) redesignated (g).
Subsec. (g). Pub. L. 109–163, §2823(c)(1), redesignated subsec. (f) as (g). Former subsec. (g) redesignated (h).
Subsec. (h). Pub. L. 109–163, §2823(d)(2), substituted “subsection (a)(2)” for “subsection (e)”.
Pub. L. 109–163, §2823(c)(1), redesignated subsec. (g) as (h). Former subsec. (h) redesignated (i).
Subsecs. (i), (j). Pub. L. 109–163, §2823(c)(1), redesignated subsecs. (h) and (i) as (i) and (j), respectively.
2003—Subsec. (e). Pub. L. 108–136 amended heading and text of subsec. (e) generally. Prior to amendment, text read as follows: “The Secretary concerned may not make a conveyance under subsection (a) until—
“(1) the Secretary submits to the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives an economic analysis (based upon accepted life-cycle costing procedures approved by the Secretary of Defense) demonstrating that—
“(A) the long-term economic benefit of the conveyance to the United States exceeds the long-term economic cost of the conveyance to the United States; and
“(B) the conveyance will reduce the long-term costs of the United States for utility services provided by the utility system concerned; and
“(2) a period of 21 days has elapsed after the date on which the economic analysis is received by the committees.”
2000—Subsec. (b). Pub. L. 106–398, §1 [div. B, title XXVIII, §2813(a)], designated existing provisions as par. (1) and added pars. (2) and (3).
Subsec. (f). Pub. L. 106–398, §1 [div. B, title XXVIII, §2813(b)], designated existing provisions as par. (1) and added par. (2).
Subsecs. (h) to (j). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(15)], redesignated subsecs. (i) and (j) as (h) and (i), respectively.
1999—Subsec. (c)(3). Pub. L. 106–65, §2812(a), added par. (3).
Subsec. (e)(1). Pub. L. 106–65, §1067(1), substituted “and the Committee on Armed Services” for “and the Committee on National Security” in introductory provisions.
Subsec. (g). Pub. L. 106–65, §2812(c)(2), added subsec. (g). Former subsec. (g) redesignated (i).
Subsec. (g)(2)(B). Pub. L. 106–65, §2812(b), substituted “Real property, easements,” for “Easements”.
Subsecs. (h) to (j). Pub. L. 106–65, §2812(c)(1), redesignated subsecs. (g) and (h) as (i) and (j), respectively.
(a) The Secretary of the military department concerned may remove improvements and take any other action necessary in the judgment of the Secretary to restore land used by that military department by permit or lease from another military department or Federal agency if the restoration is required by the permit or lease making that land available to the military department. The Secretary concerned may carry out this section using funds available for operations and maintenance or for military construction.
(b) Unless otherwise prohibited by law or the terms of the permit or lease, before restoration of any land under subsection (a) is begun, the Secretary concerned shall determine, under the provisions of subtitle I of title 40 and division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41, whether another military department or Federal agency has a use for the land in its existing, improved state. During the period required to make such a determination, the Secretary may provide for maintenance and repair of improvements on the land to the standards established for excess property by the Administrator of General Services.
(c)(1) As a condition of any lease, permit, license, or other grant of access entered into by the Secretary of a military department with another Federal agency authorizing the agency to use lands under the control of the Secretary, the Secretary may require the agency to agree to remove any improvements and to take any other action necessary in the judgment of the Secretary to restore the land used by the agency to its condition before its use by the agency.
(2) In lieu of performing any removal or restoration work under paragraph (1), a Federal agency may elect, with the consent of the Secretary, to reimburse the Secretary for the costs incurred by the military department in performing such removal or restoration work.
(Added Pub. L. 98–407, title VIII, §804(a), Aug. 28, 1984, 98 Stat. 1519; amended Pub. L. 99–145, title XIII, §1303(a)(17), Nov. 8, 1985, 99 Stat. 739; Pub. L. 105–261, div. B, title XXVIII, §2812(a), (b)(1), Oct. 17, 1998, 112 Stat. 2205; Pub. L. 107–217, §3(b)(15), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 111–350, §5(b)(46), Jan. 4, 2011, 124 Stat. 3846.)
2011—Subsec. (b). Pub. L. 111–350 substituted “division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” for “title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)”.
2002—Subsec. (b). Pub. L. 107–217 inserted “subtitle I of title 40 and title III of” before “the Federal Property and Administrative Services Act of 1949” and substituted “(41 U.S.C. 251 et seq.)” for “(40 U.S.C. 471 et seq.)”.
1998—Pub. L. 105–261, §2812(b)(1), struck out “from other agencies” after “lease” in section catchline.
Subsec. (c). Pub. L. 105–261, §2812(a), added subsec. (c).
1985—Pub. L. 99–145 substituted “used by” for “used of” in section catchline.
(a)(1) Except as otherwise provided in this section, the Secretary of Defense may not permit the use of an installation of the Department of Defense for the storage, treatment, or disposal of any material that is a toxic or hazardous material and that is not owned either by the Department of Defense or by a member of the armed forces (or a dependent of the member) assigned to or provided military housing on the installation.
(2) The Secretary of Defense shall define by regulation what materials are hazardous or toxic materials for the purposes of this section, including specification of the quantity of a material that serves to make it hazardous or toxic for the purposes of this section. The definition shall include materials referred to in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601(14)) and materials designated under section 102 of that Act (42 U.S.C. 9602) and shall include materials that are of an explosive, flammable, or pyrotechnic nature.
(b) Subsection (a) does not apply to the following:
(1) The storage, treatment, or disposal of materials that will be or have been used in connection with an activity of the Department of Defense or in connection with a service to be performed on an installation of the Department for the benefit of the Department.
(2) The storage of strategic and critical materials in the National Defense Stockpile under an agreement for such storage with the Administrator of General Services.
(3) The temporary storage or disposal of explosives in order to protect the public or to assist agencies responsible for Federal, State, or local law enforcement in storing or disposing of explosives when no alternative solution is available, if such storage or disposal is made in accordance with an agreement between the Secretary of Defense and the head of the Federal, State, or local agency concerned.
(4) The temporary storage or disposal of explosives in order to provide emergency lifesaving assistance to civil authorities.
(5) The disposal of excess explosives produced under a Department of Defense contract, if the head of the military department concerned determines, in each case, that an alternative feasible means of disposal is not available to the contractor, taking into consideration public safety, available resources of the contractor, and national defense production requirements.
(6) The temporary storage of nuclear materials or nonnuclear classified materials in accordance with an agreement with the Secretary of Energy.
(7) The storage of materials that constitute military resources intended to be used during peacetime civil emergencies in accordance with applicable Department of Defense regulations.
(8) The temporary storage of materials of other Federal agencies in order to provide assistance and refuge for commercial carriers of such material during a transportation emergency.
(9) The storage of any material that is not owned by the Department of Defense if the Secretary of the military department concerned determines that the material is required or generated in connection with the authorized and compatible use of a facility of the Department of Defense, including the use of such a facility for testing material or training personnel.
(10) The treatment and disposal of any material that is not owned by the Department of Defense if the Secretary of the military department concerned determines that the material is required or generated in connection with the authorized and compatible use of a facility of that military department and the Secretary enters into a contract or agreement with the prospective user that—
(A) is consistent with the best interest of national defense and environmental security; and
(B) provides for the prospective user's continued financial and environmental responsibility and liability with regard to the material.
(11) The storage of any material that is not owned by the Department of Defense if the Secretary of the military department concerned determines that the material is required or generated in connection with the use of a space launch facility located on an installation of the Department of Defense or on other land controlled by the United States.
(c) The Secretary of Defense may grant exceptions to subsection (a) when essential to protect the health and safety of the public from imminent danger if the Secretary otherwise determines the exception is essential and if the storage or disposal authorized does not compete with private enterprise.
(d)(1) The Secretary may assess a charge for any storage or disposal provided under this section. Any such charge shall be on a reimbursable cost basis.
(2) In the case of storage under this section authorized because of an imminent danger, the storage provided shall be temporary and shall cease once the imminent danger no longer exists. In all other cases of storage or disposal authorized under this section, the storage or disposal authorized shall be terminated as determined by the Secretary.
(Added Pub. L. 98–407, title VIII, §805(a), Aug. 28, 1984, 98 Stat. 1520; amended Pub. L. 102–484, div. B, title XXVIII, §2852, Oct. 23, 1992, 106 Stat. 2625; Pub. L. 103–337, div. A, title III, §325, Oct. 5, 1994, 108 Stat. 2711; Pub. L. 105–85, div. A, title III, §343(a)–(g)(2), Nov. 18, 1997, 111 Stat. 1686, 1687; Pub. L. 106–65, div. A, title X, §1066(a)(25), Oct. 5, 1999, 113 Stat. 772; Pub. L. 109–364, div. A, title X, §1071(a)(21), Oct. 17, 2006, 120 Stat. 2399.)
2006—Subsec. (b)(9). Pub. L. 109–364 substituted “testing material” for “testing materiel”.
1999—Subsec. (b). Pub. L. 106–65 substituted “apply to the following:” for “apply to—” in introductory provisions, “The” for “the” at the beginning of each of pars. (1) to (11), a period for the semicolon at the end of each of pars. (1) to (9), and a period for “; and” at the end of par. (10).
1997—Pub. L. 105–85, §343(g)(2), substituted “Storage, treatment, and” for “Storage and” in section catchline.
Subsec. (a)(1). Pub. L. 105–85, §343(g)(1), substituted “storage, treatment, or disposal” for “storage or disposal”.
Pub. L. 105–85, §343(a), substituted “either by the Department of Defense or by a member of the armed forces (or a dependent of the member) assigned to or provided military housing on the installation” for “by the Department of Defense”.
Subsec. (b)(1), (2). Pub. L. 105–85, §343(b), added par. (1) and redesignated former par. (1) as (2). Former par. (2) redesignated (3).
Subsec. (b)(3). Pub. L. 105–85, §343(b)(1), (c), redesignated par. (2) as (3) and substituted “Federal, State, or local law enforcement” for “Federal law enforcement” and “Federal, State, or local agency” for “Federal agency”. Former par. (3) redesignated (4).
Subsec. (b)(4) to (8). Pub. L. 105–85, §343(b)(1), redesignated pars. (3) to (7) as (4) to (8), respectively. Former par. (8) redesignated (9).
Subsec. (b)(9). Pub. L. 105–85, §343(b)(1), (d), redesignated par. (8) as (9) and substituted “in connection with the authorized and compatible use of a” for “by a private person in connection with the authorized and compatible use by that person of an industrial-type” and “, including the use of such a facility for testing materiel or training personnel;” for “; and”. Former par. (9) redesignated (10).
Subsec. (b)(10). Pub. L. 105–85, §343(b)(1), (e), redesignated par. (9) as (10) and substituted “in connection with the authorized and compatible use of a” for “by a private person in connection with the authorized and compatible commercial use by that person of an industrial-type”, “or agreement with the prospective user” for “with that person”, “for the prospective user's” for “for that person's”, and “; and” for period at end.
Subsec. (b)(11). Pub. L. 105–85, §343(f), added par. (11).
1994—Subsec. (b)(9). Pub. L. 103–337 added par. (9).
1992—Subsec. (b)(8). Pub. L. 102–484 added par. (8).
Section 343(h) of Pub. L. 105–85 provided that: “Nothing in the amendments made by this section [amending this section] is intended to modify environmental laws or laws relating to the siting of facilities.”
Section, added Pub. L. 101–647, title XVIII, §1802(a), Nov. 29, 1990, 104 Stat. 4849; amended Pub. L. 107–107, div. A, title X, §1048(a)(26)(A), (B)(i), Dec. 28, 2001, 115 Stat. 1224, 1225; Pub. L. 109–364, div. B, title XXVIII, §2825(b), Oct. 17, 2006, 120 Stat. 2476, related to conveyance of real property or facility for utilization under the correctional options program. See section 2696(f) of this title.
A prior section 2693 was renumbered section 2465 of this title.
(a)
(b)
(A) that has regional or Department of Defense-wide significance and that involves more than one military department;
(B) that is necessary to meet legal requirements or to support military operations;
(C) that can be more effectively managed at the Department of Defense level; and
(D) for which no executive agency has been designated responsible by the Secretary.
(2) Such activities include the following:
(A) The development of ecosystem-wide land management plans.
(B) The conduct of wildlife studies to ensure the safety of military operations.
(C) The identification and return of Native American human remains and cultural items in the possession or control of the Department of Defense, or discovered on land under the jurisdiction of the Department, to the appropriate Native American tribes.
(D) The control of invasive species that may hinder military activities or degrade military training ranges.
(E) The establishment of a regional curation system for artifacts found on military installations.
(c)
(d)
(Added Pub. L. 104–201, div. A, title III, §332(a)(1), Sept. 23, 1996, 110 Stat. 2484; amended Pub. L. 105–85, div. A, title X, §1073(a)(59), Nov. 18, 1997, 111 Stat. 1903.)
1997—Subsec. (b)(1)(D). Pub. L. 105–85 substituted “executive agency” for “executive ageny”.
Section 332(b) of Pub. L. 104–201 provided that: “Section 2694 of title 10, United States Code, as added by subsection (a), shall take effect on October 1, 1996.”
(a)
(1) is under the administrative control of the Secretary;
(2) is suitable and desirable for conservation purposes;
(3) has been made available for public benefit transfer for a sufficient period of time to potential claimants; and
(4) is not subject to a pending request for transfer to another Federal agency or for conveyance to any other qualified recipient for public benefit transfer under the real property disposal processes and authorities under subtitle I of title 40.
(b)
(1) A State or political subdivision of a State.
(2) A nonprofit organization that exists for the primary purpose of conservation of natural resources on real property.
(c)
(2) The deed of conveyance may permit the recipient of the property—
(A) to convey the property to another eligible entity, subject to the approval of the Secretary concerned and subject to the same covenants and terms and conditions as provided in the deed from the United States; and
(B) to conduct incidental revenue-producing activities on the property that are compatible with the use of the property for conservation purposes.
(3) The deed of conveyance may contain such additional terms, reservations, restrictions, and conditions as the Secretary concerned considers appropriate to protect the interests of the United States.
(d)
(e)
(f)
(g)
(h)
(2) In the case of real property on Guam, the Secretary concerned may not make a conveyance under this section unless the Government of Guam has been first afforded the opportunity to acquire the real property as authorized by section 1 of Public Law 106–504 (114 Stat. 2309).
(i)
(1) The term “appropriate committees of Congress” has the meaning given such term in section 2801 of this title.
(2) The term “Secretary concerned” means the Secretary of a military department.
(3) The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas, Guam, the Virgin Islands, and American Samoa.
(Added Pub. L. 107–314, div. B, title XXVIII, §2812(a)(1), Dec. 2, 2002, 116 Stat. 2707; amended Pub. L. 109–163, div. A, title X, §1056(a)(1), (b), Jan. 6, 2006, 119 Stat. 3438, 3439; Pub. L. 109–364, div. A, title X, §1071(a)(22), Oct. 17, 2006, 120 Stat. 2399; Pub. L. 111–383, div. B, title XXVIII, §2803(a), Jan. 7, 2011, 124 Stat. 4458.)
Section 1 of Public Law 106–504 (114 Stat. 2309), referred to in subsec. (h)(2), is set out as a note under section 521 of Title 40, Public Buildings, Property, and Works.
2011—Subsec. (e). Pub. L. 111–383 inserted before period at end “or, if earlier, a period of 14 days has elapsed from the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
2006—Subsec. (c). Pub. L. 109–364 substituted “Reversionary” for “Revisionary” in heading.
Subsec. (i)(2) to (4). Pub. L. 109–163 struck out par. (2), which defined “base closure law”, redesignated pars. (3) and (4) as (2) and (3), respectively, and, in par. (3), substituted “Guam, the Virgin Islands, and American Samoa” for “and the territories and possessions of the United States”.
(a)
(b)
(c)
(Added Pub. L. 108–136, div. A, title III, §314(a)(1), Nov. 24, 2003, 117 Stat. 1430.)
(a)
(1) the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (60 Fed. Reg. 58605; November 28, 1995);
(2) the Guidance for the Establishment, Use, and Operation of Conservation Banks (68 Fed. Reg. 24753; May 2, 2003);
(3) the Federal Guidance on the Use of In-Lieu-Fee Arrangements for Compensatory Mitigation Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act (65 Fed. Reg. 66915; November 7, 2000); or
(4) any successor or related administrative guidance or regulation.
(b)
(1) Military testing, operations, training, or other military activity.
(2) Military construction.
(c)
(d)
(1) Operation and maintenance.
(2) Military construction.
(3) Research, development, test, and evaluation.
(4) The Support for United States Relocation to Guam Account established under section 2824 of the Military Construction Authorization Act for Fiscal Year 2009 (division B of Public Law 110–417; 122 Stat. 4730; 10 U.S.C. 2687 note).
(e)
(1) the Secretary of a military department; and
(2) the Secretary of Defense with respect to a Defense Agency.
(Added Pub. L. 110–417, [div. A], title III, §311(a), Oct. 14, 2008, 122 Stat. 4408; amended Pub. L. 111–84, div. A, title III, §311, Oct. 28, 2009, 123 Stat. 2247; Pub. L. 111–383, div. A, title X, §1075(b)(45), Jan. 7, 2011, 124 Stat. 4371.)
2011—Subsec. (d)(4). Pub. L. 111–383 inserted “Authorization” after “Military Construction”.
2009—Subsec. (a). Pub. L. 111–84, §311(1), struck out “to carry out this section” after “appropriated funds” in introductory provisions.
Subsecs. (d), (e). Pub. L. 111–84, §311(2), (3), added subsec. (d) and redesignated former subsec. (d) as (e).
Pub. L. 110–417, [div. A], title III, §311(c), Oct. 14, 2008, 122 Stat. 4409, provided that: “Section 2694c of title 10, United States Code, as added by subsection (a), shall take effect on October 1, 2008, and only funds appropriated for fiscal years beginning after September 30, 2008, may be used to carry out such section.”
(a)
(b)
(1) The exchange of real property.
(2) The grant of an easement over, in, or upon real property of the United States.
(3) The lease or license of real property of the United States.
(4) The disposal of real property of the United States for which the Secretary will be the disposal agent.
(5) The conveyance of real property under section 2694a of this title.
(c)
(Added Pub. L. 105–85, div. B, title XXVIII, §2813(a), Nov. 18, 1997, 111 Stat. 1993; amended Pub. L. 106–65, div. B, title XXVIII, §2813, Oct. 5, 1999, 113 Stat. 851; Pub. L. 107–314, div. B, title XXVIII, §2812(b), Dec. 2, 2002, 116 Stat. 2709.)
2002—Subsec. (b)(5). Pub. L. 107–314 added par. (5).
1999—Subsec. (b). Pub. L. 106–65 inserted “involving real property under the control of the Secretary of a military department” after “transactions” in introductory provisions and added par. (4).
Pub. L. 106–541, title II, §226, Dec. 11, 2000, 114 Stat. 2598, provided that: “Notwithstanding any other provision of law, the administrative costs associated with the conveyance of property by the Secretary to a non-Federal governmental or nonprofit entity shall be limited to the extent that the Secretary determines that such limitation is necessary to complete the conveyance based on the entity's ability to pay.”
(a)
(b)
(c)
(A) the name of the Federal agency requesting transfer of the property;
(B) the proposed use to be made of the property by the Federal agency; and
(C) the fair market value of the property, including any improvements thereon, as estimated by the Administrator.
(2) If the Administrator fails to complete the screening and notify the Secretary concerned and Congress within such period, the Secretary concerned shall proceed with the conveyance of the real property as provided in the provision of law authorizing or requiring the conveyance.
(d)
(e)
(1) A base closure law.
(2) Chapter 5 of title 40.
(3) Any specific provision of law authorizing or requiring the transfer of administrative jurisdiction over a parcel of real property between Federal agencies.
(f)
(A) provide adequate notification of the availability of such real property or facility within the Department of Defense;
(B) if the real property or facility remains available after such notification, notify the Attorney General of its availability; and
(C) if the Attorney General certifies to the Secretary of Defense that a determination has been made by the Director of the Bureau of Justice Assistance within the Department of Justice to utilize the real property or facility under the correctional options program carried out under section 515 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3762a), convey the real property or facility, without reimbursement, to a public agency referred to in paragraph (1) or (3) of subsection (a) of such section for such utilization.
(2) Paragraph (1) shall not apply—
(A) to real property and facilities to which title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526) is applicable; and
(B) during any portion of a fiscal year after four conveyances have been made under paragraph (1) in such fiscal year.
(Added Pub. L. 105–85, div. B, title XXVIII, §2814(a)(1), Nov. 18, 1997, 111 Stat. 1994; amended Pub. L. 106–65, div. A, title X, §1066(a)(26), Oct. 5, 1999, 113 Stat. 772; Pub. L. 107–217, §3(b)(16), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 108–136, div. A, title X, §§1031(a)(33), 1043(c)(4), Nov. 24, 2003, 117 Stat. 1600, 1612; Pub. L. 109–364, div. B, title XXVIII, §2825(a), (b)(5), (c)(3), (d)(2)(A), Oct. 17, 2006, 120 Stat. 2476, 2477; Pub. L. 111–350, §5(b)(47), Jan. 4, 2011, 124 Stat. 3846.)
The Defense Authorization Amendments and Base Closure and Realignment Act, referred to in subsec. (f)(2)(A), is Pub. L. 100–526, Oct. 24, 1988, 102 Stat. 2623. Title II of the Act is set out as a note under section 2687 of this title. For complete classification of this Act to the Code, see Short Title of 1988 Amendment note set out under section 2687 of this title and Tables.
The text of section 2693 of this title, which was transferred to the end of this section and redesignated as subsec. (f), by Pub. L. 109–364, §2825(b)(5), was based on Pub. L. 101–647, title XVIII, §1802(a), Nov. 29, 1990, 104 Stat. 4849; amended Pub. L. 107–107, div. A, title X, §1048(a)(26)(A), (B)(i), Dec. 28, 2001, 115 Stat. 1224, 1225; Pub. L. 109–364, div. B, title XXVIII, §2825(b), Oct. 17, 2006, 120 Stat. 2476.
2011—Subsec. (b). Pub. L. 111–350, which directed substitution of “division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” for “title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)” in subsec. (a), was executed by making the substitution in subsec. (b) to reflect the probable intent of Congress.
2006—Pub. L. 109–364, §2825(d)(2)(A), substituted “Real property: transfer between armed forces and screening requirements for other Federal use” for “Screening of real property for further Federal use before conveyance” in section catchline.
Subsec. (a). Pub. L. 109–364, §2825(a)(2), added subsec. (a). Former subsec. (a) redesignated (b).
Subsec. (b). Pub. L. 109–364, §2825(c)(3)(A), substituted “Requirements for Additional Federal Use” for “Requirement” in heading.
Pub. L. 109–364, §2825(a)(1), redesignated subsec. (a) as (b). Former subsec. (b) redesignated (c).
Subsec. (c). Pub. L. 109–364, §2825(a)(1), redesignated subsec. (b) as (c).
Subsec. (c)(1). Pub. L. 109–364, §2825(c)(3)(B), substituted “subsection (b)” for “subsection (a)” in introductory provisions.
Subsec. (d). Pub. L. 109–364, §2825(c)(3)(C), substituted “subsection (c)(1)” for “subsection (b)(1)”.
Subsec. (e). Pub. L. 109–364, §2825(c)(3)(D), substituted “subsection (b)” for “this section” in introductory provisions.
Subsec. (f). Pub. L. 109–364, §2825(b)(5), transferred the text of section 2693 of this title to end of this section and redesignated it as subsec. (f). See Codification note above.
2003—Subsec. (b)(1). Pub. L. 108–136, §1031(a)(33)(A)(i), inserted “and Congress” before “of the results” in introductory provisions.
Subsec. (b)(2). Pub. L. 108–136, §1031(a)(33)(A)(ii), inserted “and Congress” before “within such period”.
Subsec. (c). Pub. L. 108–136, §1031(a)(33)(B), struck out heading and text of subsec. (c). Text read as follows: “If the Administrator of General Services notifies the Secretary concerned under subsection (b) that further Federal use of a parcel of real property authorized or required to be conveyed by any provision of law is requested by a Federal agency, the Secretary concerned shall submit a copy of the notice to Congress.”
Subsec. (d). Pub. L. 108–136, §1031(a)(33)(C), added subsec. (d) and struck out heading and text of former subsec. (d). Text read as follows: “If the Secretary concerned submits a notice under subsection (c) with regard to a parcel of real property, the Secretary concerned may not proceed with the conveyance of the real property as provided in the provision of law authorizing or requiring the conveyance if Congress enacts a law rescinding the conveyance authority or requirement before the end of the 180-day period beginning on the date on which the Secretary concerned submits the notice.”
Subsec. (e). Pub. L. 108–136, §1043(c)(4), added par. (1), redesignated pars. (5) and (6) as (2) and (3), respectively, and struck out former pars. (1) to (4) which read as follows:
“(1) Section 2687 of this title.
“(2) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(3) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
“(4) Any provision of law authorizing the closure or realignment of a military installation that is enacted after November 18, 1997.”
2002—Subsec. (a). Pub. L. 107–217, §3(b)(16)(A), inserted “subtitle I of title 40 and title III of” before “the Federal Property and Administrative Services Act of 1949” and substituted “(41 U.S.C. 251 et seq.)” for “(40 U.S.C. 471 et seq.)”.
Subsec. (e)(5). Pub. L. 107–217, §3(b)(16)(B), substituted “Chapter 5 of title 40” for “Title II of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 481 et seq.)”.
1999—Subsec. (a). Pub. L. 106–65, §1066(a)(26)(A), inserted “enacted after December 31, 1997,” after “any provision of law”.
Subsec. (b)(1). Pub. L. 106–65, §1066(a)(26)(B), substituted “referred to in subsection (a)” for “required by paragraph (1)” in introductory provisions.
Subsec. (e)(4). Pub. L. 106–65, §1066(a)(26)(C), substituted “November 18, 1997” for “the date of enactment of the National Defense Authorization Act for Fiscal Year 1998”.
Section 2814(b) of Pub. L. 105–85 provided that: “Section 2696 of title 10, United States Code, as added by subsection (a) of this section, shall apply with respect to any real property authorized or required to be conveyed under a provision of law covered by such section that is enacted after December 31, 1997.”
Effective Aug. 1, 2000, all functions of Director of Bureau of Justice Assistance, other than those enumerated in section 3742(3) to (6) of Title 42, The Public Health and Welfare, transferred to Assistant Attorney General for Office of Justice Programs, see section 1000(a)(1) [title I, §108(b)] of Pub. L. 106–113, set out as a note under section 3741 of Title 42.
(a)
(b)
(c)
(d)
(Added Pub. L. 111–383, div. A, title III, §341(a), Jan. 7, 2011, 124 Stat. 4189.)
2002—Pub. L. 107–314, div. A, title III, §313(d)(1), Dec. 2, 2002, 116 Stat. 2508, added items 2700 and 2707 and struck out former item 2707 “Definitions”.
2001—Pub. L. 107–107, div. A, title III, §311(a)(2), Dec. 28, 2001, 115 Stat. 1051, added item 2710.
1999—Pub. L. 106–65, div. A, title III, §323(b)(2), Oct. 5, 1999, 113 Stat. 563, added item 2709.
1996—Pub. L. 104–201, div. A, title III, §322(a)(2), Sept. 23, 1996, 110 Stat. 2478, substituted “accounts” for “transfer account” in item 2703.
1991—Pub. L. 102–190, div. A, title III, §331(a)(2), Dec. 5, 1991, 105 Stat. 1340, added item 2708.
Pub. L. 102–25, title VII, §701(e)(6), Apr. 6, 1991, 105 Stat. 114, substituted “Annual reports to Congress” for “Annual report to Congress” in item 2706.
1989—Pub. L. 101–189, div. A, title III, §357(a)(2)(B), Nov. 29, 1989, 103 Stat. 1427, which directed amendment of the item relating to section 2706 in the table of sections at the beginning of chapter 106 to read “Annual reports to Congress”, could not be executed because item 2706 is in this chapter and not in chapter 106.
In this chapter:
(1) The term “CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).
(2) The terms “environment”, “facility”, “hazardous substance”, “person”, “pollutant or contaminant”, “release”, “removal”, “response”, “disposal”, and “hazardous waste” have the meanings given those terms in section 101 of CERCLA (42 U.S.C. 9601).
(3) The term “Administrator” means the Administrator of the Environmental Protection Agency.
(Added Pub. L. 99–499, title II, §211(a)(1)(B), Oct. 17, 1986, 100 Stat. 1725, §2707; renumbered §2700 and amended Pub. L. 107–314, div. A, title III, §313(a)(1), (c)(1), Dec. 2, 2002, 116 Stat. 2507; Pub. L. 111–383, div. A, title X, §1075(b)(46)(A), Jan. 7, 2011, 124 Stat. 4371.)
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, referred to in par. (1), is Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, as amended, which is classified principally to chapter 103 (§9601 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 9601 of Title 42 and Tables.
2011—Par. (2). Pub. L. 111–383 inserted “ ‘pollutant or contaminant’,” after “ ‘person’,”.
2002—Pub. L. 107–314, §313(c)(1), added par. (1) and redesignated former pars. (1) and (2) as (2) and (3), respectively.
Pub. L. 107–314, §313(a)(1), renumbered section 2707 of this title as this section.
(a)
(1)
(2)
(3)
(4)
(b)
(1) The identification, investigation, research and development, and cleanup of contamination from a hazardous substance or pollutant or contaminant.
(2) Correction of other environmental damage (such as detection and disposal of unexploded ordnance) which creates an imminent and substantial endangerment to the public health or welfare or to the environment.
(3) Demolition and removal of unsafe buildings and structures, including buildings and structures of the Department of Defense at sites formerly used by or under the jurisdiction of the Secretary.
(c)
(1)
(A) Each facility or site owned by, leased to, or otherwise possessed by the United States and under the jurisdiction of the Secretary.
(B) Each facility or site which was under the jurisdiction of the Secretary and owned by, leased to, or otherwise possessed by the United States at the time of actions leading to contamination by hazardous substances.
(C) Each vessel owned or operated by the Department of Defense.
(2)
(3)
(d)
(1)
(2)
(3)
(4)
(A) The term “Indian tribe” has the meaning given such term in section 101(36) of CERCLA (42 U.S.C. 9601(36)).
(B) The term “nonprofit conservation organization” means any non-governmental nonprofit organization whose primary purpose is conservation of open space or natural resources.
(C) The term “owner of covenant property” means an owner of property subject to a covenant provided by the United States in accordance with the requirements of paragraphs (3) and (4) of section 120(h) of CERCLA (42 U.S.C. 9620(h)), so long as the covenant property is the site at which the services procured under paragraph (1) are to be performed.
(5)
(e)
(f)
(g)
(h)
(i)
(1)
(2)
(3)
(4)
(j)
(2) Subsections (h) and (i) shall not apply to bonds to which section 119(g) of CERCLA (42 U.S.C. 9619(g)) applies.
(k) UXO
(2) The position of program manager shall be filled by—
(A) an employee in a position that is equivalent to pay grade O–6 or above; or
(B) a member of the armed forces who is serving in the grade of colonel or, in the case of the Navy, captain, or in a higher grade.
(3) The program manager shall report to the Deputy Under Secretary of Defense for Installations and Environment.
(4) The program manager may establish an independent advisory and review panel that may include representatives of the National Academy of Sciences, nongovernmental organizations with expertise regarding unexploded ordnance, discarded military munitions, or munitions constituents, the Environmental Protection Agency, States (as defined in section 2710 1 of this title), and tribal governments. If established, the panel shall report annually to Congress on progress made by the Department of Defense to address unexploded ordnance, discarded military munitions, or munitions constituents at defense sites and make such recommendations as the panel considers appropriate.
(Added Pub. L. 99–499, title II, §211(a)(1)(B), Oct. 17, 1986, 100 Stat. 1719; amended Pub. L. 101–510, div. A, title XIV, §1481(i)(1), Nov. 5, 1990, 104 Stat. 1708; Pub. L. 102–190, div. A, title III, §336(a), Dec. 5, 1991, 105 Stat. 1342; Pub. L. 102–484, div. A, title III, §331(b), title X, §1052(35), Oct. 23, 1992, 106 Stat. 2373, 2501; Pub. L. 103–35, title II, §201(d)(6), May 31, 1993, 107 Stat. 99; Pub. L. 103–337, div. A, title III, §§322, 323, Oct. 5, 1994, 108 Stat. 2711; Pub. L. 104–106, div. A, title III, §321(a)(1), title XV, §1504(a)(1), div. D, title XLIII, §4321(b)(22), Feb. 10, 1996, 110 Stat. 251, 513, 673; Pub. L. 104–201, div. A, title III, §329, Sept. 23, 1996, 110 Stat. 2483; Pub. L. 107–107, div. A, title III, §314, Dec. 28, 2001, 115 Stat. 1053; Pub. L. 107–217, §3(b)(17), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 107–314, div. A, title III, §§311, 312, 313(c)(2), div. B, title XXVIII, §2812(c), Dec. 2, 2002, 116 Stat. 2506, 2508, 2709; Pub. L. 108–375, div. A, title X, §1084(d)(24), Oct. 28, 2004, 118 Stat. 2062; Pub. L. 109–163, div. A, title III, §312(a), Jan. 6, 2006, 119 Stat. 3190; Pub. L. 109–284, §2, Sept. 27, 2006, 120 Stat. 1211; Pub. L. 109–364, div. A, title III, §§311, 312, Oct. 17, 2006, 120 Stat. 2137; Pub. L. 111–84, div. A, title X, §1073(a)(28), Oct. 28, 2009, 123 Stat. 2474; Pub. L. 111–383, div. A, title X, §1075(b)(46)(B), Jan. 7, 2011, 124 Stat. 4371.)
Section 2710 of this title, referred to in subsec. (k), was subsequently amended, and no longer defines the term “unexploded ordnance”.
Provisions similar to those in subsecs. (f) and (g) of this section were contained in Pub. L. 101–165, title IX, §9038, Nov. 21, 1989, 103 Stat. 1137, which was set out below, prior to repeal by Pub. L. 101–510, §1481(i)(2).
A prior section 2701 was renumbered section 2721 of this title.
2011—Subsec. (b)(1). Pub. L. 111–383 substituted “a hazardous substance or pollutant or contaminant” for “hazardous substances, pollutants, and contaminants”.
2009—Subsec. (d)(5). Pub. L. 111–84 substituted “9620)” for “6920)”.
2006—Subsec. (d)(1). Pub. L. 109–163, §312(a)(1), inserted “any owner of covenant property,” after “any Indian tribe,” and “owner,” after “, Indian tribe,”.
Subsec. (d)(2). Pub. L. 109–364, §312, inserted at end “This two-year limitation does not apply to an agreement funded using amounts in the Department of Defense Base Closure Account 1990 or the Department of Defense Base Closure Account 2005 established under sections 2906 and 2906A of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).”
Subsec. (d)(3). Pub. L. 109–163, §312(a)(2), inserted “An agreement under such paragraph with respect to a site also may not change the cleanup standards selected for the site pursuant to law.” at end.
Subsec. (d)(4)(C). Pub. L. 109–163, §312(a)(3), added subpar. (C).
Subsec. (d)(5). Pub. L. 109–163, §312(a)(4), added par. (5).
Subsec. (i)(1). Pub. L. 109–284 substituted “sections 3131 and 3133 of title 40” for “miller act” in heading.
Subsec. (k)(1). Pub. L. 109–364, §311(1), substituted “designate” for “establish” and inserted “research,” after “characterization,”.
Subsec. (k)(2) to (4). Pub. L. 109–364, §311(2), (3), added pars. (2) and (3), redesignated former par. (3) as (4), and struck out former par. (2) which read as follows: “The authority to establish the program manager may be delegated to the Secretary of a military department, who may delegate the authority to the Under Secretary of that military department. The authority may not be further delegated.”.
2004—Subsec. (a)(2). Pub. L. 108–375, §1084(d)(24)(A), inserted “(42 U.S.C. 9620)” before period at end.
Subsec. (c)(2). Pub. L. 108–375, §1084(d)(24)(B), substituted “(relating to settlements) of CERCLA (42 U.S.C. 9622)” for “of CERCLA (relating to settlements)”.
Subsec. (e). Pub. L. 108–375, §1084(d)(24)(C), inserted “(42 U.S.C. 9619)” after “CERCLA”.
Subsec. (j)(2). Pub. L. 108–375, §1084(d)(24)(D), substituted “CERCLA” for “the Comprehensive Environmental Response, Compensation, and Liability Act of 1980”.
2002—Subsec. (a)(2). Pub. L. 107–314, §313(c)(2), substituted “CERCLA” for “the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (hereinafter in this chapter referred to as ‘CERCLA’) (42 U.S.C. 9601 et seq.)”.
Subsec. (d). Pub. L. 107–314, §2812(c)(1), substituted “Entities” for “Agencies” in heading.
Subsec. (d)(1). Pub. L. 107–314, §§311(1), 2812(c)(2), substituted “paragraph (3)” for “paragraph (2)”, “any State or local government agency, any Indian tribe, or any nonprofit conservation organization” for “with any State or local government agency, or with any Indian tribe,”, and “the agency, Indian tribe, or organization” for “the agency”.
Subsec. (d)(2), (3). Pub. L. 107–314, §311(2), (3), added par. (2) and redesignated former par. (2) as (3). Former par. (3) redesignated (4).
Subsec. (d)(4). Pub. L. 107–314, §2812(c)(3), added par. (4) and struck out heading and text of former par. (4). Text read as follows: “In this subsection, the term ‘Indian tribe’ has the meaning given such term in section 101(36) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601(36)).”
Pub. L. 107–314, §311(2), redesignated par. (3) as (4).
Subsec. (i)(1). Pub. L. 107–217 substituted “sections 3131 and 3133 of title 40” for “the Miller Act (40 U.S.C. 270a et seq.)”, “section 3134 of title 40” for “the Act of April 29, 1941 (40 U.S.C. 270e–270f)”, and “sections 3131 and 3133” for “the Miller Act”.
Subsec. (k). Pub. L. 107–314, §312, added subsec. (k).
2001—Subsec. (j)(1). Pub. L. 107–107 struck out “, or after December 31, 1999” before period at end.
1996—Subsec. (d). Pub. L. 104–201 substituted “, with any State or local government agency, or with any Indian tribe,” for “, or with any State or local government agency,” in par. (1) and added par. (3).
Pub. L. 104–106, §1504(a)(1), made technical correction to directory language of Pub. L. 103–337, §322(1). See 1994 Amendment note below.
Pub. L. 104–106, §321(a)(1), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “
“(1)
“(2)
Subsec. (i)(1). Pub. L. 104–106, §4321(b)(22), substituted “Miller Act (40 U.S.C. 270a et seq.)” for “Act of August 24, 1935 (40 U.S.C. 270a–270d), commonly referred to as the ‘Miller Act’,” and “the Miller Act” for “such Act of August 24, 1935”.
1994—Subsec. (d). Pub. L. 103–337, §322(1), as amended by Pub. L. 104–106, §1504(a)(1), designated existing provisions as par. (1) and inserted par. (1) heading.
Subsec. (d)(1). Pub. L. 103–337, §322(2), inserted “or any Indian tribe” after “any State or local government agency”.
Subsec. (d)(2). Pub. L. 103–337, §322(3), added par. (2).
Subsec. (j)(1). Pub. L. 103–337, §323, substituted “December 31, 1999” for “December 31, 1995”.
1993—Subsec. (j)(2). Pub. L. 103–35 substituted “(42 U.S.C. 9619(g)) applies” for “applies (42 U.S.C. 9619(g))”.
1992—Subsec. (j). Pub. L. 102–484, §1052(35), substituted “December 5, 1991,” for “the date of the enactment of the National Defense Authorization Act for Fiscal Years 1992 and 1993” in par. (1).
Pub. L. 102–484, §331(b), substituted “December 31, 1995” for “December 31, 1992”, designated existing provisions as par. (1), and added par. (2).
1991—Subsecs. (h) to (j). Pub. L. 102–190 added subsecs. (h) to (j).
1990—Subsecs. (f), (g). Pub. L. 101–510 added subsecs. (f) and (g).
Section 1504(a) of Pub. L. 104–106 provided that the amendment made by that section is effective as of Oct. 5, 1994, and as if included in Pub. L. 103–337 as enacted.
For effective date and applicability of amendment by section 4321(b)(22) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Pub. L. 111–84, div. A, title III, §317, Oct. 28, 2009, 123 Stat. 2249, provided that:
“(a)
“(1)
“(2)
“(A) not later than 30 days after such determination is made, submit to the Committees on Armed Services of the Senate and House of Representatives notice of such determination, including the circumstances, reasoning, and methodology that led to such determination; and
“(B) after notice is given under subparagraph (A), for each subsequent 180-day-period during which covered waste is disposed of in the open-air burn pit covered by such notice, submit to the Committees on Armed Services of the Senate and House of Representatives the justifications of the Secretary for continuing to operate such open-air burn pit.
“(b)
“(1) an explanation of the situations and circumstances under which open-air burn pits are used to dispose of waste during military exercises and operations worldwide;
“(2) a detailed description of the types of waste authorized to be burned in open-air burn pits;
“(3) a plan through which the Secretary intends to develop and implement alternatives to the use of open-air burn pits;
“(4) a copy of the regulations required to be prescribed by subsection (a);
“(5) the health and environmental compliance standards the Secretary has established for military and contractor operations in Iraq and Afghanistan with regard to solid waste disposal, including an assessment of whether those standards are being met;
“(6) a description of the environmental, health, and operational impacts of open-pit burning of plastics and the feasibility of including plastics in the regulations prescribed pursuant to subsection (a); and
“(7) an assessment of the ability of existing medical surveillance programs to identify and track exposures to toxic substances that result from open-air burn pits, including recommendations for such changes to such programs as would be required to more accurately identify and track such exposures.
“(c)
“(1) The term ‘contingency operation’ has the meaning given that term by section 101(a)(13) of title 10, United States Code.
“(2) The term ‘covered waste’ includes—
“(A) hazardous waste, as defined by section 1004(5) of the Solid Waste Disposal Act (42 U.S.C. 6903(5));
“(B) medical waste; and
“(C) other waste as designated by the Secretary.”
Pub. L. 109–284, §1, Sept. 27, 2006, 120 Stat. 1211, provided that: “The purpose of this Act [amending this section, sections 107 and 210 of Title 23, Highways, section 1499 of Title 28, Judiciary and Judicial Procedure, sections 2301, 20908, 40103, 70912, 150511, 151303, 153513, 220104, 220501, 220505, 220506, 220509, 220511, 220512, and 220521 of Title 36, Patriotic and National Observances, Ceremonies, and Organizations, and sections 522, 552, 554, 581, 593, 611, 3131, 3133, 3141, 3142, 3701, 3702, 3704, 6111, 8104, 8105, 8501, 8502, 8711, 8712, 8722, 9302, 14308, and 17504 of Title 40, Public Buildings, Property, and Works] is to make technical corrections to the United States Code relating to cross references, typographical errors, and stylistic matters.”
Pub. L. 106–398, §1 [div. C, title XXXI, §3138], Oct. 30, 2000, 114 Stat. 1654, 1654A–461, provided that:
“(a)
“(1) the Secretary of Energy or any officer or employee of the Office of the Secretary of Energy; or
“(2) the Chief of Engineers.
“(b)
“(1) A certification by the Secretary of Energy that the Department of Energy is in compliance with the requirements of section 3131 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65; 113 Stat. 925; 10 U.S.C. 2701 note).
“(2) A certification by the Chief of Engineers that the Corps of Engineers is in compliance with the requirements of that section.
“(c)
Pub. L. 106–65, div. C, title XXXI, §3131, Oct. 5, 1999, 113 Stat. 925, provided that: “Notwithstanding any other provision of law, no funds authorized to be appropriated or otherwise made available by this Act [see Tables for classification], or by any Act authorizing appropriations for the military activities of the Department of Defense or the defense activities of the Department of Energy for a fiscal year after fiscal year 2000, may be obligated or expended to conduct treatment, storage, or disposal activities at any site designated as a site under the Formerly Utilized Site Remedial Action Program as of the date of the enactment of this Act [Oct. 5, 1999].”
Pub. L. 106–60, title VI, §611, Sept. 29, 1999, 113 Stat. 502, provided that:
“(a) The Secretary of the Army, acting through the Chief of Engineers, in carrying out the program known as the Formerly Utilized Sites Remedial Action Program, shall undertake the following functions and activities to be performed at eligible sites where remediation has not been completed:
“(1) Sampling and assessment of contaminated areas.
“(2) Characterization of site conditions.
“(3) Determination of the nature and extent of contamination.
“(4) Selection of the necessary and appropriate response actions as the lead Federal agency.
“(5) Cleanup and closeout of sites.
“(6) Any other functions and activities determined by the Secretary of the Army, acting through the Chief of Engineers, as necessary for carrying out that program, including the acquisition of real estate interests where necessary, which may be transferred upon completion of remediation to the administrative jurisdiction of the Secretary of Energy.
“(b) Any response action under that program by the Secretary of the Army, acting through the Chief of Engineers, shall be subject to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) (in this section referred to as ‘CERCLA’), and the National Oil and Hazardous Substances Pollution Contingency Plan (40 CFR 300).
“(c) Any sums recovered under CERCLA or other authority from a liable party, contractor, insurer, surety, or other person for any expenditures by the Army Corps of Engineers or the Department of Energy for response actions under that program shall be credited to the amounts made available to carry out that program and shall be available until expended for costs of response actions for any eligible site.
“(d) The Secretary of Energy may exercise the authority under section 168 of the Atomic Energy Act of 1954 (42 U.S.C. 2208) to make payments in lieu of taxes for federally owned property at which activities under that program are carried out, regardless of which Federal agency has administrative jurisdiction over the property and notwithstanding any reference to ‘the activities of the Commission’ in that section.
“(e) This section does not alter, curtail, or limit the authorities, functions, or responsibilities of other agencies under CERCLA or, except as stated in this section, under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).
“(f) This section shall apply to fiscal year 2000 and each succeeding fiscal year.”
Pub. L. 105–261, div. A, title III, §321, Oct. 17, 1998, 112 Stat. 1962, provided that:
“(a)
“(b)
Pub. L. 105–85, div. A, title III, §348, Nov. 18, 1997, 111 Stat. 1689, provided that:
“(a)
“(b)
“(2) The Secretary shall take appropriate actions to ensure the implementation of the guidelines.
“(c)
“(1) obtain all data that is relevant for purposes of cost-recovery and cost-sharing activities; and
“(2) identify any negligence or other misconduct that may preclude indemnification or reimbursement by the Department of Defense for the costs of environmental restoration at a Department site or justify the recovery or sharing of costs associated with such restoration.
“(d)
“(1) the recovery of the costs of environmental restoration at Department of Defense sites from contractors of the Department and other private parties that contribute to environmental contamination at such sites; and
“(2) the sharing of the costs of such restoration with such contractors and parties.”
Pub. L. 107–107, div. A, title III, §316(b), Dec. 28, 2001, 115 Stat. 1053, directed the Secretary of Defense to prepare a report concerning the operation of the pilot program for the sale of economic incentives for the reduction of emission of air pollutants attributable to military facilities, as authorized by section 351 of Pub. L. 105–85, formerly set out below, and to submit the report to the Congress not later than Mar. 1, 2003.
Pub. L. 105–85, div. A, title III, §351, Nov. 18, 1997, 111 Stat. 1692, as amended by Pub. L. 106–65, div. A, title III, §325, Oct. 5, 1999, 113 Stat. 563; Pub. L. 107–107, div. A, title III, §316(a), Dec. 28, 2001, 115 Stat. 1053, authorized the Secretary of Defense, until Sept. 30, 2003, to carry out a pilot program to assess the feasibility and advisability of the sale of economic incentives for the reduction of emission of air pollutants attributable to a facility of a military department.
Section 325 of Pub. L. 104–201 provided that:
“(a)
“(b)
“(c)
“(d) 50-
“(e)
“(f)
“(g)
“(h)
“(i)
“(2) Nothing in this section may be construed to affect statutory requirements for an environmental restoration or waste management activity or project or to modify or otherwise affect applicable statutory or regulatory environmental restoration and waste management requirements, including substantive standards intended to protect public health and the environment, nor shall anything in this section be construed to preempt or impair any local land use planning or zoning authority or State authority.”
Section 321(a)(2) of Pub. L. 104–106, as amended by Pub. L. 105–85, div. A, title X, §1073(d)(1)(A), Nov. 18, 1997, 111 Stat. 1905, provided that:
“(A) Except as provided in subparagraph (B), the total amount of funds available for reimbursements under agreements entered into under section 2701(d) of title 10, United States Code, as amended by paragraph (1), in fiscal year 1996 may not exceed $10,000,000.
“(B) The Secretary of Defense may pay in fiscal year 1996 an amount for reimbursements under agreements referred to in subparagraph (A) in excess of the amount specified in that subparagraph for that fiscal year if—
“(i) the Secretary certifies to Congress that the payment of the amount under this subparagraph is essential for the management of the Defense Environmental Restoration Program under chapter 160 of title 10, United States Code; and
“(ii) a period of 60 days has expired after the date on which the certification is received by Congress.”
Section 328 of Pub. L. 103–337 provided that:
“(a)
“(b)
Pub. L. 103–160, div. A, title XIII, §1333, Nov. 30, 1993, 107 Stat. 1798, as amended by Pub. L. 103–337, div. A, title X, §1070(b)(11), Oct. 5, 1994, 108 Stat. 2857; Pub. L. 105–244, title I, §102(a)(2)(D), Oct. 7, 1998, 112 Stat. 1617; Pub. L. 105–277, div. A, §101(f) [title VIII, §405(d)(8), (f)(7)], Oct. 21, 1998, 112 Stat. 2681–337, 2681–420, 2681–430; Pub. L. 109–163, div. A, title X, §1056(a)(2), Jan. 6, 2006, 119 Stat. 3438, provided that:
“(a)
“(2) A grant provided under this subsection may cover a period of not more than three fiscal years, except that the payments under the grant for the second and third fiscal year shall be subject to the approval of the Secretary and to the availability of appropriations to carry out this section in that fiscal year.
“(b)
“(1) An assurance by the institution of higher education that it will use the grant to supplement and not supplant non-Federal funds that would otherwise be available for the education and training activities funded by the grant.
“(2) A proposal by the institution of higher education to provide expertise, training, and education in hazardous materials and waste management and other environmental fields applicable to defense manufacturing sites and Department of Defense and Department of Energy defense facilities.
“(c)
“(2) The entities referred to in paragraph (1) are the following:
“(A) Appropriate State and local agencies.
“(B) local [sic] workforce investment boards established under section 117 of the Workforce Investment Act of 1998 [29 U.S.C. 2832].
“(C) Community-based organizations (as defined in section 4(5) of such Act (29 U.S.C. 1503(5)).
“(D) Businesses.
“(E) Organized labor.
“(F) Other appropriate educational institutions.
“(d)
“(1) individuals who have been terminated or laid off from employment (or have received notice of termination or lay off) as a consequence of reductions in expenditures by the United States for defense, the cancellation, termination, or completion of a defense contract, or the closure or realignment of a military installation under a base closure law, as determined in accordance with regulations prescribed by the Secretary; or
“(2) individuals who have attained the age of 16 but not the age of 25.
“(e)
“(1) The institution of higher education shall establish and provide a work-based learning system consisting of education and training in environmental restoration—
“(A) which may include basic educational courses, on-site basic skills training, and mentor assistance to individuals described in subsection (d) who are participating in the program; and
“(B) which may lead to the awarding of a certificate or degree at the institution of higher education.
“(2) The institution of higher education shall undertake outreach and recruitment efforts to encourage participation by eligible individuals in the education and training program.
“(3) The institution of higher education shall select participants for the education and training program from among eligible individuals described in paragraph (1) or (2) of subsection (d).
“(4) To the extent practicable, in the selection of young adults described in subsection (d)(2) to participate in the education and training program, the institution of higher education shall give priority to those young adults who—
“(A) have not attended and are otherwise unlikely to be able to attend an institution of higher education; or
“(B) have, or are members of families who have, received a total family income that, in relation to family size, is not in excess of the higher of—
“(i) the official poverty line (as defined by the Office of Management and Budget, and revised annually in accordance with section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (42 U.S.C. 9902(2))); or
“(ii) 70 percent of the lower living standard income level.
“(5) To the extent practicable, the institution of higher education shall select instructors for the education and training program from institutions of higher education, appropriate community programs, and industry and labor.
“(6) To the extent practicable, the institution of higher education shall consult with appropriate Federal, State, and local agencies carrying out environmental restoration programs for the purpose of achieving coordination between such programs and the education and training program conducted by the consortium.
“(f)
“(g)
“(h)
“(A) a description and evaluation of the education and training program established by the consortium formed by the institution under subsection (c); and
“(B) such other information as the Secretary may reasonably require.
“(2) Not later than 18 months after the date of the enactment of this Act [Nov. 30, 1993], the Secretary shall submit to the President and Congress an interim report containing—
“(A) a compilation of the information contained in the reports received by the Secretary from each institution of higher education under paragraph (1); and
“(B) an evaluation of the effectiveness of the demonstration grant program authorized by this section.
“(3) Not later than January 1, 1997, the Secretary shall submit to the President and Congress a final report containing—
“(A) a compilation of the information described in the interim report; and
“(B) a final evaluation of the effectiveness of the demonstration grant program authorized by this section, including a recommendation as to the feasibility of continuing the program.
“(i)
“(1)
“(2)
“(3)
“(4)
“(j)
Pub. L. 103–160, div. A, title XIII, §1334, Nov. 30, 1993, 107 Stat. 1801, as amended by Pub. L. 105–244, title I, §102(a)(2)(E), Oct. 7, 1998, 112 Stat. 1617, provided that:
“(a)
“(b)
“(A) site remediation;
“(B) site characterization;
“(C) hazardous waste management;
“(D) hazardous waste reduction;
“(E) recycling;
“(F) process and materials engineering;
“(G) training for positions related to environmental engineering, environmental sciences, or environmental project management (including training for management positions); and
“(H) environmental engineering with respect to the construction of facilities to address the items described in subparagraphs (A) through (G).
“(2) The program established under subsection (a) shall be limited to educational training or activities designed to enable individuals to achieve specialization in the following fields:
“(A) Earth sciences.
“(B) Chemistry.
“(C) Chemical Engineering.
“(D) Environmental engineering.
“(E) Statistics.
“(F) Toxicology.
“(G) Industrial hygiene.
“(H) Health physics.
“(I) Environmental project management.
“(c)
“(d)
“(1) Any member of the Armed Forces who—
“(A) was on active duty or full-time National Guard duty on September 30, 1990;
“(B) during the 5-year period beginning on that date—
“(i) is involuntarily separated (as defined in section 1141 of title 10, United States Code) from active duty or full-time National Guard duty; or
“(ii) is separated from active duty or full-time National Guard duty pursuant to a special separation benefits program under section 1174a of title 10, United States Code, or the voluntary separation incentive program under section 1175 of that title; and
“(C) is not entitled to retired or retainer pay incident to that separation.
“(2) Any civilian employee of the Department of Energy or the Department of Defense (other than an employee referred to in paragraph (3)) who—
“(A) is terminated or laid off from such employment during the five-year period beginning on September 30, 1990, as a result of reductions in defense-related spending (as determined by the appropriate Secretary); and
“(B) is not entitled to retired or retainer pay incident to that termination or lay off.
“(3) Any civilian employee of the Department of Defense whose employment at a military installation approved for closure or realignment under a base closure law is terminated as a result of such closure or realignment.
“(e)
“(B) In awarding a scholarship under this section, the Secretary shall—
“(i) take into consideration the extent to which the qualifications and experience of the individual applying for the scholarship prepared such individual for the educational training or activities to be undertaken; and
“(ii) award a scholarship only to an eligible individual who has been accepted for enrollment in the institution of higher education described in subsection (c) and providing the educational training or activities for which the scholarship assistance is sought.
“(2) The Secretary of Defense shall determine the amount of the scholarships awarded under this section, except that the amount of scholarship assistance awarded to any individual under this section may not exceed—
“(A) $10,000 in any 12-month period; and
“(B) a total of $20,000.
“(f)
“(2) A member of the Armed Forces described in subsection (d)(1) who desires to apply for a scholarship under this section shall submit an application under this subsection not later than 180 days after the date of the separation of the member. In the case of members described in subsection (d)(1) who were separated before the date of the enactment of this Act [Nov. 30, 1993], the Secretary shall accept applications from these members submitted during the 180-day period beginning on the date of the enactment of this Act.
“(3) A civilian employee described in paragraph (2) or (3) of subsection (d) who desires to apply for a scholarship under this section, but who receives no prior notice of such termination or lay off, may submit an application under this subsection at any time after such termination or lay off. A civilian employee described in paragraph (1) or (2) of subsection (d) who receives a notice of termination or lay off shall submit an application not later than 180 days before the effective date of the termination or lay off. In the case of employees described in such paragraphs who were terminated or laid off before the date of the enactment of this Act [Nov. 30, 1993], the Secretary shall accept applications from these employees submitted during the 180-day period beginning on the date of the enactment of this Act.
“(g)
“(2) If an individual fails to pay to the United States the total amount required pursuant to paragraph (1), including the interest, at the rate prescribed in paragraph (4), the unpaid amount shall be recoverable by the United States from the individual or such individual's estate by—
“(A) in the case of an individual who is an employee of the United States, set off against accrued pay, compensation, amount of retirement credit, or other amount due the employee from the United States; and
“(B) such other method as is provided by law for the recovery of amounts owing to the United States.
“(3) The Secretary of Defense may waive in whole or in part a required repayment under this subsection if the Secretary determines that the recovery would be against equity and good conscience or would be contrary to the best interests of the United States.
“(4) The total amount of scholarship assistance provided to an individual under this section, for purposes of repayment under this subsection, shall bear interest at the applicable rate of interest under section 427A(c) of the Higher Education Act of 1965 (20 U.S.C. 1077a(c)).
“(h)
“(i)
“(j)
“(2) The cost of carrying out the program authorized by subsection (a) may not exceed $8,000,000 in any fiscal year.
“(k)
“(1) The term ‘base closure law’ means the following:
“(A) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(B) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
“(2) The term ‘hazardous substance research centers’ means the hazardous substance research centers described in section 311(d) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9660(d)). Such term includes the Great Plains and Rocky Mountain Hazardous Substance Research Center, the Northeast Hazardous Substance Research Center, the Great Lakes and Mid-Atlantic Hazardous Substance Research Center, the South and Southwest Hazardous Substance Research Center, and the Western Region Hazardous Substance Research Center.
“(3) The term ‘institution of higher education’ has the same meaning given such term in section 101 of the Higher Education Act of 1965 [20 U.S.C. 1001].”
Pub. L. 103–160, div. A, title XIII, §1335, Nov. 30, 1993, 107 Stat. 1804, provided that:
“(a)
“(b)
“(1) employ such employees to carry out environmental assessment, remediation, and restoration activities at military installations referred to in subsection (a); or
“(2) require, as a condition of a contract for the private performance of such activities at such an installation, the contractor to be engaged in carrying out such activities to employ such employees.
“(c)
“(d)
“(e)
Pub. L. 103–139, title II, Nov. 11, 1993, 107 Stat. 1422, provided in part: “That notwithstanding the provisions of the Federal Cooperative Grant and Agreement Act of 1977 (31 U.S.C. 6303–6308), the Department of Defense may hereafter negotiate and enter into cooperative agreements and grants with public and private agencies, organizations, institutions, individuals or other entities to implement the purposes of the Legacy Resource Management Program”.
Pub. L. 102–484, div. A, title III, §323, Oct. 23, 1992, 106 Stat. 2365, provided that:
“(a)
“(1) military installations scheduled for closure under title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note);
“(2) military installations scheduled for closure under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note); and
“(3) facilities for which the Secretary is responsible under the Defense Environmental Restoration Program established under section 2701 of title 10, United States Code.
“(b)
“(A) 2 military installations referred to in subsection (a)(1);
“(B) 4 military installations referred to in subsection (a)(2), consisting of—
“(i) 2 military installations scheduled for closure as of the date of the enactment of this Act [Oct. 23, 1992]; and
“(ii) 2 military installations included in the list transmitted by the Secretary no later than April 15, 1993, pursuant to section 2903(c)(1) of the Defense Base Closure and Realignment Act of 1990 [Pub. L. 101–510] (10 U.S.C. 2687 note) and recommended in a report transmitted by the President in that year pursuant to section 2903(e) of such Act and for which a joint resolution disapproving such recommendations is not enacted by the deadline set forth in section 2904(b) of such Act [10 U.S.C. 2687 note]; and
“(C) not less than 4 facilities referred to in subsection (a)(3) with respect to each military department.
“(2)(A) Except as provided in subparagraph (B), the selections under paragraph (1) shall be made not later than 60 days after the date of the enactment of this Act.
“(B) The selections under paragraph (1) of military installations described in subparagraph (B)(ii) of such paragraph shall be made not later than 60 days after the date on which the deadline (set forth in section 2904(b) of such Act) for enacting a joint resolution of disapproval with respect to the report transmitted by the President has passed.
“(3) The installations and facilities selected under paragraph (1) shall be representative of—
“(A) a variety of the environmental restoration activities required for facilities under the Defense Environmental Restoration Program and for military installations scheduled for closure under the Defense Authorization Amendments and Base Closure and Realignment Act (10 U.S.C. 2687 note) [see Short Title of 1988 Amendment note under 10 U.S.C. 2687] and the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. 2687 note); and
“(B) the different sizes of such environmental restoration activities to provide, to the maximum extent practicable, opportunities for the full range of business sizes to enter into environmental restoration contracts with the Department of Defense and with prime contractors to perform activities under the pilot program.
“(c)
“(1) the development and use of innovative contracting techniques;
“(2) the use of all reasonable and appropriate methods to expedite necessary Federal and State administrative decisions, agreements, and concurrences; and
“(3) the use (including any necessary request for the use) of existing authorities to ensure that environmental restoration activities under the pilot program are conducted expeditiously, with particular emphasis on activities that may be conducted in advance of any final plan for environmental restoration.
“(d)
“(1) Activities of the pilot program shall be carried out subject to and in accordance with all applicable Federal and State laws and regulations.
“(2) Competitive procedures shall be used to select the contractors.
“(3) The experience and ability of the contractors shall be considered, in addition to cost, as a factor to be evaluated in the selection of the contractors.
“(e)
Pub. L. 102–484, div. A, title III, §324, Oct. 23, 1992, 106 Stat. 2367, as amended by Pub. L. 108–136, div. A, title X, §1031(d)(1), Nov. 24, 2003, 117 Stat. 1604, provided that:
“It is the sense of the Congress that in carrying out environmental restoration activities at military installations outside the United States, the President should seek to obtain an equitable division of the costs of environmental restoration with the nation in which the installation is located.”
Pub. L. 102–484, div. D, title XLIV, §4451, Oct. 23, 1992, 106 Stat. 2735, as amended by Pub. L. 105–244, title I, §102(a)(2)(F), Oct. 7, 1998, 112 Stat. 1617, provided that:
“(a)
“(b)
“(1) be accepted for enrollment or be currently enrolled as a full-time student at an institution of higher education (as defined in section 101 of the Higher Education Act of 1965 [20 U.S.C. 1001]);
“(2) be pursuing a program of education that leads to an appropriate higher education degree in engineering, biology, chemistry, or another qualifying field related to environmental activities, as determined by the Secretary;
“(3) sign an agreement described in subsection (c);
“(4) be a citizen or national of the United States or be an alien lawfully admitted to the United States for permanent residence; and
“(5) meet any other requirements prescribed by the Secretary.
“(c)
“(1) The agreement of the Secretary to provide the individual with educational assistance for a specified number of school years (not to exceed 5 years) during which the individual is pursuing a course of education in a qualifying field. The assistance may include payment of tuition, fees, books, laboratory expenses, and (in the case of a fellowship) a stipend.
“(2) The agreement of the individual to perform the following:
“(A) Accept such educational assistance.
“(B) Maintain enrollment and attendance in the educational program until completed.
“(C) Maintain, while enrolled in the educational program, satisfactory academic progress as prescribed by the institution of higher education in which the individual is enrolled.
“(D) Serve, upon completion of the educational program and selection by the Secretary under subsection (e), as a full-time employee in an environmental restoration or other environmental position in the Department of Defense for the applicable period of service specified in subsection (d).
“(d)
“(1) For an individual who completes a bachelor's degree under a scholarship program established under subsection (a), a period of 12 months for each school year or part thereof for which the individual is provided a scholarship under the program.
“(2) For an individual who completes a master's degree or other post-graduate degree under a fellowship program established under subsection (a), a period of 24 months for each school year or part thereof for which the individual is provided a fellowship under the program.
“(e)
“(f)
“(A) the individual does not complete the educational program as agreed to pursuant to subsection (c)(2)(B), or is selected by the Secretary under subsection (e) but declines to serve, or fails to complete the service, in a position in the Department of Defense as agreed to pursuant to subsection (c)(2)(D); or
“(B) the individual is involuntarily separated for cause from the Department of Defense before the end of the period for which the individual has agreed to continue in the service of the Department of Defense.
“(2) If an individual fails to fulfill the agreement of the individual to pay to the United States the total amount of educational assistance provided under a program established under subsection (a), plus interest at the rate prescribed in paragraph (4), a sum equal to the amount of the educational assistance (plus such interest, if applicable) shall be recoverable by the United States from the individual or his estate by—
“(A) in the case of an individual who is an employee of the Department of Defense or other Federal agency, set off against accrued pay, compensation, amount of retirement credit, or other amount due the employee from the United States; and
“(B) such other method provided by law for the recovery of amounts owing to the United States.
“(3) The Secretary may waive in whole or in part a required repayment under this subsection if the Secretary determines the recovery would be against equity and good conscience or would be contrary to the best interests of the United States.
“(4) The total amount of educational assistance provided to an individual under a program established under subsection (a) shall, for purposes of repayment under this section, bear interest at the applicable rate of interest under section 427A(c) of the Higher Education Act of 1965 (20 U.S.C. 1077a(c)).
“(g)
“(1) individuals who are, or have been, employed by the Department of Defense or its contractors and subcontractors who have been engaged in defense-related activities; and
“(2) individuals who are or have been members of the Armed Forces.
“(h)
“(i)
“(j)
“(k)
“(1) $7,000,000 shall be available to carry out the scholarship and fellowship programs established in subsection (a); and
“(2) $3,000,000 shall be available to provide training to Department of Defense personnel to obtain the skills required to comply with existing environmental statutory and regulatory requirements.”
Section 4452 of Pub. L. 102–484 authorized the Secretary of Defense to establish a program to assist institutions of higher education, as defined in former section 1141(a) of Title 20, Education, to provide education and training in environmental restoration and hazardous waste management and to award grants to such institutions, prior to repeal by Pub. L. 103–160, div. A, title XIII, §1333(j), Nov. 30, 1993, 107 Stat. 1800. See section 1333 of Pub. L. 103–160, set out above.
Section 342(b) of Pub. L. 101–510 provided that:
“(1) The Secretary of Defense shall develop a policy for determining applicable environmental requirements for military installations located outside the United States. In developing the policy, the Secretary shall ensure that the policy gives consideration to adequately protecting the health and safety of military and civilian personnel assigned to such installations.
“(2) The Secretary of Defense shall develop a policy for determining the responsibilities of the Department of Defense with respect to cleaning up environmental contamination that may be present at military installations located outside the United States. In developing the policy, the Secretary shall take into account applicable international agreements (such as Status of Forces agreements), multinational or joint use and operation of such installations, relative share of the collective defense burden, and negotiated accommodations.
“(3) The Secretary of Defense shall develop a policy and strategy to ensure adequate oversight of compliance with applicable environmental requirements and responsibilities of the Department of Defense determined under the policies developed under paragraphs (1) and (2). In developing the policy, the Secretary shall consider using the Inspector General of the Department of Defense to ensure active and forceful oversight.
“(4) At the same time the President submits to Congress his budget for fiscal year 1993 pursuant to section 1105 of title 31, United States Code, the Secretary of Defense shall submit to Congress a report describing the policies developed under paragraphs (1), (2), and (3). The report also shall include a discussion of the role of the Inspector General of the Department of Defense in overseeing environmental compliance at military installations outside the United States.
“(5) For purposes of this subsection, the term ‘military installation’ means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department which is located outside the United States and outside any territory, commonwealth, or possession of the United States.”
Section 344 of Pub. L. 101–510 directed Secretary of Defense to establish a program for the purpose of educating Department of Defense personnel in environmental management and, not later than date on which President submits budget for FY 1992 to Congress pursuant to 31 U.S.C. 1105(a), to submit to Congress recommendations regarding whether program should be continued after Sept. 30, 1991.
Pub. L. 102–484, div. A, title III, §325, Oct. 23, 1992, 106 Stat. 2367, required the Director of the Defense Logistics Agency to evaluate the use of class I and class II substances, listed under 42 U.S.C. 7671a, by the military departments and Defense Agencies for the years 1992 to 1995 and to submit to the congressional defense committees a report on the status of the evaluation in 1993.
Section 345 of Pub. L. 101–510 provided that:
“(a)
“(2) Within 120 days after the date of the enactment of this Act [Nov. 5, 1990], the Secretary shall provide the Committee with a list of all military specifications, standards, and other requirements that specify the use of methyl chloroform, HCFCs, or carbon tetrachloride.
“(3) Within 150 days after the date of the enactment of this Act, the Secretary shall provide the Committee with a list of all military specifications, standards, and other requirements that do not specify use of methyl chloroform, HCFCs, or carbon tetrachloride but cannot be met without the use of one or more of such substances.
“(b)
“(c)
“(d)
Pub. L. 101–189, div. A, title III, §352, Nov. 29, 1989, 103 Stat. 1423, provided that:
“(a)
“(b)
Pub. L. 101–189, div. A, title III, §354, Nov. 29, 1989, 103 Stat. 1424, as amended by Pub. L. 102–190, div. A, title III, §332, Dec. 5, 1991, 105 Stat. 1340, directed the Secretary of Defense to require the Secretary of each military department to establish a program for fiscal years 1992, 1993, and 1994 to reduce the volume of solid and hazardous wastes disposed of, and hazardous materials used by, each industrial-type activity within the department that was a depot maintenance installation and for which a working-capital fund had been established under section 2208 of this title, and to submit to Congress, not later than 90 days after Nov. 29, 1989, the name of each industrial-type or commercial-type activity of each military department which was not covered by the waste minimization program because the activity did not carry out depot maintenance installation functions.
Pub. L. 101–189, div. A, title III, §356, Nov. 29, 1989, 103 Stat. 1425, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729; Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717, provided that:
“(a)
“(b)
“(2) Before the report required under paragraph (1) is submitted to the committees named in such paragraph, the Secretary shall transmit a copy of the report to the Administrator of the Environmental Protection Agency for comment.
“(c)
“(2) It shall be the function of the Committee to study (A) the use of CFCs by the Department of Defense and by contractors in the performance of contracts for the Department of Defense, and (B) the cost and feasibility of using alternative compounds for CFCs or using alternative technologies that do not require the use of CFCs.
“(3) Within 120 days after the date of the enactment of this Act, the Secretary shall provide the Committee with a list of all military specifications, standards, and other requirements that specify the use of CFCs.
“(4) Within 150 days after the date of the enactment of this Act, the Secretary shall provide the Committee with a list of all military specifications, standards, and other requirements that do not specify use of CFCs but cannot be met without the use of CFCs.
“(d)
“(1) identify cases in which the Committee found that substitutes for CFCs could be made most expeditiously;
“(2) identify the feasibility and cost of substituting compounds or technologies for CFC uses referred to in subsection (c)(3) and estimate the time necessary for completing the substitution;
“(3) identify CFC uses referred to in subsection (c)(4) for which substitutes are not currently available and indicate the reasons substitutes are not available;
“(4) describe the types of research programs that should be undertaken to identify substitute compounds or technologies for CFC uses referred to in paragraphs (3) and (4) of subsection (c) and estimate the cost of the program;
“(5) recommend procedures to expedite the use of substitute compounds and technologies offered by contractors to replace CFC uses;
“(6) estimate the earliest date on which CFCs will no longer be required for military applications; and
“(7) estimate the cost of revising military specifications for the use of substitutes for CFCs, the additional costs resulting from modification of Department of Defense contracts to provide for the use of substitutes for CFCs, and the cost of purchasing new equipment and reverification necessitated by the use of substitutes for CFCs.”
Pub. L. 101–189, div. A, title III, §358, Nov. 29, 1989, 103 Stat. 1427, directed Secretary of Defense, not later than two years after Nov. 29, 1989, to submit to Congress a comprehensive report on the long-range environmental challenges and goals of the Department of Defense.
Pub. L. 101–189, div. A, title III, §361, Nov. 29, 1989, 103 Stat. 1429, as amended by Pub. L. 101–510, div. A, title III, §343, Nov. 5, 1990, 104 Stat. 1538, required the Secretary of Defense to conduct a study of current practices and future plans for managing postconsumer waste at facilities of the Department of Defense at which such waste was generated and the feasibility of such Department of Defense facilities participating in programs at military installations or in local communities to recycle the postconsumer waste generated at the facilities, and to submit to Congress a report describing the findings and conclusions of the Secretary resulting from the study not later than Mar. 1, 1991.
Pub. L. 101–165, title IX, §9038, Nov. 21, 1989, 103 Stat. 1137, which authorized appropriations available to the Department of Defense to be used at sites formerly used by the Department for removal of unsafe buildings or debris of the Department and required that removal be completed before the property is released from Federal Government control, was repealed and restated in subsecs. (f) and (g) of this section by Pub. L. 101–510, div. A, title XIV, §1481(i), Nov. 5, 1990, 104 Stat. 1708.
1 See References in Text note below.
(a)
(1) Means of reducing the quantities of hazardous waste generated by activities and facilities under the jurisdiction of the Secretary.
(2) Methods of treatment, disposal, and management (including recycling and detoxifying) of hazardous waste of the types and quantities generated by current and former activities of the Secretary and facilities currently and formerly under the jurisdiction of the Secretary.
(3) Identifying more cost-effective technologies for cleanup of hazardous substances.
(4) Toxicological data collection and methodology on risk of exposure to hazardous waste generated by the Department of Defense.
(5) The testing, evaluation, and field demonstration of any innovative technology, processes, equipment, or related training devices which may contribute to establishment of new methods to control, contain, and treat hazardous substances, to be carried out in consultation and cooperation with, and to the extent possible in the same manner and standards as, testing, evaluation, and field demonstration carried out by the Administrator, acting through the office of technology demonstration of the Environmental Protection Agency.
(b)
(c)
(d)
(1)
(2)
(Added Pub. L. 99–499, title II, §211(a)(1)(B), Oct. 17, 1986, 100 Stat. 1721; amended Pub. L. 108–375, div. A, title X, §1084(d)(25), Oct. 28, 2004, 118 Stat. 2063.)
2004—Subsec. (a). Pub. L. 108–375 inserted “(42 U.S.C. 9660(a)(5))” after “311(a)(5) of CERCLA”.
Pub. L. 105–85, div. A, title III, §349, Nov. 18, 1997, 111 Stat. 1690, as amended by Pub. L. 106–65, div. A, title X, §1067(4), Oct. 5, 1999, 113 Stat. 774, authorized the Secretary of Defense, until three years after Nov. 18, 1997, to enter into a partnership with one or more private entities to demonstrate and validate innovative environmental technologies, and to provide funds to the partner or partners from appropriations available to the Department of Defense for environmental activities for a period of up to five years.
Pub. L. 105–85, div. A, title III, §342(d), Nov. 18, 1997, 111 Stat. 1686, provided that not later than 90 days after Nov. 18, 1997, the Secretary of Defense was to submit to Congress a report setting forth the guidelines established by the Secretary for reimbursement of State and local governments, and for cost-sharing between the Department of Defense, such governments, and vendors, under cooperative agreements entered into under section 327 of Pub. L. 104–201, formerly set out below.
Pub. L. 104–201, div. A, title III, §327, Sept. 23, 1996, 110 Stat. 2483, as amended by Pub. L. 105–85, div. A, title III, §342(a)–(c), Nov. 18, 1997, 111 Stat. 1686, authorized the Secretary of Defense, until five years after Sept. 23, 1996, to enter into a cooperative agreement with an agency of a State or local government, or with an Indian tribe, to obtain assistance in certifying environmental technologies.
(a)
(1) An account to be known as the “Environmental Restoration Account, Defense”.
(2) An account to be known as the “Environmental Restoration Account, Army”.
(3) An account to be known as the “Environmental Restoration Account, Navy”.
(4) An account to be known as the “Environmental Restoration Account, Air Force”.
(5) An account to be known as the “Environmental Restoration Account, Formerly Used Defense Sites”.
(b)
(c)
(2) Funds authorized for deposit in an account under subsection (a) shall remain available until expended.
(d)
(e)
(1) Amounts recovered under CERCLA for response actions.
(2) Any other amounts recovered from a contractor, insurer, surety, or other person to reimburse the Department of Defense or a military department for any expenditure for environmental response activities.
(f)
(g)
(2) In this subsection, the term “environmental remedy” has the meaning given the term “remedy” in section 101 of CERCLA (42 U.S.C. 9601).
(h)
(Added Pub. L. 99–499, title II, §211(a)(1)(B), Oct. 17, 1986, 100 Stat. 1722; amended Pub. L. 103–337, div. A, title III, §321, Oct. 5, 1994, 108 Stat. 2710; Pub. L. 104–106, div. A, title III, §322, Feb. 10, 1996, 110 Stat. 252; Pub. L. 104–201, div. A, title III, §322(a)(1), Sept. 23, 1996, 110 Stat. 2477; Pub. L. 106–65, div. A, title III, §321, title X, §1066(a)(27), Oct. 5, 1999, 113 Stat. 560, 772; Pub. L. 106–398, §1 [[div. A], title III, §§311, 312], Oct. 30, 2000, 114 Stat. 1654, 1654A–53, 1654A–54; Pub. L. 107–107, div. A, title III, §312, Dec. 28, 2001, 115 Stat. 1051; Pub. L. 108–136, div. A, title III, §313(a), Nov. 24, 2003, 117 Stat. 1430; Pub. L. 108–375, div. A, title X, §1084(d)(26), Oct. 28, 2004, 118 Stat. 2063; Pub. L. 109–163, div. A, title III, §312(b), title X, §1056(c)(7), Jan. 6, 2006, 119 Stat. 3191, 3439; Pub. L. 109–364, div. A, title X, §1071(a)(23), Oct. 17, 2006, 120 Stat. 2399.)
2006—Subsec. (b). Pub. L. 109–163, §1056(c)(7), substituted “In this subsection, the terms ‘discarded military munitions’ and” for “For purposes of the preceding sentence, the terms ‘unexploded ordnance’, ‘discarded military munitions’, and”.
Subsec. (g)(1). Pub. L. 109–163, §312(b)(1), substituted “Except as provided in subsection (h), the sole source” for “The sole source”.
Subsec. (h). Pub. L. 109–364 substituted “section 2701(d)(1)” for “subsection 2701(d)(1)”.
Pub. L. 109–163, §312(b)(2), added subsec. (h).
2004—Subsec. (b). Pub. L. 108–375 substituted “For purposes of the preceding sentence, the terms” for “The terms”.
2003—Subsec. (c)(1). Pub. L. 108–136, §313(a)(1), substituted “only to carry out the environmental restoration functions of the Secretary of Defense and the Secretaries of the military departments under this chapter and under any other provision of law.” for “only—
“(A) to carry out the environmental restoration functions of the Secretary of Defense and the Secretaries of the military departments under this chapter and under any other provision of law; and
“(B) to pay for the costs of permanently relocating a facility because of a release or threatened release of hazardous substances, pollutants, or contaminants from—
“(i) real property on which the facility is located and that is currently under the jurisdiction of the Secretary of Defense or the Secretary of a military department; or
“(ii) real property on which the facility is located and that was under the jurisdiction of the Secretary of Defense or the Secretary of a military department at the time of the actions leading to the release or threatened release.”
Subsec. (c)(2). Pub. L. 108–136, §313(a)(3), redesignated par. (4) as (2) and struck out second sentence which read as follows: “Not more than 5 percent of the funds deposited in an account under subsection (a) for a fiscal year may be used to pay relocation costs under paragraph (1)(B).”
Pub. L. 108–136, §313(a)(2), struck out par. (2) which read as follows: “The authority provided by paragraph (1)(B) expires September 30, 2003. The Secretary of Defense or the Secretary of a military department may not pay the costs of permanently relocating a facility under such paragraph unless the Secretary—
“(A) determines that permanent relocation—
“(i) is the most cost effective method of responding to the release or threatened release of hazardous substances, pollutants, or contaminants from the real property on which the facility is located;
“(ii) has the approval of relevant regulatory agencies; and
“(iii) is supported by the affected community; and
“(B) submits to Congress written notice of the determination before undertaking the permanent relocation of the facility, including a description of the response action taken or to be taken in connection with the permanent relocation and a statement of the costs incurred or to be incurred in connection with the permanent relocation.”
Subsec. (c)(3). Pub. L. 108–136, §313(a)(2), struck out par. (3) which read as follows: “If relocation costs are to be paid under paragraph (1)(B) with respect to a facility located on real property described in clause (ii) of such paragraph, the Secretary of Defense or the Secretary of the military department concerned may use only fund transfer mechanisms otherwise available to the Secretary.”
Subsec. (c)(4). Pub. L. 108–136, §313(a)(3), redesignated par. (4) as (2).
2001—Subsecs. (b) to (g). Pub. L. 107–107 added subsec. (b) and redesignated former subsecs. (b) to (f) as (c) to (g), respectively.
2000—Subsec. (a)(5). Pub. L. 106–398, §1 [[div. A], title III, §311(a)], added par. (5).
Subsec. (b). Pub. L. 106–398, §1 [[div. A], title III, §312], amended heading and text of subsec. (b) generally. Prior to amendment, text read as follows: “Funds authorized for deposit in an account under subsection (a) may be obligated or expended from the account only in order to carry out the environmental restoration functions of the Secretary of Defense and the Secretaries of the military departments under this chapter and under any other provision of law. Funds so authorized shall remain available until expended.”
Subsec. (f). Pub. L. 106–398, §1 [[div. A], title III, §311(b)], added subsec. (f).
1999—Subsec. (c). Pub. L. 106–65, §1066(a)(27), struck out “United States Code,” after “title 31,”.
Subsec. (e). Pub. L. 106–65, §321, substituted “through 2010,” for “through 1999,” in two places.
1996—Pub. L. 104–201 substituted “accounts” for “transfer account” in section catchline and amended text generally. Prior to amendment, text consisted of subsecs. (a) to (f) establishing the Defense Environmental Restoration Account and providing for deposits into and withdrawals from the Account.
Subsec. (e). Pub. L. 104–106 amended subsec. (e) generally, substituting
“(e)
“(1) Amounts recovered under CERCLA for response actions of the Secretary.
“(2) Any other amounts recovered by the Secretary or the Secretary of the military department concerned from a contractor, insurer, surety, or other person to reimburse the Department of Defense for any expenditure for environmental response activities.” for
“(e)
1994—Subsec. (f). Pub. L. 103–337 added subsec. (f).
Pub. L. 108–136, div. A, title III, §313(a), Nov. 24, 2003, 117 Stat. 1430, provided that the amendment made by that section is effective Oct. 1, 2003.
Section 322(e) of Pub. L. 104–201 provided that: “The amendments made by this section [amending this section and section 2705 of this title] shall take effect on the later of—
“(1) October 1, 1996; or
“(2) the date of the enactment of this Act [Sept. 23, 1996].”
Section 211(c) of Pub. L. 99–499 provided that: “Section 2703(a)(2) of title 10, United States Code, as added by subsection (a), shall apply with respect to funds appropriated for fiscal years beginning after September 30, 1986.”
Pub. L. 108–136, div. A, title III, §313(b), Nov. 24, 2003, 117 Stat. 1430, provided that: “An agreement in effect on September 30, 2003, under section 2703(c)(1)(B) of title 10, United States Code, as in effect on that date, to pay for the costs of permanently relocating a facility because of a release or threatened release of hazardous substances, pollutants, or contaminants shall remain in effect after that date, subject to the terms of the agreement, and costs may be paid in accordance with the terms of the agreement, notwithstanding the amendments made by subsection (a) [amending this section].”
Section 322(b) of Pub. L. 104–201 provided that: “Any reference to the Defense Environmental Restoration Account in any Federal law, Executive Order, regulation, delegation of authority, or document shall be deemed to refer to the appropriate environmental restoration account established under section 2703(a)(1) of title 10, United States Code (as amended by subsection (a)(1)).”
Section 322(d) of Pub. L. 104–201 provided that: “Any unobligated balances that remain in the Defense Environmental Restoration Account under section 2703(a) of title 10, United States Code, as of the effective date specified in subsection (e) [Oct. 1, 1996] shall be transferred on such date to the Environmental Restoration Account, Defense, established under section 2703(a)(1) of title 10, United States Code (as amended by subsection (a)(1)).”
(a)
(1)
(2)
(A) for which no standard, requirement, criteria, or limitation is in effect under the Toxic Substances Control Act, the Safe Drinking Water Act, the Clean Air Act, or the Clean Water Act; and
(B) for which no water quality criteria are in effect under any provision of the Clean Water Act.
(b)
(1) The examination, summary, and interpretation of available toxicological information and epidemiologic evaluations on a hazardous substance in order to ascertain the levels of significant human exposure for the substance and the associated acute, subacute, and chronic health effects.
(2) A determination of whether adequate information on the health effects of each substance is available or in the process of development to determine levels of exposure which present a significant risk to human health of acute, subacute, and chronic health effects.
(3) Where appropriate, toxicological testing directed toward determining the maximum exposure level of a hazardous substance that is safe for humans.
(c)
(d)
(1)
(A) for which no advisory exists;
(B) which is found to threaten drinking water; and
(C) which is emanating from a facility under the jurisdiction of the Secretary.
(2)
(3)
(e)
(f)
(Added Pub. L. 99–499, title II, §211(a)(1)(B), Oct. 17, 1986, 100 Stat. 1722; amended Pub. L. 102–25, title VII, §701(j)(10), Apr. 6, 1991, 105 Stat. 116; Pub. L. 108–375, div. A, title X, §1084(d)(27), Oct. 28, 2004, 118 Stat. 2063.)
The Toxic Substances Control Act, referred to in subsec. (a)(2)(A), is Pub. L. 94–469, Oct. 11, 1976, 90 Stat. 2003, as amended, which is classified generally to chapter 53 (§2601 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables.
The Safe Drinking Water Act, referred to in subsec. (a)(2)(A), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93–523, §2(a), 88 Stat. 1660, as amended, which is classified generally to subchapter XII (§300f et seq.) of chapter 6A of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 201 of Title 42 and Tables.
The Clean Air Act, referred to in subsec. (a)(2)(A), is act July 14, 1955, ch. 360, 69 Stat. 322, as amended, which is classified generally to chapter 15B (§1857 et seq.) of Title 42. On enactment of Pub. L. 95–95, the Act was reclassified to chapter 85 (§7401 et seq.) of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of Title 42 and Tables.
The Clean Water Act, referred to in subsec. (a)(2), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, §2, Oct. 18, 1972, 86 Stat. 816, also known as the Federal Water Pollution Control Act, which is classified generally to chapter 26 (§1251 et seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables.
2004—Subsecs. (c), (e), (f). Pub. L. 108–375 inserted “(42 U.S.C. 9604(i))” after “CERCLA”.
1991—Subsec. (f). Pub. L. 102–25 substituted “Agency for Toxic Substances” for “Agency of Toxic Substances”.
(a)
(1) The discovery of releases or threatened releases of hazardous substances at the facility.
(2) The extent of the threat to public health and the environment which may be associated with any such release or threatened release.
(3) Proposals made by the Secretary to carry out response actions with respect to any such release or threatened release.
(4) The initiation of any response action with respect to such release or threatened release and the commencement of each distinct phase of such activities.
(b)
(1)
(2)
(c)
(d)
(2)(A) The Secretary shall prescribe regulations regarding the establishment, characteristics, composition, and funding of restoration advisory boards pursuant to this subsection.
(B) The issuance of regulations under subparagraph (A) shall not be a precondition to the establishment of restoration advisory boards under this subsection.
(C) The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to a restoration advisory board established under this subsection.
(3) The Secretary may authorize the commander of an installation (or, if there is no such commander, an appropriate official of the Department of Defense designated by the Secretary) to pay routine administrative expenses of a restoration advisory board established for that installation. Such payments shall be made from funds available under subsection (g).
(e)
(2) The commander of an installation (or, if there is no such commander, an appropriate official of the Department of Defense designated by the Secretary) may obtain technical assistance under paragraph (1) for a technical review committee or restoration advisory board only if—
(A) the technical review committee or restoration advisory board demonstrates that the Federal, State, and local agencies responsible for overseeing environmental restoration at the installation, and available Department of Defense personnel, do not have the technical expertise necessary for achieving the objective for which the technical assistance is to be obtained; or
(B) the technical assistance—
(i) is likely to contribute to the efficiency, effectiveness, or timeliness of environmental restoration activities at the installation; and
(ii) is likely to contribute to community acceptance of environmental restoration activities at the installation.
(f)
(1) Identifying environmental restoration activities and projects at the installation or installations.
(2) Monitoring progress on these activities and projects.
(3) Collecting information regarding restoration priorities for the installation or installations.
(4) Addressing land use, level of restoration, acceptable risk, and waste management and technology development issues related to environmental restoration at the installation or installations.
(5) Developing environmental restoration strategies for the installation or installations.
(g)
(1) In the case of a military installation not approved for closure pursuant to a base closure law, the environmental restoration account concerned under section 2703(a) of this title.
(2) In the case of an installation approved for closure pursuant to such a law, the Department of Defense Base Closure Account 1990 established under section 2906(a) of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
(Added Pub. L. 99–499, title II, §211(a)(1)(B), Oct. 17, 1986, 100 Stat. 1724; amended Pub. L. 103–337, div. A, title III, §326(a)–(c), Oct. 5, 1994, 108 Stat. 2712, 2713; Pub. L. 104–106, div. A, title III, §324(a)–(d)(1), (e), Feb. 10, 1996, 110 Stat. 252–254; Pub. L. 104–201, div. A, title III, §322(c), Sept. 23, 1996, 110 Stat. 2479; Pub. L. 108–136, div. A, title III, §317(b), title X, §1043(c)(5), Nov. 24, 2003, 117 Stat. 1432, 1612.)
The Federal Advisory Committee Act, referred to in subsec. (d)(2)(C), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to Title 5, Government Organization and Employees.
2003—Subsec. (d)(2)(C). Pub. L. 108–136, §317(b), added subpar. (C).
Subsec. (h). Pub. L. 108–136, §1043(c)(5), struck out heading and text of subsec. (h). Text read as follows: “In this section, the term ‘base closure law’ means the following:
“(1) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(2) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
“(3) Section 2687 of this title.”
1996—Subsec. (d)(2). Pub. L. 104–106, §324(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The Secretary shall prescribe regulations regarding the characteristics, composition, funding, and establishment of restoration advisory boards pursuant to this subsection. However, the issuance of regulations shall not be a precondition to the establishment of a restoration advisory board or affect the existence or operation of a restoration advisory board established before the date of the enactment of this section.”
Subsec. (d)(3). Pub. L. 104–106, §324(b), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “The Secretary may provide for the payment of routine administrative expenses of a restoration advisory board from funds available for the operation and maintenance of the installation (or installations) for which the board is established or from the funds available under subsection (e)(3).”
Subsec. (e). Pub. L. 104–106, §324(c), added subsec. (e) and struck out former subsec. (e) which authorized Secretary to make technical assistance grants under section 9617(e) of title 42 in connection with installations containing facilities listed on the National Priorities List and to make funds available to facilitate participation on technical review committees and restoration advisory boards relating to environmental restoration activities at other installations.
Subsec. (g). Pub. L. 104–106, §324(d)(1), added subsec. (g).
Subsec. (g)(1). Pub. L. 104–201 substituted “the environmental restoration account concerned” for “the Defense Environmental Restoration Account established”.
Subsec. (h). Pub. L. 104–106, §324(e), added subsec. (h).
1994—Subsecs. (d) to (f). Pub. L. 103–337 added subsecs. (d) to (f).
Amendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 322(e) of Pub. L. 104–201, set out as a note under section 2703 of this title.
Pub. L. 108–136, div. A, title III, §317(a), Nov. 24, 2003, 117 Stat. 1432, provided that: “The Secretary of Defense shall amend the regulations required by section 2705(d)(2) of title 10, United States Code, relating to the establishment, characteristics, composition, and funding of restoration advisory boards to ensure that each restoration advisory board complies with the following requirements:
“(1) Each restoration advisory board shall be fairly balanced in its membership in terms of the points of view represented and the functions to be performed.
“(2) Unless a closed or partially closed meeting is determined to be proper in accordance with one or more of the exceptions listed in section 552b(c) of title 5, United States Code, each meeting of a restoration advisory board shall be—
“(A) held at a reasonable time and in a manner or place reasonably accessible to the public, including individuals with disabilities; and
“(B) open to the public.
“(3) Timely notice of each meeting of a restoration advisory board shall be published in a local newspaper of general circulation.
“(4) Interested persons may appear before or file statements with a restoration advisory board, subject to such reasonable restrictions as the Secretary may prescribe.
“(5) Subject to section 552 of title 5, United States Code, the records, reports, minutes, appendixes, working papers, drafts, studies, agenda, or other documents that were made available to, prepared for, or prepared by each restoration advisory board shall be available for public inspection and copying at a single, publicly accessible location, such as a public library or an appropriate office of the military installation for which the restoration advisory board is established, at least until the restoration advisory board is terminated.
“(6) Detailed minutes of each meeting of each restoration advisory board shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the restoration advisory board. The accuracy of the minutes of a restoration advisory board shall be certified by the chairperson of the board.”
Section 326(d) of Pub. L. 103–337 provided that: “Not later than 180 days after the date on which the Secretary of Defense announces a decision to establish restoration advisory boards, the Secretary shall—
“(1) prescribe the regulations required under subsection (d)(2) of section 2705 of title 10, United States Code, as added by subsection (a); and
“(2) take appropriate actions to notify the public of the availability of funding under subsection (e) of such section, as added by subsection (b).”
Section 326(e) of Pub. L. 103–337 directed Secretary of Defense to submit, not later than May 1, 1996, report regarding establishment of restoration advisory boards under subsections (d) and (e) of this section and the expenditure of funds for assistance for citizen participation on technical review committees under subsection (e) of this section.
Section 324(d)(2) of Pub. L. 104–106 provided that:
“(2)(A) Subject to subparagraph (B), the total amount of funds made available under section 2705(g) of title 10, United States Code, as added by paragraph (1), for fiscal year 1996 may not exceed $6,000,000.
“(B) Amounts may not be made available under subsection (g) of such section 2705 after September 15, 1996, unless the Secretary of Defense publishes proposed final or interim final regulations required under subsection (d) of such section, as amended by subsection (a).”
(a)
(2) Each such report shall include, with respect to environmental restoration activities for each military installation, the following:
(A) A statement of the number of sites at which a hazardous substance has been identified.
(B) A statement of the status of response actions proposed for or initiated at the military installation.
(C) A statement of the total cost estimated for such response actions.
(D) A statement of the amount of funds obligated by the Secretary for such response actions, and the progress made in implementing the response actions during the fiscal year preceding the year in which the report is submitted, including an explanation of—
(i) any cost overruns for such response actions, if the amount of funds obligated for those response actions exceeds the estimated cost for those response actions by the greater of 15 percent of the estimated cost or $10,000,000; and
(ii) any deviation in the schedule (including a milestone schedule specified in an agreement, order, or mandate) for such response actions of more than 180 days.
(E) A statement of the amount of funds allocated by the Secretary for, and the anticipated progress in implementing, such response actions during the fiscal year in which the report is submitted.
(F) A statement of the amount of funds requested for such response actions for the five fiscal years following the fiscal year in which the report is submitted, and the anticipated progress in implementing such response actions for the fiscal year for which the budget is submitted.
(G) A statement of the total costs incurred for such response actions as of the date of the submission of the report.
(H) A statement of the estimated cost of completing all environmental restoration activities required with respect to the military installation, including, where relevant, the estimated cost of such activities in each of the five fiscal years following the fiscal year in which the report is submitted.
(I) A statement of the estimated schedule for completing all environmental restoration activities at the military installation.
(J) A statement of the activities, if any, including expenditures for administrative expenses and technical assistance under section 2705 of this title, of the technical review committee or restoration advisory board established for the installation under such section during the preceding fiscal year.
(b)
(2) Each report shall include the following:
(A) A description of the environmental quality program of the Department of Defense, and of each of the military departments, during the period consisting of the four fiscal years preceding the fiscal year in which the report is submitted, the fiscal year in which the report is submitted, and the fiscal year following the fiscal year in which the report is submitted.
(B) For each of the major activities under the environmental quality programs:
(i) A specification of the amount expended, or proposed to be expended, in each fiscal year of the period covered by the report.
(ii) An explanation for any significant change in the aggregate amount to be expended in the fiscal year in which the report is submitted, and in the following fiscal year, when compared with the fiscal year preceding each such fiscal year.
(iii) An assessment of the manner in which the scope of the activities have changed over the course of the period covered by the report.
(C) A summary of the major achievements of the environmental quality programs and of any major problems with the programs.
(D) A summary of fines and penalties imposed or assessed against the Department of Defense and the military departments under Federal, State, or local environmental laws during the fiscal year in which the report is submitted and the four preceding fiscal years, which summary shall include—
(i) a trend analysis of such fines and penalties for military installations inside and outside the United States; and
(ii) a list of such fines or penalties that exceeded $1,000,000 and the provisions of law under which such fines or penalties were imposed or assessed.
(E) A statement of the amounts expended, and anticipated to be expended, during the period covered by the report for any activities overseas relating to the environment, including amounts for activities relating to environmental remediation, compliance, conservation, pollution prevention, and environmental technology.
(c)
(2) Each such report shall include, with respect to each project under the environmental technology program of the Department of Defense, the following:
(A) The performance objectives established for the project for the fiscal year and an assessment of the performance achieved with respect to the project in light of performance indicators for the project.
(B) A description of the extent to which the project met the performance objectives established for the project for the fiscal year.
(C) If a project did not meet the performance objectives for the project for the fiscal year—
(i) an explanation for the failure of the project to meet the performance objectives; and
(ii) a modified schedule for meeting the performance objectives or, if a performance objective is determined to be impracticable or infeasible to meet, a statement of alternative actions to be taken with respect to the project.
(d)
(1) The term “military installation” has the meaning given such term in section 2687(e) of this title, except that such term does not include a homeport facility for any ship and includes—
(A) each facility or site owned by, leased to, or otherwise possessed by the United States and under the jurisdiction of the Secretary of Defense;
(B) each facility or site which was under the jurisdiction of the Secretary and owned by, leased to, or otherwise possessed by the United States at the time of actions leading to contamination by hazardous substances; and
(C) each facility or site at which the Secretary is conducting environmental restoration activities.
(2) The term “environmental quality program” means a program of activities relating to environmental compliance, conservation, pollution prevention, and such other activities relating to environmental quality as the Secretary concerned may designate for purposes of the program.
(3) The term “major activities”, with respect to an environmental quality program, means the following activities under the program:
(A) Environmental compliance activities.
(B) Conservation activities.
(C) Pollution prevention activities.
(Added Pub. L. 99–499, title II, §211(a)(1)(B), Oct. 17, 1986, 100 Stat. 1724; amended Pub. L. 101–189, div. A, title III, §357(a)(1), (2)(A), Nov. 29, 1989, 103 Stat. 1426, 1427; Pub. L. 101–510, div. A, title III, §§341, 342(a), Nov. 5, 1990, 104 Stat. 1536, 1537; Pub. L. 103–160, div. A, title X, §1001(a)–(d), Nov. 30, 1993, 107 Stat. 1742–1744; Pub. L. 103–337, div. A, title X, §1070(b)(9), Oct. 5, 1994, 108 Stat. 2857; Pub. L. 104–106, div. A, title III, §324(f), Feb. 10, 1996, 110 Stat. 254; Pub. L. 104–201, div. A, title III, §321, Sept. 23, 1996, 110 Stat. 2477; Pub. L. 105–85, div. A, title III, §§344(a), 345, Nov. 18, 1997, 111 Stat. 1688; Pub. L. 105–261, div. A, title III, §325, Oct. 17, 1998, 112 Stat. 1965; Pub. L. 106–65, div. A, title III, §§322, 323(c)(1), Oct. 5, 1999, 113 Stat. 560, 563; Pub. L. 107–107, div. A, title III, §315, Dec. 28, 2001, 115 Stat. 1053; Pub. L. 109–163, div. A, title III, §311, Jan. 6, 2006, 119 Stat. 3190.)
2006—Subsec. (b)(2)(D) to (F). Pub. L. 109–163 added subpar. (D), struck out former subpars. (D) and (E) which related to a list of the planned or ongoing projects necessary to support the environmental quality programs and a statement of the fines and penalties imposed or assessed against the Department of Defense and the military departments under environmental laws, redesignated subpar. (F) as (E) and struck out “and amounts for conferences, meetings, and studies for pilot programs, and for travel related to such activities” before period.
2001—Subsec. (c). Pub. L. 107–107, §315(a), redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows:
“(c)
“(2) Each such report shall include, for the fiscal year preceding the year in which the report is submitted, the following:
“(A) An estimate of the payments made by the Secretary to any defense contractor (other than a response action contractor) for the costs of environmental response actions at facilities owned or operated by the defense contractor or at which the defense contractor is liable in whole or in part for the environmental response action.
“(B) A statement of the amount and current status of any pending requests by any defense contractor (other than a response action contractor) for payment of the costs of environmental response actions at facilities owned or operated by the defense contractor or at which the defense contractor is liable in whole or in part for the environmental response action.”
Subsec. (d). Pub. L. 107–107, §315(a)(2), (b), redesignated subsec. (e) as (d), struck out pars. (1) and (3) defining “defense contractor” and “response action contractor”, respectively, and redesignated pars. (2), (4), and (5) as (1), (2), and (3), respectively. Former subsec. (d) redesignated (c).
Subsec. (e). Pub. L. 107–107, §315(a)(2), redesignated subsec. (e) as (d).
1999—Subsec. (b). Pub. L. 106–65, §322(a), amended heading and text of subsec. (b) generally. Prior to amendment, subsec. (b) consisted of pars. (1) and (2) relating to reports on environmental compliance activities.
Subsec. (d). Pub. L. 106–65, §323(c)(1), added subsec. (d).
Pub. L. 106–65, §322(b), struck out subsec. (d) which required the Secretary of Defense to submit annual reports to Congress on environmental activities of Department of Defense overseas.
Subsec. (e)(4), (5). Pub. L. 106–65, §322(c), added pars. (4) and (5).
1998—Subsecs. (a)(1), (b)(1), (c)(1), (d)(1). Pub. L. 105–261 substituted “not later than 45 days” for “not later than 30 days”.
1997—Subsec. (b)(2)(H). Pub. L. 105–85, §344(a), added subpar. (H).
Subsecs. (d), (e). Pub. L. 105–85, §345, added subsec. (d) and redesignated former subsec. (d) as (e).
1996—Subsec. (a)(2)(J). Pub. L. 104–106 added subpar. (J).
Subsec. (d)(1)(A). Pub. L. 104–201 substituted “20 entities” for “100 entities”.
1994—Subsec. (a). Pub. L. 103–337 made technical correction to Pub. L. 103–160, §1001(a). See 1993 Amendment note below.
1993—Subsec. (a). Pub. L. 103–160, §1001(a), as amended by Pub. L. 103–337, amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows:
“(1)
“(2) Each such report shall include the following:
“(A) A statement for each installation under the jurisdiction of the Secretary of the number of individual facilities at which a hazardous substance has been identified.
“(B) The status of response actions contemplated or undertaken at each such facility.
“(C) The specific cost estimates and budgetary proposals involving response actions contemplated or undertaken at each such facility.
“(D) A report on progress on conducting response actions at facilities other than facilities on the National Priorities List.”
Subsec. (b). Pub. L. 103–160, §1001(b), inserted “Activities” in heading and amended text generally, restating substance of former par. (1) in pars. (1) and (2) and deleting substance of former par. (2) which defined “military installation”.
Subsecs. (c), (d). Pub. L. 103–160, §1001(c), (d), added subsecs. (c) and (d).
1990—Subsec. (b). Pub. L. 101–510, §342(a), added subpar. (G) at end of par. (1).
Pub. L. 101–510, §341, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “
“(A) the funding levels required for the Department of Defense to comply with applicable environmental laws during the fiscal year for which the budget is submitted; and
“(B) the funding levels requested for such purposes in the budget as submitted by the President.
“(2) The Secretary shall include in the report an explanation of any differences in the funding level requirements and the funding level requests in the budget.”
1989—Pub. L. 101–189 substituted “reports” for “report” in section catchline, designated subsec. (a) as subsec. (a)(1), struck out subsec. (b) heading “
Section 1070(b) of Pub. L. 103–337 provided that the amendment made by that section is effective as of Nov. 30, 1993, and as if included in the National Defense Authorization Act for Fiscal Year 1994, Pub. L. 103–160, as enacted.
Section 357(b) of Pub. L. 101–189 provided that: “The first environmental budget report under subsection (b) of section 2706 of such title [10 U.S.C. 2706(b)] (as added by subsection (a)) shall be submitted at the same time the President submits the budget for fiscal year 1992.”
Pub. L. 107–107, div. A, title III, §313, Dec. 28, 2001, 115 Stat. 1051, which required the inclusion of a comprehensive assessment of unexploded ordnance, discarded military munitions, and munitions constituents located at current and former facilities of the Department of Defense in the 2002 and 2003 reports submitted to Congress under subsec. (a) of this section, was repealed by Pub. L. 109–364, div. A, title III, §313(e), Oct. 17, 2006, 120 Stat. 2139.
Pub. L. 106–65, div. A, title III, §323(c)(2), Oct. 5, 1999, 113 Stat. 563, provided that: “The Secretary of Defense shall include in the first report submitted under section 2706(d) of title 10, United States Code, as added by this subsection, a description of the steps taken by the Secretary to ensure that the environmental technology investment control process for the Department of Defense satisfies the requirements of section 2709 of such title, as added by subsection (b).”
Section 344(b) of Pub. L. 105–85 provided that: “The statement submitted by the Secretary of Defense under subparagraph (H) of section 2706(b)(2) of title 10, United States Code, as added by subsection (a), in 1998 shall, to the maximum extent practicable, include the information required by that subparagraph for each of fiscal years 1994 through 1997.”
Section 324(b), (c) of Pub. L. 104–201, as amended by Pub. L. 105–85, div. A, title X, §1073(c)(1), Nov. 18, 1997, 111 Stat. 1904; Pub. L. 108–136, div. A, title X, §1031(f)(1), Nov. 24, 2003, 117 Stat. 1604, provided that:
“(b)
“(2) In this subsection and subsection (c), the terms ‘Convention’ and ‘ship’ have the meanings given such terms in section 2(a) of the Act to Prevent Pollution from Ships (33 U.S.C. 1901(a)).
“[(c) Repealed. Pub. L. 108–136, div. A, title X, §1031(f)(1), Nov. 24, 2003, 117 Stat. 1604.]”
Section 321(b) of Pub. L. 104–106 provided that: “The Secretary of Defense shall include in the report submitted to Congress with respect to fiscal year 1998 under section 2706(a) of title 10, United States Code, information on the services, if any, obtained by the Secretary during fiscal year 1996 pursuant to each agreement on a reimbursable basis entered into with a State or local government agency under section 2701(d) of title 10, United States Code, as amended by subsection (a). The information shall include a description of the services obtained under each agreement and the amount of the reimbursement provided for the services.”
Section 1001(e) of Pub. L. 103–160 provided that:
“(1) A report submitted in 1994 under subsection (a) of section 2706 of title 10, United States Code, as amended by subsection (a), and under subsection (b) of such section, as amended by subsection (b), shall be submitted not later than March 31, 1994.
“(2) A report under subsection (c) of section 2706 of such title, as added by subsection (c), shall be submitted for fiscal years beginning with fiscal year 1993. Any such report that is submitted for fiscal year 1993 or fiscal year 1994 shall be submitted not later than February 1, 1995.”
(a)
(b)
(c)
(d)
(Added Pub. L. 107–314, div. A, title III, §313(a)(2), Dec. 2, 2002, 116 Stat. 2507.)
A prior section 2707 was renumbered section 2700 of this title.
(a)
(A) the contractor's or subcontractor's breach of any term or provision of the contract or subcontract; and
(B) any negligent or willful act or omission of the contractor or subcontractor, or the employees of the contractor or subcontractor, in the performance of the contract or subcontract.
(2) Not later than 30 days after such a contract or subcontract is awarded, the contractor or subcontractor shall demonstrate that the contractor or subcontractor will reimburse the Federal Government as provided in paragraph (1).
(b)
(2) This section does not apply to—
(A) any contract or subcontract to perform remedial action or corrective action under the Defense Environmental Restoration Program, other programs or activities of the Department of Defense, or authorized State hazardous waste programs;
(B) any contract or subcontract under which the generation of the hazardous waste to be disposed of is incidental to the performance of the contract; or
(C) any contract or subcontract to dispose of ammunition or solid rocket motors.
(c)
(1) there is only one responsible offeror or there is no responsible offeror willing to provide the reimbursement required by subsection (a) for such contract; or
(2) failure to award the contract would place the facility concerned in violation of any requirement of the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.),
then the contract may be awarded without including the reimbursement provision required by subsection (a).
(d)
(1) The term “hazardous waste” has the meaning given that term by section 1004(5) of the Solid Waste Disposal Act (42 U.S.C. 6903(5)), except that such term also includes polychlorinated biphenyls.
(2) The term “remedial action” has the meaning given that term by section 101(24) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601(24)).
(3) The term “corrective action” has the meaning given that term under section 3004(u) of the Solid Waste Disposal Act (42 U.S.C. 6924(u)).
(4) The term “polychlorinated biphenyls” has the meaning given that term under section 6(e) of the Toxic Substances Control Act (15 U.S.C. 2605(e)).
(e)
(Added Pub. L. 102–190, div. A, title III, §331(a)(1), Dec. 5, 1991, 105 Stat. 1339; amended Pub. L. 102–484, div. A, title III, §321, title X, §1052(36), Oct. 23, 1992, 106 Stat. 2365, 2501; Pub. L. 103–160, div. A, title X, §1004, Nov. 30, 1993, 107 Stat. 1748.)
The Solid Waste Disposal Act, referred to in subsec. (c)(2), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, §2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chapter 82 (§6901 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of Title 42 and Tables.
1993—Subsec. (b)(1). Pub. L. 103–160 substituted “fiscal years 1992 through 1996” for “fiscal years 1992 and 1993”.
1992—Subsec. (b)(1). Pub. L. 102–484, §1052(36)(A), substituted “each contract” for “all contracts” and “any subcontract under any such contract” for “all subcontracts under such contracts”.
Pub. L. 102–484, §321, substituted “fiscal years 1992 and 1993” for “fiscal year 1992”.
Subsec. (d). Pub. L. 102–484, §1052(36)(B), substituted “In” for “For purposes of” in introductory provisions.
Section 331(b) of Pub. L. 102–190 provided that: “Section 2708 of title 10, United States Code, shall apply with respect to contracts entered into after the expiration of the 60-day period beginning on the date of the enactment of this Act [Dec. 5, 1991].”
(a)
(b)
(1) The active participation by end-users of environmental technology, including the officials responsible for the environmental security programs of the Department of Defense and the military departments, in the selection and prioritization of environmental technologies.
(2) The development of measurable performance goals and objectives for the management and development of environmental technologies and specific mechanisms for assuring the achievement of the goals and objectives.
(3) Annual performance reviews to determine whether the goals and objectives have been achieved and to take appropriate action in the event that they are not achieved.
(Added Pub. L. 106–65, div. A, title III, §323(b)(1), Oct. 5, 1999, 113 Stat. 562.)
Section 270(b) of the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104–201; 110 Stat. 2469), referred to in subsec. (a), is set out as a note under section 2501 of this title.
Pub. L. 106–65, div. A, title III, §323(a), Oct. 5, 1999, 113 Stat. 562, provided that: “The purposes of this section [enacting this section, amending section 2706 of this title, and enacting provisions set out as a note under section 2706 of this title] are—
“(1) to hold the Department of Defense and the military departments accountable for achieving performance-based results in the management of environmental technology by providing a connection between program direction and the achievement of specific performance-based results;
“(2) to assure the identification of end-user requirements for environmental technology within the military departments;
“(3) to assure results, quality of effort, and appropriate levels of service and support for end-users of environmental technology within the military departments; and
“(4) to promote improvement in the performance of environmental technologies by establishing objectives for environmental technology programs, measuring performance against such objectives, and making public reports on the progress made in such performance.”
(a)
(2) The information in the inventory for each defense site shall include, at a minimum, the following:
(A) A unique identifier for the defense site.
(B) An appropriate record showing the location, boundaries, and extent of the defense site, including identification of the State and political subdivisions of the State, including the county, where applicable, in which the defense site is located and any Tribal lands encompassed by the defense site.
(C) Known persons and entities, other than a military department, with any current ownership interest or control of lands encompassed by the defense site.
(D) Any restrictions or other land use controls currently in place at the defense site that might affect the potential for public and environmental exposure to the unexploded ordnance, discarded military munitions, or munitions constituents.
(b)
(2) In assigning the response priority for a defense site on the inventory, the Secretary shall primarily consider factors relating to safety and environmental hazard potential, such as the following:
(A) Whether there are known, versus suspected, unexploded ordnance, discarded military munitions, or munitions constituents on all or any portion of the defense site and the types of unexploded ordnance, discarded military munitions, or munitions constituents present or suspected to be present.
(B) Whether public access to the defense site is controlled, and the effectiveness of these controls.
(C) The potential for direct human contact with unexploded ordnance, discarded military munitions, or munitions constituents at the defense site and evidence of people entering the site.
(D) Whether a response action has been or is being undertaken at the defense site under the Formerly Used Defense Sites program or other program.
(E) The planned or mandated dates for transfer of the defense site from military control.
(F) The extent of any documented incidents involving unexploded ordnance, discarded military munitions, or munitions constituents at or from the defense site, including incidents involving explosions, discoveries, injuries, reports, and investigations.
(G) The potential for drinking water contamination or the release of munitions constituents into the air.
(H) The potential for destruction of sensitive ecosystems and damage to natural resources.
(3) The priority assigned to a defense site included on the inventory shall not impair, alter, or diminish any applicable Federal or State authority to establish requirements for the investigation of, and response to, environmental problems at the defense site.
(c)
(2) The Secretary shall work with communities adjacent to a defense site to provide information concerning conditions at the site and response activities. At a minimum, the Secretary shall provide the site inventory information and site prioritization list to appropriate Federal, State, tribal, and local officials, and, to the extent the Secretary considers appropriate, to civil defense or emergency management agencies and the public.
(d)
(1) Any locations outside the United States.
(2) The presence of military munitions resulting from combat operations.
(3) Operating storage and manufacturing facilities.
(4) Operational ranges.
(e)
(1) The term “defense site” applies to locations that are or were owned by, leased to, or otherwise possessed or used by the Department of Defense. The term does not include any operational range, operating storage or manufacturing facility, or facility that is used for or was permitted for the treatment or disposal of military munitions.
(2) The term “discarded military munitions” means military munitions that have been abandoned without proper disposal or removed from storage in a military magazine or other storage area for the purpose of disposal. The term does not include unexploded ordnance, military munitions that are being held for future use or planned disposal, or military munitions that have been properly disposed of, consistent with applicable environmental laws and regulations.
(3) The term “munitions constituents” means any materials originating from unexploded ordnance, discarded military munitions, or other military munitions, including explosive and nonexplosive materials, and emission, degradation, or breakdown elements of such ordnance or munitions.
(4) The term “possessions” includes Johnston Atoll, Kingman Reef, Midway Island, Nassau Island, Palmyra Island, and Wake Island.
(5) The term “Secretary” means the Secretary of Defense.
(6) The term “State” means the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the territories and possessions.
(7) The term “United States”, in a geographic sense, means the States, territories, and possessions and associated navigable waters, contiguous zones, and ocean waters of which the natural resources are under the exclusive management authority of the United States.
(Added Pub. L. 107–107, div. A, title III, §311(a)(1), Dec. 28, 2001, 115 Stat. 1048; amended Pub. L. 108–136, div. A, title X, §1042(b), Nov. 24, 2003, 117 Stat. 1610; Pub. L. 111–84, div. A, title III, §318(a), Oct. 28, 2009, 123 Stat. 2250.)
2009—Subsec. (a)(2)(B). Pub. L. 111–84 inserted “, including the county, where applicable,” after “political subdivisions of the State”.
2003—Subsec. (e). Pub. L. 108–136 redesignated pars. (4), (6), (7), (8), and (10) as (3) to (7), respectively, and struck out former pars. (3), (5), and (9) which defined terms “military munitions”, “operational range”, and “unexploded ordnance”, respectively.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Pub. L. 110–417, [div. A], title III, §314, Oct. 14, 2008, 122 Stat. 4410, as amended by Pub. L. 111–84, div. A, title X, §1073(c)(1), Oct. 28, 2009, 123 Stat. 2474, provided that:
“(a)
“(b)
“(1) The amounts allocated for research, development, test, and evaluation for unexploded ordnance detection technologies.
“(2) The amounts allocated for transition of new unexploded ordnance detection technologies.
“(3) Activities undertaken by the Department to transition such technologies and train operators on emerging detection instrument technologies.
“(4) Any impediments to the transition of new unexploded ordnance detection instrument technologies to regular operation in remediation programs.
“(5) The transfer of such technologies to private sector entities involved in the detection of unexploded ordnance.
“(6) Activities undertaken by the Department to raise public awareness regarding unexploded ordnance.
“(c)
[Pub. L. 111–84, div. A, title X, §1073(c), Oct. 28, 2009, 123 Stat. 2474, provided that the amendment made by section 1073(c)(1) to section 314 of Pub. L. 110–417, set out above, is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 therein as enacted.]
Pub. L. 109–364, div. A, title III, §313(a)–(d), Oct. 17, 2006, 120 Stat. 2138, 2139, provided that:
“(a)
“(1) To complete, by not later than September 30, 2007, preliminary assessments of unexploded ordnance, discarded military munitions, and munitions constituents at all active installations and formerly used defense sites (other than operational ranges).
“(2) To complete, by not later than September 30, 2010, site inspections of unexploded ordnance, discarded military munitions, and munitions constituents at all active installations and formerly used defense sites (other than operational ranges).
“(3) To achieve, by not later than September 30, 2009, a remedy in place or response complete for unexploded ordnance, discarded military munitions, and munitions constituents at all military installations closed or realigned as part of a round of defense base closure and realignment occurring prior to the 2005 round.
“(4) To achieve, by a date certain established by the Secretary of Defense, a remedy in place or response complete for unexploded ordnance, discarded military munitions, and munitions constituents at all active installations and formerly used defense sites (other than operational ranges) and all military installations realigned or closed under the 2005 round of defense base closure and realignment.
“(b)
“(1)
“(2)
“(A) a schedule, including interim goals, for achieving the goals described in paragraphs (1) through (3) of subsection (a), based upon the Munitions Response Site Prioritization Protocol established by the Department of Defense;
“(B) such interim goals as the Secretary determines feasible for efficiently achieving the goal required under paragraph (4) of such subsection; and
“(C) an estimate of the funding required to achieve the goals established pursuant to such subsection and the interim goals established pursuant to subparagraphs (A) and (B).
“(3)
“(c)
“(1) a description of any standards or principles that have been agreed upon; and
“(2) a discussion of any issues that remain in disagreement, including the impact that any such disagreement is likely to have on the ability of the Department of Defense to carry out the response plan required by subsection (b).
“(d)
“(1) The terms ‘unexploded ordnance’ and ‘operational range’ have the meanings given such terms in section 101(e) of title 10, United States Code.
“(2) The terms ‘discarded military munitions’, ‘munitions constituents’, and ‘defense site’ have the meanings given such terms in section 2710(e) of such title.”
Pub. L. 109–364, div. A, title III, §314, Oct. 17, 2006, 120 Stat. 2139, provided that:
“(a)
“(1)
“(2)
“(3)
“(4)
“(5)
“(b)
“(1)
“(2)
“(c)
“(1)
“(2)
“(A) the sampling and analysis of ocean waters and sea beds at or adjacent to military munitions disposal sites selected pursuant to paragraph (3) to determine whether the disposed military munitions have caused or are causing contamination of such waters or sea beds;
“(B) investigation into the long-term effects of seawater exposure on disposed military munitions, particularly effects on chemical munitions;
“(C) investigation into the impacts any such contamination may have on the ocean environment and those who use it, including public health risks;
“(D) investigation into the feasibility of removing or otherwise remediating the military munitions; and
“(E) the development of effective safety measures for dealing with such military munitions.
“(3)
“(4)
“(d)
“(e)
“(1) The term ‘coastal waters’ means that part of the ocean extending from the coast line of the United States to the outer boundary of the outer Continental Shelf.
“(2) The term ‘coast line’ has the meaning given that term in section 2(c) of the Submerged Lands Act (43 U.S.C. 1301(c)).
“(3) The term ‘military munitions’ has the meaning given that term in section 101(e) of title 10, United States Code.
“(4) The term ‘outer Continental Shelf’ has the meaning given that term in section 2(a) of the Outer Continental Shelf Lands Act (43 U.S.C. 1331(a)).”
Pub. L. 107–107, div. A, title III, §311(b), Dec. 28, 2001, 115 Stat. 1051, provided that: “The requirements of section 2710 of title 10, United States Code, as added by subsection (a), shall be implemented as follows:
“(1) The initial inventory required by subsection (a) of such section shall be completed not later than May 31, 2003.
“(2) The proposed prioritization protocol required by subsection (b) of such section shall be available for public comment not later than November 30, 2002.”
1999—Pub. L. 106–65, div. A, title X, §1042(b), Oct. 5, 1999, 113 Stat. 760, added item 2723.
1991—Pub. L. 102–190, div. A, title X, §1061(a)(17)(B), Dec. 5, 1991, 105 Stat. 1473, substituted “Property records: maintenance on quantitative and monetary basis” for “Basis” in item 2721.
1990—Pub. L. 101–510, div. A, title XIII, §1331(7), Nov. 5, 1990, 104 Stat. 1673, substituted “Basis” for “Basis: reports” in item 2721.
1988—Pub. L. 100–456, div. A, title III, §344(b)(1), Sept. 29, 1988, 102 Stat. 1962, inserted “AND REPORT OF THEFT OR LOSS OF CERTAIN PROPERTY” in chapter heading and added item 2722.
1986—Pub. L. 99–499, title II, §211(a)(3), Oct. 17, 1986, 100 Stat. 1725, redesignated item 2701 as item 2721.
(a) Under regulations prescribed by him, the Secretary of Defense shall have the records of the fixed property, installations, major equipment items, and stored supplies of the military departments maintained on both a quantitative and a monetary basis, so far as practicable.
(b) The regulations prescribed pursuant to subsection (a) shall include a requirement that the records maintained under such subsection—
(1) to the extent practicable, provide up-to-date information on all items in the inventory of the Department of Defense;
(2) indicate whether the inventory of each item is sufficient or excessive in relation to the needs of the Department for that item; and
(3) permit the Secretary of Defense to include in the budget submitted to Congress under section 1105 of title 31 for each fiscal year, information relating to—
(A) the amounts proposed for each appropriation account in such budget for inventory purchases of the Department of Defense; and
(B) the amounts obligated for such inventory purchases out of the corresponding appropriations account for the preceding fiscal year.
(Aug. 10, 1956, ch. 1041, 70A Stat. 152, §2701; renumbered §2721, Pub. L. 99–499, title II, §211(a)(1)(A), Oct. 17, 1986, 100 Stat. 1719; amended Pub. L. 101–510, div. A, title XIII, §1322(a)(12), Nov. 5, 1990, 104 Stat. 1671; Pub. L. 102–190, div. A, title III, §347(b), title X, §1061(a)(17)(A), Dec. 5, 1991, 105 Stat. 1347, 1473.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2701(a) 2701(b) |
5:172i (less last sentence). 5:172i (last sentence). |
July 26, 1947, ch. 343, §410; added Aug. 10, 1949, ch. 412, §11(410), 63 Stat. 590. |
In subsection (a), the words “equipment” and “materials” are omitted, since the word “supplies”, as defined in section 101(26) of this title, includes equipment and materials. The word “stored” is substituted for the words “held in store by the armed services”.
In subsection (b), the words “on property records maintained under this section” are substituted for the word “thereon”.
1991—Pub. L. 102–190, §1061(a)(17)(A), substituted section catchline for one which read “Basis: reports”.
Pub. L. 102–190, §347(b), designated existing provisions as subsec. (a) and added subsec. (b).
1990—Pub. L. 101–510 struck out “(a)” before “Under regulations” and struck out subsec. (b) which read as follows: “The Secretary shall report once a year to Congress and the President on property records maintained under this section.”
Section 347(c) of Pub. L. 102–190 provided that: “The Secretary of Defense shall establish the uniform system of valuation described in section 2458(a)(3) of title 10, United States Code (as added by subsection (a)), and prescribe the regulations required by section 2721(b) of such title (as added by subsection (b)), not later than 180 days after the date of the enactment of this Act [Dec. 5, 1991].”
Section 343 of Pub. L. 100–456 provided that:
“(a)
“(2) The Secretary of Defense is urged to continue to conduct undercover investigations to detect and investigate thefts referred to in paragraph (1).
“(b)
(a)
(b)
(1) the Secretary determines that the item represents a low risk of danger to the public and would be of minimal utility to any person who may illegally receive such item; and
(2) the exclusion of such item is specified as being excluded from the reporting requirement in a memorandum of agreement between the Secretary of Defense and the Secretary of the Treasury.
(c)
(1) The term “explosive material” means explosives, blasting agents, and detonators.
(2) The terms “destructive device” and “ammunition” have the meanings given those terms by paragraphs (4) and (17), respectively, of section 921(a) of title 18.
(Added Pub. L. 100–456, div. A, title III, §344(a), Sept. 29, 1988, 102 Stat. 1961; amended Pub. L. 109–364, div. A, title X, §1071(a)(24), Oct. 17, 2006, 120 Stat. 2399.)
2006—Subsec. (c)(2). Pub. L. 109–364 substituted “921(a)” for “921”.
Section 344(c) of Pub. L. 100–456 provided that: “The amendment made by subsection (a) [enacting this section] shall take effect with respect to thefts and losses discovered more than 180 days after the date of the enactment of this Act [Sept. 29, 1988].”
(a)
(b)
(c)
(d)
(2) Nothing in this section shall be construed to modify or supersede any other requirement to report information on intelligence activities to the Congress, including the requirement under section 501 of the National Security Act of 1947 (50 U.S.C. 413).
(Added Pub. L. 106–65, div. A, title X, §1042(a), Oct. 5, 1999, 113 Stat. 759; amended Pub. L. 110–181, div. A, title IX, §931(a)(13), Jan. 28, 2008, 122 Stat. 285; Pub. L. 110–417, [div. A], title IX, §932(a)(12), Oct. 14, 2008, 122 Stat. 4576; Pub. L. 111–84, div. A, title X, §1073(c)(10), Oct. 28, 2009, 123 Stat. 2475.)
2009—Subsec. (a). Pub. L. 111–84 repealed Pub. L. 110–417, §932(a)(12). See 2008 Amendment note below.
2008—Subsec. (a). Pub. L. 110–181 and Pub. L. 110–417(a)(12) amended subsec. (a) identically, substituting “Director of National Intelligence” for “Director of Central Intelligence”. Pub. L. 110–417, §932(a)(12), was repealed by Pub. L. 111–84. See 2009 Amendment note above.
Pub. L. 111–84, div. A, title X, §1073(c), Oct. 28, 2009, 123 Stat. 2474, provided in part that the amendment made by section 1073(c)(10) is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 as enacted.
2011—Pub. L. 111–383, div. A, title III, §354(a)(2), Jan. 7, 2011, 124 Stat. 4195, added item 2740.
1998—Pub. L. 105–261, div. A, title X, §1010(a)(2), Oct. 17, 1998, 112 Stat. 2117, added item 2739.
1994—Pub. L. 103–337, div. A, title V, §557(b), Oct. 5, 1994, 108 Stat. 2776, added item 2738.
1990—Pub. L. 101–510, div. A, title XIV, §1481(j)(2), Nov. 5, 1990, 104 Stat. 1708, added item 2732.
1984—Pub. L. 98–525, title XIV, §1405(42)(B), Oct. 19, 1984, 98 Stat. 2625, substituted “in foreign countries” for “: foreign countries” in item 2734a.
1968—Pub. L. 90–521, §2, Sept. 26, 1968, 82 Stat. 874, substituted “advance payment” for “incident to aircraft or missile operation” in item 2736.
1966—Pub. L. 89–718, §21(b), Nov. 2, 1966, 80 Stat. 1118, substituted “2737” for “2736” as item number for “Property loss; personal injury or death: incident to use of property of the United States and not cognizable under other law”.
1964—Pub. L. 88–558, §5(2), Aug. 31, 1964, 78 Stat. 768, struck out item 2732 “Property loss: incident to service; members of Army, Navy, Air Force, or Marine Corps and civilian employees”, effective two years after Aug. 31, 1964. Pub. L. 88–558, was itself repealed by Pub. L. 97–258, §5(b), Sept. 13, 1982, 96 Stat. 1068.
1962—Pub. L. 87–769, §1(1)(B), Oct. 9, 1962, 76 Stat. 768, added item 2736 “Property loss; personal injury or death: incident to use of property of the United States and not cognizable under other law”.
Pub. L. 87–651, title I, §113(b), Sept. 7, 1962, 76 Stat. 513, added items 2734a and 2734b.
1961—Pub. L. 87–212, §1(2), Sept. 8, 1961, 75 Stat. 488, added item 2736 “Property loss; personal injury or death: incident to aircraft or missile operation”.
1959—Pub. L. 86–223, §1(2), Sept. 1, 1959, 73 Stat. 454, substituted “armed forces” for “Department of Army, Navy, or Air Force” in item 2734.
In this chapter, “settle” means consider, ascertain, adjust, determine, and dispose of a claim, whether by full or partial allowance or by disallowance.
(Aug. 10, 1956, ch. 1041, 70A Stat. 152.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2731 | [No source]. | [No source]. |
The revised section is inserted for clarity and is based on usage in the source laws for this revised chapter.
Pub. L. 105–85, div. A, title X, §1013(b), Nov. 18, 1997, 111 Stat. 1874, provided that: “The Secretary of Defense shall submit to Congress a report describing the Department of Defense policy regarding the payment of a claim by a member of the Armed Forces who is not assigned to quarters of the United States for losses and damage to personal property of the member incurred at the member's residence as a result of a natural disaster. The report shall include a description of the number of such claims received over the past 10 years, the number of claims paid, and the number of claims rejected. If the Secretary determines the Department of Defense should modify its policy in order to accept additional claims by members who are not assigned to quarters of the United States for losses and damage to personal property, the Secretary shall also include in the report any legislative changes that the Secretary considers necessary to enable the Secretary to implement the policy change.”
Authority vested by this chapter in “military departments”, “the Secretary concerned”, or “the Secretary of Defense” to be exercised, with respect to commissioned officers of Public Health Service, by Secretary of Health and Human Services or his designee, see section 213a of Title 42, The Public Health and Welfare.
Authority vested by sections 2731, 2732, and 2735 of this title in “military departments”, “the Secretary concerned”, or “the Secretary of Defense” to be exercised, with respect to commissioned officer corps of National Oceanic and Atmospheric Administration, by Secretary of Commerce or his designee, see section 3071 of Title 33, Navigation and Navigable Waters.
Appropriations available to the Department of Defense for operation and maintenance may be used for payment of claims authorized by law to be paid by the Department of Defense (except for civil functions), including—
(1) claims for damages arising under training contracts with carriers; and
(2) repayment of amounts determined by the Secretary concerned to have been erroneously collected—
(A) from military and civilian personnel of the Department of Defense; or
(B) from States or territories or the District of Columbia (or members of the National Guard units thereof).
(Added Pub. L. 101–510, div. A, title XIV, §1481(j)(1), Nov. 5, 1990, 104 Stat. 1708.)
Provisions similar to those in this section were contained in Pub. L. 100–463, title VIII, §8098, Oct. 1, 1988, 102 Stat. 2270–35, which was set out as a note under section 2241 of this title, prior to repeal by Pub. L. 101–510, §1481(j)(3).
A prior section 2732, acts Aug. 10, 1956, ch. 1041, 70A Stat. 152; Sept. 2, 1958, Pub. L. 85–861, §§1(53), 33(a)(16), 72 Stat. 1461, 1565; Sept. 15, 1965, Pub. L. 89–185, §1, 79 Stat. 789, related to settlement of property loss incident to service, prior to repeal by Pub. L. 88–558, §5(3), Aug. 31, 1964, 78 Stat. 768, effective two years from Aug. 31, 1964. See section 3701 et seq. of Title 31, Money and Finance.
(a) Under such regulations as the Secretary concerned may prescribe, he, or, subject to appeal to him, the Judge Advocate General of an armed force under his jurisdiction, or the chief Counsel of the Coast Guard, as appropriate, if designated by him, may settle, and pay in an amount not more than $100,000, a claim against the United States for—
(1) damage to or loss of real property, including damage or loss incident to use and occupancy;
(2) damage to or loss of personal property, including property bailed to the United States and including registered or insured mail damaged, lost, or destroyed by a criminal act while in the possession of the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be; or
(3) personal injury or death;
either caused by a civilian officer or employee of that department, or the Coast Guard, or a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be, acting within the scope of his employment, or otherwise incident to noncombat activities of that department, or the Coast Guard.
(b) A claim may be allowed under subsection (a) only if—
(1) it is presented in writing within two years after it accrues, except that if the claim accrues in time of war or armed conflict or if such a war or armed conflict intervenes within two years after it accrues, and if good cause is shown, the claim may be presented not later than two years after the war or armed conflict is terminated;
(2) it is not covered by section 2734 of this title or section 2672 of title 28;
(3) it is not for personal injury or death of such a member or civilian officer or employee whose injury or death is incident to his service;
(4) the damage to, or loss of, property, or the personal injury or death, was not caused wholly or partly by a negligent or wrongful act of the claimant, his agent, or his employee; or, if so caused, allowed only to the extent that the law of the place where the act or omission complained of occurred would permit recovery from a private individual under like circumstances; and
(5) it is substantiated as prescribed in regulations of the Secretary concerned.
For the purposes of clause (1), the dates of the beginning and ending of an armed conflict are the dates established by concurrent resolution of Congress or by a determination of the President.
(c) Payment may not be made under this section for reimbursement for medical, hospital, or burial services furnished at the expense of the United States.
(d) If the Secretary concerned considers that a claim in excess of $100,000 is meritorious, and the claim otherwise is payable under this section, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treasury for payment under section 1304 of title 31.
(e) Except as provided in subsection (d), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction.
(f) For the purposes of this section, a member of the National Oceanic and Atmospheric Administration or of the Public Health Service who is serving with the Navy or Marine Corps shall be treated as if he were a member of that armed force.
(g) Under regulations prescribed by the Secretary concerned, an officer or employee under the jurisdiction of the Secretary may settle a claim that otherwise would be payable under this section in an amount not to exceed $25,000. A decision of the officer or employee who makes a final settlement decision under this section may be appealed by the claimant to the Secretary concerned or an officer or employee designated by the Secretary for that purpose.
(h) Under such regulations as the Secretary of Defense may prescribe, he or his designee has the same authority as the Secretary of a military department under this section with respect to the settlement of claims based on damage, loss, personal injury, or death caused by a civilian officer or employee of the Department of Defense acting within the scope of his employment or otherwise incident to noncombat activities of that department.
(Aug. 10, 1956, ch. 1041, 70A Stat. 153; Pub. L. 85–729, §1, Aug. 23, 1958, 72 Stat. 813; Pub. L. 85–861, §1(54), Sept. 2, 1958, 72 Stat. 1461; Pub. L. 89–718, §8(a), Nov. 2, 1966, 80 Stat. 1117; Pub. L. 90–522, Sept. 26, 1968, 82 Stat. 875; Pub. L. 90–525, §§1, 3–5, Sept. 26, 1968, 82 Stat. 877, 878; Pub. L. 91–312, §2, July 8, 1970, 84 Stat. 412; Pub. L. 93–336, §1, July 8, 1974, 88 Stat. 291; Pub. L. 96–513, title V, §511(94), Dec. 12, 1980, 94 Stat. 2928; Pub. L. 98–564, §1, Oct. 30, 1984, 98 Stat. 2918; Pub. L. 104–316, title II, §202(e), Oct. 19, 1996, 110 Stat. 3842.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2733(a) 2733(b) 2733(c) 2733(d) 2733(e) 2733(f) |
31:223b (1st sentence, less 52d through 62d, and 76th through 93d, words; and less proviso). [Uncodified: Aug. 2, 1946, ch. 753, §424(a) (4th clause), 60 Stat. 847]. 31:223b (76th through 93d words and proviso of 1st sentence; and 2d sentence). 31:223b (3d sentence). 31:223b (last sentence). 31:223b (52d through 62d words of 1st sentence). 31:222h. [31:223b is made applicable to the Navy by 31:223d and 223e]. |
July 3, 1943, ch. 189, §1 (less 4th sentence), 57 Stat. 372; May 29, 1945, ch. 135, §4, 59 Stat. 225; June 28, 1946, ch. 514, §1, 60 Stat. 332; July 3, 1952, ch. 570, §2(c), 66 Stat. 334; Mar. 31, 1953, ch. 13 (as applicable to Act of July 3, 1952, ch. 570, §2(c)), 67 Stat. 18; June 30, 1953, ch. 172 (as applicable to Act of July 3, 1952, ch. 570, §2(c)), 67 Stat. 131. Aug. 2, 1946, ch. 753, §424(a) (4th clause), 60 Stat. 847. Dec. 28, 1945, ch. 597, §1, 59 Stat. 662; June 28, 1946, ch. 514, §2, 60 Stat. 333. |
| Dec. 28, 1945, ch. 597, §6; added Mar. 20, 1946, ch. 104 (last par.), 60 Stat. 56. |
In subsection (a), the words “a civilian officer or employee of that department, or a member of the Army, Navy, Air Force, or Marine Corps, as the case may be” are substituted for the words “military personnel or civilian employees of the Department of the Army or of the Army”. The words “whether under a lease, express or implied” are omitted as surplusage. The words “consider, ascertain, adjust, determine” are omitted as covered by the word “settle”, as defined in section 2731 of this title. The words “arising on or after May 27, 1941” are omitted as executed, since, under revised subsection (b), a claim must be filed within one year after it accrues, or within one year after the war is terminated, if it accrues in time of war.
In subsection (a)(1), the words “or loss” are inserted before the word “incident”, for clarity.
In subsection (b)(1), the words “it accrues” are substituted for the words “the accident or incident out of which such claim arises shall have occurred”, in 31:223b. The words “the claim accrues” are substituted for the words “That if such accident or incident occurs”. The words “not later than” are substituted for the words “within” to make it clear that a claim may be presented during a war. The words “the war is terminated” are substituted for the words “after peace is established”, since the other time covered is “time of war”. 31:223b (last 49 words of proviso of 2d sentence) is omitted as executed.
In subsection (b)(2), the words “or section 2672 of title 28” are substituted for the words “claims cognizable under part 2 of this title”, to reflect the express amendment of 31:223b and 223c by the fourth clause of section 424(a) of the Federal Tort Claims Act, 60 Stat. 847. Section 424(a) of the Federal Tort Claims Act referred to “claims cognizable under part 2 of this title”. Part 2 of that act consisted of sections 403 and 404 which were repealed by section 39 of the Act of June 25, 1948, ch. 646, 62 Stat. 1008, and replaced by sections 2672 and 2673 of title 28. The words “or possessions thereof” are omitted, since possessions of foreign countries are not specifically covered by the section to which the words refer.
In subsection (d), the words “claim * * * that would otherwise be covered by this section” are substituted for the words “such claims”.
In subsection (e), the words “and final settlement” are omitted as surplusage.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2733 | 31:223b. | Mar. 29, 1956, ch. 103, §§1–3, 70 Stat. 60, 61. |
1996—Subsec. (d). Pub. L. 104–316 substituted “Secretary of the Treasury” for “Comptroller General”.
1984—Subsec. (a). Pub. L. 98–564, §1(1), substituted “Chief Counsel” for “chief legal officer” and “$100,000” for “$25,000” in provisions preceding par. (1).
Subsec. (d). Pub. L. 98–564, §1(2), amended subsec. (d) generally, substituting “$100,000” for “$25,000” and provisions requiring Secretary to report excess to the Comptroller General for provisions requiring reporting to Congress.
Subsec. (g). Pub. L. 98–564, §1(3), substituted provisions permitting officers and employees of Secretary concerned to settle claims not otherwise payable under this section in amounts not to exceed $25,000 and providing for an appeal to Secretary concerned or his designee for provisions which provided for delegation of claims settlement authority by Secretary for cases not to exceed $5,000 and for appeal therefrom.
1980—Subsec. (f). Pub. L. 96–513 substituted “National Oceanic and Atmospheric Administration” for “Environmental Science Services Administration”.
1974—Subsec. (a). Pub. L. 93–336, §1(1), substituted “$25,000” for “$15,000”.
Subsec. (d). Pub. L. 93–336, §1(2), substituted “$25,000” for “$15,000” wherever appearing.
Subsec. (g). Pub. L. 93–336, §1(3), substituted “$5,000” for “$2,500”.
1970—Subsec. (a). Pub. L. 91–312, §2(a), substituted “$15,000” for “$5,000”.
Subsec. (d). Pub. L. 91–312, §2(b), substituted “$15,000” for “$5,000” wherever appearing.
1968—Subsec. (a). Pub. L. 90–525, §1, substituted “Secretary concerned” for “Secretary of a military department”, and authorized the Chief Legal Officer of the Coast Guard to settle claims, settlement of claims for damage or loss to personal property in possession of the Coast Guard, and settlements when the torts are caused by civilian officers or employees and members of the Coast Guard when acting within scope of employment or otherwise incident to noncombat activities of the Coast Guard.
Subsec. (b)(4). Pub. L. 90–522, §1(1), authorized application of local law in determining effect of claimant's contributory negligence.
Subsec. (d). Pub. L. 90–525, §5, struck out “of the military department” after “Secretary”.
Subsec. (g). Pub. L. 90–525, §3, increased limitation on amount of settlement from $1,000 to $2,500, struck out “military” before “department concerned”, and provided for appeals to Secretary concerned, or his designee, from determinations delegating authority to settle claims to an officer of an armed force. See Pub. L. 90–522, §1(2), hereunder, for identical provision for appeals to Secretary concerned.
Pub. L. 90–522, §1(2), provided for appeals to Secretary concerned, or his designee, from determinations delegating authority to settle claims to an officer of an armed force.
Subsec. (h). Pub. L. 90–525, §4, added subsec. (h).
1966—Subsec. (f). Pub. L. 89–718 substituted “Environmental Science Services Administration” for “Coast and Geodetic Survey”.
1958—Subsec. (a). Pub. L. 85–729, §1(1)(A), substituted “the Judge Advocate General of an armed force under his jurisdiction, if designated by him, may settle, and pay in an amount not more than $5,000” for “any officer designated by him may settle, and pay in an amount not more than $1,000”.
Subsec. (b). Pub. L. 85–861, §1(54)(A), (B), in cl. (1), substituted “two years” for “one year” in three places and included claims accruing in time of armed conflict, and inserted sentence providing for the determination of dates of the beginning and ending of an armed conflict.
Subsec. (c). Pub. L. 85–861, §1(54)(C), substituted provisions prohibiting payment for reimbursement for medical, hospital, or burial services furnished at the expense of the United States for provisions which prohibited allowance of claims for personal injury or death for more than the cost of reasonable medical, hospital, and burial expenses actually incurred, and not otherwise furnished or paid by the United States.
Subsec. (d). Pub. L. 85–729, §1(1)(B), substituted provisions authorizing partial payments on claims over $5,000 for provisions which authorized the Secretary of the military department concerned to report a claim for more than $1,000 to Congress for its consideration.
Subsec. (e). Pub. L. 85–729, §1(1)(B), substituted “Except as provided in subsection (d), no claim may be paid under this section” for “No claim may be paid under subsection (a)”.
Subsec. (g). Pub. L. 85–729, §1(1)(C), added subsec. (g).
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a Amendment note under section 101 of this title.
The directory language of, but not the amendment made by, Pub. L. 89–718, §8(a), Nov. 2, 1966, 80 Stat. 1117, cited as a credit to this section, was repealed by Pub. L. 97–295, §6(b), Oct. 12, 1982, 96 Stat. 1314.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
For transfer of functions of Public Health Service, see note set out under section 802 of this title.
Section 17 of Pub. L. 85–861 disallowed claims for personal injury or death under section 2733 of this title, for more than the cost of reasonable medical, hospital, and burial expenses actually incurred if the claim accrued before March 30, 1956.
(a) To promote and to maintain friendly relations through the prompt settlement of meritorious claims, the Secretary concerned, or an officer or employee designated by the Secretary, may appoint, under such regulations as the Secretary may prescribe, one or more claims commissions, each composed of one or more officers or employees or combination of officers or employees of the armed forces, to settle and pay in an amount not more than $100,000, a claim against the United States for—
(1) damage to, or loss of, real property of any foreign country or of any political subdivision or inhabitant of a foreign country, including damage or loss incident to use and occupancy;
(2) damage to, or loss of, personal property of any foreign country or of any political subdivision or inhabitant of a foreign country, including property bailed to the United States; or
(3) personal injury to, or death of, any inhabitant of a foreign country;
if the damage, loss, personal injury, or death occurs outside the United States, or the Commonwealths or possessions, and is caused by, or is otherwise incident to noncombat activities of, the armed forces under his jurisdiction, or is caused by a member thereof or by a civilian employee of the military department concerned or the Coast Guard, as the case may be. The claim of an insured, but not that of a subrogee, may be considered under this subsection. In this section, “foreign country” includes any place under the jurisdiction of the United States in a foreign country. An officer or employee may serve on a claims commission under the jurisdiction of another armed force only with the consent of the Secretary of his department, or his designee, but shall perform his duties under regulations of the department appointing the commission.
(b) A claim may be allowed under subsection (a) only if—
(1) it is presented within two years after it accrues;
(2) in the case of a national of a country at war with the United States, or of any ally of that country, the claimant is determined by the commission or by the local military commander to be friendly to the United States; and
(3) it did not arise from action by an enemy or result directly or indirectly from an act of the armed forces of the United States in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States, including its airborne ordnance, indirectly related to combat, and occurring while preparing for, going to, or returning from a combat mission.
(c) The Secretary concerned may appoint any officer or employee under the jurisdiction of the Secretary to act as an approval authority for claims determined to be allowable under subsection (a) in an amount in excess of $10,000.
(d) If the Secretary concerned considers that a claim in excess of $100,000 is meritorious, and the claim otherwise is payable under this section, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treasury for payment under section 1304 of title 31.
(e) Except as provided in subsection (d), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction.
(f) Upon the request of the department concerned, a claim arising in that department and covered by subsection (a) may be settled and paid by a commission appointed under subsection (a) and composed of officers of an armed force under the jurisdiction of another department.
(g) Payment of claims against the Coast Guard arising while it is operating as a service in the Department of Homeland Security shall be made out of the appropriation for the operating expenses of the Coast Guard.
(h) The Secretary of Defense may designate any claims commission appointed under subsection (a) to settle and pay, as provided in this section, claims for damage caused by a civilian employee of the Department of Defense other than an employee of a military department. Payments of claims under this subsection shall be made from appropriations as provided in section 2732 of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 154; Pub. L. 85–861, §1(55), Sept. 2, 1958, 72 Stat. 1461; Pub. L. 86–223, §1(1), Sept. 1, 1959, 73 Stat. 453; Pub. L. 86–411, Apr. 8, 1960, 74 Stat. 16; Pub. L. 90–521, §§1, 3, Sept. 26, 1968, 82 Stat. 874; Pub. L. 91–312, §1, July 8, 1970, 84 Stat. 412; Pub. L. 93–336, §2, July 8, 1974, 88 Stat. 292; Pub. L. 96–513, title V, §511(95), Dec. 12, 1980, 94 Stat. 2928; Pub. L. 98–564, §2, Oct. 30, 1984, 98 Stat. 2918; Pub. L. 101–510, div. A, title XIV, §1481(j)(4)(A), Nov. 5, 1990, 104 Stat. 1709; Pub. L. 104–316, title II, §202(e), Oct. 19, 1996, 110 Stat. 3842; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 109–163, div. A, title X, §1057(a)(5), Jan. 6, 2006, 119 Stat. 3440.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2734(a) 2734(b) 2734(c) |
31:224d (less 98th through 109th words and provisos). 31:224d (1st and 3d provisos). 31:224d (2d proviso, less words after semicolon). |
Jan. 2, 1942, ch. 645, §§1 (less last proviso), 6, 7, 55 Stat. 880; restated Apr. 22, 1943, ch. 67, §§1 (less last proviso), 6, 7, 57 Stat. 66, 67. |
| 2734(d) | 31:224d (words of 2d proviso after semicolon). | |
| 2734(e) | 31:224d (98th through 109th words). | |
| 2734(f) | 31:224i. | |
| 2734(g) | 31:224h. |
In subsection (a), the words “for such purposes”, “or destruction”, “public”, “private”, “Army * * * forces”, and “whether under a lease, express or implied” are omitted as surplusage. The words “armed forces under his jurisdiction” are substituted for the words “Army, Air Force, Navy, or Marine Corps”. The same words are substituted for the words “Army, Air Force, Navy, or Marine Corps forces” to reflect the opinion of the Judge Advocate General of the Army (JAGD/D–55–51000, 17 Jan. 55). The word “settle” is substituted for the words “consider, ascertain, adjust, determine”, since the word “settle”, as defined in section 2731 of this title, includes those actions. The words “a member thereof, or by a civilian employee of the department concerned” are substituted for the words “or individual members thereof, including military personnel and civilian employees”. The last sentence is substituted for the words “including places located therein which are under the temporary or permanent jurisdiction of the United States”.
In subsection (a)(2), the words “United States” are substituted for the word “Government”.
In subsection (b), the word “accident” is omitted as surplusage. The words “except that claims arising out of accidents or incidents occurring after December 6, 1941, but prior to May 1, 1943, may be presented at any time prior to May 1, 1944” are omitted as executed. Clauses (2) and (3) are substituted for 31:224d (3d proviso).
In subsection (c), the first 28 words of the second proviso of 31:224d and the words “but does not exceed $5,000” are omitted as covered by subsection (a). The words “commanding officer or other” are omitted as surplusage. The word “commissioned” is inserted for clarity. The word “designated” is substituted for the words “may prescribe”.
In subsection (d), the word “may” is substituted for the words “shall have authority, if he deems”. The words “that would otherwise be covered by this section” are inserted for clarity. The words “to be meritorious” and “character of such” are omitted as surplusage.
In subsection (f), the words “a military department” are substituted for the words “service concerned” after the words “the request of the”. The words “or Commissions” and “even though not” are omitted as surplusage. The words “an armed force under the jurisdiction of another military department” are substituted for the words “service concerned” after the words “officers of the”. 31:224i (last 19 words) is omitted, since all claims are paid from one appropriation made to the Department of Defense.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2734(a) 2734(d) 2734(f) 2734(h) |
31:224d. 31:224d. 31:224i. 31:224i–1. |
July 28, 1956, ch. 769, §1, 70 Stat. 703. |
In subsections (a)(1) and (2), the words “a foreign country” are substituted for the words “that country” to make clear that damage to a political subdivision or an inhabitant of a foreign country need not have occurred in that country.
In subsection (h), the word “settle” is substituted for the words “consider, ascertain, adjust, determine,”, since the word “settle”, as defined in section 2731 of this title, includes those actions. The words “as provided in this section” are substituted for the words “as described in section 224d of this title” and 31:224i–1 (2d sentence).
2006—Subsec. (a). Pub. L. 109–163 substituted “Commonwealths or possessions” for “Territories, Commonwealths, or possessions” in concluding provisions.
2002—Subsec. (g). Pub. L. 107–296 substituted “Department of Homeland Security” for “Department of Transportation”.
1996—Subsec. (d). Pub. L. 104–316 substituted “Secretary of the Treasury” for “Comptroller General”.
1990—Subsec. (h). Pub. L. 101–510 substituted “as provided in section 2732 of this title” for “available to the Office of the Secretary of Defense for the payment of claims”.
1984—Subsec. (a). Pub. L. 98–564, §2(1), substituted “$100,000” for “$25,000” and inserted provisions whereby employees as well as officers of the Secretary may settle claims in text preceding par. (1).
Pub. L. 98–564, §2(2), inserted “or employee” after “An officer” in last sentence.
Subsec. (c). Pub. L. 98–564, §2(3), substituted provisions whereby the Secretary may appoint officers and employees to act as approval authority for claims in excess of $10,000 for provisions which provided that allowance of a claim for more than $2,500 may be subject to the approval of any commissioned officer designated by the Secretary concerned.
Subsec. (d). Pub. L. 98–564, §2(4), substituted provisions providing that if the Secretary considers a claim in excess of $100,000 meritorious, the Secretary may pay $100,000 and report any excess amount to the Comptroller General for provisions which provided that for claims in excess of $25,000 the Secretary may pay $25,000 and certify any excess to Congress as a legal claim to be paid from appropriations.
1980—Subsec. (g). Pub. L. 96–513 substituted “Department of Transportation” for “Department of the Treasury”.
1974—Subsec. (a). Pub. L. 93–336 substituted “$25,000” for “$15,000”.
Subsec. (d). Pub. L. 93–336 substituted “$25,000” for “$15,000” in two places.
1970—Subsec. (d). Pub. L. 91–312 authorized the Secretary to pay, without certification to Congress, up to $15,000 towards the settlement of meritorious claims in excess of $15,000.
Subsec. (e). Pub. L. 91–312 excepted claims under subsec. (d) from requirement that all claims paid be accepted by the claimant in full satisfaction, and struck out provision limiting the application of such requirement to claims payable under subsec. (a) of this section.
1968—Subsec. (a). Pub. L. 90–521, §1, struck out “under his jurisdiction” after “armed forces” in text preceding cl. (1) and permitted an officer to serve on a claims commission under the jurisdiction of another armed force only with the consent of the Secretary of his department, or his designee, but required him to perform his duties under regulations of the department appointing the commission, respectively.
Subsec. (b)(3). Pub. L. 90–521, §3, provided for allowance of claim if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States, including the airborne ordnance, indirectly related to combat, and occurring while preparing for, going to, or returning from a combat mission.
1960—Subsec. (b). Pub. L. 86–411 substituted “two years” for “one year” in cl. (1).
1959—Pub. L. 86–223, §1(1)(A), substituted “the armed forces” for “Department of Army, Navy, or Air Force” in section catchline.
Subsec. (a). Pub. L. 86–223, §1(1)(B), substituted “concerned” and “the military department concerned or the Coast Guard, as the case may be” for “of a military department” and “the department concerned”, respectively.
Subsecs. (c), (d). Pub. L. 86–223, §1(1)(C), struck out “of the military department” after “Secretary”.
Subsec. (f). Pub. L. 86–223, §1(1)(D), substituted “the department concerned” for “a military department” and deleted “military” after “another”.
Subsec. (g). Pub. L. 86–223, §1(1)(E), substituted provision for payment of claims against the Coast Guard arising while it is operating as a service in the Department of the Treasury out of the appropriation for the operating expenses of the Coast Guard for provisions excluding such claims unless they arise, are settled and paid while the Coast Guard is operating as a service of the Navy and authorizing Coast Guard officers to serve on claims commissions or to approve settlements, only for claims against the Coast Guard.
1958—Subsec. (a). Pub. L. 85–861, §1(55)(A)–(D), struck out “arising in foreign countries” after “meritorious claims”, and substituted “$15,000” for “$5,000”, “outside the United States, or the Territories, Commonwealths, or possessions,” for “in that country”, and “a foreign country” for “that country” in cls. (1) and (2).
Subsec. (d). Pub. L. 85–861, §1(55)(A), substituted “$15,000” for “$5,000”.
Subsec. (f). Pub. L. 85–861, §1(55)(E), substituted “Upon” for “In time of war and upon”.
Subsec. (h). Pub. L. 85–861, §1(55)(F), added subsec. (h).
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
(a) When the United States is a party to an international agreement which provides for the settlement or adjudication and cost sharing of claims against the United States arising out of the acts or omissions of a member or civilian employee of an armed force of the United States done in the performance of official duty, or arising out of any other act, omission, or occurrence for which an armed force of the United States is legally responsible under the law of another party to the international agreement, and causing damage in the territory of such party, the Secretary of Defense or the Secretary of Homeland Security or their designees may—
(1) reimburse the party to the agreement for the agreed pro rata share of amounts, including any authorized arbitration costs, paid by that party in satisfying awards or judgments on claims, in accordance with the agreement; or
(2) pay the party to the agreement the agreed pro rata share of any claim, including any authorized arbitration costs, for damage to property owned by it, in accordance with the agreement.
(b) A claim arising out of an act of an enemy of the United States or arising, directly or indirectly, from an act of the armed forces, or a member thereof, while engaged in combat may not be considered or paid under this section.
(c) A reimbursement or payment under this section shall be made by the Secretary of Defense out of appropriations as provided in section 2732 of this title except that payment of claims against the Coast Guard arising while it is operating as a service of the Department of Homeland Security shall be made out of the appropriations for the operating expenses of the Coast Guard. The appropriations referred to in this subsection may be used to buy foreign currencies required for the reimbursement or payment.
(d) Upon the request of the Secretary of Homeland Security or his designee, any payments made relating to claims arising from the activities of the Coast Guard and covered by subsection (a) may be reimbursed or paid to the foreign country concerned by the authorized representative of the Department of Defense out of appropriations as provided in section 2732 of this title, subject to reimbursement from the Department of Homeland Security.
(Added Pub. L. 87–651, title I, §113(a), Sept. 7, 1962, 76 Stat. 512; amended Pub. L. 90–521, §4, Sept. 26, 1968, 82 Stat. 874; Pub. L. 94–390, §1(1), Aug. 19, 1976, 90 Stat. 1191; Pub. L. 98–525, title XIV, §1405(42)(A), Oct. 19, 1984, 98 Stat. 2625; Pub. L. 101–510, div. A, title XIV, §1481(j)(4)(B), Nov. 5, 1990, 104 Stat. 1709; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2734a(a) 2734a(b) 2734a(c) |
31:224i–2 (less proviso). 31:224i–2 (proviso, as applicable to 31:224i–2). 31:224i–5 (as applicable to 31–224i–2). |
Aug. 31, 1954, ch. 1152, §§1 (less proviso, as applicable to §2), 4 (as applicable to §1), 68 Stat. 1006, 1007. |
In subsection (a), the following substitutions are made: “Under” for “Pursuant to the terms”; “country” for “government”; “under its laws and regulations” for “in accordance with the laws and regulations of such foreign government”; “may” for “is authorized”; “amounts” for “sums”; and “spent” for “expended”. The words “now or may hereafter be” are omitted as surplusage.
In subsection (b), the following substitutions are made: “act” for “action” and “may” for “shall”.
In subsection (c), the words “pro rata” are omitted as surplusage. The following substitutions are made: “under this section” for “by the United States with respect to a settlement, award, or compromise made pursuant to sections 224i–2 to 224i–5 of this title”; “to buy” for “for the purchase of”; and “needed” for “necessary”. The words “which appropriations are authorized” are omitted as unnecessary.
2002—Subsecs. (a), (c), (d). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation” wherever appearing.
1990—Subsec. (c). Pub. L. 101–510, §1481(j)(4)(B)(i), substituted “as provided in section 2732 of this title” for “for that purpose”.
Subsec. (d). Pub. L. 101–510, §1481(j)(4)(B)(ii), substituted “appropriations as provided in section 2732 of this title” for “the appropriation for claims of the Department of Defense”.
1984—Pub. L. 98–525 substituted “in foreign countries” for “; foreign countries” in section catchline.
1976—Subsec. (a). Pub. L. 94–390 substituted provisions authorizing the Secretary of Defense or the Secretary of Transportation to reimburse or pay, including arbitration costs, claims arising under international agreements to which the United States is a party and providing for settlement or adjudication and cost sharing based on the responsibility of the United States under the law of the other party to the international agreement, for provisions authorizing the Secretary of Defense to reimburse or pay claims arising under international agreements to which the United States is a party and providing for adjudication by the other country under its laws and regulations.
1968—Subsec. (c). Pub. L. 90–521, §4(a), provided for payment of claims against the Coast Guard arising while it is operating as a service of the Department of Transportation out of appropriations for operating expenses of the Coast Guard.
Subsec. (d). Pub. L. 90–521, §4(b), added subsec. (d).
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
(a) When the United States is a party to an international agreement which provides for the settlement or adjudication by the United States under its laws and regulations, and subject to agreed pro rata reimbursement, of claims against another party to the agreement arising out of the acts or omissions of a member or civilian employee of an armed force of that party done in the performance of official duty, or arising out of any other act, omission, or occurrence for which that armed force is legally responsible under applicable United States law, and causing damage in the United States, or a territory, Commonwealth, or possession thereof; those claims may be prosecuted against the United States, or settled by the United States, in accordance with the agreement, as if the acts or omissions upon which they are based were the acts or omissions of a member or a civilian employee of an armed force of the United States.
(b) When a dispute arises in the settlement or adjudication of a claim under this section whether an act or omission was in the performance of official duty, or whether the use of a vehicle of the armed forces was authorized, the dispute shall be decided under the international agreement with the foreign country concerned. Such a decision is final and conclusive. The Secretary of Defense may pay that part of the cost of obtaining such a decision that is chargeable to the United States under that agreement.
(c) A claim arising out of an act of an enemy of the United States may not be considered or paid under this section.
(d) A payment under this section shall be made by the Secretary of Defense out of appropriations as provided in section 2732 of this title.
(Added Pub. L. 87–651, title I, §113(a), Sept. 7, 1962, 76 Stat. 512; amended Pub. L. 94–390, §1(2), Aug. 19, 1976, 90 Stat. 1191; Pub. L. 101–510, div. A, title XIV, §1481(j)(4)(C), Nov. 5, 1990, 104 Stat. 1709.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2734b(a) 2734b(b) 2734b(c) 2734b(d) |
31:224i–3. 31:224i–4. 31:224i–2 (proviso, less applicability to 31:224i–2). 31:224i–5 (less applicability to 31:224i–2). |
Aug. 31, 1954, ch. 1152, §§1 (proviso, less applicability to §1), 2, 3, 4 (less applicability to §1), 68 Stat. 1006, 1007. |
In subsection (a), the following omissions as surplusage are made: “the terms of” and “now or may hereafter be”. The following substitutions are made: “country” for “government”; “in the United States, or a Territory, Commonwealth, or possession” for “within the territory of the United States”; “under” for “in accordance with”; “upon which they are based were the acts or omissions of” for “were performed”.
In subsection (b), the following substitutions are made: “under this section” for “asserted under section 224i–3 of this title”; “the dispute” for “such disputed question or questions”; “under” for “in accordance with the terms of”; and the last sentence for the last sentence of 31:224i–4. The following omissions as surplusage are made: “of a civilian employee or military personnel of a foreign country” and “of the armed forces for such party”.
In subsection (c), the word “act” is substituted for the word “action”.
In subsection (d), the words “under this section” are substituted for the words “by the United States with respect to a settlement, award, or compromise made pursuant to section 224i–2 to 224i–5 of this title”. The words “which appropriations are authorized” are omitted as unnecessary.
1990—Subsec. (d). Pub. L. 101–510 substituted “as provided in section 2732 of this title” for “for that purpose”.
1976—Subsec. (a). Pub. L. 94–390 substituted provisions authorizing claims, for which another armed force is legally responsible under applicable United States law, to be prosecuted against the United States or settled by the United States in accordance with an international agreement providing for the settlement or adjudication by the United States under its laws and regulations as if the acts or omissions upon which the claims are based were of a member or a civilian employee of an armed force of the United States, for provisions authorizing claims to be prosecuted against the United States or settled by the United States by adjudication by the United States under its laws and regulations as if the acts or omissions upon which the claims are based were the acts or omissions in the performance of official duty of a civilian employee or a member of an armed force.
Notwithstanding any other provision of law, the settlement of a claim under section 2733, 2734, 2734a, 2734b, or 2737 of this title is final and conclusive.
(Aug. 10, 1956, ch. 1041, 70A Stat. 155; Pub. L. 88–558, §5(1), Aug. 31, 1964, 78 Stat. 768; Pub. L. 92–413, Aug. 29, 1972, 86 Stat. 649.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2735 | 31:222c (1st sentence of (e)). 31:223b (4th sentence). 31:224d (last proviso). |
May 29, 1945, ch. 135, §1 (e) (1st sentence); restated July 3, 1952, ch. 548, §1 (1st sentence of last par.), 66 Stat. 323. |
| July 3, 1943, ch. 189, §1 (4th sentence), 57 Stat. 373. | ||
| Jan. 2, 1942, ch. 645, §1 (last proviso); restated Apr. 22, 1943, ch. 67, §1 (last proviso), 57 Stat. 67. |
The words “for all purposes” and “to the contrary”, in each source credit; “by the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, or the Secretary of Defense, or their designees” and “such regulations as they, respectively, may prescribe hereunder”, in 31:222c(e); “by the Secretary of the Army, or his designee” and “such regulations as he may prescribe hereunder”, in 31:223b; and “by such Commissions”, in 31:224d; are omitted as surplusage.
1972—Pub. L. 92–413 inserted reference to sections 2734a, 2734b, and 2737 of this title.
1964—Pub. L. 88–558 struck out reference to section 2732.
Section 5(1) of Pub. L. 88–558 provided that the amendment made by that section is effective two years from Aug. 31, 1964.
The directory language of, but not the amendment made by, Pub. L. 88–558, Aug. 31, 1964, 78 Stat. 767, cited as a credit to this section and in the Effective Date of 1964 Amendment note above, was repealed by Pub. L. 97–258, §5(b), Sept. 13, 1982, 96 Stat. 1068.
(a)(1) In the case of a person who is injured or killed, or whose property is damaged or lost, under circumstances for which the Secretary of a military department is authorized by law to allow a claim, the Secretary of the military department concerned may make a payment to or for the person, or the legal representatives of the person, in advance of the submission of such a claim or, if such a claim is submitted, in advance of the final settlement of the claim. The amount of such a payment may not exceed $100,000.
(2) Payments under this subsection are limited to payments which would otherwise be payable under section 2733 or 2734 of this title or section 715 of title 32.
(3) The Secretary of a military department may delegate the authority to make payments under this subsection to the Judge Advocate General of an armed force under the jurisdiction of the Secretary. The Secretary may delegate such authority to any other officer or employee under the jurisdiction of the Secretary, but only with respect to the payment of amounts of $25,000 or less.
(4) Payments under this subsection shall be made under regulations prescribed by the Secretary of the military department concerned.
(b) Any amount paid under subsection (a) shall be deducted from any amount that may be allowed under any other provision of law to the person, or his legal representative, for injury, death, damage, or loss attributable to the accident concerned.
(c) So far as practicable, regulations prescribed under this section shall be uniform for the military departments.
(d) Payment of an amount under subsection (a) is not an admission by the United States of liability for the accident concerned.
(Added Pub. L. 87–212, §1(1), Sept. 8, 1961, 75 Stat. 488; amended Pub. L. 90–521, §2, Sept. 26, 1968, 82 Stat. 874; Pub. L. 98–564, §3, Oct. 30, 1984, 98 Stat. 2919; Pub. L. 100–456, div. A, title VII, §735(a), Sept. 29, 1988, 102 Stat. 2005.)
1988—Subsec. (a). Pub. L. 100–456 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Under such regulations as the Secretary of a military department may prescribe, payment of an amount not in excess of $10,000 may be made in advance of the submission of a claim to or for any person, or his legal representatives, who was injured or killed, or whose property was damaged or lost, under circumstances for which allowance of a claim is authorized by law. Payments under this subsection are limited to those which would otherwise be payable under section 2733 or 2734 of this title or section 715 of title 32.”
1984—Subsec. (a). Pub. L. 98–564 substituted “$10,000” for “$1,000”.
1968—Pub. L. 90–521 substituted “advance payment” for “incident to aircraft or missile operation” in section catchline.
Subsec. (a). Pub. L. 90–521 substituted “under circumstances” for “as the result of an accident involving an aircraft or missile under the control of that department”.
Section 735(b) of Pub. L. 100–456 provided that: “The amendment made by subsection (a) [amending this section] shall apply to any claim which would otherwise be payable under section 2733 or 2734 of title 10, United States Code, or under section 715 of title 32, United States Code, and which has not been finally settled on or before the date of the enactment of this Act [Sept. 29, 1988].”
(a) Under such regulations as the Secretary concerned may prescribe, he or his designee may settle and pay, in an amount not more than $1,000, a claim against the United States, not cognizable under any other provision of law, for—
(1) damage to, or loss of, property; or
(2) personal injury or death;
caused by a civilian official or employee of a military department or the Coast Guard, or a member of the armed forces, incident to the use of a vehicle of the United States at any place, or any other property of the United States on a Government installation.
(b) Under such regulations as the Secretary of Defense may prescribe, he or his designee has the same authority as the Secretary of a military department with respect to a claim, not cognizable under any other provision of law, for—
(1) damage to, or loss of, property; or
(2) personal injury or death;
caused by a civilian official or employee of the Department of Defense not covered by subsection (a), incident to the use of a vehicle of the United States at any place, or any other property of the United States on a Government installation.
(c) A claim may not be allowed under subsection (a) or (b) if the damage to, or loss of, property, or the personal injury or death was caused wholly or partly by a negligent or wrongful act of the claimant, his agent, or his employee.
(d) A claim for personal injury or death under this section may not be allowed for more than the cost of reasonable medical, hospital, and burial expenses actually incurred, and not otherwise furnished or paid by the United States.
(e) No claim may be allowed under this section unless it is presented in writing within two years after it accrues.
(f) A claim may not be paid under subsection (a) or (b) unless the amount tendered is accepted by the claimant in full satisfaction.
(g) No claim or any part thereof, the amount of which is legally recoverable by the claimant under an indemnifying law or indemnity contract, may be paid under this section. No subrogated claim may be paid under this section.
(h) So far as practicable, regulations prescribed under this section shall be uniform. Regulations prescribed under this section by the Secretaries of the military departments must be approved by the Secretary of Defense.
(Added Pub. L. 87–769, §1(1)(A), Oct. 9, 1962, 76 Stat. 767, §2736; renumbered §2737, Pub. L. 89–718, §21(a), Nov. 2, 1966, 80 Stat. 1118.)
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
(a)
(b)
(c)
(d)
(Added Pub. L. 103–337, div. A, title V, §557(a), Oct. 5, 1994, 108 Stat. 2775.)
Section 557(c) of Pub. L. 103–337 provided that:
“(1) Section 2738 of title 10, United States Code, as added by subsection (a), applies with respect to losses incurred after June 30, 1990.
“(2) In the case of a loss incurred after June 30, 1990, and before the date of the enactment of this Act [Oct. 5, 1994], a request for reimbursement shall be filed with the Secretary of the military department concerned not later than two years after such date of enactment.”
(a)
(b)
(c)
(Added Pub. L. 105–261, div. A, title X, §1010(a)(1), Oct. 17, 1998, 112 Stat. 2117.)
Pub. L. 105–261, div. A, title X, §1010(b), Oct. 17, 1998, 112 Stat. 2117, provided that: “Section 2739 of title 10, United States Code, as added by subsection (a), applies with respect to amounts collected by a military department on or after the date of the enactment of this Act [Oct. 17, 1998].”
The Secretary of Defense and the Secretaries of the military departments, in paying a claim under section 3721 of title 31 arising from loss or damage to household goods stored or transported at the expense of the Department of Defense, may pay the claim on the basis of full replacement value in any of the following cases in which reimbursement for the full replacement value for the loss or damage is not available directly from a carrier under section 2636a of this title:
(1) A case in which—
(A) the lost or damaged goods were stored or transported under a contract, tender, or solicitation in accordance with section 2636a of this title that requires the transportation service provider to settle claims on the basis of full replacement value; and
(B) the loss or damage occurred under circumstances that exclude the transportation service provider from liability.
(2) A case in which—
(A) the loss or damage occurred while the lost or damaged goods were in the possession of an ocean carrier that was transporting, loading, or unloading the goods under a Department of Defense contract for ocean carriage; and
(B) the land-based portions of the transportation were under contracts, in accordance with section 2636a of this title, that require the land carriers to settle claims on the basis of full replacement value.
(3) A case in which—
(A) the lost or damaged goods were transported or stored under a contract or solicitation that requires at least one of the transportation service providers or carriers that handled the shipment to settle claims on the basis of full replacement value pursuant to section 2636a of this title;
(B) the lost or damaged goods have been in the custody of more than one independent contractor or transportation service provider; and
(C) a claim submitted to the delivering transportation service provider or carrier is denied in whole or in part because the loss or damage occurred while the lost or damaged goods were in the custody of a prior transportation service provider or carrier or government entity.
(Added Pub. L. 111–383, div. A, title III, §354(a)(1), Jan. 7, 2011, 124 Stat. 4194.)
Pub. L. 111–383, div. A, title III, §354(b), Jan. 7, 2011, 124 Stat. 4195, provided that: “Section 2740 of title 10, United States Code, as added by subsection (a), shall apply with respect to losses incurred after the date of the enactment of this Act [Jan. 7, 2011].”
2011—Pub. L. 111–383, div. A, title III, §355(b), Jan. 7, 2011, 124 Stat. 4197, added item 2790.
2008—Pub. L. 110–181, div. A, title III, §375(b), Jan. 28, 2008, 122 Stat. 83, added items 2788 and 2789.
2006—Pub. L. 109–364, div. A, title X, §1053(a)(2), Oct. 17, 2006, 120 Stat. 2396, added item 2773b.
2002—Pub. L. 107–314, div. A, title X, §§1005(b), 1006(a)(2), 1007(b)(2), 1008(b), Dec. 2, 2002, 116 Stat. 2632–2635, substituted “purchase” for “credit” in item 2784 and added items 2773a, 2784a, and 2787.
1999—Pub. L. 106–65, div. A, title IX, §933(a)(2), title X, §1008(a)(2), Oct. 5, 1999, 113 Stat. 730, 738, added items 2784 to 2786.
1996—Pub. L. 104–316, title I, §105(d), Oct. 19, 1996, 110 Stat. 3830, struck out item 2778 “Accounts of the military departments”.
Pub. L. 104–106, div. B, title XXVIII, §2821(b), Feb. 10, 1996, 110 Stat. 556, added item 2782.
1993—Pub. L. 103–160, div. A, title XI, §1182(a)(8)(C), Nov. 30, 1993, 107 Stat. 1771, added item 2783.
1990—Pub. L. 101–510, div. A, title XIV, §1405(c)(2), title XV, §1533(a)(4)(B), Nov. 5, 1990, 104 Stat. 1680, 1734, substituted “Retirement Home” for “retirement homes” in item 2772 and struck out item 2782 “Unobligated balances withdrawn from availability for obligation: limitations on restoration”.
1989—Pub. L. 101–189, div. A, title III, §342(a)(2), title XVI, §1603(a)(2), Nov. 29, 1989, 103 Stat. 1420, 1598, added items 2772 and 2782.
1988—Pub. L. 100–370, §1(m)(2), July 19, 1988, 102 Stat. 850, added item 2781.
1987—Pub. L. 100–26, §7(j)(7)(C), Apr. 21, 1987, 101 Stat. 283, substituted “allowances and of” for “allowances, and” in item 2774.
1986—Pub. L. 99–661, div. A, title XIII, §1309(b), Nov. 14, 1986, 100 Stat. 3983, added item 2780.
1985—Pub. L. 99–224, §2(b), Dec. 28, 1985, 99 Stat. 1742, substituted “and” for “other than” in item 2774.
Pub. L. 99–167, title VIII, §802(d)(2), Dec. 3, 1985, 99 Stat. 987, substituted “assigned to military housing” for “for damage to housing and related equipment and furnishings” in item 2775.
1984—Pub. L. 98–407, title VIII, §801(a)(2), Aug. 28, 1984, 98 Stat. 1518, substituted “members for damage to housing and related equipment and furnishings” for “member for damages to family housing, equipment, and furnishings” in item 2775.
1982—Pub. L. 97–258, §2(b)(7)(A), (8)(A), Sept. 13, 1982, 96 Stat. 1054, substituted “Designation, powers, and accountability of deputy disbursing officials” for “Accountability for public money: disbursing officers; agent officers” in item 2773 and added items 2776, 2777, 2778, and 2779.
1980—Pub. L. 96–513, title V, §511(96), Dec. 12, 1980, 94 Stat. 2928, struck out item 2772 “Withholding pay of officers”.
Pub. L. 96–418, title V, §506(b), Oct. 10, 1980, 94 Stat. 1766, added item 2775.
1972—Pub. L. 92–453, §1(2), Oct. 2, 1972, 86 Stat. 759, added item 2774.
1962—Pub. L. 87–480, §1(1)(B), June 8, 1962, 76 Stat. 94, added item 2773.
(a) In the settlement of the accounts of a deceased member of the armed forces, an amount due from the armed force of which he was a member shall be paid to the person highest on the following list living on the date of death:
(1) Beneficiary designated by him in writing to receive such an amount, if the designation is received, before the deceased member's death, at the place named in regulations to be prescribed by the Secretary concerned.
(2) Surviving spouse.
(3) Children and their descendants, by representation.
(4) Father and mother in equal parts or, if either is dead, the survivor.
(5) Legal representative.
(6) Person entitled under the law of the domicile of the deceased member.
(b) Designations and changes of designation of beneficiaries under subsection (a)(1) are subject to regulations to be prescribed by the Secretary concerned. So far as practicable, these regulations shall be uniform for the uniformed services.
(c) Payments under subsection (a) shall be made by the Secretary of Defense.
(d) A payment under this section bars recovery by any other person of the amount paid.
(Aug. 10, 1956, ch. 1041, 70A Stat. 155; Pub. L. 85–861, §1(56), Sept. 2, 1958, 72 Stat. 1461; Pub. L. 86–641, July 12, 1960, 74 Stat. 473; Pub. L. 89–718, §8(a), Nov. 2, 1966, 80 Stat. 1117; Pub. L. 96–513, title V, §511(97), Dec. 12, 1980, 94 Stat. 2928; Pub. L. 103–160, div. A, title XI, §1182(a)(11), Nov. 30, 1993, 107 Stat. 1771; Pub. L. 104–316, title II, §202(f), Oct. 19, 1996, 110 Stat. 3842.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2771(a) 2771(b) |
10:868 (less proviso). 34:941a (less proviso). 10:868 (proviso). 34:941a (proviso). |
June 30, 1906, ch. 3914, §1 (last par. under “State or Territorial Homes for Disabled Soldiers and Sailors”); restated Dec. 7, 1944, ch. 519; restated Feb. 25, 1946, ch. 35, §4, 60 Stat. 30. |
| Feb. 25, 1946, ch. 35, §1, 60 Stat. 30; Aug. 4, 1949, ch. 393, §18, 63 Stat. 560. |
In subsections (a) and (b), the words “General Accounting Office” are substituted for the words “accounting officers”, for clarity.
In subsection (a), the word “member” is substituted for the words “officers or enlisted persons”, in 10:868 and 34:941a. The words “his legal representative” are substituted for the words “a duly appointed legal representative of the estate”, since an estate, being property and not an entity, has no representative. The words “duly appointed” are omitted as surplusage. The words “highest on the following list” are substituted for the words “following order of precedence”, in 10:868 and 34:941a. Clauses (1)–(4) are substituted for the words between the first and second colons of 10:868 and 34:941a. The words “Surviving spouse” are substituted for the words “widow or widower” after the words “First, to”.
In subsection (b), the words “That this section shall not be so construed as to prevent”, “or persons”, and “actually”, in 10:868 and 34:941a, are omitted as surplusage.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2771(a) 2771(b) |
37:361. 37:362. 37:365. 37:364 (less proviso). |
July 12, 1955, ch. 328, §§1–3, 4 (less proviso), 5 (first sentence), 69 Stat. 295, 296. |
| 2771(c) 2771(d) |
37:363 (less last sentence). 37:363 (last sentence). |
In subsection (a), the definition of the term “Department”, in 37:361, is omitted as unnecessary, since the particular departments referred to are spelled out in the revised text. The definition of the term “uniformed services”, in 37:361, is omitted as covered by the word “member” in this revised section and by sections 3 and 4 of the Act enacting this revised section. Clauses (1)–(6) are substituted for the last 5 clauses of 37:362. The words “regulations to be prescribed by the Secretary concerned” are substituted for the words “regulations of the Department concerned”, since the “Department”, as such, cannot issue regulations.
In subsection (a)(2), the words “surviving spouse” are substituted for the words “widow or widower”. As defined in section 101(32), “spouse” includes a widower.
In subsection (b), the words “are subject to” are substituted for the words “shall be made under”.
In subsection (c), the word “Under” is substituted for the words “Subject to”. The words “rules and” are omitted as surplusage.
1996—Subsec. (c). Pub. L. 104–316 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “Under such regulations as the Comptroller General may prescribe, payments under subsection (a) shall be made by the military department concerned or the Department of Transportation, as the case may be. Payment under clause (6) of subsection (a) shall be made—
“(1) upon settlement by the General Accounting Office; or
“(2) as otherwise authorized by the Comptroller General.”
1993—Subsec. (a). Pub. L. 103–160, §1182(a)(11)(A), struck out “who dies after December 31, 1955” after “armed forces” in introductory provisions.
Subsec. (b). Pub. L. 103–160, §1182(a)(11)(B), substituted “for the uniformed services” for “for the armed forces, the National Oceanic and Atmospheric Administration, and the Public Health Service”.
1980—Subsec. (b). Pub. L. 96–513, §511(97)(A), substituted “National Oceanic and Atmospheric Administration” for “Environmental Science Services Administration”.
Subsec. (c). Pub. L. 96–513, §511(97)(B), substituted “Department of Transportation” for “Department of the Treasury”.
1966—Subsec. (b). Pub. L. 89–718 substituted “Environmental Science Services Administration” for “Coast and Geodetic Survey”.
1960—Subsec. (c). Pub. L. 86–641 substituted provisions requiring payment under clause (6) of subsection (a) to be made upon settlement by the General Accounting Office or as otherwise authorized by the Comptroller General for provisions which permitted payments under clauses (2) to (6) of subsection (a) to be made only after settlement by the General Accounting Office.
1958—Subsec. (a). Pub. L. 85–861 amended subsec. (a) generally to restrict application of section to members of the armed forces who die after Dec. 31, 1955, and to permit payment to the designated beneficiaries, surviving spouse, children and their descendants, and to parents before payment to the legal representative.
Subsec. (b). Pub. L. 85–861 substituted provisions relating to designations and changes of designation of beneficiaries for provisions which authorized reimbursement of funeral expenses.
Subsecs. (c), (d). Pub. L. 85–861 added subsecs. (c) and (d).
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
The directory language of, but not the amendment made by, Pub. L. 89–718, §8(a), Nov. 2, 1966, 80 Stat. 1117, cited as a credit to this section, was repealed by Pub. L. 97–295, §6(b), Oct. 12, 1982, 96 Stat. 1314.
For transfer of functions of Public Health Service, see note set out under section 802 of this title.
Pub. L. 85–861, §29, Sept. 2, 1958, 72 Stat. 1563, authorized the General Accounting Office, in the settlement of the accounts of a member of the Army, Navy, Air Force, or Marine Corps who died before Jan. 1, 1956, to allow any amount due to the person highest on a list of persons living on the date of settlement and to provide reimbursement for funeral expenses from the amount due the decedent's estate.
Section 31 of Pub. L. 85–861 provided that: “The designation of a beneficiary made for the purposes of any six months’ death gratuity, including the designation of a person whose right to the gratuity does not depend upon that designation, and received in the military department concerned, the Department of the Treasury, the Department of Commerce, or the Department of Health, Education, and Welfare, as the case may be, before January 1, 1956, is considered as the designation of a beneficiary for the purposes of section 2771 of title 10, United States Code [this section], section 714 of title 32, United States Code, and sections 3 and 4 of this Act [amending section 857a of Title 33, and section 213a of Title 42], in the absence of a designation under one of those sections, unless the member making the designation was missing, missing in action, in the hands of a hostile force, or interned in a foreign country any time after July 11, 1955, and before January 1, 1956.”
(a)
(1) The amount of forfeitures and fines adjudged against an enlisted member, warrant officer, or limited duty officer of the armed forces by sentence of a court martial or under authority of section 815 of this title (article 15) over and above any amount that may be due from the member, warrant officer, or limited duty officer for the reimbursement of the United States or any individual.
(2) The amount of forfeitures on account of the desertion of an enlisted member, warrant officer, or limited duty officer of the armed forces.
(b)
(Added Pub. L. 101–189, div. A, title III, §342(a)(1), Nov. 29, 1989, 103 Stat. 1419; amended Pub. L. 101–510, div. A, title XV, §1533(a)(3), (4)(A), Nov. 5, 1990, 104 Stat. 1733; Pub. L. 111–281, title II, §205(b)(1), Oct. 15, 2010, 124 Stat. 2911.)
A prior section 2772, act Aug. 10, 1956, ch. 1041, 70A Stat. 156, authorized withholding of pay of officers of the Army, Navy, Air Force, or Marine Corps, and is covered by section 1007 of Title 37, Pay and Allowances of the Uniformed Services, prior to repeal by Pub. L. 87–649, §14c(3), Sept. 7, 1962, 76 Stat. 501, effective Nov. 1, 1962.
2010—Subsec. (a). Pub. L. 111–281, §205(b)(1)(A), inserted “or, in the case of the Coast Guard, the Commandant” after “concerned” in introductory provisions.
Subsec. (c). Pub. L. 111–281, §205(b)(1)(B), struck out subsec. (c). Text read as follows: “In this section, the term ‘armed forces’ does not include the Coast Guard when it is not operating as a service in the Navy.”
1990—Pub. L. 101–510, §1533(a)(4)(A), substituted “Retirement Home” for “retirement homes” in section catchline and amended text generally, substituting subsecs. (a) to (c) relating to shares of fines and forfeitures to benefit the Armed Forces Retirement Home for former subsecs. (a) and (b) relating to shares of fines and forfeitures to benefit the Soldiers’ Home and the Naval Home.
Pub. L. 101–510, §1533(a)(3), inserted “and forfeitures” after “fines” in subsecs. (a)(1)(A) and (b)(1)(A) and substituted “, warrant officer, or limited duty officer” for “or warrant officer” wherever appearing.
Section 1533(a)(3) of Pub. L. 101–510 provided that the amendment by that section was effective Nov. 5, 1990, prior to repeal by Pub. L. 107–107, div. A, title XIV, §1409, Dec. 28, 2001, 115 Stat. 1265.
Amendment by section 1533(a)(4)(A) of Pub. L. 101–510 effective one year after Nov. 5, 1990, see section 1541 of Pub. L. 101–510, formerly set out as an Effective Date note under section 401 of Title 24, Hospitals and Asylums.
Section 342(b) of Pub. L. 101–189 provided that:
“(1) Subsection (a) of section 2772 of such title [10 U.S.C. 2772(a)], as added by subsection (a), shall apply with respect to fines and forfeitures adjudged after the date of the enactment of this Act [Nov. 29, 1989].
“(2) Subsection (b) of such section shall apply with respect to fines and forfeitures adjudged after May 31, 1990.”
(a)(1) Subject to paragraph (3), a disbursing official of the Department of Defense may designate a deputy disbursing official—
(A) to make payments as the agent of the disbursing official;
(B) to sign checks drawn on disbursing accounts of the Secretary of the Treasury; and
(C) to carry out other duties required under law.
(2) The penalties for misconduct that apply to a disbursing official apply to a deputy disbursing official designated under this subsection.
(3) A disbursing official may make a designation under paragraph (1) only with the approval of the Secretary of Defense or, in the case of a disbursing official of a military department, the Secretary of that military department.
(b)(1) If a disbursing official of the Department of Defense dies, becomes disabled, or is separated from office, a deputy disbursing official may continue the accounts and payments in the name of the former disbursing official until the last day of the 2d month after the month in which the death, disability, or separation occurs. The accounts and payments shall be allowed, audited, and settled as provided by law. The Secretary of the Treasury shall honor checks signed in the name of the former disbursing official in the same way as if the former disbursing official had continued in office.
(2) The deputy disbursing official, and not the former disbursing official or the estate of the former disbursing official, is liable for the actions of the deputy disbursing official under this subsection.
(Added Pub. L. 87–480, §1(1)(A), June 8, 1962, 76 Stat. 94; amended Pub. L. 97–258, §2(b)(7)(B), Sept. 13, 1982, 96 Stat. 1054; Pub. L. 104–106, div. A, title IX, §913(a)(2), Feb. 10, 1996, 110 Stat. 410.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2773(a) | 10:2773. | |
| 31:103a. | July 3, 1926, ch. 775, 44 Stat. 888; June 6, 1972, Pub. L. 92–310, §231(bb), 86 Stat. 212. | |
| 2773(b) | 31:103b. | July 31, 1953, ch. 300, 67 Stat. 296; June 6, 1972, Pub. L. 92–310, §231(ff), 86 Stat. 213. |
In the section, the words “disbursing official” are substituted for “disbursing officer” for consistency with other titles of the United States Code. The words “Secretary of the Treasury” are substituted for “Treasurer of the United States” because of section 1(a) of Reorganization Plan No. 26 of 1950 (eff. July 31, 1950, 64 Stat. 1280), restated as section 321 of the revised title contained in section 1 of the bill. The text of 10:2773 is omitted as being superseded by 31:103a and 103b.
In subsection (a)(1), before clause (A), the words “With the approval of a Secretary of a military department when the Secretary considers it necessary” are substituted for “When, in the opinion of the Secretary of the Army, Navy, or Air Force, the exigencies of the service so require . . . with the approval of the head of their executive department” in 31:103a because of 10:101(7), to eliminate unnecessary words, and for consistency. The title of Secretary of War was changed to Secretary of the Army by section 205(a) of the Act of July 26, 1947 (ch. 343, 61 Stat. 501), and by sections 1 and 53 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 157, 676). The Secretary of the Air Force is included because of sections 205(a) and 207(a) and (f) of the Act of July 26, 1947 (ch. 343, 61 Stat. 501, 502), and section 1 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 488). The words “deputy disbursing official” are substituted for “deputies” for clarity. In clause (A), the words “to make payments” are substituted for “for the purpose of having them make disbursements” to eliminate unnecessary words. In clause (C), the words “to be performed by such disbursing officers” are omitted as unnecessary.
In subsection (a)(2), the words “deputy disbursing official” are substituted for “agent officer” for clarity and consistency.
In subsection (b)(1), the word “disabled” is substituted for “incapacity” for consistency in the title. The word “until” is substituted for “for a period of time not to extend beyond” to eliminate unnecessary words.
In subsection (b)(2), the words “The deputy disbursing official, and not the former disbursing official or the estate of the former disbursing official” are substituted for “The former disbursing officer or his estate . . . but the deputy disbursing officer shall be responsible therefor” for clarity and because of the restatement. The word “liable” is substituted for “subject to any legal liability or penalty” to eliminate unnecessary words. The word “actions” is substituted for “official acts and defaults”. The words “in the name or in the place of the former disbursing officer” are omitted as unnecessary.
1996—Subsec. (a)(1). Pub. L. 104–106, §913(a)(2)(A)(i), substituted “Subject to paragraph (3), a disbursing official of the Department of Defense” for “With the approval of a Secretary of a military department when the Secretary considers it necessary, a disbursing official of the military department”.
Subsec. (a)(3). Pub. L. 104–106, §913(a)(2)(A)(ii), added par. (3).
Subsec. (b)(1). Pub. L. 104–106, §913(a)(2)(B), substituted “the Department of Defense” for “any military department”.
1982—Pub. L. 97–258 substituted provisions authorizing a disbursing official of a military department to designate a deputy disbursing official with the same duties and penalties for misconduct as those of the disbursing official and allowing a deputy disbursing official to continue the accounts and payments in the name of a former disbursing official for two months after the death, disability, or separation of the former disbursing official for provisions authorizing any officer of an armed force accountable for public money to entrust it to another officer of an armed force to make disbursement as his agent, with both officers pecuniarily responsible to the United States for that money.
(a)
(b)
(1) is responsible in the performance of the employee's or member's duties for providing to a certifying official of the Department of Defense information, data, or services that are directly relied upon by the certifying official in the certification of vouchers for payment; and
(2) is not otherwise accountable under subtitle III of title 31 or any other provision of law for payments made on the basis of such vouchers.
(c)
(A) resulted from information, data, or services that that official provided to a certifying official and upon which that certifying official directly relies in certifying the voucher supporting that payment; and
(B) was the result of fault or negligence on the part of that departmental accountable official.
(2) Pecuniary liability under this subsection shall apply in the same manner and to the same extent as applies to an official accountable under subtitle III of title 31.
(3) Any pecuniary liability of a departmental accountable official under this subsection for a loss to the United States resulting from an illegal, improper, or incorrect payment is joint and several with that of any other officer or employee of the United States or member of the uniformed services who is pecuniarily liable for such loss.
(d)
(Added Pub. L. 107–314, div. A, title X, §1005(a), Dec. 2, 2002, 116 Stat. 2631; amended Pub. L. 109–163, div. A, title X, §1056(c)(8), Jan. 6, 2006, 119 Stat. 3440.)
2006—Subsec. (a). Pub. L. 109–163 inserted “by” after “incorrect payment made”.
(a)
(b)
(Added Pub. L. 109–364, div. A, title X, §1053(a)(1), Oct. 17, 2006, 120 Stat. 2396.)
Pub. L. 109–364, div. A, title X, §1053(b), Oct. 17, 2006, 120 Stat. 2396, provided that:
“(1)
“(2)
(a) A claim of the United States against a person arising out of an erroneous payment of any pay or allowances made before, on, or after October 2, 1972, or arising out of an erroneous payment of travel and transportation allowances, to or on behalf of a member or former member of the uniformed services, the collection of which would be against equity and good conscience and not in the best interest of the United States, may be waived in whole or in part by—
(1) the Director of the Office of Management and Budget; or
(2) the Secretary concerned, as defined in section 101(5) of title 37, when—
(A) the claim is in an amount aggregating not more than $10,000; and
(B) the waiver is made in accordance with standards which the Director of the Office of Management and Budget shall prescribe.
(b) The Director of the Office of Management and Budget or the Secretary concerned, as the case may be, may not exercise his authority under this section to waive any claim—
(1) if, in his opinion, there exists, in connection with the claim, an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the member or any other person having an interest in obtaining a waiver of the claim; or
(2) if application for waiver is received in his office after the expiration of five years immediately following the date on which the erroneous payment was discovered.
(c) A person who has repaid to the United States all or part of the amount of a claim, with respect to which a waiver is granted under this section, is entitled, to the extent of the waiver, to refund, by the department concerned at the time of the erroneous payment, of the amount repaid to the United States, if he applies to that department for that refund within two years following the effective date of the waiver. The Secretary concerned shall pay from current applicable appropriations that refund in accordance with this section.
(d) In the audit and settlement of accounts of any accountable officer or official, full credit shall be given for any amounts with respect to which collection by the United States is waived under this section.
(e) An erroneous payment, the collection of which is waived under this section, is considered a valid payment for all purposes.
(f) This section does not affect any authority under any other law to litigate, settle, compromise, or waive any claim of the United States.
(Added Pub. L. 92–453, §1(1), Oct. 2, 1972, 86 Stat. 758; amended Pub. L. 96–513, title V, §511(98), Dec. 12, 1980, 94 Stat. 2928; Pub. L. 99–224, §2(a), Dec. 28, 1985, 99 Stat. 1741; Pub. L. 100–26, §7(j)(7)(A), (B), Apr. 21, 1987, 101 Stat. 283; Pub. L. 102–190, div. A, title VI, §657(b), Dec. 5, 1991, 105 Stat. 1393; Pub. L. 104–316, title I, §105(b), Oct. 19, 1996, 110 Stat. 3830; Pub. L. 109–364, div. A, title VI, §671(a), Oct. 17, 2006, 120 Stat. 2270.)
2006—Subsec. (a)(2)(A). Pub. L. 109–364, §671(a)(1), substituted “$10,000” for “$1,500”.
Subsec. (b)(2). Pub. L. 109–364, §671(a)(2), substituted “five years” for “three years”.
1996—Subsec. (a). Pub. L. 104–316, §105(b)(1), substituted “Director of the Office of Management and Budget” for “Comptroller General” in par. (1), and in par. (2) inserted “and” at end of subpar. (A), redesignated subpar. (C) as (B) and substituted “Director of the Office of Management and Budget” for “Comptroller General”, and struck out former subpar. (B) which read as follows “the claim is not the subject of an exception made by the Comptroller General in the account of any accountable officer or official; and”.
Subsec. (b). Pub. L. 104–316, §105(b)(2), substituted “Director of the Office of Management and Budget” for “Comptroller General”.
1991—Subsec. (a)(2)(A). Pub. L. 102–190 substituted “$1,500” for “$500”.
1987—Pub. L. 100–26, §7(j)(7)(A), substituted “allowances and of” for “allowances, and” in section catchline.
Subsec. (a). Pub. L. 100–26, §7(j)(7)(B), struck out “as defined in section 101(3) of title 37,” after “uniformed services,”.
1985—Pub. L. 99–224, §2(a)(1), substituted “and” for “other than” in section catchline.
Subsec. (a). Pub. L. 99–224, §2(a)(2), substituted “made before, on, or after October 2, 1972, or arising out of an erroneous payment of travel and transportation allowances” for “, other than travel and transportation allowances, made before or after October 2, 1972”.
Subsec. (b)(2). Pub. L. 99–224, §2(a)(3), struck out “of pay or allowances, other than travel and transportation allowances,” after “payment”.
1980—Subsec. (a). Pub. L. 96–513 substituted “October 2, 1972” for “the effective date of this section”.
Pub. L. 109–364, div. A, title VI, §671(c), Oct. 17, 2006, 120 Stat. 2270, provided that: “The amendments made by this section [amending this section and section 716 of Title 32, National Guard] shall take effect on March 1, 2007.”
Amendment by Pub. L. 104–316 effective 60 days after Oct. 19, 1996, see section 101(e) of Pub. L. 104–316, set out as a note under section 130c of Title 2, The Congress.
Amendment by Pub. L. 99–224 applicable to any claim arising out of an erroneous payment of travel and transportation allowances made on or after Dec. 28, 1985, see section 4 of Pub. L. 99–224, set out as a note under section 5584 of Title 5, Government Organization and Employees.
Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.
Pub. L. 104–61, title VIII, §8052, Dec. 1, 1995, 109 Stat. 662, provided that: “Notwithstanding any other provision of law, the Secretary of Defense may, when he considers it in the best interest of the United States, cancel any part of an indebtedness, up to $2,500, that is or was owed to the United States by a member or former member of a uniformed service if such indebtedness, as determined by the Secretary, was incurred in connection with Operation Desert Shield/Storm: Provided, That the amount of an indebtedness previously paid by a member or former member and cancelled under this section shall be refunded to the member.”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 103–335, title VIII, §8060, Sept. 30, 1994, 108 Stat. 2633.
Pub. L. 103–139, title VIII, §8071, Nov. 11, 1993, 107 Stat. 1457.
Pub. L. 102–396, title IX, §9100, Oct. 6, 1992, 106 Stat. 1926.
Pub. L. 102–172, title VIII, §8138, Nov. 26, 1991, 105 Stat. 1212.
(a)(1) A member of the armed forces shall be liable to the United States for damage to any family housing unit or unaccompanied personnel housing unit, or damage to or loss of any equipment or furnishings of any family housing unit or unaccompanied personnel housing unit, assigned to or provided such member if (as determined under regulations prescribed by the Secretary of Defense or the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy) the damage or loss was caused by the abuse or negligence of the member (or a dependent of the member) or of a guest of the member (or a dependent of the member).
(2) A member of the armed forces—
(A) who is assigned or provided a family housing unit; and
(B) who fails to clean satisfactorily that housing unit (as determined under regulations prescribed by the Secretary of Defense or the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy) upon termination of the assignment or provision of that housing unit,
shall be liable to the United States for the cost of cleaning made necessary as a result of that failure.
(b) The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, may establish limitations on liability under this section, including (in the case of liability under subsection (a)(1)) different limitations based upon the degree of abuse or negligence involved, and may compromise or waive a claim of the United States under this section.
(c)(1) The Secretary concerned may deduct from a member's pay an amount sufficient to pay for the cost of any repair or replacement made necessary as the result of any abuse or negligence referred to in subsection (a)(1), or the cost of any cleaning made necessary by a failure to clean satisfactorily a family housing unit referred to in subsection (a)(2), for which the member is liable. Regulations implementing this section may also provide for the collection of amounts owed under this section by any other authorized means.
(2) The final determination of an amount to be deducted from the pay of an officer of an armed force in accordance with regulations prescribed under this section shall be deemed to be a special order authorizing such deduction for the purposes of section 1007 of title 37.
(d) Amounts received under this section shall be credited to the family housing operations and maintenance account, in the case of damage to a family housing unit (or the equipment or furnishings of a family housing unit) or failure to clean satisfactorily a family housing unit, or to the operations and maintenance account, in the case of damage to an unaccompanied personnel housing unit (or the equipment or furnishings of an unaccompanied personnel housing unit), of the military department or defense agency concerned, or the operating expenses account of the Coast Guard, as appropriate. Amounts so credited shall be available for use for the same purposes and under the same circumstances as other funds in those accounts.
(e) The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, shall prescribe regulations to carry out this section. Such regulations shall include—
(1) regulations for determining the cost of repairs and replacements made necessary as the result of abuse or negligence for which a member is liable under subsection (a)(1);
(2) regulations for determining the cost of cleaning made necessary as a result of the failure to clean satisfactorily for which a member is liable under subsection (a)(2); and
(3) provisions for limitations of liability, the compromise or waiver of claims, and the collection of amounts owed under this section.
(Added Pub. L. 96–418, title V, §506(a), Oct. 10, 1980, 94 Stat. 1765; amended Pub. L. 97–214, §10(a)(6), July 12, 1982, 96 Stat. 175; Pub. L. 98–407, title VIII, §801(a)(1), Aug. 28, 1984, 98 Stat. 1517; Pub. L. 99–167, title VIII, §802(a)–(d)(1), Dec. 3, 1985, 99 Stat. 986; Pub. L. 99–661, div. A, title XIII, §1343(a)(19), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)
2002—Subsecs. (a)(1), (2)(B), (b), (e). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
1986—Subsec. (a)(1). Pub. L. 99–661, §1343(a)(19)(A), substituted “(as determined under regulations prescribed by the Secretary of Defense or the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy) the” for “it is determined, under regulations prescribed by the Secretary of Defense and the Secretary of Transportation when the Coast Guard is not operating as a service in the Navy, that the”.
Subsec. (b). Pub. L. 99–661, §1343(a)(19)(B), inserted a comma after “Secretary of Defense”, substituted “with respect to the Coast Guard when it” for “when the Coast Guard”, and inserted a comma after “Navy”.
Subsec. (e). Pub. L. 99–661, §1343(a)(19)(C), substituted “with respect to the Coast Guard when it” for “when the Coast Guard”.
1985—Pub. L. 99–167, §802(d)(1), substituted “assigned to military housing” for “for damage to housing and related equipment and furnishings” in section catchline.
Subsec. (a). Pub. L. 99–167, §802(a), (b)(1), designated existing provisions as par. (1), and in par. (1) as so designated, inserted “and the Secretary of Transportation when the Coast Guard is not operating as a service in the Navy”, and added par. (2).
Subsec. (b). Pub. L. 99–167, §802(b)(1), (c)(1), inserted “and the Secretary of Transportation when the Coast Guard is not operating as a service in the Navy” and “(in the case of liability under subsection (a)(1))”.
Subsec. (c)(1). Pub. L. 99–167, §802(c)(2), substituted “subsection (a)(1), or the cost of any cleaning made necessary by a failure to clean satisfactorily a family housing unit referred to in subsection (a)(2),” for “subsection (a)”.
Subsec. (d). Pub. L. 99–167, §802(b)(2), (c)(3), inserted “or failure to clean satisfactorily a family housing unit” and “, or the operating expenses account of the Coast Guard, as appropriate”.
Subsec. (e). Pub. L. 99–167, §802(c)(4), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: “The Secretary of Defense shall prescribe regulations to carry out the provisions of this section, including (1) regulations for determining the cost of repairs and replacements made necessary as the result of abuse or negligence referred to in subsection (a), and (2) regulations providing for limitations of liability, the compromise or waiver of claims, and the collection of amounts owed under this section.”
1984—Pub. L. 98–407 substituted “Liability of members for damage to housing and related equipment and furnishings” for “Liability of member for damages to family housing, equipment, and furnishings” in section catchline.
Subsec. (a). Pub. L. 98–407 amended subsec. (a) generally, inserting references to unaccompanied personnel housing units, and expanding liability of members of the Armed Forces to include damages caused by the abuse or negligence of a guest of the member or of a dependent of the member.
Subsec. (b). Pub. L. 98–407 added subsec. (b). Former subsec. (b) redesignated (c).
Subsec. (c). Pub. L. 98–407 redesignated former subsec. (b) as (c), in subsec. (c)(1) as so redesignated substituted reference to any abuse or negligence for which the member is liable for reference to any abuse or negligence on the part of such member or any dependent of such member, inserted provision that regulations implementing this section may also provide for the collection of amounts owed under this section by any other authorized means, and in subsec. (c)(2), as so redesignated, substituted reference to regulations prescribed under this section for reference to regulations issued under this section. Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 98–407 redesignated former subsec. (c) as (d) and substituted provisions requiring that amounts received under this section be credited either to the family housing operations and maintenance account of the department or agency concerned, (in the case of damage to family housing or equipment or furnishings therein) or the operations and maintenance account of the department or agency concerned (in the case of damage to an unaccompanied personnel housing unit or equipment or furnishings therein) for provisions that amounts deducted from members’ pay under this section had to be credited to the Department of Defense Military Family Housing Management Account provided for in section 2831 of this title. Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 98–407 redesignated former subsec. (d) as (e)(1), substituted reference to abuse or negligence referred to in subsec. (a) for reference to abuse or negligence on the part of a member or dependent of a member, and added par. (2).
1982—Subsec. (c). Pub. L. 97–214, §10(a)(6), substituted “Military Family Housing Management Account provided for in section 2831 of this title” for “family housing management account established under section 501 of Public Law 87–554 (76 Stat. 236; 42 U.S.C. 1594a–1)”.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 97–214 effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as an Effective Date note under section 2801 of this title.
Section effective Oct. 1, 1980, see section 608 of title VI of Pub. L. 96–418, set out as an Effective Date of 1980 Amendment note under section 2675 of this title.
Section 801(b) of Pub. L. 98–407 provided that:
“(1) Regulations shall be prescribed under subsection (e) of section 2775 of title 10, United States Code, as amended by subsection (a), not later than 180 days after the date of the enactment of this Act [Aug. 28, 1984]. That section shall apply with respect to the liability of a member under such section for damage or loss to an unaccompanied personnel housing unit (or the equipment or furnishings of an unaccompanied personnel housing unit) or for damage or loss caused by a guest of the member or of a dependent of the member to a family housing unit (or the equipment or furnishings of a family housing unit) only in the case of damage or loss caused on or after the date that such regulations take effect.
“(2) The authority of the Secretary of Defense under subsection (b) of such section is applicable to any claim of the United States under such section, whether such claim arose before, on, or after the date of the enactment of this Act [Aug. 28, 1984].”
Without deposit to the credit of the Secretary of the Treasury and without withdrawal on money requisitions, a disbursing official of the Department of Defense may use receipts of public money charged in the disbursing official's accounts (except receipts to be credited to river, harbor, and flood control appropriations) for current expenditures, with necessary bookkeeping adjustments being made.
(Added Pub. L. 97–258, §2(b)(8)(B), Sept. 13, 1982, 96 Stat. 1055.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2776 | 31:493a. | Aug. 1, 1953, ch. 305, §611, 67 Stat. 350. |
The words “disbursing official” are substituted for “officer . . . on disbursing duty” for consistency with other titles of the United States Code. The words “On and after August 1, 1953” are omitted as executed. The words “Secretary of the Treasury” are substituted for “Treasury of the United States” because of section 1(a) of Reorganization Plan No. 26 of 1950 (eff. July 31, 1950, 64 Stat. 1280), restated in section 321 of the revised title contained in section 1 of the bill. The words “from sales or other sources” are omitted as surplus. The words “with” and “being” are added because of the restatement. The words “of appropriations, funds, and accounts to be . . . in the settlement of their disbursing accounts” are omitted as unnecessary.
Act Aug. 1, 1953, cited as the source of this section in the Historical and Revision Notes above, is known as the Department of Defense Appropriation Act, 1954. Similar provisions were contained in the following appropriation acts:
July 10, 1952, ch. 630, title VI, §613, 66 Stat. 532.
Oct. 18, 1951, ch. 512, title VI, §613, 65 Stat. 446.
Sept. 6, 1950, ch. 896, Ch. X, title VI, §615, 64 Stat. 753.
Oct. 29, 1949, ch. 787, title VI, §618, 63 Stat. 1020.
June 24, 1948, ch. 632, 62 Stat. 651.
July 30, 1947, ch. 357, title I, §1, 61 Stat. 551.
July 16, 1946, ch. 583, §1, 60 Stat. 543.
July 3, 1945, ch. 265, §1, 59 Stat. 386.
June 28, 1944, ch. 303, §1, 58 Stat. 575.
July 1, 1943, ch. 185, §1, 57 Stat. 349.
July 2, 1942, ch. 477, §1, 56 Stat. 613.
June 30, 1941, ch. 262, §1, 55 Stat. 369.
June 13, 1940, ch. 343, §1, 54 Stat. 355.
Apr. 26, 1939, ch. 88, §1, 53 Stat. 597.
June 11, 1938, ch. 347, §1, 52 Stat. 646.
July 1, 1937, ch. 423, §1, 50 Stat. 446.
(a) The Secretary of a military department may issue to a disbursing official or agent of the department a requisition for an advance of not more than the total appropriation for the department. The amount advanced shall be—
(1) under an “account of advances” for the department;
(2) on a proper voucher;
(3) only for obligations payable under specific appropriations;
(4) charged to, and within the limits of, each specific appropriation; and
(5) returned to the account of advances.
(b) A charge outstanding in an account of advances of a military department shall be removed by crediting the account of advances of the department and deducting the amount of the charge from an appropriation made available for advances to the department when—
(1) relief has been granted or may be granted later to a disbursing official or agent of the department operating under an account of advances and under a law having no provision for removing charges outstanding in an account of advances; or
(2) the charge has been—
(A) outstanding in the account of advances of the department for 2 complete fiscal years; and
(B) certified by the head of the department as uncollectable.
(c) Subsection (b) does not affect the financial liability of a disbursing official or agent.
(Added Pub. L. 97–258, §2(b)(8)(B), Sept. 13, 1982, 96 Stat. 1055; amended Pub. L. 98–525, title XIV, §1405(43), Oct. 19, 1984, 98 Stat. 2625; Pub. L. 104–316, title I, §105(c), Oct. 19, 1996, 110 Stat. 3830.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2777(a) | 31:536, 537. | June 5, 1920, ch. 240 (1st, 2d pars. under heading “Advances to Disbursing Officers”), 41 Stat. 975. |
| 31:539, 540. | June 19, 1878, ch. 312, §§1, 2, 20 Stat. 167. | |
| 2777(b), (c) | 31:95b (related to Army, Navy, Air Force). | June 4, 1954, ch. 264, §1 (related to Army, Navy, Air Force), 68 Stat. 175; June 6, 1972, Pub. L. 92–310, §231(gg), 86 Stat. 213. |
In the section, the words “disbursing official” are substituted for “disbursing officers” for consistency with other titles of the United States Code.
In subsection (a), before clause (1), the words “Secretary of a military department” are substituted for “Secretary of the Army” in 31:536 and for “Secretary of the Navy” in 31:539 because of 10:101(7). The title of Secretary of War was changed to Secretary of the Army by section 205(a) of the Act of July 26, 1947 (ch. 343, 61 Stat. 501), and by sections 1 and 53 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 157, 676). The Secretary of the Air Force is included because of sections 205(a) and 207(a) and (f) of the Act of July 26, 1947 (ch. 343, 61 Stat. 501, 502), and section 1 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 488). In clause (1), the word “General” in 31:539 is omitted as surplus. In clause (3), the words “and ‘Pay of the Navy’ shall be used only for its legitimate purpose, as provided by law” are omitted as unnecessary. In clause (5), the words “by pay and counterwarrant” in 31:537 and 540 are omitted as unnecessary.
In subsection (b), before clause (1), the word “appropriate” is omitted as surplus. The words “deducting the amount of the charge from” are substituted for “debiting” for clarity. In clause (2)(B), the word “concerned” is omitted as surplus.
In subsection (c), the words “in any way” and “of the United States” are omitted as surplus.
1996—Subsec. (b)(2)(B). Pub. L. 104–316 struck out “to the Comptroller General” after “head of the department”.
1984—Subsec. (c). Pub. L. 98–525 struck out “of this section” after “Subsection (b)”.
Section, added Pub. L. 97–258, §2(b)(8)(B), Sept. 13, 1982, 96 Stat. 1055, related to management of accounts of military departments by Comptroller General.
(a)
(A) when the funds are not needed to pay obligations incurred because of fluctuations in currency exchange rates of foreign countries in the appropriation to which the funds were originally transferred; and
(B) because of subsequent favorable fluctuations in the rates or because other funds are, or become, available to pay the obligations.
(2) A transfer back to the Foreign Currency Fluctuations, Defense appropriation may not be made after the end of the second fiscal year after the fiscal year that the appropriation to which the funds were originally transferred is available for obligation.
(b)
(2) Funds provided under this subsection are merged with and are available for the same purpose and for the same time period as the appropriation to which they are applied. An authorization or limitation limiting the amount that may be obligated or spent is increased to the extent necessary to reflect fluctuations in exchange rates from those used in preparing the budget submission.
(3) An obligation payable in the currency of a foreign country may be recorded as an obligation based on exchange rates used in preparing a budget submission. A change reflecting fluctuations in the exchange rate may be recorded as a disbursement is made.
(c)
(d)
(2) Any transfer from an appropriation under paragraph (1) shall be made not later than the end of the second fiscal year following the fiscal year for which the appropriation is provided.
(3) Any transfer made pursuant to the authority provided in this subsection shall be limited so that the amount in the appropriation “Foreign Currency Fluctuations, Defense” does not exceed $970,000,000 at the time the transfer is made.
(e)
(Added Pub. L. 97–258, §2(b)(8)(B), Sept. 13, 1982, 96 Stat. 1056; amended Pub. L. 101–510, div. A, title XIII, §1301(15), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 104–106, div. A, title IX, §911(a)–(c), (e), Feb. 10, 1996, 110 Stat. 406, 407.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2779(a) | 31:628–2. | July 25, 1979, Pub. L. 96–38, §100 (last par. under heading “General Provisions”), 93 Stat. 100. |
| 2779(b) | 31:628–3. | Nov. 30, 1979, Pub. L. 96–130, §100 (par. under heading “Foreign Currency Fluctuation, Construction, Defense”), 93 Stat. 1019. |
In subsection (a)(1), before clause (A), the words “during the current fiscal year or on and after July 25, 1979” are omitted as executed. The words “from an appropriation to which they were transferred” are omitted as surplus. In clause (A), the words “of foreign countries” are added for consistency.
In subsection (a)(2), the words “back to the Foreign Currency Fluctuations, Defense appropriation” are substituted for “authorized by this provision” for clarity.
In subsection (b)(1), the words “the sum of”, “which shall be derived”, and “to appropriations and funds” are omitted as surplus. The word “only” is added for clarity. The words “for those appropriations or funds” are omitted as surplus. The words “available during fiscal year 1980, or thereafter” are omitted as executed. The words “Department of Defense” are substituted for “military departments and Defense agencies” because of 10:101(5).
In subsection (b)(2), the words “or fund” are omitted as surplus. The words “now or on and after November 30, 1979” are omitted as executed. The words “contained within appropriations or other provisions of law”, “hereby”, and “applicable” are omitted as surplus.
In subsection (b)(3), the words “contracts or other . . . entered into” are omitted as surplus.
Provisions similar to those in subsec. (d) of this section were contained in Pub. L. 97–377, title I, §101(c) [title VII, §791], Dec. 21, 1982, 96 Stat. 1865, which was set out as a note under section 114 of this title, prior to repeal by Pub. L. 104–106, §911(d)(2).
1996—Subsec. (a). Pub. L. 104–106, §911(e)(1), inserted heading.
Subsec. (a)(2). Pub. L. 104–106, §911(e)(2), substituted “second fiscal year” for “2d fiscal year”.
Subsec. (b). Pub. L. 104–106, §911(e)(3), inserted heading.
Subsec. (c). Pub. L. 104–106, §911(a), added subsec. (c).
Subsec. (d). Pub. L. 104–106, §911(b), added subsec. (d).
Subsec. (e). Pub. L. 104–106, §911(c), added subsec. (e).
1990—Subsec. (b)(4). Pub. L. 101–510 struck out par. (4) which read as follows: “The Secretary each year shall report to Congress on funds made available under this subsection.”
Section 911(f) of Pub. L. 104–106 provided that: “Subsections (c) and (d) of section 2779 of title 10, United States Code, as added by subsections (a) and (b), and the repeals made by subsection (d) [repealing provisions set out as a note under section 114 of this title], shall apply only with respect to amounts appropriated for a fiscal year after fiscal year 1995.”
(a)(1) Subject to paragraph (2), the Secretary of Defense shall enter into one or more contracts with a person for collection services to recover indebtedness owed to the United States (arising out of activities related to Department of Defense) that is delinquent by more than three months.
(2) The authority of the Secretary to enter into a contract under this section for any fiscal year is subject to the availability of appropriations.
(3) Any such contract shall provide that the person submit to the Secretary a status report on the person's success in collecting such debts at least once each six months. Section 3718 of title 31 shall apply to any such contract, to the extent not inconsistent with this subsection.
(b)(1) Except as provided in paragraph (2), the Secretary of Defense shall disclose to consumer reporting agencies, in accordance with paragraph (1) of section 3711(e) of title 31, information concerning any debt described in subsection (a) of more than $100 that is delinquent by more than 31 days.
(2) No disclosure shall be made under paragraph (1) with respect to an indebtedness while a decision regarding waiver of collection of the indebtedness is pending under section 2774 of this title or section 716 of title 32, or while a decision regarding remission or cancellation of the indebtedness is pending under section 4837, 6161, or 9837 of this title, unless the Secretary concerned (as defined in section 101(5) of title 37) determines that disclosure under that paragraph pending such decision is in the best interests of the United States.
(Added Pub. L. 99–661, div. A, title XIII, §1309(a), Nov. 14, 1986, 100 Stat. 3982; amended Pub. L. 104–316, title I, §115(g)(2)(C), Oct. 19, 1996, 110 Stat. 3835; Pub. L. 109–364, div. A, title VI, §672(a), Oct. 17, 2006, 120 Stat. 2270.)
2006—Subsec. (b). Pub. L. 109–364 designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), the Secretary of Defense” for “The Secretary”, and added par. (2).
1996—Subsec. (b). Pub. L. 104–316 substituted “section 3711(e)” for “section 3711(f)”.
Pub. L. 109–364, div. A, title VI, §672(b), Oct. 17, 2006, 120 Stat. 2270, provided that:
“(1)
“(2)
Pub. L. 101–165, title IX, §9019, Nov. 21, 1989, 103 Stat. 1133, provided that: “During the current fiscal year and hereafter, the Department of Defense may enter into contracts to recover indebtedness to the United States pursuant to section 3718 of title 31, United States Code.”
Amounts appropriated to the Department of Defense may be used for—
(1) exchange fees; and
(2) losses in the accounts of disbursing officials and agents in accordance with law.
(Added Pub. L. 100–370, §1(m)(1), July 19, 1988, 102 Stat. 849.)
Section is based on Pub. L. 99–190, §101(b) [title VIII, §8006(c)], Dec. 19, 1985, 99 Stat. 1185, 1203.
Except as provided in section 2775 of this title, amounts recovered for damage caused to real property under the jurisdiction of the Secretary of a military department or, with respect to the Defense Agencies, under the jurisdiction of the Secretary of Defense shall be credited to the account available for the repair or replacement of the real property at the time of recovery. In such amounts as are provided in advance in appropriation Acts, amounts so credited shall be available for use for the same purposes and under the same circumstances as other funds in the account.
(Added Pub. L. 104–106, div. B, title XXVIII, §2821(a), Feb. 10, 1996, 110 Stat. 556.)
A prior section 2782, added Pub. L. 101–189, div. A, title XVI, §1603(a)(1), Nov. 29, 1989, 103 Stat. 1597, related to limits on restoration of unobligated balances withdrawn from availability for obligation, prior to repeal by Pub. L. 101–510, div. A, title XIV, §1405(c)(1), Nov. 5, 1990, 104 Stat. 1680.
(a)
(1) the purposes for which nonappropriated funds of a nonappropriated fund instrumentality of the United States within the Department of Defense may be expended; and
(2) the financial management of such funds to prevent waste, loss, or unauthorized use.
(b)
(2) The Secretary shall provide in regulations that a violation of the regulations prescribed under subsection (a) by a person subject to chapter 47 of this title (the Uniform Code of Military Justice) is punishable as a violation of section 892 of this title (article 92 of the Uniform Code of Military Justice).
(c)
(A) a violation by another person of any law, rule, or regulation regarding the management of such funds; or
(B) other mismanagement or gross waste of such funds.
(2) The Secretary of Defense shall designate civilian employees of the Department of Defense or members of the armed forces to receive a notification described in paragraph (1) and ensure the prompt investigation of the validity of information provided in the notification.
(3) The Secretary shall prescribe regulations to protect the confidentiality of a person making a notification under paragraph (1).
(Added Pub. L. 102–484, div. A, title III, §362(a), Oct. 23, 1992, 106 Stat. 2379, §2490a; renumbered §2783 and amended Pub. L. 103–160, div. A, title XI, §1182(a)(8)(A), Nov. 30, 1993, 107 Stat. 1771.)
1993—Pub. L. 103–160 renumbered section 2490a of this title as this section.
Subsec. (b)(2). Pub. L. 103–160, §1182(a)(8)(A)(i), substituted “chapter 47 of this title” for “chapter 47 of title 10, United States Code”, “Justice) is” for “Justice), is”, and “section 892 of this title” for “section 892 of such title”.
Subsec. (c)(1). Pub. L. 103–160, §1182(a)(8)(A)(ii), substituted “armed forces” for “Armed Forces”.
Section 361 of Pub. L. 102–484 provided that:
“(a)
“(1) Accounting (including account titles and item descriptions).
“(2) Financial reporting formats.
“(3) Automatic data processing and telecommunications data in order to facilitate the transfer of information among military exchanges.
“(b)
“(c)
(a)
(b)
(1) That there is a record in the Department of Defense of each holder of a purchase card issued by the Department of Defense for official use, annotated with the limitations on amounts that are applicable to the use of each such card by that purchase card holder.
(2) That the holder of a purchase card and each official with authority to authorize expenditures charged to the purchase card are responsible for—
(A) reconciling the charges appearing on each statement of account for that purchase card with receipts and other supporting documentation; and
(B) forwarding that statement after being so reconciled to the designated disbursing office in a timely manner.
(3) That any disputed purchase card charge, and any discrepancy between a receipt and other supporting documentation and the purchase card statement of account, is resolved in the manner prescribed in the applicable Government-wide purchase card contract entered into by the Administrator of General Services.
(4) That payments on purchase card accounts are made promptly within prescribed deadlines to avoid interest penalties.
(5) That rebates and refunds based on prompt payment on purchase card accounts are properly recorded.
(6) That records of each purchase card transaction (including records on associated contracts, reports, accounts, and invoices) are retained in accordance with standard Government policies on the disposition of records.
(7) That periodic reviews are performed to determine whether each purchase card holder has a need for the purchase card.
(8) That the Inspector General of the Department of Defense, the Inspector General of the Army, the Naval Inspector General, and the Inspector General of the Air Force perform periodic audits to identify—
(A) potentially fraudulent, improper, and abusive uses of purchase cards;
(B) any patterns of improper card holder transactions, such as purchases of prohibited items; and
(C) categories of purchases that should be made by means other than purchase cards in order to better aggregate purchases and obtain lower prices.
(9) That appropriate training is provided to each purchase card holder and each official with responsibility for overseeing the use of purchase cards issued by the Department of Defense.
(10) That the Department of Defense has specific policies regarding the number of purchase cards issued by various organizations and categories of organizations, the credit limits authorized for various categories of card holders, and categories of employees eligible to be issued purchase cards, and that those policies are designed to minimize the financial risk to the Federal Government of the issuance of the purchase cards and to ensure the integrity of purchase card holders.
(c)
(1) provide—
(A) for the reimbursement of charges for unauthorized or erroneous purchases, in appropriate cases; and
(B) for appropriate adverse personnel actions or other punishment to be imposed in cases in which employees of the Department of Defense violate such regulations or are negligent or engage in misuse, abuse, or fraud with respect to a purchase card, including removal in appropriate cases; and
(2) provide that a violation of such regulations by a person subject to chapter 47 of this title (the Uniform Code of Military Justice) is punishable as a violation of section 892 of this title (article 92 of the Uniform Code of Military Justice).
(Added Pub. L. 106–65, div. A, title IX, §933(a)(1), Oct. 5, 1999, 113 Stat. 728; amended Pub. L. 107–314, div. A, title X, §1007(a), (b)(1), Dec. 2, 2002, 116 Stat. 2633, 2634; Pub. L. 110–417, [div. A], title X, §1003(a), Oct. 14, 2008, 122 Stat. 4582.)
2008—Subsec. (c)(1). Pub. L. 110–417 substituted “provide—” for “provide”, added subpar. (A), and substituted “(B) for” for “for”.
2002—Pub. L. 107–314, §1007(b)(1)(A), substituted “purchase” for “credit” in section catchline.
Subsec. (a). Pub. L. 107–314, §1007(a)(1), (b)(1)(B), (C), substituted “Purchase” for “Credit” in heading and “purchase” for “credit” in two places in text and struck out “, acting through the Under Secretary of Defense (Comptroller),” after “Secretary of Defense”.
Subsec. (b)(1) to (6). Pub. L. 107–314, §1007(b)(1)(C), substituted “purchase” for “credit” wherever appearing.
Subsec. (b)(7) to (10). Pub. L. 107–314, §1007(a)(2), added pars. (7) to (10).
Subsec. (c). Pub. L. 107–314, §1007(a)(2), added subsec. (c).
Pub. L. 106–65, div. A, title IX, §933(b)(1), Oct. 5, 1999, 113 Stat. 730, provided that: “Regulations under section 2784 of title 10, United States Code, as added by subsection (a), shall be prescribed not later than 180 days after the date of the enactment of this Act [Oct. 5, 1999].”
Pub. L. 110–116, div. A, title VIII, §8067, Nov. 13, 2007, 121 Stat. 1329, provided that: “Beginning in the current fiscal year and hereafter, refunds attributable to the use of the Government travel card, refunds attributable to the use of the Government Purchase Card and refunds attributable to official Government travel arranged by Government Contracted Travel Management Centers may be credited to operation and maintenance, and research, development, test and evaluation accounts of the Department of Defense which are current when the refunds are received.”
Pub. L. 107–248, title VIII, §8149, Oct. 23, 2002, 116 Stat. 1572, as amended by Pub. L. 108–87, title VIII, §8144, Sept. 30, 2003, 117 Stat. 1108, provided that:
“(a)
“(b)
“(2) An individual may not be issued a government purchase charge card or government travel charge card if the individual is found not credit worthy as a result of the evaluation under paragraph (1).
“(3) This subsection shall remain in effect for fiscal year 2004.
“(c)
“(2) The guidelines and procedures under this subsection shall include appropriate disciplinary actions for use of charge cards for purposes, and at establishments, that are inconsistent with the official business of the Department or with applicable standards of conduct.
“(3) The disciplinary actions under this subsection may include—
“(A) the review of the security clearance of the individual involved; and
“(B) the modification or revocation of such security clearance in light of the review.
“(4) The guidelines and procedures under this subsection shall apply uniformly among the Armed Forces and among the elements of the Department.
“(d)
(a)
(2) The Secretary of Defense may waive the requirement for a direct payment to a travel card issuer under paragraph (1) in any case the Secretary determines appropriate.
(3) For the purposes of this subsection, the travel and transportation allowances referred to in paragraph (1) are amounts to which an employee of the Department of Defense is entitled under section 5702 of title 5 or a member of the armed forces is entitled under section 404 of title 37.
(b)
(A) is delinquent in the payment of such amount under the terms of the contract under which the card is issued; and
(B) does not dispute the amount of the delinquency.
(2) The amount deducted and withheld from pay under paragraph (1) with respect to a debt owed a creditor as described in that paragraph shall be disbursed to the creditor to reduce the amount of the debt.
(3) The amount of pay deducted and withheld from the pay owed to an employee or member with respect to a pay period under paragraph (1) may not exceed 15 percent of the disposable pay of the employee or member for that pay period, except that a higher amount may be deducted and withheld with the written consent of the employee or member.
(4) The Secretary of Defense shall prescribe procedures for deducting and withholding amounts from pay under this subsection. The procedures shall be substantially equivalent to the procedures under section 3716 of title 31.
(c)
(d)
(2) An individual may not be issued a Defense travel card if the individual is found not creditworthy as a result of the evaluation required under paragraph (1).
(e)
(2) The regulations prescribed under paragraph (1) shall—
(A) provide for appropriate adverse personnel actions or other punishment to be imposed in cases in which employees of the Department of Defense violate such regulations or are negligent or engage in misuse, abuse, or fraud with respect to a Defense travel card, including removal in appropriate cases; and
(B) provide that a violation of such regulations by a person subject to chapter 47 of this title (the Uniform Code of Military Justice) is punishable as a violation of section 892 of this title (article 92 of the Uniform Code of Military Justice).
(f)
(1) The term “Defense travel card” means a charge or credit card that—
(A) is issued to an employee of the Department of Defense or a member of the armed forces under a contract entered into by the Department of Defense with the issuer of the card; and
(B) is to be used for charging expenses incurred by the employee or member in connection with official travel.
(2) The term “disposable pay”, with respect to a pay period, means the amount equal to the excess of the amount of basic pay or retired pay, as the case may be, payable for the pay period over the total of the amounts deducted and withheld from such pay.
(3) The term “retired pay” means—
(A) in the case of a former employee of the Department of Defense, any retirement benefit payable to that individual, out of the Civil Service Retirement and Disability Fund, based (in whole or in part) on service performed by such individual as a civilian employee of the Department of Defense; and
(B) in the case of a retired member of the armed forces or member of the Fleet Reserve or Fleet Marine Corps Reserve, retired or retainer pay to which the member is entitled.
(g)
(Added Pub. L. 107–314, div. A, title X, §1008(a), Dec. 2, 2002, 116 Stat. 2634; amended Pub. L. 108–136, div. A, title X, §1009(a)–(c)(1), Nov. 24, 2003, 117 Stat. 1587, 1588; Pub. L. 109–364, div. A, title X, §1071(a)(25), Oct. 17, 2006, 120 Stat. 2399.)
2006—Subsec. (a)(2). Pub. L. 109–364 substituted “card” for “care”.
2003—Subsec. (a)(1). Pub. L. 108–136, §1009(a)(1), substituted “The Secretary of Defense shall require” for “The Secretary of Defense may require”.
Subsec. (a)(2), (3). Pub. L. 108–136, §1009(a)(2), (3), added par. (2) and redesignated former par. (2) as (3).
Subsecs. (d) to (g). Pub. L. 108–136, §1009(b), (c)(1), added subsecs. (d) and (e) and redesignated former subsecs. (d) and (e) as (f) and (g), respectively.
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
The Secretary of Defense, acting through the Under Secretary of Defense (Comptroller), shall prescribe regulations setting forth controls on alteration of remittance addresses. Those regulations shall ensure that—
(1) a remittance address for a disbursement that is provided by an officer or employee of the Department of Defense authorizing or requesting the disbursement is not altered by any officer or employee of the department authorized to prepare the disbursement; and
(2) a remittance address for a disbursement is altered only if the alteration—
(A) is requested by the person to whom the disbursement is authorized to be remitted; and
(B) is made by an officer or employee authorized to do so who is not an officer or employee referred to in paragraph (1).
(Added Pub. L. 106–65, div. A, title IX, §933(a)(1), Oct. 5, 1999, 113 Stat. 729.)
Pub. L. 106–65, div. A, title IX, §933(b)(2), Oct. 5, 1999, 113 Stat. 730, provided that: “Regulations under section 2785 of title 10, United States Code, as added by subsection (a), shall be prescribed not later than 180 days after the date of the enactment of this Act [Oct. 5, 1999].”
With respect to any Federal payment of funds covered by section 3332(f) of title 31 (relating to electronic funds transfers) for which payment is made or authorized by the Department of Defense, the waiver authority provided in paragraph (2)(A)(i) of that section shall be exercised by the Secretary of Defense. The Secretary of Defense shall carry out the authority provided under the preceding sentence in consultation with the Secretary of the Treasury.
(Added Pub. L. 106–65, div. A, title X, §1008(a)(1), Oct. 5, 1999, 113 Stat. 737.)
Pub. L. 106–65, div. A, title X, §1008(a)(3), Oct. 5, 1999, 113 Stat. 738, provided that: “Any waiver in effect on the date of the enactment of this Act [Oct. 5, 1999] under paragraph (2)(A)(i) of section 3332(f) of title 31, United States Code, shall remain in effect until otherwise provided by the Secretary of Defense under section 2786 of title 10, United States Code, as added by paragraph (1).”
(a)
(b)
(2) An action holding a person pecuniarily liable for loss, spoilage, destruction, or damage is not final until approved by a person designated to do so by the Secretary of a military department, commander of a combatant command, or Director of a Defense Agency, as the case may be, who has jurisdiction of the person held pecuniarily liable. The person designated to provide final approval shall be an officer of an armed force, or a civilian employee, under the jurisdiction of the official making the designation.
(c)
(Added Pub. L. 107–314, div. A, title X, §1006(a)(1), Dec. 2, 2002, 116 Stat. 2632.)
Pub. L. 107–314, div. A, title X, §1006(d), Dec. 2, 2002, 116 Stat. 2633, provided that: “The amendments made by this section [enacting this section, amending section 1007 of Title 37, Pay and Allowances of the Uniformed Services, and repealing sections 4835 and 9835 of this title] shall apply with respect to the loss, spoilage, unserviceability, unsuitability, or destruction of, or damage to, property of the United States under the control of the Department of Defense occurring on or after the effective date of regulations prescribed pursuant to section 2787 of title 10, United States Code, as added by subsection (a).”
The Secretary of a military department may prescribe regulations for the accounting for the property of that department and the fixing of responsibility for that property.
(Added Pub. L. 110–181, div. A, title III, §375(a), Jan. 28, 2008, 122 Stat. 83.)
(a)
(b)
(c)
(Added Pub. L. 110–181, div. A, title III, §375(a), Jan. 28, 2008, 122 Stat. 83.)
(a)
(b)
(c)
(1) pursuant to—
(A) a warrant issued by the district court of the United States for the district in which the property is located, or for the district in which the person in possession of the property resides or is subject to service; or
(B) pursuant to an order by such court, issued after a determination of improper transfer under subsection (e); and
(2) after such a court has issued such a warrant or order.
(d)
(1) property on public display by public or private collectors or museums in secured exhibits; or
(2) property in the collection of any museum or veterans organization or held in a private collection for the purpose of public display, provided that any such property, the possession of which could undermine national security or create a hazard to public health or safety, has been fully demilitarized.
(e)
(2) Except as provided in paragraph (3), in the case of property, the possession of which could undermine national security or create a hazard to public health or safety, the determination under paragraph (1) may be made after the seizure of the property, as long as the United States files an action seeking such determination within 90 days after seizure of the property. If the person from whom the property is seized is found to have been lawfully in possession of the property and the return of the property could undermine national security or create a hazard to public health or safety, the Secretary of Defense shall reimburse the person for the market value for the property.
(3) Paragraph (2) shall not apply to any firearm, ammunition, or ammunition component, or firearm part or accessory that is not prohibited for commercial sale.
(f)
(g)
(1) Any military or Department of Defense property disposed of on or after the date of the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 in a manner that is not in accordance with statutes and regulations governing Government property in effect at the time of the disposal of such property.
(2) Any significant military equipment disposed of on or after January 1, 2002, in a manner that is not in accordance with statutes and regulations governing Government property in effect at the time of the disposal of such significant military equipment.
(h)
(i)
(1) The term “significant military equipment” means defense articles on the United States Munitions List for which special export controls are warranted because of their capacity for substantial military utility or capability.
(2) The term “museum” has the meaning given that term in section 273(1) of the Museum Services Act (20 U.S.C. 9172(1)).
(3) The term “fully demilitarized” means, with respect to equipment or material, the destruction of the military offensive or defensive advantages inherent in the equipment or material, including, at a minimum, the destruction or disabling of key points of such equipment or material, such as the fuselage, tail assembly, wing spar, armor, radar and radomes, armament and armament provisions, operating systems and software, and classified items.
(4) The term “veterans organization” means any organization recognized by the Secretary of Veterans Affairs for the representation of veterans under section 5902 of title 38.
(Added Pub. L. 111–383, div. A, title III, §355(a), Jan. 7, 2011, 124 Stat. 4195.)
The date of the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, referred to in subsec. (g)(1), is the date of enactment of Pub. L. 111–383, which was approved Jan. 7, 2011.
Section, added Pub. L. 97–295, §1(50)(C), Oct. 12, 1982, 96 Stat. 1299, related to establishment and duties of Defense Mapping Agency.
Repeal effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as an Effective Date of 1996 Amendment note under section 193 of this title.
Section, added Pub. L. 103–337, div. A, title X, §1074(a), Oct. 5, 1994, 108 Stat. 2861, related to unauthorized use of Defense Mapping Agency name, initials, or seal.
Repeal effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as an Effective Date of 1996 Amendment note under section 193 of this title.
1996—Pub. L. 104–106, div. B, title XXVIII, §2801(a)(2), Feb. 10, 1996, 110 Stat. 551, added item for subchapter IV.
2002—Pub. L. 107–314, div. A, title III, §313(d)(2), Dec. 2, 2002, 116 Stat. 2508, struck out item 2810 “Construction projects for environmental response actions”.
2000—Pub. L. 106–398, §1 [div. B, title XXVIII, §2801(b)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–412, added item 2815.
1999—Pub. L. 106–65, div. B, title XXVIII, §2802(a)(2), Oct. 5, 1999, 113 Stat. 848, added item 2814.
1996—Pub. L. 104–201, div. B, title XXVIII, §2802(c)(2), Sept. 23, 1996, 110 Stat. 2787, substituted “Organizations Security Investment” for “Organization Infrastructure” in item 2806.
Pub. L. 104–106, div. A, title XV, §1503(a)(31), Feb. 10, 1996, 110 Stat. 512, inserted period at end of item 2811.
1994—Pub. L. 103–337, div. B, title XXVIII, §2801(b), Oct. 5, 1994, 108 Stat. 3050, substituted “Repair” for “Renovation” in item 2811.
1993—Pub. L. 103–160, div. B, title XXVIII, §2805(a)(2), Nov. 30, 1993, 107 Stat. 1887, added item 2813.
1991—Pub. L. 102–190, div. B, title XXVIII, §2805(a)(2), Dec. 5, 1991, 105 Stat. 1538, substituted “Long-term facilities contracts for certain activities and services” for “Test of long-term facilities contracts” in item 2809.
1989—Pub. L. 101–189, div. B, title XXVIII, §2809(b), Nov. 29, 1989, 103 Stat. 1650, added item 2812.
1987—Pub. L. 100–26, §7(e)(3), Apr. 21, 1987, 101 Stat. 281, redesignated item 2810 “Renovation of facilities” as item 2811.
1986—Pub. L. 99–661, div. A, title III, §315(b), Nov. 14, 1986, 100 Stat. 3854, added item 2810 “Renovation of facilities”.
Pub. L. 99–499, title II, §211(b)(2), Oct. 17, 1986, 100 Stat. 1726, added item 2810 “Construction projects for environmental response actions”.
1985—Pub. L. 99–167, title VIII, §811(b), Dec. 3, 1985, 99 Stat. 991, added item 2809.
(a) The term “military construction” as used in this chapter or any other provision of law includes any construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road (as described in section 210 of title 23).
(b) A military construction project includes all military construction work, or any contribution authorized by this chapter, necessary to produce a complete and usable facility or a complete and usable improvement to an existing facility (or to produce such portion of a complete and usable facility or improvement as is specifically authorized by law).
(c) In this chapter and chapter 173 of this title:
(1) The term “appropriate committees of Congress” means the congressional defense committees and, with respect to any project to be carried out by, or for the use of, an intelligence component of the Department of Defense, the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.
(2) The term “facility” means a building, structure, or other improvement to real property.
(3) The term “life-cycle cost-effective”, with respect to a project, product, or measure, means that the sum of the present values of investment costs, capital costs, installation costs, energy costs, operating costs, maintenance costs, and replacement costs, as estimated for the lifetime of the project, product, or measure, does not exceed the base case (current or standard) for the practice, product, or measure.
(4) The term “military installation” means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or, in the case of an activity in a foreign country, under the operational control of the Secretary of a military department or the Secretary of Defense, without regard to the duration of operational control.
(5) The term “Secretary concerned” includes the Secretary of Defense with respect to matters concerning the Defense Agencies.
(d) This chapter (other than sections 2830, 2835, and 2836 of this chapter) does not apply to the Coast Guard or to civil works projects of the Army Corps of Engineers.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 153; amended Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 100–180, div. A, title VI, §632(b)(1), title XII, §1231(15), div. B, subdiv. 3, title I, §2306(b), Dec. 4, 1987, 101 Stat. 1105, 1160, 1216; Pub. L. 102–484, div. A, title X, §1052(37), Oct. 23, 1992, 106 Stat. 2501; Pub. L. 102–496, title IV, §403(b), Oct. 24, 1992, 106 Stat. 3185; Pub. L. 104–106, div. A, title XV, §1502(a)(10), Feb. 10, 1996, 110 Stat. 503; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–136, div. A, title X, §1043(b)(16), div. B, title XXVIII, §2801, Nov. 24, 2003, 117 Stat. 1611, 1719; Pub. L. 109–163, div. A, title X, §1056(c)(9), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 109–364, div. B, title XXVIII, §2851(b)(4), Oct. 17, 2006, 120 Stat. 2495; Pub. L. 110–181, div. B, title XXVIII, §2802(b), Jan. 28, 2008, 122 Stat. 539; Pub. L. 110–417, div. B, title XXVIII, §2801(a), Oct. 14, 2008, 122 Stat. 4719.)
2008—Subsec. (a). Pub. L. 110–181 inserted “, or any acquisition of land or construction of a defense access road (as described in section 210 of title 23)” before period at end.
Subsec. (c). Pub. L. 110–417 added par. (3) and redesignated former pars. (4), (1), (2), and (3) as (1), (2), (4), and (5), respectively.
2006—Subsec. (c). Pub. L. 109–364 inserted “and chapter 173 of this title” after “this chapter” in introductory provisions.
Subsec. (d). Pub. L. 109–163 substituted “sections 2830, 2835, and 2836 of this chapter” for “sections 2830 and 2835”.
2003—Subsec. (a). Pub. L. 108–136, §2801(a), inserted before period at end “, whether to satisfy temporary or permanent requirements”.
Subsec. (c)(2). Pub. L. 108–136, §2801(b), inserted before period at end “, without regard to the duration of operational control”.
Subsec. (c)(4). Pub. L. 108–136, §1043(b)(16), substituted “the congressional defense committees” for “the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives”.
1999—Subsec. (c)(4). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1996—Subsec. (c)(4). Pub. L. 104–106 substituted “the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on National Security and the Committee on Appropriations of the” for “the Committees on Armed Services and on Appropriations of the Senate and”.
1992—Subsec. (c)(4). Pub. L. 102–496 inserted before period at end “and, with respect to any project to be carried out by, or for the use of, an intelligence component of the Department of Defense, the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate”.
Subsec. (d). Pub. L. 102–484 substituted “sections 2830 and 2835” for “sections 2828(g) and 2830”.
1987—Subsec. (c). Pub. L. 100–26 inserted “The term” after each par. designation and struck out uppercase letter of first word after first quotation marks in pars. (1), (2), and (4) and substituted lowercase letter.
Subsec. (c)(3). Pub. L. 100–180, §1231(15), substituted “Defense Agencies” for “defense agencies”.
Subsec. (d). Pub. L. 100–180, §2306(b), substituted “(other than sections 2828(g) and 2830)” for “(other than section 2830)”.
Pub. L. 100–180, §632(b)(1), inserted “(other than section 2830)” after “This chapter”.
Section 12 of Pub. L. 97–214 provided:
“(a) Except as provided in subsection (b), the amendments made by this Act [see Short Title of 1982 Amendment note below] shall take effect on October 1, 1982, and shall apply to military construction projects, and to construction and acquisition of military family housing, authorized before, on, or after such date.
“(b) The amendment made by section 4 [amending section 138(f)(1) [now 114(b)] of this title] shall apply with respect to funds appropriated for fiscal years beginning after September 30, 1983.”
Section 1 of Pub. L. 97–214 provided that: “This Act [see Tables for classification] may be cited as the ‘Military Construction Codification Act’.”
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
(a) The Secretary of Defense and the Secretaries of the military departments may carry out such military construction projects, land acquisitions, and defense access road projects (as described under section 210 of title 23) as are authorized by law.
(b) Authority provided by law to carry out a military construction project includes authority for—
(1) surveys and site preparation;
(2) acquisition, conversion, rehabilitation, and installation of facilities;
(3) acquisition and installation of equipment and appurtenances integral to the project;
(4) acquisition and installation of supporting facilities (including utilities) and appurtenances incident to the project; and
(5) planning, supervision, administration, and overhead incident to the project.
(c) In determining the scope of a proposed military construction project, the Secretary concerned shall submit to the President such recommendations as the Secretary considers to be appropriate regarding the incorporation and inclusion of life-cycle cost-effective practices as an element in the project documents submitted to Congress in connection with the budget submitted pursuant to section 1105 of title 31 for the fiscal year in which a contract is proposed to be awarded for the project.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 154; amended Pub. L. 110–181, div. B, title XXVIII, §2802(a), Jan. 28, 2008, 122 Stat. 539; Pub. L. 110–417, div. B, title XXVIII, §2801(b), Oct. 14, 2008, 122 Stat. 4719.)
2008—Subsec. (a). Pub. L. 110–181 inserted “, land acquisitions, and defense access road projects (as described under section 210 of title 23)” after “military construction projects”.
Subsec. (c). Pub. L. 110–417 added subsec. (c).
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Pub. L. 111–383, div. B, title XXVIII, §2852, Jan. 7, 2011, 124 Stat. 4475, provided that:
“(a)
“(1) size standards for operating rooms and patient recovery rooms; and
“(2) such other construction standards that the Secretary considers necessary to support military medical centers.
“(b)
“(1)
“(A) reviewing the unified construction standards established pursuant to subsection (a) to determine the standards consistency with industry practices and benchmarks for world class medical construction;
“(B) reviewing ongoing construction programs within the Department of Defense to ensure medical construction standards are uniformly applied across applicable military medical centers;
“(C) assessing the approach of the Department of Defense approach to planning and programming facility improvements with specific emphasis on—
“(i) facility selection criteria and proportional assessment system; and
“(ii) facility programming responsibilities between the Assistant Secretary of Defense for Health Affairs and the Secretaries of the military departments;
“(D) assessing whether the Comprehensive Master Plan for the National Capital Region Medical, dated April 2010, is adequate to fulfill statutory requirements, as required by section 2714 of the Military Construction Authorization Act for Fiscal Year 2010 (division B of Public Law 111–84; 123 Stat. 2656), to ensure that the facilities and organizational structure described in the plan result in world class military medical centers in the National Capital Region; and
“(E) making recommendations regarding any adjustments of the master plan referred to in subparagraph (D) that are needed to ensure the provision of world class military medical centers and delivery system in the National Capital Region.
“(2)
“(A)
“(i) medical facility design experts;
“(ii) military healthcare professionals;
“(iii) representatives of premier health care centers in the United States; and
“(iv) former retired senior military officers with joint operational and budgetary experience.
“(B)
“(C)
“(D)
“(3)
“(4)
“(5)
“(A)
“(i) an assessment of the adequacy of the plan of the Department of Defense to address the items specified in subparagraphs (A) through (E) of paragraph (1) relating to the purposes of the panel; and
“(ii) the recommendations of the panel to improve the plan.
“(B)
“(6)
“(A) a copy of the panel's assessment;
“(B) an assessment by the Secretary of the findings and recommendations of the panel; and
“(C) the plans of the Secretary for addressing such findings and recommendations.
“(7)
“(c)
“(1)
“(2)
Pub. L. 106–398, §1 [[div. A], title III, §389], Oct. 30, 2000, 114 Stat. 1654, 1654A–89, provided that:
“(a)
“(1) the damage caused to aviation facilities of the Armed Forces by alkali silica reactivity; and
“(2) the availability of technologies capable of preventing, treating, or mitigating alkali silica reactivity in hardened concrete structures and pavements.
“(b)
“(2) The Secretary of Defense shall ensure that the locations selected for the demonstration projects represent the diverse operating environments of the Armed Forces.
“(c)
“(d)
“(e)
“(f)
Pub. L. 102–190, div. B, title XXVIII, §2868, Dec. 5, 1991, 105 Stat. 1562, as amended by Pub. L. 108–136, div. A, title X, §1031(c)(2), Nov. 24, 2003, 117 Stat. 1604, provided that:
“(a)
“(1) the site or sites selected or planned for permanent basing of the planned force of that weapon system;
“(2) the rationale for selecting such site or sites; and
“(3) the military construction activities proposed for each such site.
“(b)
(a) Subject to subsections (b) and (c), the Secretary concerned may carry out a military construction project not otherwise authorized by law if the Secretary determines (1) that the project is vital to the national security or to the protection of health, safety, or the quality of the environment, and (2) that the requirement for the project is so urgent that deferral of the project for inclusion in the next Military Construction Authorization Act would be inconsistent with national security or the protection of health, safety, or environmental quality, as the case may be.
(b) When a decision is made to carry out a military construction project under this section, the Secretary concerned shall submit a report in writing to the appropriate committees of Congress on that decision. Each such report shall include (1) the justification for the project and the current estimate of the cost of the project, (2) the justification for carrying out the project under this section, and (3) a statement of the source of the funds to be used to carry out the project. The project may then be carried out only after the end of the 21-day period beginning on the date the notification is received by such committees or, if earlier, the end of the seven-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(c)(1) The maximum amount that the Secretary concerned may obligate in any fiscal year under this section is $50,000,000.
(2) A project carried out under this section shall be carried out within the total amount of funds appropriated for military construction that have not been obligated.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 154; amended Pub. L. 102–190, div. B, title XXVIII, §§2803, 2870(2), Dec. 5, 1991, 105 Stat. 1537, 1562; Pub. L. 102–484, div. A, title X, §1053(9), Oct. 23, 1992, 106 Stat. 2502; Pub. L. 108–136, div. A, title X, §1031(a)(34), div. B, title XXVIII, §2802, Nov. 24, 2003, 117 Stat. 1600, 1719; Pub. L. 109–364, div. B, title XXVIII, §2801, Oct. 17, 2006, 120 Stat. 2466.)
2006—Subsec. (c)(1). Pub. L. 109–364 substituted “$50,000,000” for “$45,000,000”.
2003—Subsec. (b). Pub. L. 108–136, §1031(a)(34), inserted before period at end “or, if earlier, the end of the seven-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
Subsec. (c)(1). Pub. L. 108–136, §2802, substituted “$45,000,000” for “$30,000,000”.
1992—Subsec. (b). Pub. L. 102–484 made technical amendment to directory language of Pub. L. 102–190, §2870(2). See 1991 Amendment note below.
1991—Subsec. (a). Pub. L. 102–190, §2803, substituted “or to the protection of health, safety, or the quality of the environment, and” for “, and” in cl. (1) and inserted “or the protection of health, safety, or environmental quality, as the case may be” before period at end of cl. (2).
Subsec. (b). Pub. L. 102–190, §2870(2), as amended by Pub. L. 102–484, struck out “, or after each such committee has approved the project, if the committee approves the project before the end of that period” after “by such committees”.
Section 1053(9) of Pub. L. 102–484 provided that the amendment made by that section is effective Dec. 5, 1991.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a) Within the amount appropriated for such purpose, the Secretary of Defense may carry out a military construction project not otherwise authorized by law, or may authorize the Secretary of a military department to carry out such a project, if the Secretary of Defense determines that deferral of the project for inclusion in the next Military Construction Authorization Act would be inconsistent with national security or national interest.
(b) When a decision is made to carry out a military construction project under this section, the Secretary of Defense shall submit a report in writing to the appropriate committees of Congress on that decision. Each such report shall include (1) the justification for the project and the current estimate of the cost of the project, and (2) the justification for carrying out the project under this section. The project may then be carried out only after the end of the 14-day period beginning on the date the notification is received by such committees or, if earlier, the end of the seven-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 155; amended Pub. L. 102–190, div. B, title XXVIII, §2870(3), Dec. 5, 1991, 105 Stat. 1563; Pub. L. 108–136, div. A, title X, §1031(a)(35), Nov. 24, 2003, 117 Stat. 1600; Pub. L. 109–163, div. B, title XXVIII, §2801(a), Jan. 6, 2006, 119 Stat. 3504.)
2006—Subsec. (b). Pub. L. 109–163 substituted “14-day period” for “21-day period” and “seven-day period” for “14-day period”.
2003—Subsec. (b). Pub. L. 108–136 inserted before period at end “or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
1991—Subsec. (b). Pub. L. 102–190 struck out before period at end “, or after each such committee has approved the project, if the committees approve the project before the end of that period”.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)
(2) An unspecified minor military construction project is a military construction project that has an approved cost equal to or less than $2,000,000. However, if the military construction project is intended solely to correct a deficiency that is life-threatening, health-threatening, or safety-threatening, an unspecified minor military construction project may have an approved cost equal to or less than $3,000,000.
(b)
(2) When a decision is made to carry out an unspecified minor military construction project to which paragraph (1) is applicable, the Secretary concerned shall notify in writing the appropriate committees of Congress of that decision, of the justification for the project, and of the estimated cost of the project. The project may then be carried out only after the end of the 21-day period beginning on the date the notification is received by the committees or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(c)
(A) $1,500,000, in the case of an unspecified minor military construction project intended solely to correct a deficiency that is life-threatening, health-threatening, or safety-threatening; or
(B) $750,000, in the case of any other unspecified minor military construction project.
(2) The limitations specified in paragraph (1) shall not apply to an unspecified minor military construction project if the project is to be carried out using funds made available to enhance the deployment and mobility of military forces and supplies.
(d)
(A) from appropriations available to the Secretary concerned for operation and maintenance, amounts necessary to carry out an unspecified minor military construction project costing not more than $2,000,000; or
(B) from appropriations available to the Secretary concerned for military construction not otherwise authorized by law or from funds authorized to be made available under section 219(a) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417; 10 U.S.C. 2358 note), amounts necessary to carry out an unspecified minor military construction project costing not more than $4,000,000.
(2) For an unspecified minor military construction project conducted pursuant to this subsection, $2,000,000 shall be deemed to be the amount specified in subsection (b)(1) regarding when advance approval of the project by the Secretary concerned and congressional notification is required. The Secretary of Defense shall establish procedures for the review and approval of requests from the Secretary of a military department to carry out a construction project under this subsection.
(3) Not later than February 1, 2010, the Secretary of Defense shall submit to the congressional defense committees a report on the use of the authority provided by this subsection. The report shall include a list and description of the construction projects carried out under this subsection, including the location and cost of each project.
(4) In this subsection, the term “laboratory” includes—
(A) a research, engineering, and development center; and
(B) a test and evaluation activity.
(5) The authority to carry out a project under this subsection expires on September 30, 2012.
(e)
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 155; amended Pub. L. 99–167, title VIII, §809, Dec. 3, 1985, 99 Stat. 989; Pub. L. 99–661, div. B, title VII, §2702(a), Nov. 14, 1986, 100 Stat. 4040; Pub. L. 100–180, div. B, subdiv. 3, title I, §2310, Dec. 4, 1987, 101 Stat. 1217; Pub. L. 101–510, div. A, title XIII, §1301(16), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 102–190, div. B, title XXVIII, §§2807, 2870(4), Dec. 5, 1991, 105 Stat. 1540, 1563; Pub. L. 104–106, div. B, title XXVIII, §§2811(a), 2812, Feb. 10, 1996, 110 Stat. 552; Pub. L. 104–201, div. B, title XXVIII, §2801(a), Sept. 23, 1996, 110 Stat. 2787; Pub. L. 105–85, div. B, title XXVIII, §2801, Nov. 18, 1997, 111 Stat. 1989; Pub. L. 107–107, div. B, title XXVIII, §2801, Dec. 28, 2001, 115 Stat. 1305; Pub. L. 108–136, div. A, title X, §1031(a)(36), Nov. 24, 2003, 117 Stat. 1600; Pub. L. 110–181, div. B, title XXVIII, §§2803, 2804, Jan. 28, 2008, 122 Stat. 539; Pub. L. 111–84, div. B, title XXVIII, §2801(a)(1), (2), (b), Oct. 28, 2009, 123 Stat. 2660.)
2009—Subsec. (a). Pub. L. 111–84, §2801(a)(1), substituted “Within” for “Except as provided in paragraph (2), within” in par. (1), redesignated the second and third sentences of par. (1) as par. (2), and struck out former par. (2) which read as follows: “A Secretary may not use more than $5,000,000 for exercise-related unspecified minor military construction projects coordinated or directed by the Joint Chiefs of Staff outside the United States during any fiscal year.”
Subsec. (c). Pub. L. 111–84, §2801(a)(2), substituted “paragraph (2)” for “paragraphs (2) and (3)” in par. (1), redesignated par. (3) as (2), and struck out former par. (2) which read as follows: “The authority provided in paragraph (1) may not be used with respect to any exercise-related unspecified minor military construction project coordinated or directed by the Joint Chiefs of Staff outside the United States.”
Subsec. (d)(1)(B). Pub. L. 111–84, §2801(b)(1), inserted “or from funds authorized to be made available under section 219(a) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417; 10 U.S.C. 2358 note)” after “authorized by law”.
Subsec. (d)(3) to (6). Pub. L. 111–84, §2801(b)(2), (3), redesignated pars. (4) to (6) as (3) to (5), respectively, and struck out former par. (3) which read as follows: “For purposes of this subsection, the total amount allowed to be applied in any one fiscal year to projects at any one laboratory shall be limited to the larger of the amounts applicable under paragraph (1).”
2008—Subsec. (a). Pub. L. 110–181, §2804(b)(1), inserted subsec. heading.
Subsec. (a)(1). Pub. L. 110–181, §2803, substituted “$2,000,000” for “$1,500,000”.
Subsecs. (b), (c). Pub. L. 110–181, §2804(b)(2), (3), inserted subsec. headings.
Subsecs. (d), (e). Pub. L. 110–181, §2804(a), (b)(4), added subsec. (d), redesignated former subsec. (d) as (e), and inserted subsec. (e) heading.
2003—Subsec. (b)(2). Pub. L. 108–136 inserted before period at end “or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
2001—Subsec. (b)(1). Pub. L. 107–107, §2801(a), substituted “$750,000” for “$500,000”.
Subsec. (c)(1)(A). Pub. L. 107–107, §2801(b)(1), substituted “$1,500,000” for “$1,000,000”.
Subsec. (c)(1)(B). Pub. L. 107–107, §2801(b)(2), substituted “$750,000” for “$500,000”.
1997—Subsec. (a)(1). Pub. L. 105–85, §2801(c)(1), substituted “unspecified minor military construction projects” for “minor military construction projects”, “An unspecified minor” for “A minor”, and “an unspecified minor” for “a minor”.
Subsec. (b)(1). Pub. L. 105–85, §2801(c)(2), substituted “An unspecified minor” for “A minor”.
Pub. L. 105–85, §2801(a), inserted at end “This paragraph shall apply even though the project is to be carried out using funds made available to enhance the deployment and mobility of military forces and supplies.”
Subsec. (b)(2). Pub. L. 105–85, §2801(c)(3), substituted “an unspecified minor” for “a minor”.
Subsec. (c)(1). Pub. L. 105–85, §2801(c)(4), substituted “unspecified minor military” for “unspecified military” wherever appearing.
Pub. L. 105–85, §2801(b)(1), substituted “paragraphs (2) and (3)” for “paragraph (2)” in introductory provisions.
Subsec. (c)(2). Pub. L. 105–85, §2801(c)(4), substituted “unspecified minor military” for “unspecified military”.
Subsec. (c)(3). Pub. L. 105–85, §2801(b)(2), added par. (3).
1996—Subsec. (a)(1). Pub. L. 104–106, §2812, in second sentence, struck out “(1) that is for a single undertaking at a military installation, and (2)” after “is a military construction project”.
Pub. L. 104–106, §2811(a)(1), inserted at end “However, if the military construction project is intended solely to correct a deficiency that is life-threatening, health-threatening, or safety-threatening, a minor military construction project may have an approved cost equal to or less than $3,000,000.”
Subsec. (c)(1). Pub. L. 104–106, §2811(a)(2), substituted “not more than—” for “not more than $300,000.” and added subpars. (A) and (B).
Subsec. (c)(1)(B). Pub. L. 104–201 substituted “$500,000” for “$300,000”.
1991—Subsec. (a)(1). Pub. L. 102–190, §2807(a), substituted “$1,500,000” for “$1,000,000”.
Subsec. (b)(2). Pub. L. 102–190, §2870(4), in second sentence struck out “(A)” after “carried out only” and “, or (B) after each such committee approves the project, if the committees approve the project before the end of that period” before period at end.
Subsec. (c)(1). Pub. L. 102–190, §2807(b), substituted “$300,000” for “$200,000”.
1990—Subsec. (b)(3). Pub. L. 101–510 struck out par. (3) which read as follows: “A project for the relocation of any activity from one installation to another that involves 25 or more full-time civilian employees of the Department of Defense but that is not subject to paragraph (1) may not be carried out under the authority of this section until the appropriate committees of Congress have been notified by the Secretary concerned of the intent to carry out such relocation under the authority of this section.”
1987—Subsec. (a). Pub. L. 100–180, §2310(b), designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), within” for “Within”, and added par. (2).
Subsec. (c). Pub. L. 100–180, §2310(a), designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), the” for “The”, and added par. (2).
1986—Subsec. (a). Pub. L. 99–661, §2702(a)(1), substituted “$1,000,000” for “the amount specified by law as the maximum amount for a minor military construction project”.
Subsec. (b)(1). Pub. L. 99–661, §2702(a)(2), substituted “$500,000” for “50 percent of the amount specified by law as the maximum amount for a minor military construction project”.
Subsec. (c). Pub. L. 99–661, §2702(a)(3), substituted “$200,000” for “20 percent of the amount specified by law as the maximum amount for a minor military construction project”.
1985—Subsec. (a). Pub. L. 99–167, §809(1), inserted “an amount equal to 125 percent of”.
Subsec. (c). Pub. L. 99–167, §809(2), substituted “The” for “Only funds authorized for minor construction projects may be used to accomplish unspecified minor construction projects, except that the”.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Pub. L. 108–136, div. B, title XXVIII, §2808(e), Nov. 24, 2003, 117 Stat. 1724, provided that: “The temporary authority provided by this section [117 Stat. 1723], and the limited authority provided by section 2805(c) of title 10, United States Code, to use appropriated funds available for operation and maintenance to carry out a construction project are the only authorities available to the Secretary of Defense and the Secretaries of the military departments to use appropriated funds available for operation and maintenance to carry out construction projects.”
Pub. L. 104–106, div. B, title XXVIII, §2892, Feb. 10, 1996, 110 Stat. 590, as amended by Pub. L. 105–261, div. B, title XXVIII, §2871, Oct. 17, 1998, 112 Stat. 2225; Pub. L. 108–375, div. B, title XXVIII, §2891, Oct. 28, 2004, 118 Stat. 2154, provided that:
“(a)
“(b)
“(1) the amount provided in the second sentence of subsection (a)(1) of section 2805 of title 10, United States Code, shall be deemed to be $3,000,000;
“(2) the amount provided in subsection (b)(1) of such section shall be deemed to be $1,500,000; and
“(3) the amount provided in subsection (c)(1)(B) of such section shall be deemed to be $1,000,000.
“(c)
“(2) The laboratories at which construction may be carried out under the program may not include Department of Defense laboratories that are contractor-owned.
“(d)
“(e)
“(f)
“(1) The term ‘laboratory’ includes—
“(A) a research, engineering, and development center;
“(B) a test and evaluation activity owned, funded, and operated by the Federal Government through the Department of Defense; and
“(C) a supporting facility of a laboratory.
“(2) The term ‘supporting facility’, with respect to a laboratory, means any building or structure that is used in support of research, development, test, and evaluation at the laboratory.
“(g)
Maximum amount of $1,000,000 for unspecified minor military construction project under this section during the period beginning Oct. 1, 1982, and ending on the date of the enactment of the Military Construction Authorization Act for fiscal year 1984 or Oct. 1, 1983, whichever is later, see section 11(1) of Pub. L. 97–214, set out as a note under section 2828 of this title.
(a) Within amounts authorized by law for such purpose, the Secretary of Defense may make contributions for the United States share of the cost of multilateral programs for the acquisition and construction of military facilities and installations (including international military headquarters) and for related expenses for the collective defense of the North Atlantic Treaty Area.
(b) Funds may not be obligated or expended in connection with the North Atlantic Treaty Organization Security Investment program in any year unless such funds have been authorized by law for such program.
(c)(1) The Secretary may make contributions in excess of the amount appropriated for contribution under subsection (a) if the amount of the contribution in excess of that amount does not exceed 200 percent of the amount specified by section 2805(a) of this title as the maximum amount for a minor military construction project.
(2) If the Secretary determines that the amount appropriated for contribution under subsection (a) in any fiscal year must be exceeded by more than the amount authorized under paragraph (1), the Secretary may make contributions in excess of such amount, but not in excess of 125 percent of the amount appropriated (A) after submitting a report in writing to the appropriate committees of Congress on such increase, including a statement of the reasons for the increase and a statement of the source of the funds to be used for the increase, and (B) after a period of 21 days has elapsed from the date of receipt of the report or, if earlier, a period of 14 days has elapsed from the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 156; amended Pub. L. 97–321, title VIII, §805(b)(1), Oct. 15, 1982, 96 Stat. 1573; Pub. L. 99–661, div. B, title V, §2503(a), Nov. 14, 1986, 100 Stat. 4039; Pub. L. 100–26, §7(f)(1), Apr. 21, 1987, 101 Stat. 281; Pub. L. 102–190, div. B, title XXVIII, §2870(5), Dec. 5, 1991, 105 Stat. 1563; Pub. L. 104–201, div. B, title XXVIII, §2802(a), (c)(1), Sept. 23, 1996, 110 Stat. 2787; Pub. L. 111–84, div. B, title XXVIII, §2801(a)(3), Oct. 28, 2009, 123 Stat. 2660; Pub. L. 111–383, div. B, title XXVIII, §2803(b), Jan. 7, 2011, 124 Stat. 4459.)
2011—Subsec. (c)(2)(B). Pub. L. 111–383 inserted before period at end “or, if earlier, a period of 14 days has elapsed from the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title”.
2009—Subsec. (c)(1). Pub. L. 111–84 substituted “section 2805(a)” for “section 2805(a)(2)”.
1996—Pub. L. 104–201, §2802(c)(1), substituted “Organizations Security Investment” for “Organization Infrastructure” in section catchline.
Subsec. (b). Pub. L. 104–201, §2802(a), substituted “Security Investment program” for “Infrastructure program”.
1991—Subsec. (c)(2)(B). Pub. L. 102–190 substituted “after” for “after either” and struck out before period at end “or after each such committee has indicated approval of the increased contribution”.
1987—Subsec. (c)(1). Pub. L. 100–26 substituted “specified by section 2805(a)(2) of this title” for “specified by law”.
1986—Subsec. (a). Pub. L. 99–661 inserted “and for related expenses” after “headquarters)”.
1982—Pub. L. 97–321 substituted “Infrastructure” for “infrastructure” in section catchline.
Section 2802(b) of Pub. L. 104–201 provided that: “Any reference to the North Atlantic Treaty Organization Infrastructure program in any Federal law, Executive order, regulation, delegation of authority, or document of or pertaining to the Department of Defense shall be deemed to refer to the North Atlantic Treaty Organization Security Investment program.”
Section 2503(b) of Pub. L. 99–661 provided that: “The amendment made by subsection (a) [amending this section] shall apply only with respect to contributions made with funds appropriated for fiscal years after fiscal year 1986.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Section 2504 of Pub. L. 99–661 prohibited Secretary of Defense from obligating or expending any funds after fiscal year 1987 with respect to NATO infrastructure program under this section until Secretary submitted to Committees on Armed Services of Senate and House (1) a comprehensive master plan for establishing adequate active defenses for air bases in Europe at which operations of United States aircraft are planned, sites in Europe used by United States for logistic support of NATO or for prepositioned overseas mate�AE1riel configured to unit sets, and (2) a report containing a certification by Secretary that sufficient funds have been budgeted by Department of Defense in fiscal year 1988 five-year defense plan to meet objectives of such comprehensive master plan.
(a) Within amounts appropriated for military construction and military family housing, the Secretary concerned may obtain architectural and engineering services and may carry out construction design in connection with military construction projects, family housing projects, and projects undertaken in connection with the authority provided under section 2854 of this title that are not otherwise authorized by law. Amounts available for such purposes may be used for construction management of projects that are funded by foreign governments directly or through international organizations and for which elements of the armed forces of the United States are the primary user.
(b) In the case of architectural and engineering services and construction design to be undertaken under subsection (a) for which the estimated cost exceeds $1,000,000, the Secretary concerned shall notify the appropriate committees of Congress of the scope of the proposed project and the estimated cost of such services before the initial obligation of funds for such services. The Secretary may then obligate funds for such services only after the end of the 21-day period beginning on the date on which the notification is received by the committees or, if earlier, the end of the 14-day period beginning on the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title.
(c) If the Secretary concerned determines that the amount authorized for activities under subsection (a) in any fiscal year must be increased the Secretary may proceed with activities at such higher level (1) after submitting a report in writing to the appropriate committees of Congress on such increase, including a statement of the reasons for the increase and a statement of the source of funds to be used for the increase, and (2) after a period of 21 days has elapsed from the date of receipt of the report or, if over sooner, a period of 14 days has elapsed from the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title.
(d) For architectural and engineering services and construction design related to military construction and family housing projects, the Secretaries of the military departments may incur obligations for contracts or portions of contracts using military construction and family housing appropriations from different fiscal years to the extent that those appropriations are available for obligation.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 156; amended Pub. L. 98–115, title VIII, §804, Oct. 11, 1983, 97 Stat. 785; Pub. L. 99–661, div. B, title VII, §§2702(b), 2712(a), Nov. 14, 1986, 100 Stat. 4040, 4041; Pub. L. 102–190, div. B, title XXVIII, §2870(6), Dec. 5, 1991, 105 Stat. 1563; Pub. L. 105–261, div. B, title XXVIII, §2801, Oct. 17, 1998, 112 Stat. 2202; Pub. L. 108–136, div. A, title X, §1031(a)(37), Nov. 24, 2003, 117 Stat. 1601.)
2003—Subsec. (b). Pub. L. 108–136, §1031(a)(37)(A), substituted “$1,000,000” for “$500,000”, struck out “not less than 21 days” after “of such services”, and inserted last sentence.
Subsec. (c)(2). Pub. L. 108–136, §1031(a)(37)(B), inserted before period at end “or, if over sooner, a period of 14 days has elapsed from the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title”.
1998—Subsec. (b). Pub. L. 105–261, §2801(a), substituted “$500,000” for “$300,000”.
Subsec. (d). Pub. L. 105–261, §2801(b), substituted “architectural and engineering services and construction design” for “study, planning, design, architectural, and engineering services”.
1991—Subsec. (c)(2). Pub. L. 102–190 substituted “after” for “after either” and struck out before period at end “or after each such committee has indicated approval of the increased level of activity”.
1986—Subsec. (b). Pub. L. 99–661, §2702(b), substituted “$300,000” for “the maximum amount specified by law for the purposes of this section”.
Subsec. (d). Pub. L. 99–661, §2712(a), added subsec. (d).
1983—Subsec. (a). Pub. L. 98–115 substituted “Within amounts appropriated for military construction and military family housing” for “Within amounts appropriated for such purposes” and inserted “, family housing projects, and projects undertaken in connection with the authority provided under section 2854 of this title that are” after “in connection with military construction projects”.
Section 2712(b) of Pub. L. 99–661 provided that: “The amendment made by subsection (a) [amending this section] shall apply only to funds appropriated for fiscal years after fiscal year 1985.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Pub. L. 98–212, title VII, §796, Dec. 8, 1983, 97 Stat. 1455, provided that: “No funds appropriated for the Departments of Defense, Army, Navy, or the Air Force shall be obligated by their respective Secretaries for architectural and engineering services and construction design contracts for Military Construction projects in the amount of $85,000 and over, unless competition for such contracts is open to all firms regardless of size in accordance with 40 U.S.C. §541, et seq. [now chapter 11 of Title 40, Public Buildings, Property, and Works.]”
Section 806 of Pub. L. 98–115 provided that:
“(a) The Secretary of Defense shall conduct a comprehensive review of current policies and practices of the Department of Defense with regard to the award of contracts for architectural and engineering services and construction design for military construction projects. The Secretary shall conduct such review with a view to determining whether current policies and practices of the Department of Defense result in a reasonable distribution of such contracts to firms of all sizes throughout the architect-engineer community.
“(b) Upon the completion of such review, the Secretary shall modify current policies and practices of the Department to the extent necessary to ensure—
“(1) that small business concerns (as defined in section 3 of the Small Business Act [15 U.S.C. 632]) are assured of a reasonable share of such contracts; and
“(2) that large architect-engineer firms are not precluded from competing for such contracts when the estimated amount of such contracts is greater than a reasonable threshold amount prescribed by the Secretary.
“(c) Not later than March 1, 1984, the Secretary shall submit to the appropriate committees of Congress a written report on the results of the review required by subsection (a) and on any changes made to current policies and practices as required by subsection (b).
“(d) For the purposes of this section:
“(1) The term ‘reasonable share’ means an appropriate percentage share of all contracts referred to in subsection (a) as determined by the Secretary of Defense after consultation with the Admininstrator [sic] of the Small Business Administration and representatives of the architect-engineer community.
“(2) The term ‘reasonable threshold amount’ means an appropriate estimated contract dollar amount determined by the Secretary of Defense after consultation with the Administrator of the Small Business Administration and representatives of the architect-engineer community.”
Amounts of $300,000 or more for contracts for architectural and engineering services or construction design subject to the reporting requirement under this section during the period beginning on Oct. 1, 1982, and ending on the date of the Military Construction Authorization Act for fiscal year 1984 or Oct. 1, 1983, whichever is later, see section 11(2) of Pub. L. 97–214, set out as a note under section 2828 of this title.
(a) In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.
(b) When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects.
(c) The authority described in subsection (a) shall terminate with respect to any war or national emergency at the end of the war or national emergency.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 157.)
The National Emergencies Act (50 U.S.C. 1601 et seq.), referred to in subsec. (a), is Pub. L. 94–412, Sept. 14, 1976, 90 Stat. 1255, as amended, which is classified principally to chapter 34 (§1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables.
Provisions similar to those in this section were contained in Pub. L. 97–99, title IX, §903, Dec. 23, 1981, 95 Stat. 1382, which was set out as a note under section 140 [now 127] of this title, prior to repeal by Pub. L. 97–214, §7(18).
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Ex. Ord. No. 12734, Nov. 14, 1990, 55 F.R. 48099, which related to national emergency construction authority, was revoked by Ex. Ord. No. 13350, July 29, 2004, 69 F.R. 46055, listed in a table under section 1701 of Title 50, War and National Defense.
Ex. Ord. No. 13235, Nov. 16, 2001, 66 F.R. 58343, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code, I declared a national emergency that requires the use of the Armed Forces of the United States, by Proclamation 7463 of September 14, 2001 [50 U.S.C. 1621 note], because of the terrorist attacks on the World Trade Center and the Pentagon, and because of the continuing and immediate threat to the national security of the United States of further terrorist attacks. To provide additional authority to the Department of Defense to respond to that threat, and in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), I hereby order that the emergency construction authority at 10 U.S.C. 2808 is invoked and made available in accordance with its terms to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.
George W. Bush.
(a)
(1) the Secretary concerned has identified the proposed project for that facility in the budget material submitted to Congress by the Secretary of Defense in connection with the budget submitted pursuant to section 1105 of title 31 for the fiscal year in which the contract is proposed to be awarded;
(2) the Secretary concerned has determined that the services to be provided at that facility can be more economically provided through the use of a long-term contract than through the use of conventional means; and
(3) the project has been authorized by law.
(b)
(1) Child care services.
(2) Utilities, including potable and waste water treatment services.
(3) Depot supply activities.
(4) Troop housing.
(5) Transient quarters.
(6) Hospital or medical facilities.
(7) Other logistic and administrative services, other than depot maintenance.
(c)
(1) A statement that the obligation of the United States to make payments under the contract in any fiscal year is subject to appropriations being provided specifically for that fiscal year and specifically for that project.
(2) A commitment to obligate the necessary amount for each fiscal year covered by the contract when and to the extent that funds are appropriated for that project for that fiscal year.
(3) A statement that such a commitment given under the authority of this section does not constitute an obligation of the United States.
(d)
(e)
(f)
(1) the Secretary concerned submits to the appropriate committees of Congress, in writing, a justification of the need for the facility for which the contract is to be awarded and an economic analysis (based upon accepted life cycle costing procedures) which demonstrates that the proposed contract is cost effective when compared with alternative means of furnishing the same facility; and
(2) a period of 21 days has expired following the date on which the justification and the economic analysis are received by the committees or, if over sooner, a period of 14 days has expired following the date on which a copy of the justification and economic analysis are provided in an electronic medium pursuant to section 480 of this title.
(Added Pub. L. 99–167, title VIII, §811(a), Dec. 3, 1985, 99 Stat. 990; amended Pub. L. 99–661, div. A, title XIII, §1343(a)(20), div. B, title VII, §2711, Nov. 14, 1986, 100 Stat. 3994, 4041; Pub. L. 100–180, div. B, subdiv. 3, title I, §2302(a), (b), Dec. 4, 1987, 101 Stat. 1215; Pub. L. 100–456, div. B, title XXVIII, §2801, Sept. 29, 1988, 102 Stat. 2115; Pub. L. 101–189, div. B, title XXVIII, §2803, Nov. 29, 1989, 103 Stat. 1647; Pub. L. 102–190, div. B, title XXVIII, §2805(a)(1), Dec. 5, 1991, 105 Stat. 1537; Pub. L. 108–136, div. A, title X, §1031(a)(38), Nov. 24, 2003, 117 Stat. 1601.)
2003—Subsec. (f)(2). Pub. L. 108–136 struck out “calendar” after “21” and inserted before period at end “or, if over sooner, a period of 14 days has expired following the date on which a copy of the justification and economic analysis are provided in an electronic medium pursuant to section 480 of this title”.
1991—Pub. L. 102–190 substituted section catchline for one which read “Test of long-term facilities contracts” and amended text generally, substituting present provisions for provisions authorizing contracts for construction, management, and operation of facilities on or near military installations for the provision of certain enumerated activities or services, setting out procedures, terms, and other limits for such contracts, providing that no more than 5 contracts may be entered into under this section other than contracts for child care centers, and providing that authority to enter into such contracts was to expire on Sept. 30, 1991.
1989—Subsec. (a)(1)(B)(ii). Pub. L. 101–189, §2803(1), substituted “Utilities, including potable” for “Potable”.
Subsec. (b). Pub. L. 101–189, §2803(2), substituted “activities and services described in clause (i) or (ii) of subsection (a)(1)(B)” for “child care centers”.
Subsec. (c). Pub. L. 101–189, §2803(3), substituted “1991” for “1989”.
1988—Subsec. (a)(3). Pub. L. 100–456 substituted “32” for “20”.
1987—Subsec. (a)(1)(B)(vi), (vii). Pub. L. 100–180, §2302(a), added cl. (vi) and redesignated former cl. (vi) as (vii).
Subsec. (c). Pub. L. 100–180, §2302(b), substituted “1989” for “1987”.
1986—Subsec. (a)(1). Pub. L. 99–661, §2711, amended par. (1) generally. Prior to amendment, par. (1) read as follows: “The Secretary concerned may enter into a contract for the construction, management, and operation of a facility on or near a military installation in the United States for the provision of child care services, waste water treatment, or depot supply activities in a case in which the Secretary concerned determines that the facility can be more efficiently and more economically provided under a long-term contract than by other appropriate means.”
Pub. L. 99–661, §1343(a)(20)(A), substituted “a contract” for “contracts”, “a facility” for “facilities”, “a military installation” for “military installations”, “a case” for “cases”, “facility” for “facilities”, and “a long-term contract” for “long-term contracts” and inserted a comma after “waste water treatment”.
Subsec. (a)(2). Pub. L. 99–661, §1343(a)(20)(B), substituted “this section” for “subsection (a)”.
Subsec. (a)(3). Pub. L. 99–661, §1343(a)(20)(C), substituted “20” for “twenty”.
Subsec. (a)(4)(A). Pub. L. 99–661, §1343(a)(20)(D), struck out “the” before “Congress”.
Subsec. (b). Pub. L. 99–661, §1343(a)(20)(E), struck out “the authority of subsection (a) of” after “under”.
Section 2805(b) of Pub. L. 102–190 provided that: “Section 2809 of title 10, United States Code, as amended by subsection (a), shall apply with respect to contracts entered into under that section on or after the date of the enactment of this Act [Dec. 5, 1991].”
Amendment by Pub. L. 100–456 effective Oct. 1, 1988, see section 2702 of Pub. L. 100–456, set out as a note under section 2391 of this title.
Pub. L. 107–107, div. B, title XXVIII, §2814, Dec. 28, 2001, 115 Stat. 1310, as amended by Pub. L. 107–314, div. B, title XXVIII, §2813(a)–(d)(1), Dec. 2, 2002, 116 Stat. 2709, 2710, provided that:
“(a)
“(b)
“(2) The demonstration program may only cover contracts entered into on or after the date of the enactment of the Bob Stump National Defense Authorization Act for Fiscal Year 2003 [Pub. L. 107–314, approved Dec. 2, 2002], except that the Secretary of the Army shall treat any contract containing requirements referred to in subsection (a) that was entered into under the authority in such subsection between that date and December 28, 2001, as a contract for the purpose of the demonstration program.
“(c)
“(d)
“(1) A description of all contracts that contain requirements referred to in subsection (a) for the purpose of the demonstration program.
“(2) An evaluation of the demonstration program and a description of the experience of the Secretary with respect to such contracts.
“(3) Any recommendations, including recommendations for the termination, continuation, or expansion of the demonstration program, that the Secretary considers appropriate.
“(e)
“(f)
[Pub. L. 107–314, div. B, title XXVIII, §2813(d)(2), Dec. 2, 2002, 116 Stat. 2710, provided that: “The amendment made by paragraph (1) [amending section 2814(f) of Pub. L. 107–107, set out above] shall not affect the availability for the purpose of the demonstration program under section 2814 of the Military Construction Authorization Act for Fiscal Year 2002, as amended by this section, of any amounts authorized to be appropriated before the date of the enactment of this Act [Dec. 2, 2002] for the Army for military construction that have been obligated for the demonstration program, but not expended, as of that date.”]
Section 2302(c) of Pub. L. 100–180 directed each Secretary who has entered into a contract under this section to submit a report to Committees on Armed Services of Senate and House of Representatives by Feb. 15, 1989, containing date and duration of, other party to, and nature of activities carried out under each such contract, and recommendations, and reasons therefor, concerning whether authority to enter into contracts under this section should be extended.
Section, added Pub. L. 99–499, title II, §211(b)(1), Oct. 17, 1986, 100 Stat. 1725, related to military construction projects for environmental response actions.
(a)
(b)
(c)
(d)
(1) the justification for the repair project and the current estimate of the cost of the project, including, in the case of a multi-year repair project to a single facility, the total cost of all phases of the project;
(2) if the current estimate of the cost of the repair project exceeds 75 percent of the estimated cost of a military construction project to replace the facility, an explanation of the reasons why replacement of the facility is not in the best interest of the Government; and
(3) a description of the elements of military construction, including the elements specified in section 2802(b) of this title, incorporated into the repair project.
(e)
(Added Pub. L. 99–661, div. A, title III, §315(a), Nov. 14, 1986, 100 Stat. 3854, §2810; renumbered §2811, Pub. L. 100–26, §7(e)(3), Apr. 21, 1987, 101 Stat. 281; amended Pub. L. 103–337, div. B, title XXVIII, §2801(a), Oct. 5, 1994, 108 Stat. 3050; Pub. L. 105–85, div. B, title XXVIII, §2802, Nov. 18, 1997, 111 Stat. 1990; Pub. L. 108–375, div. B, title XXVIII, §2801, Oct. 28, 2004, 118 Stat. 2119; Pub. L. 111–84, div. B, title XXVIII, §2802, Oct. 28, 2009, 123 Stat. 2661.)
2009—Subsec. (d)(2), (3). Pub. L. 111–84 added pars. (2) and (3) and struck out former par. (2) which read as follows: “the justification for carrying out the project under this section.”
2004—Subsec. (b). Pub. L. 108–375, §2801(a), substituted “$7,500,000” for “$5,000,000”.
Subsec. (d). Pub. L. 108–375, §2801(b), substituted “$7,500,000” for “$10,000,000” in introductory provisions.
Subsec. (d)(1). Pub. L. 108–375, §2801(c), inserted before semicolon “, including, in the case of a multi-year repair project to a single facility, the total cost of all phases of the project”.
1997—Subsecs. (d), (e). Pub. L. 105–85 added subsecs. (d) and (e).
1994—Pub. L. 103–337 substituted “Repair” for “Renovation” in section catchline and amended text generally. Prior to amendment, text read as follows:
“(a) The Secretary concerned may carry out renovation projects that combine maintenance, repair, and minor construction projects for an entire single-purpose facility, or one or more functional areas of a multipurpose facility, using funds available for operations and maintenance.
“(b) The amount obligated on such a renovation project may not exceed the maximum amount specified by law for a minor construction project under section 2805 of this title.
“(c) Construction of new facilities or additions to existing facilities may not be carried out under the authority of this section.”
(a)(1) The Secretary concerned may enter into an agreement with a private contractor for the lease of a facility of the kind specified in paragraph (2) if the facility is provided at the expense of the contractor on a military installation under the jurisdiction of the Department of Defense.
(2) The facilities that may be leased pursuant to paragraph (1) are as follows:
(A) Administrative office facilities.
(B) Troop housing facilities.
(C) Energy production facilities.
(D) Utilities, including potable and waste water treatment facilities.
(E) Hospital and medical facilities.
(F) Transient quarters.
(G) Depot or storage facilities.
(H) Child care centers.
(I) Classroom and laboratories.
(b) Leases entered into under subsection (a)—
(1) may not exceed a term of 32 years;
(2) shall provide that, at the end of the term of the lease, title to the leased facility shall vest in the United States; and
(3) shall include such other terms and conditions as the Secretary concerned determines are necessary or desirable to protect the interests of the United States.
(c)(1) The Secretary concerned may not enter into a lease under this section until—
(A) the Secretary submits to the appropriate committees of Congress a justification of the need for the facility for which the proposed lease is being entered into and an economic analysis (based upon accepted life-cycle costing procedures) that demonstrates the cost effectiveness of the proposed lease compared with a military construction project for the same facility; and
(B) a period of 21 days has expired following the date on which the justification and economic analysis are received by the committees or, if over sooner, a period of 14 days has expired following the date on which a copy of the justification and economic analysis are provided in an electronic medium pursuant to section 480 of this title.
(2) Each Secretary concerned may, under this section, enter into—
(A) not more than three leases in fiscal year 1990; and
(B) not more than five leases in each of the fiscal years 1991 and 1992.
(d) Each lease entered into under this section shall include a provision that the obligation of the United States to make payments under the lease in any fiscal year is subject to the availability of appropriations for that purpose.
(Added Pub. L. 101–189, div. B, title XXVIII, §2809(a), Nov. 29, 1989, 103 Stat. 1649; amended Pub. L. 101–510, div. B, title XXVIII, §2864, Nov. 5, 1990, 104 Stat. 1806; Pub. L. 108–136, div. A, title X, §1031(a)(39), Nov. 24, 2003, 117 Stat. 1601.)
2003—Subsec. (c)(1)(B). Pub. L. 108–136 inserted before period at end “or, if over sooner, a period of 14 days has expired following the date on which a copy of the justification and economic analysis are provided in an electronic medium pursuant to section 480 of this title”.
1990—Subsec. (a)(2)(I). Pub. L. 101–510 added subpar. (I).
(a)
(1) the acquisition of the facility satisfies the requirements of the military department concerned for the authorized military construction project; and
(2) it is in the best interests of the United States to acquire the facility instead of carrying out the authorized military construction project.
(b)
(2) The costs of anticipated modifications, repairs, or conversions under paragraph (1) are required to remain within the authorized amount of the military construction project. The Secretary concerned shall consider such costs in determining whether the acquisition of an existing facility is—
(A) more cost effective than carrying out the authorized military construction project; and
(B) in the best interests of the United States.
(c)
(Added Pub. L. 103–160, div. B, title XXVIII, §2805(a)(1), Nov. 30, 1993, 107 Stat. 1886; amended Pub. L. 104–106, div. A, title XV, §1502(a)(25), Feb. 10, 1996, 110 Stat. 506; Pub. L. 108–136, div. A, title X, §1031(a)(40), Nov. 24, 2003, 117 Stat. 1601; Pub. L. 109–163, div. B, title XXVIII, §2801(b), Jan. 6, 2006, 119 Stat. 3504.)
2006—Subsec. (c). Pub. L. 109–163 substituted “21-day period” for “30-day period” and “14-day period” for “21-day period”.
2003—Subsec. (c). Pub. L. 108–136 struck out “the end of the 30-day period beginning on the date” after “until” and inserted last sentence.
1996—Subsec. (c). Pub. L. 104–106 substituted “appropriate committees of Congress” for “Committees on Armed Services and the Committees on Appropriations of the Senate and House of Representatives”.
Section 2805(b) of Pub. L. 103–160 provided that: “Section 2813 of title 10, United States Code, as added by subsection (a), shall apply with respect to military construction projects authorized on or after the date of the enactment of this Act [Nov. 30, 1993].”
(a)
(2) The Secretary of the Navy may not exercise any authority under this section until—
(A) the Secretary submits to the appropriate committees of Congress a master plan for the development of Ford Island, Hawaii; and
(B) a period of 30 calendar days has elapsed following the date on which the notification is received by those committees.
(b)
(A) is excess to the needs of the Navy and all of the other armed forces; and
(B) will promote the purpose of this section.
(2) A conveyance under this subsection may include such terms and conditions as the Secretary considers appropriate to protect the interests of the United States.
(c)
(A) is not needed for current operations of the Navy and all of the other armed forces; and
(B) will promote the purpose of this section.
(2) A lease under this subsection shall be subject to section 2667(b)(1) of this title and may include such other terms as the Secretary considers appropriate to protect the interests of the United States.
(3) A lease of real property under this subsection may provide that, upon termination of the lease term, the lessee shall have the right of first refusal to acquire the real property covered by the lease if the property is then conveyed under subsection (b).
(4)(A) The Secretary may provide property support services to or for real property leased under this subsection.
(B) To the extent provided in appropriations Acts, any payment made to the Secretary for services provided under this paragraph shall be credited to the appropriation, account, or fund from which the cost of providing the services was paid.
(d)
(2) The term of a lease under paragraph (1) may not exceed 10 years, unless the Secretary of Defense approves a term in excess of 10 years for purposes of this section.
(3) A lease under this subsection may provide that, upon termination of the lease term, the United States shall have the right of first refusal to acquire the facility covered by the lease.
(e)
(f)
(2) Subject to subsection (i), the services accepted by the Secretary under paragraph (1) may include the following:
(A) The construction or improvement of facilities at Ford Island.
(B) The restoration or rehabilitation of real property at Ford Island.
(C) The provision of property support services for property or facilities at Ford Island.
(g)
(1) the Secretary submits to the appropriate committees of Congress a notification of the transaction, including—
(A) a detailed description of the transaction; and
(B) a justification for the transaction specifying the manner in which the transaction will meet the purposes of this section; and
(2) a period of 30 calendar days has elapsed following the date on which the notification is received by those committees or, if earlier, a period of 20 days has elapsed from the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(h)
(2) There shall be deposited into the account the following amounts:
(A) Amounts authorized and appropriated to the account.
(B) Except as provided in subsection (c)(4)(B), the amount of any cash payment received by the Secretary for a transaction under this section.
(i)
(A) To carry out or facilitate the carrying out of a transaction authorized by this section.
(B) To carry out improvements of property or facilities at Ford Island.
(C) To obtain property support services for property or facilities at Ford Island.
(2) To extent that the authorities provided under subchapter IV of this chapter are available to the Secretary of the Navy, the Secretary may not use the authorities in this section to acquire, construct, or improve family housing units, military unaccompanied housing units, or ancillary supporting facilities related to military housing.
(3)(A) The Secretary may transfer funds from the Ford Island Improvement Account to the following funds:
(i) The Department of Defense Family Housing Improvement Fund established by section 2883(a)(1) of this title.
(ii) The Department of Defense Military Unaccompanied Housing Improvement Fund established by section 2883(a)(2) of this title.
(B) Amounts transferred under subparagraph (A) to a fund referred to in that subparagraph shall be available in accordance with the provisions of section 2883 of this title for activities authorized under subchapter IV of this chapter at Ford Island.
(j)
(1) Sections 2667 and 2696 of this title.
(2) Section 501 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411).
(3) Subchapter II of chapter 5 and sections 541–555 of title 40.
(k)
(l)
(1) Any utility service or other service listed in section 2686(a) of this title.
(2) Any other service determined by the Secretary to be a service that supports the operation and maintenance of real property, personal property, or facilities.
(Added Pub. L. 106–65, div. B, title XXVIII, §2802(a)(1), Oct. 5, 1999, 113 Stat. 845; amended Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(16)], Oct. 30, 2000, 114 Stat. 1654, 1654A–291; Pub. L. 107–107, div. A, title X, §1048(d)(1), Dec. 28, 2001, 115 Stat. 1227; Pub. L. 107–217, §3(b)(18), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 111–383, div. B, title XXVIII, §2803(c), Jan. 7, 2011, 124 Stat. 4459.)
The Balanced Budget and Emergency Deficit Control Act of 1985, referred to in subsec. (k), is title II of Pub. L. 99–177, Dec. 12, 1985, 99 Stat. 1038, as amended, which enacted chapter 20 (§900 et seq.) and sections 654 to 656 of Title 2, The Congress, amended sections 602, 622, 631 to 642, and 651 to 653 of Title 2, sections 1104 to 1106, and 1109 of Title 31, Money and Finance, and section 911 of Title 42, The Public Health and Welfare, repealed section 661 of Title 2, enacted provisions set out as notes under section 900 of Title 2 and section 911 of Title 42, and amended provisions set out as a note under section 621 of Title 2. For complete classification of this Act to the Code, see Short Title note set out under section 900 of Title 2 and Tables.
2011—Subsec. (g)(2). Pub. L. 111–383 inserted before period at end “or, if earlier, a period of 20 days has elapsed from the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
2002—Subsec. (j)(3). Pub. L. 107–217 substituted “Subchapter II of chapter 5 and sections 541–555 of title 40” for “Sections 202 and 203 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 483, 484)”.
2001—Subsec. (j)(2). Pub. L. 107–107 substituted “McKinney-Vento Homeless Assistance Act” for “Stewart B. McKinney Homeless Assistance Act”.
2000—Subsec. (k). Pub. L. 106–398 inserted “and” after “Balanced Budget”.
(a)
(1) both the active and a reserve component of a single armed force; or
(2) two or more components (whether active or reserve components) of the armed forces.
(b)
(Added Pub. L. 106–398, §1 [div. B, title XXVIII, §2801(b)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–412; amended Pub. L. 107–314, div. A, title X, §1062(a)(14), Dec. 2, 2002, 116 Stat. 2650.)
2002—Subsec. (b). Pub. L. 107–314 substituted “for any fiscal year” for “for fiscal year 2003 and each fiscal year thereafter”.
2008—Pub. L. 110–417, div. B, title XXVIII, §§2803(b), 2804(b), Oct. 14, 2008, 122 Stat. 4720, 4721, added items 2835a and 2838.
2006—Pub. L. 109–364, div. B, title XXVIII, §2803(b), Oct. 17, 2006, 120 Stat. 2467, struck out item 2823 “Determination of availability of suitable alternative housing for acquisition in lieu of construction of new family housing”.
2000—Pub. L. 106–398, §1 [div. B, title XXVIII, §2803(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–413, substituted “Military family housing: local comparability of room patterns and floor areas” for “Limitations on space by pay grade” in item 2826.
1994—Pub. L. 103–337, div. B, title XXVIII, §2803(b), Oct. 5, 1994, 108 Stat. 3053, added item 2837.
1991—Pub. L. 102–190, div. B, title XXVIII, §§2806(a)(2), 2809(a)(2), Dec. 5, 1991, 105 Stat. 1540, 1543, added items 2835 and 2836.
1985—Pub. L. 99–167, title VIII, §§804(b)(2), 808(b), Dec. 3, 1985, 99 Stat. 987, 989, added items 2833 and 2834.
(a) Except as provided in subsection (b), funds may not be appropriated for the construction, acquisition, leasing, addition, extension, expansion, alteration, relocation, or operation and maintenance of family housing under the jurisdiction of the Department of Defense unless the appropriation of such funds has been authorized by law.
(b) In addition to the funds authorized to be appropriated by law in any fiscal year for the purposes described in subsection (a), there are authorized to be appropriated such additional sums as may be necessary for increases in salary, pay, retirement, and other employee benefits authorized by law for civilian employees of the Department of Defense whose compensation is provided for by funds appropriated for the purposes described in such subsection.
(c) Amounts authorized by law for construction of military family housing units include amounts for (1) site preparation (including demolition), (2) installation of utilities, (3) ancillary supporting facilities, (4) shades, screens, ranges, refrigerators, and all other equipment and fixtures installed in such units, and (5) construction supervision, inspection, and overhead.
(d) Amounts authorized by law for construction and acquisition of military family housing and facilities include amounts for—
(1) minor construction;
(2) improvements to existing military family housing units and facilities;
(3) relocation of military family housing units under section 2827 of this title; and
(4) architectural and engineering services and construction design.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 157; amended Pub. L. 99–145, title XIII, §1303(a)(18), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99–167, title VIII, §804(a), Dec. 3, 1985, 99 Stat. 987.)
1985—Subsec. (b). Pub. L. 99–145 substituted “such subsection” for “such paragraph”.
Subsec. (d). Pub. L. 99–167 added subsec. (d).
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Pub. L. 111–117, div. E, title I, §123, Dec. 16, 2009, 123 Stat. 3295, provided that: “Notwithstanding any other provision of law, funds made available in this title [see Tables for classification] for operation and maintenance of family housing shall be the exclusive source of funds for repair and maintenance of all family housing units, including general or flag officer quarters: Provided, That not more than $35,000 per unit may be spent annually for the maintenance and repair of any general or flag officer quarters without 30 days prior notification, or 14 days for a notification provided in an electronic medium pursuant to sections 480 and 2883 of title 10, United States Code, to the Committees on Appropriations of both Houses of Congress, except that an after-the-fact notification shall be submitted if the limitation is exceeded solely due to costs associated with environmental remediation that could not be reasonably anticipated at the time of the budget submission: Provided further, That the Under Secretary of Defense (Comptroller) is to report annually to the Committees on Appropriations of both Houses of Congress all operation and maintenance expenditures for each individual general or flag officer quarters for the prior fiscal year.”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 110–329, div. E, title I, §123, Sept. 30, 2008, 122 Stat. 3700.
Pub. L. 110–161, div. I, title I, §123, Dec. 26, 2007, 121 Stat. 2261.
Pub. L. 109–114, title I, §124, Nov. 30, 2005, 119 Stat. 2380, as amended by Pub. L. 109–148, div. B, title V, §5013, Dec. 30, 2005, 119 Stat. 2815.
Pub. L. 108–324, div. A, §124, Oct. 13, 2004, 118 Stat. 1228.
Pub. L. 108–132, §125, Nov. 22, 2003, 117 Stat. 1382.
Pub. L. 107–249, §127, Oct. 23, 2002, 116 Stat. 1586.
Pub. L. 107–64, §127, Nov. 5, 2001, 115 Stat. 482.
Pub. L. 106–246, div. A, §127, July 13, 2000, 114 Stat. 518.
Pub. L. 106–52, §128, Aug. 17, 1999, 113 Stat. 267.
Pub. L. 100–180, div. B, subdiv. 3, title II, §2321, Dec. 4, 1987, 101 Stat. 1218, required Secretary of Defense, using $1,000,000 of funds appropriated pursuant to authorization in subsection (a)(10)(B) of section 2145 of Pub. L. 100–180, to establish and carry out, during fiscal years 1988, 1989, and 1990, a pilot program for purpose of assisting units of general local government to increase amount of affordable family housing available to military personnel; required Secretary, establishing and carrying out such programs, to select at least five units of general local government severely impacted by presence of military bases and personnel; set forth criteria for selection of units of general local government, authority to make grants, cooperative agreements, etc., and uses of available funds; and required Secretary to report to Committees on Armed Services of Senate and House no later than Mar. 15 of 1988, 1989, 1990, and 1991 with respect to activities carried out under this section.
Pub. L. 98–115, title VIII, §802, Oct. 11, 1983, 97 Stat. 783, as amended by Pub. L. 98–407, title VIII, §806(b), Aug. 28, 1984, 98 Stat. 1521; Pub. L. 99–167, title VIII, §801(a), Dec. 3, 1985, 99 Stat. 985; Pub. L. 99–661, div. B, title VII, §2713(a), Nov. 14, 1986, 100 Stat. 4042; Pub. L. 100–180, div. B, subdiv. 3, title I, §2307, Dec. 4, 1987, 101 Stat. 1216; Pub. L. 101–189, div. B, title XXVIII, §2801, Nov. 29, 1989, 103 Stat. 1646; Pub. L. 101–510, div. B, title XXVIII, §2811, Nov. 5, 1990, 104 Stat. 1788, provided for agreements and contracts relating to military housing rental guarantee program, prior to repeal by Pub. L. 102–190, div. B, title XXVIII, §2809(b), (c), Dec. 5, 1991, 105 Stat. 1543, such repeal not to affect the validity of any contract entered into before Dec. 5, 1991, under section 802 of Pub. L. 98–115 as in effect on Dec. 4, 1991. See section 2836 of this title.
Pub. L. 98–115, title VIII, §803, Oct. 11, 1983, 97 Stat. 784, as amended by Pub. L. 98–407, title VIII, §812, Aug. 28, 1984, 98 Stat. 1524; Pub. L. 101–510, div. A, title XIII, §1302(f), Nov. 5, 1990, 104 Stat. 1669, provided that any contract entered into for the construction of military family housing for the Department of Defense in a foreign country was to require the use of housing fabricated in the United States by a United States contractor or, in the case of concrete housing, the use of housing produced in a plant that was fabricated in the United States by a United States company, and for which the materials, fixtures, and equipment used in the construction (other than cement, sand, and aggregates) were manufactured in the United States, prior to repeal by Pub. L. 107–314, div. B, title XXVIII, §2804, Dec. 2, 2002, 116 Stat. 2705.
(a) Except as otherwise provided in subsection (b) or as otherwise authorized by law, the Secretary concerned may not construct or acquire military family housing units unless the number of units to be constructed or acquired has been specifically authorized by law.
(b) Subsection (a) does not apply to the following:
(1) Housing units acquired under section 404 of the Housing Amendments of 1955 (42 U.S.C. 1594a).
(2) Housing units leased under section 2828 of this title.
(3) Housing units acquired under the Homeowners Assistance Program referred to in section 2832 of this title.
(4) Housing units acquired without consideration.
(5) Replacement housing units constructed under section 2825(c) of this title.
(6) Housing units constructed or provided under section 2869 of this title.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 158; amended Pub. L. 98–525, title XIV, §1405(44), Oct. 19, 1984, 98 Stat. 2625; Pub. L. 100–180, div. B, subdiv. 3, title I, §2308, Dec. 4, 1987, 101 Stat. 1216; Pub. L. 101–510, div. A, title XIII, §1301(17), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 102–25, title VII, §701(j)(9), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102–484, div. B, title XXVIII, §2802(b), Oct. 23, 1992, 106 Stat. 2606; Pub. L. 108–136, div. B, title XXVIII, §2805(b), Nov. 24, 2003, 117 Stat. 1721.)
2003—Subsec. (b)(6). Pub. L. 108–136 added par. (6).
1992—Subsec. (b)(5). Pub. L. 102–484 added par. (5).
1991—Subsec. (b)(4). Pub. L. 102–25 realigned margin of par. (4).
1990—Subsec. (b)(4). Pub. L. 101–510 amended par. (4) generally. Prior to amendment, par. (4) read as follows: “Housing units acquired without consideration, if—
“(A) the Secretary concerned provides to the appropriate committees of Congress written notification of the facts concerning the proposed acquisition; and
“(B) a period of 21 days elapses after the notification is received by those committees.”
1987—Subsec. (b)(4). Pub. L. 100–180 added par. (4).
1984—Subsec. (b)(3). Pub. L. 98–525 substituted “section 2832” for “section 2833”.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Section, added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 158; amended Pub. L. 105–85, div. A, title X, §1041(b), Nov. 18, 1997, 111 Stat. 1885, related to determination of availability of suitable alternative housing for acquisition in lieu of construction of new family housing.
(a) In lieu of constructing any family housing units authorized by law to be constructed, the Secretary concerned may acquire sole interest in existing family housing units that are privately owned or that are held by the Department of Housing and Urban Development, except that in foreign countries the Secretary concerned may acquire less than sole interest in existing family housing units.
(b) When authority provided by law to construct military family housing units is used to acquire existing family housing units under subsection (a), the authority includes authority to acquire interests in land.
(c) The net floor area of a family housing unit acquired under the authority of this section may not exceed the applicable limitation specified in section 2826 of this title. The Secretary concerned may waive the limitation set forth in the preceding sentence to family housing units acquired under this section during the five-year period beginning on February 10, 1996.
(d) Family housing units may not be acquired under this section through the exercise of eminent domain authority.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 159; amended Pub. L. 104–106, div. B, title XXVIII, §2813, Feb. 10, 1996, 110 Stat. 553; Pub. L. 104–201, div. A, title X, §1074(a)(17), Sept. 23, 1996, 110 Stat. 2659.)
1996—Subsec. (c). Pub. L. 104–201 substituted “February 10, 1996” for “the date of the enactment of the National Defense Authorization Act for Fiscal Year 1996”.
Pub. L. 104–106 inserted at end “The Secretary concerned may waive the limitation set forth in the preceding sentence to family housing units acquired under this section during the five-year period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 1996.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)(1) Authority provided by law to improve existing military family housing units and ancillary family housing support facilities is authority to make alterations, additions, expansions, and extensions.
(2) In this section, the term “improvement” includes rehabilitation of a housing unit and major maintenance or repair work to be accomplished concurrently with an improvement project. Such term does not include day-to-day maintenance and repair work.
(b)(1) Funds may not be expended for the improvement of any single family housing unit, or for the improvement of two or more housing units that are to be converted into or are to be used as a single family housing unit, if the cost per unit of such improvement will exceed (A) $50,000 multiplied by the area construction cost index as developed by the Department of Defense for the location concerned at the time of contract award, or (B) in the case of improvements necessary to make the unit suitable for habitation by a handicapped person, $60,000 multiplied by such index. The Secretary concerned may waive the limitations contained in the preceding sentence if such Secretary determines that, considering the useful life of the structure to be improved and the useful life of a newly constructed unit and the cost of construction and of operation and maintenance of each kind of unit over its useful life, the improvement will be cost-effective. If the Secretary concerned makes a determination under the preceding sentence with respect to an improvement, the waiver under that sentence with respect to that improvement may take effect only after the Secretary transmits a notice of the proposed waiver, together with an economic analysis demonstrating that the improvement will be cost effective, to the appropriate committees of Congress and a period of 21 days has elapsed after the date on which the notification is received by those committees or, if over sooner, a period of 14 days has elapsed after the date on which a copy of the notice is provided in an electronic medium pursuant to section 480 of this title.
(2) In determining the applicability of the limitation contained in paragraph (1), the Secretary concerned shall include as part of the cost of the improvement of the unit or units concerned the following:
(A) The cost of major maintenance or repair work undertaken in connection with the improvement.
(B) Any cost, other than the cost of activities undertaken beyond a distance of five feet from the unit or units concerned, in connection with—
(i) the furnishing of electricity, gas, water, and sewage disposal;
(ii) the construction or repair of roads, drives, and walks; and
(iii) grading and drainage work.
(3) In determining the applicability of the limitation contained in paragraph (1), the Secretary concerned shall not include as part of the cost of the improvement of the unit or units concerned the following:
(A) The cost of the installation of communications, security, or antiterrorism equipment required by an occupant of the unit or units to perform duties assigned to the occupant as a member of the armed forces.
(B) The cost of the maintenance or repair of equipment described in subparagraph (A) installed for the purpose specified in such subparagraph.
(4) The limitation contained in the first sentence of paragraph (1) does not apply to a project for the improvement of a family housing unit or units referred to in that sentence if the project (including the amount requested for the project) is identified in the budget materials submitted to Congress by the Secretary of Defense in connection with the submission to Congress of the budget for a fiscal year pursuant to section 1105 of title 31.
(c)(1) The Secretary concerned may construct replacement military family housing units in lieu of improving existing military family housing units if—
(A) the improvement of the existing housing units has been authorized by law;
(B) the Secretary determines that the improvement project is no longer cost-effective after a review of post-design or bid cost estimates;
(C) the Secretary submits to the committees referred to in subsection (b)(1) a notice containing—
(i) an economic analysis demonstrating that the improvement project would exceed 70 percent of the cost of constructing replacement housing units intended for members of the armed forces in the same pay grade or grades as those members who occupy the existing housing units; and
(ii) if the replacement housing units are intended for members of the armed forces in a different pay grade or grades, a justification of the need for the replacement housing units based upon the long-term requirements of the armed forces in the location concerned; and
(D) a period of 21 days elapses after the date on which the Secretary submits the notice required by subparagraph (C) or, if over sooner, a period of 14 days elapses after the date on which a copy of the notice is provided in an electronic medium pursuant to section 480 of this title.
(2) The amount that may be expended to construct replacement military family housing units under this subsection may not exceed the amount that is otherwise available to carry out the previously authorized improvement project.
(d) This section does not apply to projects authorized for restoration or replacement of housing units that have been damaged or destroyed.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 159; amended Pub. L. 99–661, div. B, title VII, §2702(c), Nov. 14, 1986, 100 Stat. 4040; Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; Pub. L. 100–180, div. B, subdiv. 3, title I, §2305, Dec. 4, 1987, 101 Stat. 1215; Pub. L. 101–189, div. B, title XXVIII, §2804, Nov. 29, 1989, 103 Stat. 1647; Pub. L. 101–510, div. B, title XXVIII, §2812, Nov. 5, 1990, 104 Stat. 1788; Pub. L. 102–484, div. B, title XXVIII, §2802(a), Oct. 23, 1992, 106 Stat. 2605; Pub. L. 103–337, div. B, title XXVIII, §2802, Oct. 5, 1994, 108 Stat. 3050; Pub. L. 104–106, div. A, title XV, §1502(a)(26), Feb. 10, 1996, 110 Stat. 506; Pub. L. 104–201, div. B, title XXVIII, §2803, Sept. 23, 1996, 110 Stat. 2788; Pub. L. 106–398, §1 [div. B, title XXVIII, §2802], Oct. 30, 2000, 114 Stat. 1654, 1654A–413; Pub. L. 108–136, div. A, title X, §1031(a)(41), Nov. 24, 2003, 117 Stat. 1601.)
2003—Subsec. (b)(1). Pub. L. 108–136, §1031(a)(41)(A), struck out “(i)” before “such Secretary determines” and substituted period and last sentence for “, and (ii) a period of 21 days elapses after the date on which the appropriate committees of Congress receive a notice from such Secretary of the proposed waiver, together with an economic analysis demonstrating that the improvement will be cost effective.”.
Subsec. (c)(1)(D). Pub. L. 108–136, §1031(a)(41)(B), inserted before period at end “or, if over sooner, a period of 14 days elapses after the date on which a copy of the notice is provided in an electronic medium pursuant to section 480 of this title”.
2000—Subsec. (b)(3), (4). Pub. L. 106–398 added par. (3) and redesignated former par. (3) as (4).
1996—Subsec. (a)(2). Pub. L. 104–201, §2803(a), inserted “major” before “maintenance or repair” and “Such term does not include day-to-day maintenance and repair work.” at end.
Subsec. (b)(1). Pub. L. 104–106 substituted “appropriate committees of Congress” for “Committees on Armed Services and the Committees on Appropriations of the Senate and of the House of Representatives”.
Subsec. (b)(2). Pub. L. 104–201, §2803(b), added par. (2) and struck out former par. (2) which read as follows: “In determining the applicability of the limitation contained in paragraph (1), there shall be included as part of the cost of the improvement the cost of repairs undertaken in connection with the improvement and any cost in connection with (A) the furnishing of electricity, gas, water and sewage disposal, (B) the construction or repair of roads and walks, and (C) grading and drainage work.”
1994—Subsec. (b)(3). Pub. L. 103–337 added par. (3).
1992—Subsecs. (c), (d). Pub. L. 102–484 added subsec. (c) and redesignated former subsec. (c) as (d).
1990—Subsec. (b)(1). Pub. L. 101–510 substituted “$50,000” for “$40,000” in cl. (A) and inserted at end sentence authorizing Secretary concerned to waive limitations contained in preceding sentence.
1989—Subsec. (b)(1). Pub. L. 101–189 inserted “(A)” after “will exceed” and added cl. (B).
1987—Subsec. (a)(2). Pub. L. 100–26 inserted “the term” after “In this section,”.
Subsec. (b)(1). Pub. L. 100–180 substituted “$40,000” for “$30,000”.
1986—Subsec. (b)(1). Pub. L. 99–661 substituted “$30,000” for “an amount specified by law for such purpose”.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Pub. L. 109–364, div. A, title III, §362, Oct. 17, 2006, 120 Stat. 2167, provided that: “The Secretary of a military department shall ensure that a member of the Armed Forces under the jurisdiction of the Secretary who occupies a unit of military family housing is provided with adequate storage space to secure personal property that the member is unable to secure within the unit whenever—
“(1) the member is assigned to duty in an area for which special pay under section 310 of title 37, United States Code, is available and the assignment is pursuant to orders specifying an assignment of 180 days or more; and
“(2) the dependents of the member who otherwise occupy the unit of military family housing are absent from the unit for more than 30 consecutive days during the period of the assignment of the member.”
Maximum amount of $30,000 per unit for an improvement project for family housing units under this section during the period beginning Oct. 1, 1982, and ending on the date of the enactment of the Military Construction Authorization Act for fiscal year 1984 or Oct. 1, 1983, whichever is later, see section 11(3) of Pub. L. 97–214, set out as a note under section 2828 of this title.
(a)
(b)
(2) In this subsection, the term “net floor area”, in the case of a military family housing unit, means the total number of square feet of the floor space inside the exterior walls of the unit, excluding the floor area of an unfinished basement, an unfinished attic, a utility space, a garage, a carport, an open or insect-screened porch, a stairwell, and any space used for a solar-energy system.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 159; amended Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; Pub. L. 102–190, div. B, title XXVIII, §2808, Dec. 5, 1991, 105 Stat. 1540; Pub. L. 104–106, div. B, title XXVIII, §§2814, 2815, Feb. 10, 1996, 110 Stat. 553; Pub. L. 104–201, div. A, title X, §1074(a)(17), Sept. 23, 1996, 110 Stat. 2659; Pub. L. 106–398, §1 [div. B, title XXVIII, §2803(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–413.)
2000—Pub. L. 106–398 amended section catchline and text generally. Prior to amendment, section consisted of subsecs. (a) to (i) which limited the net floor area allowed in the construction, acquisition, and improvement of military family housing units.
1996—Subsec. (e). Pub. L. 104–106, §2814, struck out at end “The authority provided by this subsection shall expire on September 30, 1994.”
Subsec. (i). Pub. L. 104–106, §2815, added subsec. (i).
Subsec. (i)(1). Pub. L. 104–201 substituted “February 10, 1996” for “the date of the enactment of the National Defense Authorization Act for Fiscal Year 1996”.
1991—Subsecs. (d) to (h). Pub. L. 102–190 added subsecs. (d) and (e) and redesignated former subsecs. (d) to (f) as (f) to (h), respectively.
1987—Subsec. (f). Pub. L. 100–26 inserted “the term” after “In this section,”.
Pub. L. 106–398, §1 [div. B, title XXVIII, §2803(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–413, provided that:
“(1) The amendments made by subsection (a) [amending this section] shall take effect on October 1, 2001, but the Secretary of Defense shall anticipate the requirements of section 2826 of title 10, United States Code, as added by such subsection, when preparing the budget request for new construction, acquisition, or improvement of military family housing for fiscal year 2002.
“(2) Section 2826 of title 10, United States Code, as in effect on September 30, 2001, shall continue to apply with respect to the construction, acquisition, or improvement of military family housing commenced on or before that date.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a) Subject to subsection (b), the Secretary concerned may relocate existing military family housing units from any location where the number of such units exceeds requirements for military family housing to any military installation where there is a housing shortage.
(b) A contract to carry out a relocation of military family housing units under subsection (a) may not be awarded until (1) the Secretary concerned has notified the appropriate committees of Congress of the proposed new locations of the housing units to be relocated and the estimated cost of and source of funds for the relocation, and (2) a period of 21 days has elapsed after the notification has been received by those committees or, if over sooner, a period of 14 days has elapsed after the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 160; amended Pub. L. 108–136, div. A, title X, §1031(a)(42), Nov. 24, 2003, 117 Stat. 1602.)
2003—Subsec. (b)(2). Pub. L. 108–136 inserted before period at end “or, if over sooner, a period of 14 days has elapsed after the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)(1) Subject to paragraph (2), the Secretary of the military department concerned may lease housing facilities at or near a military installation in the United States, Puerto Rico, or Guam for assignment, without rental charge, as family housing to members of the armed forces and for assignment, with fair market rental charge, as family housing to civilian employees of the Department of Defense stationed at such installation.
(2) A lease may only be made under paragraph (1) if the Secretary concerned finds that there is a shortage of adequate housing at or near such military installation and that—
(A) the requirement for such housing is temporary;
(B) leasing would be more cost effective than construction or acquisition of new housing;
(C) family housing is required for personnel attending service school academic courses on permanent change of station orders;
(D) construction of family housing at such installation has been authorized by law but is not yet completed; or
(E) a military construction authorization bill pending in Congress includes a request for authorization of construction of family housing at such installation.
(b)(1) Not more than 10,000 family housing units may be leased at any one time under subsection (a).
(2) Except as provided in paragraphs (3), (4), and (7), expenditures for the rental of housing units under subsection (a) (including the cost of utilities, maintenance, and operation) may not exceed $12,000 per unit per year, as adjusted from time to time under paragraph (5).
(3) Not more than 500 housing units may be leased under subsection (a) for which the expenditure for the rental of such units (including the cost of utilities, maintenance, and operation) exceeds the maximum amount per unit per year in effect under paragraph (2) but does not exceed $14,000 per unit per year, as adjusted from time to time under paragraph (5).
(4)(A) The Secretary of the Army may lease not more than eight housing units in the vicinity of Miami, Florida, for key and essential personnel, as designated by the Secretary, for the United States Southern Command for which the expenditure for the rental of such units (including the cost of utilities, maintenance, and operation, including security enhancements) exceeds the expenditure limitations in paragraphs (2) and (3).
(B) The amount of all leases under this paragraph may not exceed $280,000 per year, as adjusted from time to time under paragraph (6).
(C) The term of any lease under this paragraph may not exceed 5 years.
(D) Until September 30, 2008, the Secretary of the Army may authorize family members of a member of the armed forces on active duty who is assigned to a family-member-restricted area and who, before such assignment, was occupying a housing unit leased under this paragraph, to remain in the leased housing unit until the member completes the assignment. Costs incurred for the leased housing unit during the assignment shall be included in the costs subject to the limitation under subparagraph (B).
(5) At the beginning of each fiscal year, the Secretary concerned shall adjust the maximum lease amount provided for leases under paragraphs (2), (3), and (7) for the previous fiscal year by the percentage (if any) by which the national average monthly cost of housing (as calculated for purposes of determining rates of basic allowance for housing under section 403 of title 37) for the preceding fiscal year exceeds the national average monthly cost of housing (as so calculated) for the fiscal year before such preceding fiscal year.
(6) At the beginning of each fiscal year, the Secretary of the Army shall adjust the maximum aggregate amount for leases under paragraph (4) for the previous fiscal year by the percentage (if any) by which the annual average cost of housing for the Miami Military Housing Area (as calculated for purposes of determining rates of basic allowance for housing under section 403 of title 37) for the preceding fiscal year exceeds the annual average cost of housing for the Miami Military Housing Area (as so calculated) for the fiscal year before such preceding fiscal year.
(7)(A) Not more than 600 housing units may be leased by the Secretary of the Army under subsection (a) for which the expenditure for the rental of such units (including the cost of utilities, maintenance, and operation) exceeds the maximum amount per unit per year in effect under paragraph (2) but does not exceed $35,000 per unit per year, as adjusted from time to time under paragraph (5).
(B) The maximum lease amount provided in subparagraph (A) shall apply only to Army family housing in areas designated by the Secretary of the Army.
(C) The term of a lease under subparagraph (A) may not exceed 2 years.
(c) The Secretary concerned may lease housing facilities in foreign countries for assignment, without rental charge, as family housing to members of the armed forces and for assignment, with or without rental charge, as family housing to civilian employees of the Department of Defense—
(1) under circumstances specified in clause (A), (B), (D), or (E) of subsection (a)(2);
(2) for incumbents of special command positions (as determined by the Secretary of Defense);
(3) in countries where excessive costs of housing or other lease terms would cause undue hardship on Department of Defense personnel; and
(4) in countries that prohibit leases by individual military or civilian personnel of the United States.
(d)(1) Leases of housing units in foreign countries under subsection (c) for assignment as family housing may be for any period not in excess of 10 years, or 15 years in the case of leases in Korea, and the costs of such leases for any year may be paid out of annual appropriations for that year.
(2) The Secretary may enter into an agreement under this paragraph in connection with a lease entered into under subsection (c). Such an agreement—
(A) shall be for the purpose of compensating a developer for any costs resulting from the termination of the lease during the construction of the housing units that are to be occupied pursuant to the lease;
(B) may be for a period not in excess of three years; and
(C) shall include a provision that the obligation of the United States to make payments under the agreement in any fiscal year is subject to the availability of appropriations.
(e)(1) Expenditures for the rental of family housing in foreign countries (including the costs of utilities, maintenance, and operation) may not exceed $20,000 per unit per year, except that 450 units may be leased in foreign countries for not more than $25,000 per unit per year. These maximum lease amounts may be waived by the Secretary concerned with respect to not more than a total of 350 such units that are leased for incumbents of special positions or for personnel assigned to Defense Attache Offices or that are leased in countries where excessive costs of housing would cause undue hardship on Department of Defense personnel.
(2) In addition to the 450 units of family housing referred to in paragraph (1) for which the maximum lease amount is $25,000 per unit per year, the Secretaries of the military departments may lease not more than 3,300 units of family housing in Italy, subject to that maximum lease amount.
(3) In addition to the 450 units of family housing referred to in paragraph (1) for which the maximum lease amount is $25,000 per unit per year, the Secretary of the Army may lease not more than 1,175 units of family housing in Korea subject to that maximum lease amount.
(4) In addition to the units of family housing referred to in paragraph (1) for which the maximum lease amount is $25,000 per unit per year, the Secretary of the Army may lease not more than 2,800 units of family housing in Korea subject to a maximum lease amount of $35,000 per unit per year.
(5) The Secretary concerned shall adjust the maximum lease amounts provided for under paragraphs (1), (2), (3), and (4) for the previous fiscal year—
(A) for foreign currency fluctuations from October 1, 1987; and
(B) at the beginning of each fiscal year, by the percentage (if any) by which the Consumer Price Index for All Urban Consumers, published by the Bureau of Labor Statistics, during the preceding fiscal year exceeds such Consumer Price Index for the fiscal year before such preceding fiscal year.
(6) The maximum number of family housing units that may be leased in foreign countries under this section at any one time is 55,775.
(f) A lease for family housing facilities, or for real property related to family housing facilities, in a foreign country for which the average estimated annual rental during the term of the lease exceeds $1,000,000 may not be made under this section until (1) the Secretary concerned provides to the appropriate committees of Congress written notification of the facts concerning the proposed lease, and (2) a period of 21 days elapses after the notification is received by those committees or, if earlier, a period of 14 days has elapsed from the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(g) Appropriations available to the Department of Defense for maintenance or construction may be used for the acquisition of interests in land under this section.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 161; amended Pub. L. 97–321, title VIII, §805(b)(2), Oct. 15, 1982, 96 Stat. 1573; Pub. L. 98–115, title VIII, §801, Oct. 11, 1983, 97 Stat. 782; Pub. L. 98–407, title VIII, §806(a), Aug. 28, 1984, 98 Stat. 1521; Pub. L. 99–167, title VIII, §§801(b), 803, 805, Dec. 3, 1985, 99 Stat. 985, 987, 988; Pub. L. 99–661, div. B, title VII, §§2702(d)–(g), 2713(b), 2714, Nov. 14, 1986, 100 Stat. 4040–4042; Pub. L. 100–26, §7(j)(8), Apr. 21, 1987, 101 Stat. 283; Pub. L. 100–180, div. B, subdiv. 3, title I, §§2306(a), 2309, 2311, Dec. 4, 1987, 101 Stat. 1216, 1217; Pub. L. 100–370, §1(l)(2), July 19, 1988, 102 Stat. 849; Pub. L. 100–456, div. B, title XXVIII, §2802, Sept. 29, 1988, 102 Stat. 2115; Pub. L. 101–189, div. B, title XXVIII, §§2802, 2805, Nov. 29, 1989, 103 Stat. 1646, 1647; Pub. L. 102–190, div. B, title XXVIII, §2806(b), Dec. 5, 1991, 105 Stat. 1540; Pub. L. 103–35, title II, §201(d)(7), May 31, 1993, 107 Stat. 99; Pub. L. 103–160, div. B, title XXVIII, §2801, Nov. 30, 1993, 107 Stat. 1883; Pub. L. 104–106, div. B, title XXVIII, §2816, Feb. 10, 1996, 110 Stat. 553; Pub. L. 105–85, div. B, title XXVIII, §2803, Nov. 18, 1997, 111 Stat. 1990; Pub. L. 105–261, div. B, title XXVIII, §2802, Oct. 17, 1998, 112 Stat. 2202; Pub. L. 106–398, §1 [div. B, title XXVIII, §2804], Oct. 30, 2000, 114 Stat. 1654, 1654A–414; Pub. L. 107–314, div. A, title X, §1062(a)(15), div. B, title XXVIII, §2801, Dec. 2, 2002, 116 Stat. 2650, 2702; Pub. L. 108–136, div. B, title XXVIII, §§2803, 2804(a), Nov. 24, 2003, 117 Stat. 1719; Pub. L. 109–163, div. B, title XXVIII, §2802, Jan. 6, 2006, 119 Stat. 3505; Pub. L. 109–364, div. B, title XXVIII, §2804, Oct. 17, 2006, 120 Stat. 2467; Pub. L. 110–181, div. B, title XXVIII, §2806(a)–(c), Jan. 28, 2008, 122 Stat. 540, 541; Pub. L. 110–417, div. B, title XXVIII, §2802, Oct. 14, 2008, 122 Stat. 4719; Pub. L. 111–383, div. B, title XXVIII, §2803(d), Jan. 7, 2011, 124 Stat. 4459.)
Subsection (h) of this section and section 2673 of this title are based on Pub. L. 98–212, title VII, §707, Dec. 8, 1983, 97 Stat. 1438.
2011—Subsec. (f)(2). Pub. L. 111–383 inserted before period at end “or, if earlier, a period of 14 days has elapsed from the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
2008—Subsec. (b)(2). Pub. L. 110–181, §2806(a)(1), substituted “paragraphs (3), (4), and (7)” for “paragraphs (3) and (4)”.
Subsec. (b)(5). Pub. L. 110–181, §2806(a)(2), substituted “paragraphs (2), (3), and (7)” for “paragraphs (2) and (3)”.
Subsec. (b)(7). Pub. L. 110–181, §2806(a)(3), added par. (7).
Subsec. (b)(7)(A). Pub. L. 110–417 substituted “$35,000 per unit” for “$18,620 per unit”.
Subsec. (e)(2). Pub. L. 110–181, §2806(b), substituted “the Secretaries of the military departments may lease not more than 3,300 units of family housing in Italy” for “the Secretary of the Navy may lease not more than 2,800 units of family housing in Italy, and the Secretary of the Army may lease not more than 500 units of family housing in Italy”.
Subsec. (f). Pub. L. 110–181, §2806(c), substituted “$1,000,000” for “$500,000”.
2006—Subsec. (b)(4)(D). Pub. L. 109–364 added subpar. (D).
Subsec. (e)(4). Pub. L. 109–163 substituted “2,800” for “2,400”.
2003—Subsec. (d)(1). Pub. L. 108–136, §2804(a), substituted “10 years, or 15 years in the case of leases in Korea,” for “ten years,”.
Subsec. (e)(2). Pub. L. 108–136, §2803, substituted “2,800” for “2,000”.
2002—Subsec. (b)(2). Pub. L. 107–314, §1062(a)(15), inserted “time” after “from time to”.
Subsec. (e)(3). Pub. L. 107–314, §2801(a), substituted “1,175 units” for “800 units”.
Subsec. (e)(4). Pub. L. 107–314, §2801(b)(2), added par. (4). Former par. (4) redesignated (5).
Subsec. (e)(5). Pub. L. 107–314, §2801(b)(1), (3), redesignated par. (4) as (5) and substituted “(3), and (4)” for “and (3)” in introductory provisions. Former par. (5) redesignated (6).
Subsec. (e)(6). Pub. L. 107–314, §2801(b)(1), (4), redesignated par. (5) as (6) and substituted “55,775” for “53,000”.
2000—Subsec. (b)(2). Pub. L. 106–398, §1 [div. B, title XXVIII, §2804(c)(1)], inserted “, as adjusted from time to under paragraph (5)” after “per year”.
Subsec. (b)(3). Pub. L. 106–398, §1 [div. B, title XXVIII, §2804(c)(2)], substituted “the maximum amount per unit per year in effect under paragraph (2) but does not exceed $14,000 per unit per year, as adjusted from time to time under paragraph (5)” for “$12,000 per unit per year but does not exceed $14,000 per unit per year”.
Subsec. (b)(4). Pub. L. 106–398, §1 [div. B, title XXVIII, §2804(a)], designated existing provisions as subpar. (A), struck out last sentence which read as follows: “The total amount for all leases under this paragraph may not exceed $280,000 per year, and no lease on any individual housing unit may exceed $60,000 per year.”, and added subpars. (B) and (C).
Subsec. (b)(5), (6). Pub. L. 106–398, §1 [div. B, title XXVIII, §2804(b)], added pars. (5) and (6) and struck out former par. (5) which read as follows: “At the beginning of each fiscal year, the Secretary concerned shall adjust the maximum lease amount provided for under paragraphs (2), (3), and (4) for the previous fiscal year by the percentage (if any) by which the Consumer Price Index for All Urban Consumers, published by the Bureau of Labor Statistics, during the preceding fiscal year exceeds such Consumer Price Index for the fiscal year before such preceding fiscal year.”
1998—Subsec. (e)(2). Pub. L. 105–261, §2802(a)(1), inserted “, and the Secretary of the Army may lease not more than 500 units of family housing in Italy,” after “family housing in Italy”.
Subsec. (e)(3). Pub. L. 105–261, §2802(a)(3), added par. (3). Former par. (3) redesignated (4).
Subsec. (e)(4). Pub. L. 105–261, §2802(b), substituted “, (2), and (3)” for “and (2)”.
Pub. L. 105–261, §2802(a)(2), redesignated par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (e)(5). Pub. L. 105–261, §2802(a)(2), redesignated par. (4) as (5).
1997—Subsec. (b)(2). Pub. L. 105–85, §2803(a)(1), substituted “paragraphs (3) and (4)” for “paragraph (3)”.
Subsec. (b)(4). Pub. L. 105–85, §2803(a)(3), added par. (4). Former par. (4) redesignated (5).
Subsec. (b)(5). Pub. L. 105–85, §2803(b), substituted “paragraphs (2), (3), and (4)” for “paragraphs (2) and (3)”.
Pub. L. 105–85, §2803(a)(2), redesignated par. (4) as (5).
1996—Subsec. (e)(1). Pub. L. 104–106, §2816(1), substituted “450 units” for “300 units” in first sentence and “350 such units” for “220 such units” in second sentence.
Subsec. (e)(2). Pub. L. 104–106, §2816(2), substituted “450 units” for “300 units”.
1993—Subsec. (b)(2), (3). Pub. L. 103–35 substituted “per year” for “per annum” in par. (2) and in two places in par. (3).
Subsec. (b)(4). Pub. L. 103–160, §2801(a), added par. (4).
Subsec. (e)(1). Pub. L. 103–160, §2801(b)(1), (2), substituted “, except that 300 units may be leased in foreign countries for not more than $25,000 per unit per year” for “as adjusted for foreign currency fluctuation from October 1, 1987” in first sentence and “These maximum lease amounts” for “That maximum lease amount” in second sentence.
Pub. L. 103–35 substituted “per year” for “per annum”.
Subsec. (e)(2) to (4). Pub. L. 103–160, §2801(b)(3), (4), added pars. (2) and (3) and redesignated former par. (2) as (4).
1991—Subsecs. (g), (h). Pub. L. 102–190 redesignated subsec. (h) as (g) and struck out former subsec. (g) which authorized contracts for lease of family housing units on or near military installations at which there is a validated deficit in family housing. See section 2835 of this title.
1989—Subsec. (b)(2). Pub. L. 101–189, §2802(1), substituted “$12,000” for “$10,000”.
Subsec. (b)(3). Pub. L. 101–189, §2802(2), substituted “Not” for “(A) Except as provided in subparagraph (B), not”, “$12,000” for “$10,000”, and “$14,000” for “$12,000” and struck out subpar. (B) which read as follows: “During fiscal years 1986 and 1987, the number of housing units that may be leased pursuant to the provisions of subparagraph (A) may be increased by 500 units for each such fiscal year. The Secretary concerned shall provide written notification to the Committees on Armed Services of the Senate and House of Representatives concerning the location, purpose, and cost of the additional units permitted by this subparagraph. Such notification shall be made periodically as the leases are entered into.”
Subsec. (e)(1). Pub. L. 101–189, §2802(3), inserted “as adjusted for foreign currency fluctuation from October 1, 1987” after “$20,000 per unit per annum”.
Subsec. (e)(2). Pub. L. 101–189, §2802(4), substituted “53,000” for “38,000”.
Subsec. (g)(7). Pub. L. 101–189, §2805(1), added par. (7) and struck out former par. (7) which provided that this subsection could only be implemented by a pilot program, and that in carrying out such program, the Secretary of each military department or the Secretary of Transportation with respect to the Coast Guard, could not enter into more than two contracts under this subsection, and any such contract could not be for more than 300 family housing units.
Subsec. (g)(8). Pub. L. 101–189, §2805, redesignated par. (9) as (8), substituted “1991” for “1989”, and struck out former par. (8) which authorized the Secretaries of the military departments and the Secretary of Transportation to enter into contracts for family housing units in addition to those authorized in par. (7).
Subsec. (g)(9), (10). Pub. L. 101–189, §2805(2), redesignated par. (10) as (9). Former par. (9) redesignated (8).
1988—Subsec. (e)(2). Pub. L. 100–456 substituted “38,000” for “36,000”.
Subsec. (h). Pub. L. 100–370 added subsec. (h).
1987—Subsec. (a)(1). Pub. L. 100–26 substituted “armed forces” for “Armed Forces”.
Subsec. (b)(2). Pub. L. 100–180, §2309(b)(1), inserted “per unit per annum” after “$10,000”.
Subsec. (b)(3)(A). Pub. L. 100–180, §2309(b)(2), substituted “$10,000 per unit per annum but does not exceed $12,000 per unit per annum” for “$10,000 but does not exceed $12,000”.
Subsec. (c). Pub. L. 100–26 substituted “armed forces” for “Armed Forces”.
Subsec. (e)(1). Pub. L. 100–180, §2309(a)(1), substituted “$20,000 per unit per annum” for “$16,800”.
Subsec. (e)(2). Pub. L. 100–180, §2309(a)(2), substituted “36,000” for “32,000”.
Subsec. (f). Pub. L. 100–180, §2311, substituted “$500,000” for “$250,000”.
Subsec. (g)(1). Pub. L. 100–180, §2306(a)(1), inserted “, or the Secretary of Transportation with respect to the Coast Guard,” after “military department” and “or rehabilitated to residential use” after “constructed”.
Subsec. (g)(7)(A). Pub. L. 100–180, §2306(a)(2), inserted “, or the Secretary of Transportation with respect to the Coast Guard,” after “military department”.
Subsec. (g)(8)(C). Pub. L. 100–180, §2306(a)(3), added subpar. (C).
Subsec. (g)(9). Pub. L. 100–180, §2306(a)(4), substituted “1989” for “1988”.
1986—Subsec. (b)(2). Pub. L. 99–661, §2702(d)(1), substituted “$10,000” for “the amount specified by law as the maximum annual domestic family housing unit lease amount”.
Subsec. (b)(3)(A). Pub. L. 99–661, §2702(d)(2), substituted “$10,000 but does not exceed $12,000” for “the maximum annual domestic family housing unit lease amount but does not exceed 120 percent of that amount”.
Subsec. (e)(1). Pub. L. 99–661, §2714, substituted “220” for “200”.
Pub. L. 99–661, §2702(e), substituted “$16,800” for “the amount specified by law as the maximum annual foreign family housing unit lease amount”.
Subsec. (e)(2). Pub. L. 99–661, §2702(f), substituted “is 32,000” for “shall be specified by law”.
Subsec. (f). Pub. L. 99–661, §2702(g), substituted “$250,000” for “the amount specified by law for such purpose”.
Subsec. (g)(8)(B). Pub. L. 99–661, §2713(b)(1), substituted “1,600” for “600”.
Subsec. (g)(9). Pub. L. 99–661, §2713(b)(2), substituted “September 30, 1988” for “September 30, 1986”.
Subsec. (g)(10). Pub. L. 99–661, §2713(b)(3), added par. (10).
1985—Subsec. (b)(3). Pub. L. 99–167, §805, designated existing provisions as subpar. (A), substituted “Except as provided in subparagraph (B), not” for “Not”, and added subpar. (B).
Subsec. (d). Pub. L. 99–167, §803, designated existing provisions as par. (1) and added par. (2).
Subsec. (g)(8). Pub. L. 99–167, §801(b)(2), designated existing provisions as subpar. (A) and added subpar. (B).
Subsec. (g)(9). Pub. L. 99–167, §801(b)(1), substituted “September 30, 1986” for “October 1, 1985”.
1984—Subsec. (g)(8), (9). Pub. L. 98–407 added par. (8) and redesignated former par. (8) as (9).
1983—Subsec. (g). Pub. L. 98–115 added subsec. (g).
1982—Subsec. (e)(1). Pub. L. 97–321 inserted “the” after “may be waived by” in second sentence.
Section 2806(c) of Pub. L. 102–190 provided that: “Section 2835 of title 10, United States Code, as added by subsection (a), shall apply with respect to contracts entered into under that section on or after the date of the enactment of this Act [Dec. 5, 1991]. The amendment made by subsection (b)(1) [amending this section] shall not affect the validity of any contract entered into before that date under section 2828(g) of such title, as in effect on the day before that date.”
Amendment by Pub. L. 100–456 effective Oct. 1, 1988, see section 2702 of Pub. L. 100–456, set out as a note under section 2391 of this title.
Section 806(c) of Pub. L. 98–407 provided that: “The amendments made by this section [amending this section and provisions set out as a note under section 2821 of this title] shall take effect on October 1, 1984.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
The Secretary concerned may make contracts for periods of up to four years for supplies and services for the management, maintenance, and operation of military family housing and may pay the costs of such contracts for each year out of annual appropriations for that year.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 162.)
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)(1) A member of the uniformed services with dependents may, without loss of the member's basic allowance for housing under section 403 of title 37, occupy a substandard family housing unit under the jurisdiction of the Secretary concerned.
(2) Occupancy of a family housing unit under paragraph (1) shall be subject to a charge against the member's basic allowance for housing in the amount of the fair rental value of the housing unit. However, such a charge may not be made in an amount in excess of 75 percent of the amount of such allowance.
(b)(1) The Secretary concerned may lease substandard family housing units to members of any of the uniformed services for occupancy by such members.
(2) The authority to enter into leases under paragraph (1) shall be exercised—
(A) in the case of a lease by the Secretary of a military department, subject to regulations prescribed by the Secretary of Defense; and
(B) in the case of a lease by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, subject to regulations prescribed by that Secretary.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 162; amended Pub. L. 99–348, title III, §304(a)(4), July 1, 1986, 100 Stat. 703; Pub. L. 100–180, div. A, title VI, §632(a), Dec. 4, 1987, 101 Stat. 1105; Pub. L. 105–85, div. A, title VI, §603(d)(2)(B), Nov. 18, 1997, 111 Stat. 1782; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)
2002—Subsec. (b)(2)(B). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
1997—Subsec. (a)(1). Pub. L. 105–85, §603(d)(2)(B)(i), substituted “basic allowance for housing under section 403 of title 37” for “basic allowance for quarters”.
Subsec. (a)(2). Pub. L. 105–85, §603(d)(2)(B)(ii), substituted “basic allowance for housing” for “basic allowance for quarters”.
1987—Subsec. (a)(1). Pub. L. 100–180, §632(a)(1), substituted “Secretary concerned” for “Secretary of a military department”.
Subsec. (b). Pub. L. 100–180, §632(a)(2), (3), designated existing provisions as par. (1), substituted “The Secretary concerned” for “Subject to regulations prescribed by the Secretary of Defense, the Secretary of a military department”, and added par. (2).
1986—Subsec. (c). Pub. L. 99–348 struck out subsec. (c) which defined “uniformed services” in this section to mean the armed forces and the commissioned corps of the Public Health Service and of the National Oceanic and Atmospheric Administration. See section 101 of this title.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Amendment by Pub. L. 105–85 effective Jan. 1, 1998, see section 603(e) of Pub. L. 105–85, set out as a note under section 5561 of Title 5, Government Organization and Employees.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)
(b)
(1) appropriations made for the purpose of, or which are available for, the payment of costs arising in connection with the construction, acquisition, leasing, relocation, operation and maintenance, and disposal of military family housing, including the cost of principal and interest charges, and insurance premiums, arising in connection with the acquisition of such housing, and mortgage insurance premiums payable under section 222(c) 1 of the National Housing Act (12 U.S.C. 1715m(c));
(2) proceeds from the rental of family housing and mobile home facilities under the control of a military department, reimbursements from the occupants of such facilities for services rendered (including utility costs), funds obtained from individuals as a result of losses, damages, or destruction to such facilities caused by the abuse or negligence of such individuals, and reimbursements from other Government agencies for expenditures from the account; and
(3) proceeds of the handling and the disposal of family housing of a military department (including related land and improvements), whether carried out by a military department or any other Federal agency, but less those expenses payable pursuant to section 572(a) of title 40.
(c)
(d)
(e)
(A) identifying each family housing unit used, or intended for use, as quarters for a general officer or flag officer for which the total operation, maintenance, and repair costs for the unit are anticipated to exceed $35,000 in the next fiscal year;
(B) for each family housing unit identified under subparagraph (A), specifying the total of such anticipated operation, maintenance, and repair costs for the unit;
(C) identifying each family housing unit in excess of 6,000 square feet used, or intended for use, as quarters for a general officer or flag officer;
(D) for each family housing unit identified under subparagraph (C), specifying any alternative and more efficient use to which the unit could be converted (which would include any costs necessary to convert the unit) and containing an explanation of the reasons why the unit is not being converted to the alternative use; and
(E) for each family housing unit identified under subparagraph (C) for which costs under subparagraph (A) or new construction costs are anticipated to exceed $100,000 in the next fiscal year, specifying any alternative use to which the unit could be converted (which would include any costs necessary to convert the unit) and an estimate of the costs to demolish and rebuild the unit to private sector standards.
(2) Not later than 120 days after the end of each fiscal year, the Secretary of Defense shall submit to the congressional defense committees a report specifying, for each family housing unit used as quarters for a general officer or flag officer at any time during that fiscal year, the total expenditures for operation and maintenance, utilities, lease, and repairs of the unit during that fiscal year.
(f)
(A) the Secretary concerned submits to the congressional defense committees, in writing, a justification of the need for the maintenance or repair project and an estimate of the cost of the project; and
(B) a period of 21 days has expired following the date on which the justification and estimate are received by the committees or, if over sooner, a period of 14 days has expired following the date on which a copy of the justification and estimate are provided in an electronic medium pursuant to section 480 of this title.
(2) The project justification and cost estimate required by paragraph (1)(A) may be submitted after the commencement of a maintenance or repair project for a family housing unit used, or intended for use, as quarters for a general officer or flag officer if the project is a necessary environmental remediation project for the unit or is necessary for occupant safety or security, and the need for the project arose after the submission of the most recent report under subsection (e).
(3) Paragraph (1) shall not apply in the case of a family housing unit used, or intended for use, as quarters for a general officer or flag officer if the unit was identified in the most recent report submitted under subsection (e) and the cost of the maintenance or repair project was included in the total of anticipated operation, maintenance, and repair costs for the unit specified in the report.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 162; amended Pub. L. 107–217, §3(b)(19), Aug. 21, 2002, 116 Stat. 1297; Pub. L. 108–375, div. B, title XXVIII, §2802(a), (b), Oct. 28, 2004, 118 Stat. 2119, 2120; Pub. L. 109–364, div. A, title X, §1071(a)(26), div. B, title XXVIII, §2805, Oct. 17, 2006, 120 Stat. 2399, 2467.)
Section 222(c) of the National Housing Act (12 U.S.C. 1715m(c)), referred to in subsec. (b)(1), was repealed by Pub. L. 110–289, div. B, title I, §2120(a)(5), July 30, 2008, 122 Stat. 2835.
2006—Subsecs. (a) to (d). Pub. L. 109–364, §2805(b)(1)–(4), inserted subsec. headings.
Subsec. (e). Pub. L. 109–364, §2805(b)(5), struck out “Cost of” before “General Officers” in heading.
Subsec. (e)(1)(B). Pub. L. 109–364, §2805(a)(2)(A), substituted “identified under subparagraph (A)” for “so identified”.
Subsec. (e)(1)(C) to (E). Pub. L. 109–364, §2805(a)(1), (2)(B), (3), added subpars. (C) to (E).
Subsec. (f)(2). Pub. L. 109–364, §1071(a)(26), substituted “environmental” for “enviromental”.
2004—Subsecs. (e), (f). Pub. L. 108–375 added subsecs. (e) and (f).
2002—Subsec. (b)(3). Pub. L. 107–217 substituted “section 572(a) of title 40” for “section 204(b) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 485(b))”.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
1 See References in Text note below.
The Secretary of Defense may exercise the authority provided in section 1013 of the Demonstration Cities and Metropolitan Development Act of 1966 (42 U.S.C. 3374).
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 163; amended Pub. L. 101–189, div. B, title XXVIII, §2831(a), Nov. 29, 1989, 103 Stat. 1660; Pub. L. 104–106, div. A, title XV, §1502(a)(26), Feb. 10, 1996, 110 Stat. 506; Pub. L. 107–107, div. A, title X, §1048(e)(11), Dec. 28, 2001, 115 Stat. 1228.)
2001—Pub. L. 107–107 struck out “(a)” before “The Secretary of Defense” and struck out subsec. (b) which read as follows:
“(b)(1) Subject to paragraph (2) and notwithstanding subsection (i) of section 1013 of the Act referred to in subsection (a)—
“(A) the Secretary of Defense may transfer not more than $31,000,000 from the Department of Defense Base Closure Account, established by section 207 of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 102 Stat. 2627), to the fund established pursuant to subsection (d) of such section 1013 for use as part of such fund; and
“(B) any funds so transferred shall be available for obligation and expenditure for the same purposes that funds appropriated to such fund are available, except that such funds may not be obligated after September 30, 1991.
“(2) Amounts may be transferred under paragraph (1) only after the date on which the appropriate committees of Congress receive from the Secretary written notice of, and justification for, the transfer.”
1996—Subsec. (b)(2). Pub. L. 104–106 substituted “appropriate committees of Congress” for “Committees on Armed Services and the Committees on Appropriations of the Senate and of the House of Representatives”.
1989—Pub. L. 101–189 designated existing provisions as subsec. (a) and added subsec. (b).
Section 2831(b) of Pub. L. 101–189 provided that: “The amendments made by subsection (a) [amending this section] shall apply only to funds appropriated or transferred to, or otherwise deposited in, the Department of Defense Base Closure Account for, or during, fiscal years beginning after September 30, 1989.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Amounts authorized by law for support of military family housing include amounts for—
(1) operating expenses;
(2) leasing expenses;
(3) maintenance of real property expenses;
(4) payments of principal and interest on mortgage debts incurred; and
(5) payments of mortgage insurance premiums authorized under section 222 1 of the National Housing Act (12 U.S.C. 1715m).
(Added Pub. L. 99–167, title VIII, §804(b)(1), Dec. 3, 1985, 99 Stat. 987.)
Section 222 of the National Housing Act (12 U.S.C. 1715m), referred to in par. (5), was repealed by Pub. L. 110–289, div. B, title I, §2120(a)(5), July 30, 2008, 122 Stat. 2835.
1 See References in Text note below.
(a) The Secretary concerned may enter into an agreement with the Secretary of State under which the Secretary of State agrees to provide housing and related services for personnel under the jurisdiction of the Secretary concerned who are assigned to duty in a foreign country if the Secretary concerned determines—
(1) that there is a shortage of adequate housing in the area of the foreign country in which such personnel are assigned to duty; and
(2) that participation in the Department of State housing pool is the most cost-effective means of providing housing for such personnel.
The Secretary concerned shall reimburse the Secretary of State, as provided in the agreement, for housing and related services furnished personnel under the jurisdiction of the Secretary concerned.
(b) The maximum lease amounts specified in section 2828(e)(1) of this title for the rental of family housing in foreign countries shall not apply to housing made available to the Department of Defense under this section. To the extent that the lease amount for units of housing made available under this subsection exceeds such maximum lease amounts, such units shall not be counted in applying the limitation contained in such section on the number of units of family housing for which the Secretary concerned may waive such maximum lease amounts.
(Added Pub. L. 99–167, title VIII, §808(a), Dec. 3, 1985, 99 Stat. 989; amended Pub. L. 101–510, div. A, title XIII, §1301(18), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 103–160, div. B, title XXVIII, §2806, Nov. 30, 1993, 107 Stat. 1887.)
1993—Subsec. (b). Pub. L. 103–160 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “In computing the number of leases for which the maximum lease amount may be waived by the Secretary concerned under the second sentence of section 2828(e)(1) of this title, housing made available to the Department of Defense under this section shall be included.”
1990—Subsecs. (b), (c). Pub. L. 101–510 redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows: “Agreements entered into with the Secretary of State under this section may not be executed until (1) the Secretary concerned provides to the appropriate committees of Congress written notification of the facts concerning the proposed agreement, and (2) a period of 21 days has elapsed after the day on which the notification is received by the committees.”
(a)
(b)
(2) The budget material submitted to Congress by the Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard, in connection with the budget submitted pursuant to section 1105 of title 31 for each fiscal year shall include materials that identify the military housing projects for which lease contracts are proposed to be entered into under subsection (a) in such fiscal year.
(c)
(d)
(1) A statement that the obligation of the United States to make payments under the contract in any fiscal year is subject to appropriations being provided specifically for that fiscal year and specifically for that project.
(2) A commitment to obligate the necessary amount for each fiscal year covered by the contract when and to the extent that funds are appropriated for that project for that fiscal year.
(3) A statement that such a commitment entered into under the authority of this section does not constitute an obligation of the United States.
(4) A requirement that housing units constructed pursuant to the contract shall be constructed—
(A) to Department of Defense specifications, in the case of a Department of Defense contract; and
(B) to Department of Homeland Security specifications, in the case of a contract for the Coast Guard.
(e)
(f)
(g)
(1) the Secretary of Defense, or the Secretary of Homeland Security with respect to the Coast Guard, submits to the appropriate committees of Congress, in writing, an economic analysis (based upon accepted life cycle costing procedures) which demonstrates that the proposed contract is cost-effective when compared with alternative means of furnishing the same housing facilities; and
(2) a period of 21 days has expired following the date on which the economic analysis is received by those committees or, if earlier, a period of 14 days has elapsed from the date on which a copy of the analysis is provided in an electronic medium pursuant to section 480 of this title.
(h)
(Added Pub. L. 102–190, div. B, title XXVIII, §2806(a)(1), Dec. 5, 1991, 105 Stat. 1539; amended Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 111–383, div. B, title XXVIII, §2803(e), Jan. 7, 2011, 124 Stat. 4459.)
Provisions similar to those in this section were contained in subsec. (g) of section 2828 of this title, prior to repeal by Pub. L. 102–190, §2806(b)(1).
2011—Subsec. (g)(2). Pub. L. 111–383 struck out “calendar” after “21” and inserted before period at end “or, if earlier, a period of 14 days has elapsed from the date on which a copy of the analysis is provided in an electronic medium pursuant to section 480 of this title”.
2002—Subsecs. (a) to (c), (d)(4)(B), (g)(1). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation” wherever appearing.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Section applicable with respect to contracts entered into under this section on or after Dec. 5, 1991, see section 2806(c) of Pub. L. 102–190, set out as an Effective Date of 1991 Amendment note under section 2828 of this title.
(a)
(2) A member without dependents who is assigned to housing pursuant to paragraph (1) shall be considered to be assigned to quarters pursuant to section 403(e) of title 37.
(b)
(2) The term of the lease contract for military unaccompanied housing converted from military family housing under paragraph (1) may not exceed the remaining term of the lease contract for the family housing so converted.
(c)
(A) the Secretary submits to the congressional defense committees a notice of the intent to undertake the conversion; and
(B) a period of 21 days has expired following the date on which the notice is received by the committees or, if earlier, a period of 14 days has expired following the date on which a copy of the notice is provided in an electronic medium pursuant to section 480 of this title.
(2) The notice required by paragraph (1) shall include—
(A) an explanation of the reasons for the conversion of the military family housing to military unaccompanied housing;
(B) a description of the long-term lease to be converted;
(C) amounts to be paid under the lease; and
(D) the expiration date of the lease.
(d)
(Added Pub. L. 110–417, div. B, title XXVIII, §2803(a), Oct. 14, 2008, 122 Stat. 4719.)
Section 2828(g) of this title (commonly known as the “Build to Lease program”), as added by section 801 of the Military Construction Authorization Act, 1984, referred to in subsec. (d), means the subsection (g) added to section 2828 of this title by section 801 of Pub. L. 98–115, which was repealed by Pub. L. 102–190, div. B, title XXVIII, §2806(b), Dec. 5, 1991, 105 Stat. 1540.
(a)
(b)
(2) The budget material submitted to Congress by the Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard, in connection with the budget submitted pursuant to section 1105 of title 31 for each fiscal year shall include materials that identify the military housing rental guaranty projects for which agreements are proposed to be entered into under subsection (a) in that fiscal year.
(c)
(1) may not assure the occupancy of more than 97 percent of the units constructed under the agreement;
(2) shall establish initial rental rates that are not more than rates for comparable rental dwelling units in the same general market area and may include an escalation clause;
(3) may apply to existing housing;
(4) shall require that the housing units be constructed—
(A) in the case of a Department of Defense agreement, to Department of Defense specifications or, at the discretion of the Secretary of the military department concerned, in compliance with the local building codes; and
(B) in the case of an agreement for the Coast Guard, to Department of Homeland Security specifications;
(5) may not be for a term in excess of 25 years;
(6) may not be renewed unless the project is located on government owned land, in which case the renewal period may not exceed the original contract term;
(7) may not assure more than an amount equivalent to the shelter rent of the housing units, determined on the basis of amortizing initial construction costs;
(8) may only be entered into to the extent that there is a shortage in military family housing;
(9) may only be entered into if existing military-controlled housing at all installations in the commuting area (except for a new installation or an installation for which there is projected a significant increase in the number of families due to an increase in the number of authorized personnel) has exceeded 97 percent use for a period of not less than 18 consecutive months immediately preceding the date on which the agreement is entered into, excluding units temporarily inactivated for major repair or improvements;
(10) shall provide for priority of occupancy for military families;
(11) shall include a provision authorizing the Secretary of the military department concerned, or the Secretary of Homeland Security with respect to the Coast Guard, to take such action as the Secretary considers appropriate to protect the interests of the United States, including rendering the agreement null and void if, in the opinion of the Secretary, the owner of the housing fails to maintain a satisfactory level of operation and maintenance;
(12) may provide in the agreement for the rental of a child care center, civic center building, and similar type buildings constructed for the support of family housing;
(13) may provide that utilities, trash collection, snow removal, and entomological services will be furnished by the Federal Government at no cost to the occupant to the same extent that these items are provided to occupants of housing owned by the Federal Government; and
(14) may require that rent collection and operation and maintenance services in connection with the housing be under the terms of a separate agreement or be carried out by personnel of the Federal Government.
(d)
(1) A statement that the obligation of the United States to make payments under the agreement in any fiscal year is subject to appropriations being provided specifically for that fiscal year and specifically for that project.
(2) A commitment to obligate the necessary amount for each fiscal year covered by the agreement when and to the extent that funds are appropriated for such project for such fiscal year.
(3) A statement that such a commitment entered into under the authority of this section does not constitute an obligation of the United States.
(e)
(f)
(1) the Secretary of Defense, or the Secretary of Homeland Security with respect to the Coast Guard, submits to the appropriate committees of Congress, in writing, an economic analysis (based upon accepted life cycle costing procedures) which demonstrates that the proposed agreement is cost effective when compared with alternative means of furnishing the same housing facilities; and
(2) a period of 21 days has expired following the date on which the economic analysis is received by those committees or, if over sooner, a period of 14 days has expired following the date on which a copy of the economic analysis is provided in an electronic medium pursuant to section 480 of this title.
(g)
(Added Pub. L. 102–190, div. B, title XXVIII, §2809(a)(1), Dec. 5, 1991, 105 Stat. 1541; amended Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 108–136, div. A, title X, §1031(a)(43), Nov. 24, 2003, 117 Stat. 1602; Pub. L. 111–350, §5(b)(48), Jan. 4, 2011, 124 Stat. 3846.)
Similar provisions were contained in Pub. L. 98–115, title VIII, §802, Oct. 11, 1983, 97 Stat. 783, as amended, which was set out as a note under section 2821 of this title, prior to repeal by Pub. L. 102–190, §2809(b).
2011—Subsec. (g). Pub. L. 111–350 substituted “chapter 71 of title 41” for “the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.)”.
2003—Subsec. (f)(2). Pub. L. 108–136 substituted “21 days” for “21 calendar days” and inserted before period at end “or, if over sooner, a period of 14 days has expired following the date on which a copy of the economic analysis is provided in an electronic medium pursuant to section 480 of this title”.
2002—Subsecs. (a), (b), (c)(4)(B), (11), (e), (f)(1). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation” wherever appearing.
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
Section 2809(c) of Pub. L. 102–190 provided that: “Section 2836 of title 10, United States Code, as added by subsection (a), shall apply with respect to contracts entered into under that section on or after the date of the enactment of this Act [Dec. 5, 1991]. The amendment made by subsection (b) [repealing provisions set out as a note under section 2821 of this title] shall not affect the validity of any contract entered into before that date under section 802 of the Military Construction Authorization Act, 1984 (10 U.S.C. 2821 note), as in effect on the day before that date.”
(a)
(2) Paragraph (1) applies to a military installation under the jurisdiction of the Secretary concerned at which there is a shortage of suitable housing to meet the requirements of members and dependents referred to in such paragraph.
(b)
(1) a suitable preference will be afforded members of the armed forces in the lease or purchase, as the case may be, of a reasonable number of the housing units covered by the limited partnership; or
(2) the rental rates or sale prices, as the case may be, for some or all of such units will be affordable for such members.
(c)
(2) When a decision is made to enter into a limited partnership under subsection (a), the Secretary concerned shall submit a report in writing to the appropriate committees of Congress on that decision. Each such report shall include the justification for the limited partnership, the terms and conditions of the limited partnership, a description of the development costs for projects under the limited partnership, and a description of the share of such costs to be incurred by the Secretary concerned. The Secretary concerned may then enter into the limited partnership only after the end of the 21-day period beginning on the date the report is received by such committees or, if earlier, the end of the 14-day period beginning on the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title.
(d)
(2) There shall be deposited into the Account—
(A) such funds as may be authorized for and appropriated to the Account; and
(B) any proceeds received by the Secretary concerned from the repayment of investments or profits on investments of the Secretary under subsection (a).
(3) From such amounts as are provided in advance in appropriation Acts, funds in the Account shall be available to the Secretaries concerned in amounts determined by the Secretary of Defense for contracts, investments, and expenses necessary for the implementation of this section.
(4) The Secretary concerned may not enter into a contract in connection with a limited partnership under subsection (a) or a collateral incentive agreement under subsection (b) unless a sufficient amount of the unobligated balance of the funds in the Account is available to the Secretary, as of the time the contract is entered into, to satisfy the total obligations to be incurred by the United States under the contract.
[(e) Repealed. Pub. L. 104–106, div. B, title XXVIII, §2802(d)(1), Feb. 10, 1996, 110 Stat. 552.]
(f)
(g)
(h)
(Added Pub. L. 103–337, div. B, title XXVIII, §2803(a), Oct. 5, 1994, 108 Stat. 3051; amended Pub. L. 104–106, div. B, title XXVIII, §2802, Feb. 10, 1996, 110 Stat. 551; Pub. L. 106–65, div. A, title X, §1066(a)(28), oct. 5, 1999, 113 Stat. 772; Pub. L. 108–136, div. A, title X, §1031(a)(44), Nov. 24, 2003, 117 Stat. 1602.)
2003—Subsec. (c)(2). Pub. L. 108–136 inserted before period at end “or, if earlier, the end of the 14-day period beginning on the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title”.
1999—Subsec. (d)(2). Pub. L. 106–65 inserted “and” at end of subpar. (A), substituted a period for “; and” at end of subpar. (B), and struck out subpar. (C) which read as follows: “any unobligated balances which remain in the Navy Housing Investment Account as of the date of the enactment of the National Defense Authorization Act for Fiscal Year 1996.”
1996—Subsec. (a)(1). Pub. L. 104–106, §2802(b)(1), substituted “the Secretary of a military department” for “the Secretary of the Navy”.
Pub. L. 104–106, §2802(a)(1), substituted “of the armed forces” for “of the naval service”.
Subsec. (a)(2). Pub. L. 104–106, §2802(b)(2), substituted “Secretary concerned” for “Secretary”.
Subsec. (b). Pub. L. 104–106, §2802(b)(2), substituted “Secretary concerned” for “Secretary”.
Subsec. (b)(1). Pub. L. 104–106, §2802(a)(2), substituted “of the armed forces” for “of the naval service”.
Subsec. (c). Pub. L. 104–106, §2802(b)(2), substituted “Secretary concerned” for “Secretary” wherever appearing.
Subsec. (d). Pub. L. 104–106, §2802(c), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows:
“(d)
“(2) There shall be deposited into the Account—
“(A) such funds as may be authorized for and appropriated to the Account; and
“(B) any proceeds received by the Secretary from the repayment of investments or profits on investments of the Secretary under subsection (a).
“(3) In such amounts as is provided in advance in appropriation Acts, the Account shall be available for contracts, investments, and expenses necessary for the implementation of this section.
“(4) The Secretary may not enter into a contract in connection with a limited partnership under subsection (a) or a collateral incentive agreement under subsection (b) unless the Account contains sufficient funds, as of the time the contract is entered into, to satisfy the total obligations to be incurred by the United States under the contract.”
Subsec. (e). Pub. L. 104–106, §2802(d)(1), struck out subsec. (e) which related to establishment of Navy Housing Investment Board.
Subsec. (f). Pub. L. 104–106, §2802(e), substituted “activities are carried out” for “the Secretary carries out activities” and “the Secretaries concerned shall jointly” for “the Secretary shall”.
Subsec. (g). Pub. L. 104–106, §2802(g), struck out “Navy” after “Transfer of” in heading.
Pub. L. 104–106, §2802(b)(2), substituted “Secretary concerned” for “Secretary” in two places.
Subsec. (h). Pub. L. 104–106, §2802(f), substituted “September 30, 2000” for “September 30, 1999”.
Pub. L. 104–106, §2802(d)(2), substituted “Authority” for “Authorities” in heading and struck out “(1)” before “The authority” and par. (2) which read as follows: “The Navy Housing Investment Board shall terminate on November 30, 1999.”
Pub. L. 104–106, §2802(b)(2), substituted “Secretary concerned” for “Secretary” in par. (1).
(a)
(2) In determining the military housing unit to lease under this section, the Secretary of Defense should first consider any available military housing units that are already substantially equipped for executive communications and security.
(b)
(c)
(2) The proceeds deposited into the special account of a military department pursuant to paragraph (1) shall be available to the Secretary of that military department, without further appropriation, for the maintenance, protection, alteration, repair, improvement, or restoration of military housing on the military installation at which the housing leased pursuant to subsection (a) is located.
(Added Pub. L. 110–417, div. B, title XXVIII, §2804(a), Oct. 14, 2008, 122 Stat. 4720.)
2011—Pub. L. 111–383, div. A, title X, §1075(d)(23), Jan. 7, 2011, 124 Stat. 4374, made technical amendment to directory language of Pub. L. 111–84, §2804(d)(2). See 2009 Amendment note below.
2009—Pub. L. 111–84, div. B, title XXVIII, §2841(a)(2), Oct. 28, 2009, 123 Stat. 2680, added item 2867.
Pub. L. 111–84, div. B, title XXVIII, §2804(d)(2), Oct. 28, 2009, 123 Stat. 2662, as amended by Pub. L. 111–383, div. A, title X, §1075(d)(23), Jan. 7, 2011, 124 Stat. 4374, substituted “Conveyance of property at military installations to limit encroachment” for “Conveyance of property at military installations to support military construction or limit encroachment” in item 2869.
2006—Pub. L. 109–364, div. B, title XXVIII, §§2807(a)(2), 2808(b)(2), 2809(b), 2810(b), 2811(f)(2), 2851(c)(4), Oct. 17, 2006, 120 Stat. 2468–2471, 2473, 2495, added item 2861, inserted “or urban-training operations” after “force protection” in item 2859, substituted “Military unaccompanied housing: local comparability of floor areas” for “Limitations on barracks space by pay grade” in item 2856 and “to support military construction or limit encroachment” for “closed or realigned to support military construction” in item 2869, and struck out items 2857 “Use of renewable forms of energy in new facilities”, 2864 “Military construction contracts on Guam”, 2865 “Energy savings at military installations”, and 2867 “Sale of electricity from alternate energy and cogeneration production facilities”.
Pub. L. 109–163, div. B, title XXVIII, §2804(c)(2), Jan. 6, 2006, 119 Stat. 3507, substituted “Authorized cost and scope of work variations” for “Authorized cost variations” in item 2853.
Pub. L. 108–375, div. B, title XXVIII, §2804(a)(2), Oct. 28, 2004, 118 Stat. 2122, added item 2859.
2003—Pub. L. 108–136, div. A, title X, §1044(b)(2), div. B, title XXVIII, §2805(a)(2), Nov. 24, 2003, 117 Stat. 1612, 1721, struck out item 2859 “Transmission of annual military construction authorization request” and added item 2869.
2001—Pub. L. 107–107, div. B, title XXVIII, §2803(b), Dec. 28, 2001, 115 Stat. 1305, struck out item 2861 “Annual report to Congress”.
1997—Pub. L. 105–85, div. A, title III, §371(c)(3), Nov. 18, 1997, 111 Stat. 1705, added items 2867 and 2868.
1996—Pub. L. 104–106, div. B, title XXVIII, §2818(a)(2), Feb. 10, 1996, 110 Stat. 555, added item 2854a.
1993—Pub. L. 103–160, div. B, title XXVIII, §2803(b), Nov. 30, 1993, 107 Stat. 1885, added item 2866.
1990—Pub. L. 101–510, div. B, title XXVIII, §2851(b), Nov. 5, 1990, 104 Stat. 1804, added item 2865.
1989—Pub. L. 101–189, div. B, title XXVIII, §2807(b), Nov. 29, 1989, 103 Stat. 1648, added item 2864.
1987—Pub. L. 100–180, div. B, subdiv. 3, title I, §2303(b), Dec. 4, 1987, 101 Stat. 1215, added item 2863.
1986—Pub. L. 99–661, div. A, title XIII, §1343(a)(21)(B), Nov. 14, 1986, 100 Stat. 3994, struck out “for five years” after “Availability of appropriations” in item 2860.
1985—Pub. L. 99–167, title VIII, §807(b), Dec. 3, 1985, 99 Stat. 988, added item 2862.
1982—Pub. L. 97–321, title VIII, §801(b)(3), Oct. 15, 1982, 96 Stat. 1571, substituted “renewable forms of energy in new facilities” for “solar energy systems” in item 2857.
(a)
(b)
(c)
(A) Each military construction project or military family housing project that has been specifically authorized by Act of Congress.
(B) Each project carried out with funds authorized for the operation and maintenance of military family housing.
(C) Each project carried out with funds authorized for the improvement of military family housing units.
(D) Each unspecified minor construction project carried out under the authority of section 2805(a) of this title.
(E) Each military construction project or military family housing project regarding which a statutory requirement exists to notify Congress.
(2) The information to be provided via the Internet site required by paragraph (1) for each project described in such paragraph shall include the following:
(A) The solicitation date and award date (or anticipated dates) for each contract entered into (or to be entered into) by the United States in connection with the project.
(B) The contract recipient, contract award amount, construction milestone schedule proposed by the contractor, and construction completion date stipulated in the awarded contract.
(C) The most current Department of Defense Form 1391, Military Construction Project Data, for the project.
(D) The progress of the project, including the percentage of construction currently completed and the current estimated construction completion date.
(E) The current contract obligation of funds for the project, including any changes to the original contract award amount.
(F) If funds appropriated for the project have been diverted for use in another project, the project to which the funds were diverted and the amount so diverted.
(G) For accounts such as planning and design, unspecified minor construction, and family housing operation and maintenance, detailed information regarding expenditures and anticipated expenditures under these accounts and the purposes for which the expenditures are made.
(3) The information required to be provided for each project described in paragraph (1) shall be made available on the Internet site required by such paragraph not later than 90 days after the award of a contract or delivery order for the project. The Secretary of Defense shall update the required information as promptly as practicable, but not less frequently than once a month, to ensure that the information is available in a timely manner.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 163; amended Pub. L. 109–163, div. B, title XXVIII, §2803(a), (c), Jan. 6, 2006, 119 Stat. 3505, 3506; Pub. L. 111–383, div. B, title XXVIII, §2801, Jan. 7, 2011, 124 Stat. 4458.)
2011—Subsec. (c)(1). Pub. L. 111–383, §2801(c)(1), substituted “that will permit a person” for “that, when activated by a person authorized under paragraph (3), will permit the person”.
Subsec. (c)(2)(F) to (H). Pub. L. 111–383, §2801(a), redesignated subpars. (G) and (H) as (F) and (G), respectively, and struck out former subpar. (F) which read as follows: “The estimated final cost of the project and, if the estimated final cost of the project exceeds the amount appropriated for the project and funds have been provided from another source to meet the increased cost, the source of the funds and the amount provided.”
Subsec. (c)(3), (4). Pub. L. 111–383, §2801(b), (c)(2), redesignated par. (4) as (3), substituted “on the Internet site required by such paragraph” for “to the persons referred to in paragraph (3)” and struck out “to such persons” before “in a timely manner”, and struck out former par. (3) which read as follows: “Access to the Internet site required by paragraph (1) shall be restricted to the following persons:
“(A) Members of the congressional defense committees and their staff.
“(B) Staff of the congressional defense committees.”
2006—Subsecs. (a), (b). Pub. L. 109–163, §2803(c), inserted headings.
Subsec. (c). Pub. L. 109–163, §2803(a), added subsec. (c).
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Pub. L. 109–163, div. B, title XXVIII, §2803(b), Jan. 6, 2006, 119 Stat. 3506, provided that: “The Internet site required by subsection (c) of section 2851 of title 10, United States Code, as added by subsection (a), shall be available to the persons referred to in paragraph (3) of such subsection not later than July 15, 2006.”
Pub. L. 106–398, §1 [[div. A], title III, §374], Oct. 30, 2000, 114 Stat. 1654, 1654A–81, provided that:
“(a)
“(b)
“(1) The extent of the work necessary to repair and revitalize facilities and infrastructure, or to demolish and replace unusable facilities, carried as backlog by the Secretary of Defense or the Secretary of a military department.
“(2) Measurable goals, over specified time frames, for addressing all of the identified requirements.
“(3) Expected funding for each military department and Defense Agency to address the identified requirements during the period covered by the most recent future-years defense program submitted to Congress pursuant to section 221 of title 10, United States Code.
“(4) The cost of the current backlog in maintenance and repair for each military department and Defense Agency, which shall be determined using the standard costs to standard facility categories in the Department of Defense Facilities Cost Factors Handbook, shown both in the aggregate and individually for each major military installation.
“(5) The total number of square feet of building space of each military department and Defense Agency to be demolished or proposed for demolition, shown both in the aggregate and individually for each major military installation.
“(6) The initiatives underway to identify facility and infrastructure requirements at military installations to accommodate new and developing weapons systems and to prepare installations to accommodate these systems.
“(c)
(a) The Secretary of Defense and the Secretaries of the military departments may carry out authorized military construction projects and authorized military family housing projects without regard to subsections (a) and (b) of section 3324 of title 31.
(b) Authority to carry out a military construction project or a military family housing project may be exercised on land not owned by the United States—
(1) before title to the land on which the project is to be carried out is approved under section 3111 of title 40; and
(2) even though the land will be held in other than a fee simple interest in a case in which the Secretary of the military department concerned determines that the interest to be acquired in the land is sufficient for the purposes of the project.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 164; amended Pub. L. 97–295, §1(35), Oct. 12, 1982, 96 Stat. 1296; Pub. L. 97–321, title VIII, §805(a)(1), Oct. 15, 1982, 96 Stat. 1573; Pub. L. 99–145, title XIII, §1303(a)(19), Nov. 8, 1985, 99 Stat. 739; Pub. L. 107–217, §3(b)(20), Aug. 21, 2002, 116 Stat. 1297.)
In 10:2852(a), the title 31 citation is substituted on authority of Pub. L. 97–258, §4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted title 31.
2002—Subsec. (b)(1). Pub. L. 107–217 substituted “section 3111 of title 40” for “section 355 of the Revised Statutes (40 U.S.C. 255)”.
1985—Subsec. (a). Pub. L. 99–145 substituted “subsections (a) and (b) of section 3324” for “section 3324(a) and (b)”.
1982—Subsec. (a). Pub. L. 97–295 substituted “section 3324(a) and (b) of title 31” for “section 3648 of the Revised Statutes (31 U.S.C. 529)”.
Subsec. (b). Pub. L. 97–321 substituted “may be exercised on land not owned by the United States” for “on land not owned by the United States may be exercised” in introductory text, redesignated former cl. (1) as par. (1), added par. (2), and struck out former cl. (2) which read as follows: “even though the land is held temporarily”.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a) Except as provided in subsection (c) or (d), the cost authorized for a military construction project or for the construction, improvement, and acquisition of a military family housing project may be increased or decreased by not more than 25 percent of the amount appropriated for such project or 200 percent of the minor construction project ceiling specified in section 2805(a)(1), whichever is less, if the Secretary concerned determines that such revised cost is required for the sole purpose of meeting unusual variations in cost and that such variations in cost could not have reasonably been anticipated at the time the project was approved originally by Congress.
(b)(1) Except as provided in subsection (c), the scope of work for a military construction project or for the construction, improvement, and acquisition of a military family housing project may be reduced by not more than 25 percent from the amount specified for that project, construction, improvement, or acquisition in the justification data provided to Congress as part of the request for authorization of the project, construction, improvement, or acquisition.
(2) The scope of work for a military construction project or for the construction, improvement, and acquisition of a military family housing project may not be increased above the amount specified for that project, construction, improvement, or acquisition in the justification data provided to Congress as part of the request for authorization of the project, construction, improvement, or acquisition.
(c) The limitation on cost variations in subsection (a) or the limitation on scope reduction in subsection (b)(1) does not apply if the variation in cost or reduction in the scope of work is approved by the Secretary concerned and—
(1) in the case of a cost increase or a reduction in the scope of work—
(A) the Secretary concerned notifies the appropriate committees of Congress in writing of the cost increase or reduction in scope and the reasons therefor, including a description of the funds proposed to be used to finance any increased costs; and
(B) a period of 21 days has elapsed after the date on which the notification is received by the committees or, if over sooner, a period of 14 days has elapsed after the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title; or
(2) in the case of a cost decrease, the Secretary concerned notifies the appropriate committees of Congress in writing not later than 14 days after the date funds are obligated in connection with the military construction project or military family housing project.
(d) The limitation on cost variations in subsection (a) does not apply to the following:
(1) The settlement of a contractor claim under a contract.
(2) The costs associated with the required remediation of an environmental hazard in connection with a military construction project or military family housing project, such as asbestos removal, radon abatement, lead-based paint removal or abatement, or any other legally required environmental hazard remediation, if the required remediation could not have reasonably been anticipated at the time the project was approved originally by Congress.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 164; amended Pub. L. 98–407, title VIII, §807, Aug. 28, 1984, 98 Stat. 1521; Pub. L. 100–26, §7(f)(2), Apr. 21, 1987, 101 Stat. 281; Pub. L. 100–180, div. B, subdiv. 3, title I, §§2312, 2313, Dec. 4, 1987, 101 Stat. 1217, 1218; Pub. L. 101–189, div. B, title XXVIII, §2808, Nov. 29, 1989, 103 Stat. 1648; Pub. L. 104–106, div. B, title XXVIII, §2817, Feb. 10, 1996, 110 Stat. 553; Pub. L. 107–107, div. B, title XXVIII, §2802, Dec. 28, 2001, 115 Stat. 1305; Pub. L. 108–375, div. B, title XXVIII, §2803, Oct. 28, 2004, 118 Stat. 2121; Pub. L. 109–163, div. B, title XXVIII, §2804(a)–(c)(1), Jan. 6, 2006, 119 Stat. 3506; Pub. L. 109–364, div. B, title XXVIII, §2806, Oct. 17, 2006, 120 Stat. 2468; Pub. L. 111–84, div. B, title XXVIII, §2803, Oct. 28, 2009, 123 Stat. 2661.)
2009—Subsec. (b). Pub. L. 111–84, §2803(1), designated existing provisions as par. (1), substituted “may be reduced by not more than 25 percent from the amount specified for that project, construction, improvement, or acquisition in the justification data provided to Congress as part of the request for authorization of the project, construction, improvement, or acquisition.” for “may be reduced by not more than 25 percent from the amount approved for that project, construction, improvement, or acquisition by Congress.”, and added par. (2).
Subsec. (c). Pub. L. 111–84, §2803(2), substituted “subsection (b)(1)” for “subsection (b)” in introductory provisions.
2006—Pub. L. 109–163, §2804(c)(1), substituted “Authorized cost and scope of work variations” for “Authorized cost variations” in section catchline.
Subsec. (a). Pub. L. 109–163, §2804(a)(1), substituted “may be increased or decreased by not more than 25 percent” for “may be increased by not more than 25 percent” and “if the Secretary concerned determines that such revised cost is required” for “if the Secretary concerned determines that such an increase in cost is required”.
Subsec. (c). Pub. L. 109–364 substituted “if the variation in cost or reduction in the scope of work is approved by the Secretary concerned and—” for “if—” in introductory provisions, added pars. (1) and (2), and struck out former pars. (1) to (3) which read as follows:
“(1) the variation in cost or reduction in scope is approved by the Secretary concerned;
“(2) the Secretary concerned notifies the appropriate committees of Congress in writing of the variation or reduction and the reasons therefor, including a description of the funds proposed to be used to finance any increased costs; and
“(3) a period of 21 days has elapsed after the date on which the notification is received by the committees or, if over sooner, a period of 14 days has elapsed after the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.”
Pub. L. 109–163, §2804(a)(2), (b), substituted “limitation on cost variations” for “limitation on cost increase” in introductory provisions, “the variation” for “the increase” in pars. (1) and (2), and inserted “, including a description of the funds proposed to be used to finance any increased costs” after “the reasons therefor” in par. (2).
Subsec. (d). Pub. L. 109–163, §2804(a)(3), substituted “limitation on cost variations” for “limitation on cost increases” in introductory provisions.
2004—Subsec. (c)(3). Pub. L. 108–375 inserted before period at end “or, if over sooner, a period of 14 days has elapsed after the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
2001—Subsec. (d). Pub. L. 107–107 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “The limitation on cost increases in subsection (a) does not apply to the settlement of a contractor claim under a contract.”
1996—Subsec. (d). Pub. L. 104–106 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “The limitation on cost increases in subsection (a) does not apply to a within-scope modification to a contract or to the settlement of a contractor claim under a contract if the increase in cost is approved by the Secretary concerned, and the Secretary concerned promptly submits written notification of the facts relating to the proposed increase in cost to the appropriate committees of Congress.”
1989—Pub. L. 101–189 amended section generally, substituting subsecs. (a) to (d) for former subsecs. (a) to (f).
1987—Subsec. (a)(1). Pub. L. 100–180, §2312, substituted “Except as provided in paragraph (2), the total cost authorized for military construction projects at an installation (including each project the cost of which is included in such total authorized cost and is less than the minor project ceiling) may be increased by not more than 25 percent of the total amount appropriated for such projects” for “Except as provided in paragraph (2), the cost authorized for a military construction project (other than a project for which the approved amount is less than the minor project ceiling (as defined in subsection (f))) may be increased by not more than 25 percent of the amount appropriated for the project”.
Pub. L. 100–26, §7(f)(2)(A), substituted “the minor project ceiling (as defined in subsection (f))” for “the amount specified by law as the maximum amount for a minor military construction project”.
Pub. L. 100–26, §7(f)(2)(B), substituted “the minor project ceiling” for “the amount specified by law as the maximum amount for a minor military construction project”.
Subsec. (a)(2). Pub. L. 100–26, §7(f)(2)(B), substituted “the minor project ceiling” for “the amount specified by law as the maximum amount for a minor military construction project” in two places.
Subsec. (b). Pub. L. 100–26, §7(f)(2)(B), (C), substituted “the minor project ceiling” for “the amount specified by law as the maximum amount for a minor military construction project” and “the amount of such ceiling” for “such maximum amount” in two places.
Subsec. (c). Pub. L. 100–180, §2313, substituted “construction, improvement,” for “construction”.
Subsec. (e). Pub. L. 100–26, §7(f)(2)(B), substituted “the minor project ceiling” for “the amount specified by law as the maximum amount for a minor military construction project”.
Subsec. (f). Pub. L. 100–26, §7(f)(2)(D), added subsec. (f).
1984—Subsec. (e). Pub. L. 98–407 inserted “is more than the amount specified by law as the maximum amount for a minor military construction project and”.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a) Subject to subsection (b), the Secretary concerned may repair, restore, or replace a facility under his jurisdiction, including a family housing facility, that has been damaged or destroyed.
(b) When a decision is made to carry out construction under this section and the cost of the repair, restoration, or replacement is greater than the maximum amount for a minor construction project, the Secretary concerned shall notify in writing the appropriate committees of Congress of that decision, of the justification for the project, of the current estimate of the cost of the project, of the source of funds for the project, and of the justification for carrying out the project under this section. The project may then be carried out only after the end of the 21-day period beginning on the date the notification is received by such committees or, if earlier, the end of the seven-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 165; amended Pub. L. 102–190, div. B, title XXVIII, §2870(7), Dec. 5, 1991, 105 Stat. 1563; Pub. L. 108–136, div. A, title X, §1031(a)(45), Nov. 24, 2003, 117 Stat. 1602.)
2003—Subsec. (b). Pub. L. 108–136 inserted before period at end “or, if earlier, the end of the seven-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
1991—Subsec. (b). Pub. L. 102–190 struck out “(1)” after “carried out only” and “, or (2) after each such committee has approved the project, if the committees approve the project before the end of that period” before period at end.
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)
(2) The authority of this section does not apply to family housing facilities located at military installations approved for closure under a base closure law or family housing facilities located at an installation outside the United States at which the Secretary of Defense terminates operations.
(3) The aggregate total value of the family housing facilities conveyed by the Department of Defense under the authority in this subsection in any fiscal year may not exceed $5,000,000.
(4) For purposes of this subsection, a family housing facility is in a condition that is uneconomical to repair if the cost of the necessary repairs for the facility would exceed the amount equal to 70 percent of the cost of constructing a family housing facility to replace such facility.
(b)
(2) The Secretary concerned shall determine the fair market value of any family housing facility and associated real property that is conveyed under subsection (a). Such determination shall be final.
(c)
(1) the Secretary submits to the appropriate committees of Congress, in writing, a justification for the conveyance under the agreement, including—
(A) an estimate of the consideration to be provided the United States under the agreement;
(B) an estimate of the cost of repairing the family housing facility to be conveyed; and
(C) an estimate of the cost of replacing the family housing facility to be conveyed; and
(2) a period of 21 days has elapsed after the date on which the justification is received by the committees or, if over sooner, a period of 14 days has elapsed after the date on which a copy of the justification is provided in an electronic medium pursuant to section 480 of this title.
(d)
(1) Subtitle I of title 40 and division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(2) Title V of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411 et seq.).
(e)
(A) to construct family housing units to replace the family housing facility conveyed under this section, but only to the extent that the number of units constructed with such proceeds does not exceed the number of units of military family housing of the facility conveyed;
(B) to repair or restore existing military family housing; and
(C) to reimburse the Secretary concerned for the costs incurred by the Secretary in conveying the family housing facility.
(2) Notwithstanding section 2883(d) of this title, proceeds derived from a conveyance of a family housing facility under this section shall be available under paragraph (1) without any further appropriation.
(f)
(g)
(Added Pub. L. 104–106, div. B, title XXVIII, §2818(a)(1), Feb. 10, 1996, 110 Stat. 553; amended Pub. L. 107–107, div. A, title X, §1048(d)(1), Dec. 28, 2001, 115 Stat. 1227; Pub. L. 107–217, §3(b)(21), Aug. 21, 2002, 116 Stat. 1297; Pub. L. 108–136, div. A, title X, §1031(a)(46), Nov. 24, 2003, 117 Stat. 1602; Pub. L. 111–350, §5(b)(49), Jan. 4, 2011, 124 Stat. 3846.)
The McKinney-Vento Homeless Assistance Act, referred to in subsec. (d)(2), is Pub. L. 100–77, July 22, 1987, 101 Stat. 482. Title V of the Act is classified generally to subchapter V (§11411 et seq.) of chapter 119 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 11301 of Title 42 and Tables.
2011—Subsec. (d)(1). Pub. L. 111–350 substituted “division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” for “title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)”.
2003—Subsec. (c)(2). Pub. L. 108–136 struck out “calendar” after “21” and inserted before period at end “or, if over sooner, a period of 14 days has elapsed after the date on which a copy of the justification is provided in an electronic medium pursuant to section 480 of this title”.
2002—Subsec. (d)(1). Pub. L. 107–217 substituted “Subtitle I of title 40 and title III of the” for “The” and “(41 U.S.C. 251 et seq.)” for “(40 U.S.C. 471 et seq.)”.
2001—Subsec. (d)(2). Pub. L. 107–107 substituted “McKinney-Vento Homeless Assistance Act” for “Stewart B. McKinney Homeless Assistance Act”.
(a) Contracts for architectural and engineering services and construction design in connection with a military construction project or a military family housing project shall be awarded in accordance with chapter 11 of title 40.
(b)(1) In the case of a contract referred to in subsection (a)—
(A) if the Secretary concerned estimates that the initial award of the contract will be in an amount greater than or equal to the threshold amount determined under paragraph (2), the contract may not be set aside exclusively for award to small business concerns; and
(B) if the Secretary concerned estimates that the initial award of the contract will be in an amount less than the threshold amount determined under paragraph (2), the contract shall be awarded in accordance with the set aside provisions of the Small Business Act (15 U.S.C. 631 et seq.).
(2) The initial threshold amount under paragraph (1) is $300,000. The Secretary of Defense may revise that amount in order to ensure that small business concerns receive a reasonable share of contracts referred to in subsection (a).
(3) This subsection does not restrict the award of contracts to small business concerns under section 8(a) of the Small Business Act (15 U.S.C. 637(a)).
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 166; amended Pub. L. 98–407, title VIII, §808(a), Aug. 28, 1984, 98 Stat. 1521; Pub. L. 107–217, §3(b)(22), Aug. 21, 2002, 116 Stat. 1297; Pub. L. 108–136, div. A, title XIV, §1427(a), Nov. 24, 2003, 117 Stat. 1670.)
The Small Business Act, referred to in subsec. (b)(1)(B), is Pub. L. 85–536, §2(1 et seq.), July 18, 1958, 72 Stat. 384, which is classified generally to chapter 14A (§631 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 631 of Title 15 and Tables.
2003—Subsec. (b)(2). Pub. L. 108–136 substituted “$300,000” for “$85,000”.
2002—Subsec. (a). Pub. L. 107–217 substituted “chapter 11 of title 40” for “title IX of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 541 et seq.)”.
1984—Pub. L. 98–407 designated existing provisions as subsec. (a) and added subsec. (b).
Section 808(b) of Pub. L. 98–407 provided that: “Subsection (b) of section 2855 of title 10, United States Code, as added by subsection (a), shall apply with respect to contracts awarded after September 30, 1984, except that the authority of the Secretary of Defense under paragraph (2) of that subsection shall apply only with respect to contracts awarded after September 30, 1985.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
In the construction, acquisition, and improvement of military unaccompanied housing, the Secretary concerned shall ensure that the floor areas of such housing in a particular locality (as designated by the Secretary concerned for purposes of this section) do not exceed the floor areas of similar housing in the private sector in that locality.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 166; amended Pub. L. 101–510, div. A, title XIII, §1301(19), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 109–364, div. B, title XXVIII, §2807(a)(1), Oct. 17, 2006, 120 Stat. 2468.)
2006—Pub. L. 109–364 amended section catchline and text generally. Prior to amendment, text read as follows: “The Secretary of Defense shall prescribe regulations establishing the maximum allowable net square feet per occupant for new permanent barracks construction. Such regulations shall be uniform for the armed forces under the jurisdiction of the Secretary of a military department.”
1990—Pub. L. 101–510 struck out “(a)” before “The Secretary of Defense” and struck out subsec. (b) which read as follows: “Before taking effect, any regulations under this section, and any modifications to such regulations, shall be submitted to the appropriate committees of Congress. Such regulations (including any modifications to such regulations) may not then take effect until 21 days after being received by such committees.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Funds appropriated for military construction (including military family housing) may not be expended for additional costs involved in expediting a construction project unless the Secretary concerned (1) certifies that expenditures for such costs are necessary to protect the national interest, and (2) establishes a reasonable completion date for the project. In establishing such a completion date, the Secretary shall take into consideration the urgency of the requirement for completion of the project, the type and location of the project, the climatic and seasonal conditions affecting the construction involved, and the application of economical construction practices.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 167.)
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)
(1) to assess the vulnerability of military installations located inside and outside of the United States to terrorist attack;
(2) to develop construction standards designed to reduce the vulnerability of structures to terrorist attack and improve the security of the occupants of such structures;
(3) to prepare and carry out military construction projects, such as gate and fenceline construction, to improve the physical security of military installations; and
(4) to assist in prioritizing such projects within the military construction budget of each of the armed forces.
(b)
(c)
(1) the location and results of the vulnerability assessments conducted under subsection (b) during the most recently completed fiscal year;
(2) the military construction requirements anticipated to be necessary during the period covered by the then-current future-years defense plan under section 221 of this title to improve the physical security of military installations; and
(3) the extent to which funds to meet those requirements are not requested in the Department of Defense budget for the fiscal year for which the budget is submitted.
(d)
(A) the Secretary of Defense approves a strategy for training and facility construction for operations in urban terrain; and
(B) the Under Secretary of Defense for Personnel and Readiness evaluates the project and certifies to the appropriate committees of Congress that the project—
(i) is consistent with the strategy; and
(ii) incorporates the appropriate capabilities for joint and interagency use in accordance with the strategy.
(2) The Under Secretary of Defense for Personnel and Readiness shall conduct the evaluation required by paragraph (1)(B) in consultation with the Commander of the United States Joint Forces Command.
(3) This subsection shall not apply with respect to a military construction project carried out under the authority of section 2803, 2804, or 2808 of this title or section 2808 of the Military Construction Authorization Act for Fiscal Year 2004 (division B of Public Law 108–136; 117 Stat. 1723).
(Added Pub. L. 108–375, div. B, title XXVIII, §2804(a)(1), Oct. 28, 2004, 118 Stat. 2121; amended Pub. L. 109–364, div. B, title XXVIII, §2808(a), (b)(1), Oct. 17, 2006, 120 Stat. 2469.)
Section 2808 of the Military Construction Authorization Act for Fiscal Year 2004, referred to in subsec. (d)(3), is section 2808 of title XXVIII of div. B of Pub. L. 108–136, Nov. 24, 2003, 117 Stat. 1723, which is not classified to the Code except for section 2808(e), which is set out as a note under section 2805 of this title.
A prior section 2859, added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 167; amended Pub. L. 97–295, §1(36), Oct. 12, 1982, 96 Stat. 1296, provided for transmission of annual military construction authorization request, prior to repeal by Pub. L. 108–136, div. A, title X, §1044(b)(1), Nov. 24, 2003, 117 Stat. 1612.
2006—Pub. L. 109–364, §2808(b)(1), inserted “or urban-training operations” after “force protection” in section catchline.
Subsec. (d). Pub. L. 109–364, §2808(a), added subsec. (d).
Pub. L. 109–364, div. B, title XXVIII, §2808(c), Oct. 17, 2006, 120 Stat. 2470, provided that: “Subsection (d) of section 2859 of title 10, United States Code, as added by subsection (a), shall apply with respect to military construction projects described in such subsection (d) for which funds are first provided for fiscal year 2007 or thereafter.”
Pub. L. 108–375, div. B, title XXVIII, §2804(b), Oct. 28, 2004, 118 Stat. 2122, provided that: “In the case of the report required to be submitted in 2006 under section 2859(c) of title 10, United States Code, as added by subsection (a), the Secretary of Defense shall include a certification by the Secretary that since September 11, 2001, assessments regarding the vulnerability of military installations to terrorist attack have been undertaken for all major military installations. The Secretary shall indicate the basis by which the Secretary differentiated between major and nonmajor military installations for purposes of making the certification.”
Funds appropriated to a military department or to the Secretary of Defense for a fiscal year for military construction or military family housing purposes may remain available for obligation beyond such fiscal year to the extent provided in appropriation Acts.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 167; amended Pub. L. 99–167, title VIII, §812(a), Dec. 3, 1985, 99 Stat. 991; Pub. L. 99–173, §121(b), Dec. 10, 1985, 99 Stat. 1029; Pub. L. 99–661, div. A, title XIII, §1343(a)(21)(A), Nov. 14, 1986, 100 Stat. 3994.)
1986—Pub. L. 99–661 substituted “to the Secretary of Defense” for “defense agency”, inserted “for obligation” after “remains available”, and struck out “the” before “appropriation Acts”.
1985—Pub. L. 99–173 substituted “Availability of appropriations” for “Availability of appropriations for five years” as section catchline, and amended text generally. Prior to amendment, text read as follows: “Subject to the provisions of appropriation Acts, any funds appropriated to a military department or defense agency for the construction of military projects may be obligated for a military construction project or contract, or for any portion of such a project or contract, at any time before the end of the fourth fiscal year after the fiscal year for which funds for such project were appropriated if the funds obligated for such project (1) are obligated from funds available for military construction projects, and (2) do not exceed the amount appropriated for such project, plus any amount by which the cost of such project is increased pursuant to law.”
Pub. L. 99–167 struck out subsection designation “(a)” and “and except as otherwise provided under subsection (b)” after “provisions of appropriation Acts”, and struck out subsec. (b) which provided: “Should a requirement develop to obligate funds for a military construction project after the end of the fourth fiscal year after the fiscal year for which such funds were appropriated, such obligation may be made after the end of the 21-day period beginning on the date on which the appropriate committees of Congress receive notification of the need for such obligation and the reasons therefor.”
Section 121(c) of Pub. L. 99–173 provided that: “The amendment made by subsection (b) [amending this section] shall apply to funds appropriated after the date of the enactment of Public Law 99–103 [Sept. 30, 1985].”
Section 812(b) of Pub. L. 99–167 provided that: “The amendments made by subsection (a) [amending this section] shall apply to funds appropriated after September 30, 1985.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
Pub. L. 109–114, title I, §117, Nov. 30, 2005, 119 Stat. 2378, which provided that any funds made available to a military department or defense agency for the construction of military projects could be obligated for a military construction project or contract, or for any portion of such a project or contract, at any time before the end of the fourth fiscal year after the fiscal year for which funds for such project were made available, if the funds obligated for such project: (1) were obligated from funds available for military construction projects; and (2) did not exceed the amount appropriated for such project, plus any amount by which the cost of such project is increased pursuant to law, was from the Military Construction, Military Quality of Life and Veterans Affairs Appropriations Act, 2006 and was repeated in provisions of subsequent appropriations acts which are not set out in the Code. Similar provisions were also contained in the following prior appropriations acts:
Pub. L. 108–324, div. A, §117, Oct. 13, 2004, 118 Stat. 1227.
Pub. L. 108–132, §117, Nov. 22, 2003, 117 Stat. 1380.
Pub. L. 107–249, §117, Oct. 23, 2002, 116 Stat. 1583.
Pub. L. 107–64, §117, Nov. 5, 2001, 115 Stat. 479.
Pub. L. 106–246, div. A, §117, July 13, 2000, 114 Stat. 516.
Pub. L. 106–52, §117, Aug. 17, 1999, 113 Stat. 264.
Pub. L. 105–237, §117, Sept. 20, 1998, 112 Stat. 1558.
Pub. L. 105–45, §117, Sept. 30, 1997, 111 Stat. 1147.
Pub. L. 104–196, §117, Sept. 16, 1996, 110 Stat. 2391.
Pub. L. 104–32, §117, Oct. 3, 1995, 109 Stat. 289.
Pub. L. 103–307, §118, Aug. 23, 1994, 108 Stat. 1664.
Pub. L. 103–110, §118, Oct. 21, 1993, 107 Stat. 1043.
Pub. L. 102–380, §119, Oct. 5, 1992, 106 Stat. 1371.
Pub. L. 102–136, §119, Oct. 25, 1991, 105 Stat. 643.
Pub. L. 101–519, §119, Nov. 5, 1990, 104 Stat. 2246.
Pub. L. 101–148, §121, Nov. 10, 1989, 103 Stat. 925.
Pub. L. 100–447, §124, Sept. 27, 1988, 102 Stat. 1835.
Pub. L. 108–132, §118, Nov. 22, 2003, 117 Stat. 1380, which provided that during the 5-year period after appropriations available to the Department of Defense for military construction and family housing operation and maintenance and construction have expired for obligation, upon a determination that such appropriations would not be necessary for the liquidation of obligations or for making authorized adjustments to such appropriations for obligations incurred during the period of availability of such appropriations, unobligated balances of such appropriations could be transferred into the appropriation “Foreign Currency Fluctuations, Construction, Defense” to be merged with and to be available for the same time period and for the same purposes as the appropriation to which transferred, was from the Military Construction Appropriations Act, 2005 and was repeated in provisions of subsequent appropriations acts which are not set out in the Code. Similar provisions were also contained in the following prior appropriations acts:
Pub. L. 107–249, §118, Oct. 23, 2002, 116 Stat. 1584.
Pub. L. 107–64, §118, Nov. 5, 2001, 115 Stat. 480.
Pub. L. 106–246, div. A, §118, July 13, 2000, 114 Stat. 516.
Pub. L. 106–52, §118, Aug. 17, 1999, 113 Stat. 264.
Pub. L. 105–237, §118, Sept. 20, 1998, 112 Stat. 1559.
Pub. L. 105–45, §118, Sept. 30, 1997, 111 Stat. 1147.
Pub. L. 104–196, §118, Sept. 16, 1996, 110 Stat. 2392.
Pub. L. 104–32, §118, Oct. 3, 1995, 109 Stat. 289.
Pub. L. 103–307, §119, Aug. 23, 1994, 108 Stat. 1665.
Pub. L. 103–110, §120, Oct. 21, 1993, 107 Stat. 1043.
Pub. L. 102–380, §121, Oct. 5, 1992, 106 Stat. 1372.
Pub. L. 102–136, §122, Oct. 25, 1991, 105 Stat. 643.
Pub. L. 99–500, §101(k) [title I, §121], Oct. 18, 1986, 100 Stat. 1783–287, 1783–293, and Pub. L. 99–591, §101(k) [title I, §121], Oct. 30, 1986, 100 Stat. 3341–287, 3341–293, as amended by Pub. L. 102–136, §122, Oct. 25, 1991, 105 Stat. 643, provided that: “For Transfer by the Secretary of Defense to and from appropriations and funds not merged pursuant to subsection 1552(a)(1) of title 31 of the United States Code and available for obligation or expenditure during fiscal year 1987 or thereafter, for military construction or expenses of family housing for the military departments and Defense agencies, in order to maintain the budgeted level of operations for such appropriations and thereby eliminate substantial gains and losses to such appropriations caused by fluctuations in foreign currency exchange rates that vary substantially from those used in preparing budget submissions, an appropriation, to remain available until expended: Provided, That funds transferred from this appropriation shall be merged with and be available for the same purpose, and for the same time period, as the appropriation or fund to which transferred, and funds transferred to this appropriation shall be merged with, and available for the purpose of this appropriation until expended: Provided further, That transfers may be made from time to time from this appropriation to the extent the Secretary of Defense determines it may be necessary to do so to reflect downward fluctuations in the currency exchange rates from those used in preparing the budget submissions for such appropriations, but transfers shall be made from such appropriations to this appropriation to reflect upward fluctuations in currency exchange rates to prevent substantial net gains in such appropriations: Provided further, That authorizations or limitations now or hereafter contained within appropriations or other provisions of law limiting the amounts that may be obligated or expended for military construction and family housing expenses are hereby increased to the extent necessary to reflect downward fluctuations in foreign currency exchange rates from those used in preparing the applicable budget submission: Provided further, That for the purposes of the appropriation ‘Foreign Currency Fluctuations, Construction, Defense’ the foreign currency rates used in preparing budget submissions shall be the foreign currency exchange rates as adjusted or modified, as reflected in applicable Committee reports on the Acts making appropriations for military construction for the Department of Defense: Provided further, That the Secretary of Defense shall provide an annual report to the Congress on all transfers made to or made from this appropriation: Provided further, That contracts or other obligations entered into payable in foreign currencies may be recorded as obligations based on the currency exchange rates used in preparing budget submissions and adjustments to reflect fluctuations in such rates may be recorded as disbursements are made: Provided further, That, at the discretion of the Secretary of Defense, any savings generated in the military construction and family housing programs may be transferred to this appropriation.”
(a)
(b)
(c)
(d)
(Added Pub. L. 109–364, div. B, title XXVIII, §2809(a), Oct. 17, 2006, 120 Stat. 2470.)
A prior section 2861, added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 167; amended Pub. L. 100–26, §7(f)(1), (j)(9), Apr. 21, 1987, 101 Stat. 281, 283; Pub. L. 104–106, div. B, title XXVIII, §2811(b), Feb. 10, 1996, 110 Stat. 552; Pub. L. 104–201, div. B, title XXVIII, §2802(d)(1), Sept. 23, 1996, 110 Stat. 2787, required the Secretary of Defense to submit an annual report to the appropriate committees of Congress with respect to military construction activities and military family housing activities, prior to repeal by Pub. L. 107–107, div. B, title XXVIII, §2803(a), Dec. 28, 2001, 115 Stat. 1305.
(a)
(b)
(Added Pub. L. 99–167, title VIII, §807(a), Dec. 3, 1985, 99 Stat. 988; amended Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; Pub. L. 100–180, div. B, subdiv. 3, title I, §2301, Dec. 4, 1987, 101 Stat. 1214; Pub. L. 101–189, div. B, title XXVIII, §2806, Nov. 29, 1989, 103 Stat. 1647; Pub. L. 102–190, div. B, title XXVIII, §2802, Dec. 5, 1991, 105 Stat. 1537.)
1991—Pub. L. 102–190 redesignated par. (1) of subsec. (a) as entire subsec. (a) and inserted heading, redesignated par. (2) of subsec. (a) as (b), inserted heading, and struck out former subsecs. (b) and (c) which read as follows:
“(b) The Secretary of Defense, with respect to any Defense Agency, or the Secretary of a military department may not, during any fiscal year, enter into more than three contracts for military construction projects using procedures authorized by this section.
“(c) The authority under this section shall expire on October 1, 1991.”
1989—Subsec. (a)(1). Pub. L. 101–189, §2806(1), struck out at end “Such procedures may be used by the Secretary of a military department only with the approval of the Secretary of Defense.”
Subsec. (c). Pub. L. 101–189, §2806(2), substituted “1991” for “1990”.
1987—Subsec. (a)(1). Pub. L. 100–180, §2301(1), substituted “The Secretary concerned” for “The Secretaries of the military departments, with the approval of the Secretary of Defense,” and inserted provision at end that such procedures may be used by the Secretary of a military department only with the approval of the Secretary of Defense.
Subsec. (a)(2). Pub. L. 100–26 inserted “the term” after “In this section,”.
Subsec. (b). Pub. L. 100–180, §2301(2), inserted “Secretary of Defense, with respect to any Defense Agency, or the” after “The”.
Section 807(c) of Pub. L. 99–167 provided that: “The amendments made by this section [enacting this section] shall take effect on October 1, 1986.”
Notwithstanding any other provision of law, the Secretary concerned may pay meritorious contractor claims that arise under military construction contracts or family housing contracts. The Secretary of Defense, with respect to a Defense Agency, or the Secretary of a military department may use for such purpose any unobligated funds appropriated to such department and available for military construction or family housing construction, as the case may be.
(Added Pub. L. 100–180, div. B, subdiv. 3, title I, §2303(a), Dec. 4, 1987, 101 Stat. 1215.)
Section 2864, added Pub. L. 101–189, div. B, title XXVIII, §2807(a), Nov. 29, 1989, 103 Stat. 1648; amended Pub. L. 104–106, div. A, title X, §1062(g), Feb. 10, 1996, 110 Stat. 444, related to military construction contracts on Guam.
Section 2865, added Pub. L. 101–510, div. B, title XXVIII, §2851(a), Nov. 5, 1990, 104 Stat. 1803; amended Pub. L. 102–484, div. B, title XXVIII, §2801, Oct. 23, 1992, 106 Stat. 2604; Pub. L. 103–160, div. B, title XXVIII, §2804, Nov. 30, 1993, 107 Stat. 1885; Pub. L. 103–337, div. A, title X, §1070(a)(14), Oct. 5, 1994, 108 Stat. 2856; Pub. L. 104–106, div. A, title XV, §1502(a)(27), div. B, title XXVIII, §2819, Feb. 10, 1996, 110 Stat. 506, 555; Pub. L. 105–85, div. A, title III, §371(d)(2), div. B, title XXVIII, §2804(a), Nov. 18, 1997, 111 Stat. 1706, 1990; Pub. L. 107–314, div. B, title XXVIII, §2805, Dec. 2, 2002, 116 Stat. 2705; Pub. L. 108–136, div. A, title X, §1031(a)(47), div. B, title XXVIII, §2812(a), Nov. 24, 2003, 117 Stat. 1602, 1725, related to energy savings at military installations. See sections 2911 to 2914 and 2925 of this title.
(a)
(2) The Secretary of Defense may authorize a military installation to accept a financial incentive (including an agreement to reduce the amount of a future water bill), goods, or services generally available from a utility, for the purpose of adopting technologies and practices that—
(A) relate to the management of water demand or to water conservation; and
(B) as determined by the Secretary, are cost effective for the Federal Government.
(3) Subject to paragraph (4), the Secretary of Defense may authorize the Secretary of a military department having jurisdiction over a military installation to enter into an agreement with a utility to design and implement a cost-effective program that provides incentives for the management of water demand and for water conservation and that addresses the requirements and circumstances of the installation. Activities under the program may include the provision of water management services, the alteration of a facility, and the installation and maintenance by the utility of a water-saving device or technology.
(4)(A) If an agreement under paragraph (3) provides for a utility to pay in advance the financing costs for the design or implementation of a program referred to in that paragraph and for such advance payment to be repayed by the United States, the cost of such advance payment may be recovered by the utility under terms that are not less favorable than the terms applicable to the most favored customer of the utility.
(B) Subject to the availability of appropriations, a repayment of an advance payment under subparagraph (A) shall be made from funds available to a military department for the purchase of utility services.
(C) An agreement under paragraph (3) shall provide that title to a water-saving device or technology installed at a military installation pursuant to the agreement shall vest in the United States. Such title may vest at such time during the term of the agreement, or upon expiration of the agreement, as determined to be in the best interests of the United States.
(b)
(2) Water cost savings realized under subsection (a)(3) shall be used as follows:
(A) One-half of the amount shall be used for water conservation activities at such buildings, facilities, or installations of the Department of Defense as may be designated (in accordance with regulations prescribed by the Secretary of Defense) by the head of the department, agency, or instrumentality that realized the water cost savings.
(B) One-half of the amount shall be used at the installation at which the savings were realized, as determined by the commanding officer of such installation consistent with applicable law and regulations, for—
(i) improvements to existing military family housing units;
(ii) any unspecified minor construction project that will enhance the quality of life of personnel; or
(iii) any morale, welfare, or recreation facility or service.
(3) The Secretary of Defense shall include in the budget material submitted to Congress in connection with the submission of the budget for a fiscal year pursuant to section 1105 of title 31 a separate statement of the amounts available for obligation under this subsection in that fiscal year.
(c)
(2) When a decision is made to carry out a project under paragraph (1), the Secretary of Defense shall notify the appropriate committees of Congress of that decision. Such project may be carried out only after the end of the 21-day period beginning on the date the notification is received by such committees or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(Added Pub. L. 103–160, div. B, title XXVIII, §2803(a), Nov. 30, 1993, 107 Stat. 1884; amended Pub. L. 104–106, div. A, title XV, §1502(a)(27), Feb. 10, 1996, 110 Stat. 506; Pub. L. 105–85, div. B, title XXVIII, §2804(b), Nov. 18, 1997, 111 Stat. 1991; Pub. L. 108–136, div. A, title X, §1031(a)(48), Nov. 24, 2003, 117 Stat. 1602; Pub. L. 109–364, div. B, title XXVIII, §2851(d), Oct. 17, 2006, 120 Stat. 2495.)
2006—Subsec. (b). Pub. L. 109–364 reenacted heading without change and amended text generally. Prior to amendment, text read as follows:
“(1) Financial incentives received under subsection (a)(2) shall be used as provided in section 2865(b)(3) of this title.
“(2) Water cost savings realized under subsection (a)(3) shall be used as provided in section 2865(b)(2) of this title.”
2003—Subsec. (c)(2). Pub. L. 108–136 inserted before period at end “or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
1997—Subsec. (b). Pub. L. 105–85 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows:
“(b)
1996—Subsec. (c)(2). Pub. L. 104–106 substituted “appropriate committees of Congress” for “Committees on Armed Services and Appropriations of the Senate and House of Representatives”.
(a)
(2) The energy monitoring and utility control system specification required by paragraph (1) shall cover the following:
(A) Utilities and energy usage, including electricity, gas, steam, and water usage.
(B) Indoor environments, including temperature and humidity levels.
(C) Heating, ventilation, and cooling components.
(D) Central plant equipment.
(E) Renewable energy generation systems.
(F) Lighting systems.
(G) Power distribution networks.
(b)
(2) The Secretary concerned may waive the application of the energy monitoring and utility control system specification required by subsection (a) with respect to a specific military construction project, military family housing activity, or other activity under this chapter if the Secretary determines that the application of the specification to the project or activity is not life cycle cost-effective. The Secretary concerned shall notify the congressional defense committees of any waiver granted under this paragraph.
(Added Pub. L. 111–84, div. B, title XXVIII, §2841(a)(1), Oct. 28, 2009, 123 Stat. 2679.)
A prior section 2867 was renumbered section 2916 of this title.
Pub. L. 111–84, div. B, title XXVIII, §2841(a)(3), Oct. 28, 2009, 123 Stat. 2680, provided that: “The Secretary of Defense shall adopt the open protocol energy monitoring and utility control system specification required by section 2867 of title 10, United States Code, as added by paragraph (1), not later than 180 days after the date of the enactment of this Act [Oct. 28, 2009].”
Appropriations for the Department of Defense may be used for utility services for buildings constructed at private cost, as authorized by law.
(Added Pub. L. 100–370, §1(j)(1), July 19, 1988, 102 Stat. 848, §2490; renumbered §2868, Pub. L. 105–85, div. A, title III, §371(b)(2), Nov. 18, 1997, 111 Stat. 1705; amended Pub. L. 108–375, div. A, title VI, §651(e)(2), Oct. 28, 2004, 118 Stat. 1972.)
Section is based on Pub. L. 99–190, §101(b) [title VIII, §8006(b)], Dec. 19, 1985, 99 Stat. 1185.
In two instances, the source section for provisions to be codified provides that defense appropriations may be used for “welfare and recreation” or “welfare and recreational” purposes. (Section 735 of Public Law 98–212 and section 8006(b) of Public Law 99–190, to be codified as 10 U.S.C. 2241(a)(1) and 2490(2), respectively). The committee added the term “morale” in both of these two instances to conform to the usual “MWR” usage for morale, welfare, and recreation activities.
2004—Pub. L. 108–375 substituted “for buildings constructed at private cost, as authorized by law.” for “for—
“(1) buildings constructed at private cost, as authorized by law; and
“(2) buildings on military reservations authorized by regulation to be used for morale, welfare, and recreational purposes.”
1997—Pub. L. 105–85 renumbered section 2490 of this title as this section.
(a)
(2) Paragraph (1) applies with respect to real property under the jurisdiction of the Secretary concerned that—
(A) is located on a military installation that is closed or realigned under a base closure law; or
(B) is located on a military installation not covered by subparagraph (A) and is determined to be excess to the needs of the Department of Defense.
(b)
(c)
(d)
(2) The Secretary concerned may not enter into an agreement under subsection (a) for the conveyance of real property until—
(A) the Secretary submits to Congress notice of the conveyance, including—
(i) a description of the real property to be conveyed by the Secretary under the agreement;
(ii) a description of the land acquisition to be carried out under the agreement in exchange for the conveyance of the property; and
(iii) the amount of any payment to be made under subsection (b) or under section 2684a(d) of this title to equalize the fair market values of the property to be conveyed and the land acquisition to be carried out under the agreement in exchange for the conveyance of the property; and
(B) the waiting period applicable to that notice under paragraph (3) expires.
(3) If the notice submitted under paragraph (2) deals with the conveyance of real property located on a military installation that is closed or realigned under a base closure law or the conveyance of real property under an agreement entered into under section 2684a of this title, the Secretary concerned may enter into the agreement under subsection (a) for the conveyance of the property after a period of 21 days has elapsed from the date of receipt of the notice or, if over sooner, a period of 14 days has elapsed from the date on which a copy of the notice is provided in an electronic medium pursuant to section 480 of this title. In the case of other real property to be conveyed under subsection (a), the Secretary concerned may enter into the agreement only after a period of 60 days has elapsed from the date of receipt of the notice or, if over sooner, a period of 45 days has elapsed from the date on which the electronic copy is provided.
(e)
(f)
(g)
(h)
(Added Pub. L. 108–136, div. B, title XXVIII, §2805(a)(1), Nov. 24, 2003, 117 Stat. 1719; amended Pub. L. 109–364, div. B, title XXVIII, §2811(a)–(f)(1), Oct. 17, 2006, 120 Stat. 2471–2473; Pub. L. 111–84, div. B, title XXVIII, §2804(a)–(d)(1), Oct. 28, 2009, 123 Stat. 2661, 2662.)
2009—Pub. L. 111–84, §2804(d)(1), amended section catchline generally. Prior to amendment, catchline read as follows: “Conveyance of property at military installations to support military construction or limit encroachment”.
Subsec. (a)(1). Pub. L. 111–84, §2804(a)(1)(A), struck out subpar. (A) designation before “to carry out”, substituted “real property,” for “real property—”, “ to carry out a land acquisition” for “to carry out a military construction project or land acquisition”, and a period for “; or”, and struck out subpar. (B) which read as follows: “to transfer to the Secretary concerned housing that is constructed or provided by the person and located at or near a military installation at which there is a shortage of suitable military family housing, military unaccompanied housing, or both.”
Subsec. (a)(3). Pub. L. 111–84, §2804(a)(1)(B), struck out par. (3) which read as follows: “Subparagraph (B) of paragraph (2) shall apply only during the period beginning on the date of the enactment of the John Warner National Defense Authorization Act for Fiscal Year 2007 and ending on September 30, 2008. Any conveyance of real property described in such subparagraph for which the Secretary concerned has provided the advance public notice required by subsection (d)(1) before the expiration date may be completed after that date.”
Subsec. (b). Pub. L. 111–84, §2804(a)(2), substituted “fair market value of the land” for “fair market value of the military construction, military family housing, or military unaccompanied housing” in two places.
Subsec. (c). Pub. L. 111–84, §2804(a)(3), added subsec. (c) and struck out former subsec. (c) which related to pilot program for use of conveyance authority.
Subsec. (d)(2)(A)(ii), (iii). Pub. L. 111–84, §2804(a)(4), substituted “land acquisition” for “military construction project, land acquisition, military family housing, or military unaccompanied housing”.
Subsec. (e). Pub. L. 111–84, §2804(b), designated par. (3) as entire subsec., substituted “The Secretary concerned shall deposit funds received under subsection (b) in the appropriation ‘Foreign Currency Fluctuations, Construction, Defense’. The funds deposited shall be available” for “The funds deposited under paragraph (2) shall be available”, and struck out pars. (1) and (2), which read as follows:
“(1) Except as provided in paragraph (2), the Secretary concerned may deposit funds received under subsection (b) in the Department of Defense housing funds established under section 2883(a) of this title.
“(2) During the period specified in paragraph (3) of subsection (a), the Secretary concerned shall deposit funds received under subsection (b) in the appropriation ‘Foreign Currency Fluctuations, Construction, Defense’.”
Subsec. (f). Pub. L. 111–84, §2804(c), amended subsec. (f) generally. Prior to amendment, subsec. (f) related to annual reports on conveyances and effect of failure to submit report.
2006—Pub. L. 109–364, §2811(f)(1), substituted “to support military construction or limit encroachment” for “closed or realigned to support military construction” in section catchline.
Subsec. (a). Pub. L. 109–364, §2811(a), (b), designated existing provisions as par. (1), in introductory provisions substituted “described in paragraph (2)” for “located on a military installation that is closed or realigned under a base closure law”, redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, in subpar. (A) substituted “land acquisition, including the acquisition of all right, title, and interest or a lesser interest in real property under an agreement entered into under section 2684a of this title to limit encroachments and other constraints on military training, testing, and operations” for “land acquisition”, and added pars. (2) and (3).
Subsec. (d)(1). Pub. L. 109–364, §2811(c)(1), substituted “is proposed for conveyance” for “closed or realigned under the base closure laws is to be conveyed”.
Subsec. (d)(2), (3). Pub. L. 109–364, §2811(c)(2), added pars. (2) and (3) and struck out former par. (2) which read as follows: “The Secretary concerned may not enter into an agreement under subsection (a) for the conveyance of real property until—
“(A) the Secretary submits to Congress notice of the conveyance, including the military construction activities, military family housing, or military unaccompanied housing to be obtained in exchange for the conveyance; and
“(B) a period of 14 days expires beginning on the date on which the notice is submitted.”
Subsec. (e). Pub. L. 109–364, §2811(d), amended heading and text of subsec. (e) generally. Prior to amendment, text read as follows: “The Secretary concerned may deposit funds received under subsection (b) in the Department of Defense housing funds established under section 2883(a) of this title.”
Subsec. (f). Pub. L. 109–364, §2811(e), in heading substituted “Annual Reports; Effect of Failure to Submit” for “Annual Report”, designated existing provisions as par. (1), in introductory provisions substituted “Not later than March 15 of each year, the Secretary of Defense shall submit to Congress a report detailing the following:” for “In the budget materials submitted to Congress in connection with the submission of the budget for a fiscal year pursuant to section 1105 of title 31, the Secretary of Defense shall include a report detailing the following:”, redesignated former pars. (1) to (3) as subpars. (A) to (C), respectively, in subpar. (C) inserted “and of excess real property at military installations” before period at end, and added par. (2).
2008—Pub. L. 110–417, div. B, title XXVIII, §2805(a)(2), (e)(2), Oct. 14, 2008, 122 Stat. 4722, 4724, added items 2882 and 2885 and struck out former item 2882 “Assignment of members of the armed forces to housing units”.
2004—Pub. L. 108–375, div. B, title XXVIII, §2805(b)(2), Oct. 28, 2004, 118 Stat. 2122, struck out item 2885 “Expiration of authority”.
2002—Pub. L. 107–314, div. B, title XXVIII, §§2802(b)(3), (c)(2), 2803(a)(2), Dec. 2, 2002, 116 Stat. 2703, 2705, struck out “to be constructed” after “Leasing of housing” in item 2874, struck out item 2879 “Interim leases”, and added item 2881a.
2001—Pub. L. 107–107, div. B, title XXVIII, §2804(b), Dec. 28, 2001, 115 Stat. 1306, added item 2883a.
2000—Pub. L. 106–398, §1 [div. B, title XXVIII, §2805(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–415, added item 2872a.
1999—Pub. L. 106–65, div. B, title XXVIII, §2803(h)(2), Oct. 5, 1999, 113 Stat. 849, added item 2875 and struck out former item 2875 “Investments in nongovernmental entities”.
In this subchapter:
(1) The term “ancillary supporting facilities” means facilities related to military housing units, including facilities to provide or support elementary or secondary education, child care centers, day care centers, child development centers, tot lots, community centers, housing offices, dining facilities, unit offices, and other similar facilities for the support of military housing.
(2) The term “child development center” includes a facility, and the utilities to support such facility, the function of which is to support the daily care of children aged six weeks old through five years old for full-day, part-day, and hourly service.
(3) The term “construction” means the construction of military housing units and ancillary supporting facilities or the improvement or rehabilitation of existing units or ancillary supporting facilities.
(4) The term “contract” includes any contract, lease, or other agreement entered into under the authority of this subchapter.
(5) The term “eligible entity” means any private person, corporation, firm, partnership, company, State or local government, or housing authority of a State or local government that is prepared to enter into a contract as a partner with the Secretary concerned for the construction of military housing units and ancillary supporting facilities.
(6) The term “Fund” means the Department of Defense Family Housing Improvement Fund or the Department of Defense Military Unaccompanied Housing Improvement Fund established under section 2883(a) of this title.
(7) The term “military unaccompanied housing” means military housing intended to be occupied by members of the armed forces serving a tour of duty unaccompanied by dependents and transient housing intended to be occupied by members of the armed forces on temporary duty.
(8) The term “United States” includes the Commonwealth of Puerto Rico.
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 544; amended Pub. L. 105–261, div. B, title XXVIII, §2803, Oct. 17, 1998, 112 Stat. 2202; Pub. L. 106–65, div. B, title XXVIII, §2803(a), Oct. 5, 1999, 113 Stat. 848; Pub. L. 107–314, div. B, title XXVIII, §2803(b), Dec. 2, 2002, 116 Stat. 2705; Pub. L. 108–136, div. A, title X, §1043(c)(6), Nov. 24, 2003, 117 Stat. 1612; Pub. L. 109–163, div. B, title XXVIII, §2805(b), Jan. 6, 2006, 119 Stat. 3507; Pub. L. 110–417, div. B, title XXVIII, §2805(c), Oct. 14, 2008, 122 Stat. 4723.)
2008—Par. (5). Pub. L. 110–417 inserted before period at end “that is prepared to enter into a contract as a partner with the Secretary concerned for the construction of military housing units and ancillary supporting facilities”.
2006—Par. (1). Pub. L. 109–163, §2805(b)(1), inserted “child development centers,” after “day care centers,”.
Par. (2). Pub. L. 109–163, §2805(b)(2), added par. (2).
2003—Par. (2). Pub. L. 108–136 struck out par. (2) which read as follows: “The term ‘base closure law’ means the following:
“(A) Section 2687 of this title.
“(B) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).
“(C) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).”
2002—Par. (7). Pub. L. 107–314 inserted “and transient housing intended to be occupied by members of the armed forces on temporary duty” before period at end.
1999—Pars. (5) to (8). Pub. L. 106–65 added par. (5) and redesignated former pars. (5) to (7) as (6) to (8), respectively.
1998—Par. (1). Pub. L. 105–261 inserted “facilities to provide or support elementary or secondary education,” after “including”.
In addition to any other authority provided under this chapter for the acquisition or construction of military family housing or military unaccompanied housing, the Secretary concerned may exercise any authority or any combination of authorities provided under this subchapter in order to provide for the acquisition or construction by eligible entities of the following:
(1) Family housing units on or near military installations within the United States and its territories and possessions.
(2) Military unaccompanied housing units on or near such military installations.
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 545; amended Pub. L. 106–65, div. B, title XXVIII, §2803(b), Oct. 5, 1999, 113 Stat. 849.)
1999—Pub. L. 106–65 substituted “eligible entities” for “private persons” in introductory provisions.
(a)
(b)
(1) Electric power.
(2) Steam.
(3) Compressed air.
(4) Water.
(5) Sewage and garbage disposal.
(6) Natural gas.
(7) Pest control.
(8) Snow and ice removal.
(9) Mechanical refrigeration.
(10) Telecommunications service.
(11) Firefighting and fire protection services.
(12) Police protection services.
(c)
(2) The amount of any cash payment received under paragraph (1) shall be credited to the appropriation or working capital account from which the cost of furnishing the utilities or services concerned was paid. Amounts so credited to an appropriation or account shall be merged with funds in such appropriation or account, and shall be available to the same extent, and subject to the same terms and conditions, as such funds.
(Added Pub. L. 106–398, §1 [div. B, title XXVIII, §2805(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–414; amended Pub. L. 107–314, div. B, title XXVIII, §2802(a), Dec. 2, 2002, 116 Stat. 2703.)
2002—Subsec. (b)(11), (12). Pub. L. 107–314 added pars. (11) and (12).
(a)
(2) The Secretary concerned shall establish such terms and conditions with respect to loans made under this subsection as the Secretary considers appropriate to protect the interests of the United States, including the period and frequency for repayment of such loans and the obligations of the obligors on such loans upon default.
(b)
(2) The amount of a guarantee on a loan that may be provided under paragraph (1) may not exceed the amount equal to the lesser of—
(A) the amount equal to 80 percent of the value of the project; or
(B) the amount of the outstanding principal of the loan.
(3) The Secretary concerned shall establish such terms and conditions with respect to guarantees of loans under this subsection as the Secretary considers appropriate to protect the interests of the United States, including the rights and obligations of obligors of such loans and the rights and obligations of the United States with respect to such guarantees.
(c)
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 545; amended Pub. L. 106–65, div. B, title XXVIII, §2803(c), Oct. 5, 1999, 113 Stat. 849.)
1999—Subsec. (a)(1). Pub. L. 106–65, §2803(c)(1), substituted “an eligible entity” for “persons in the private sector” and “the eligible entity” for “such persons”.
Subsec. (b)(1). Pub. L. 106–65, §2803(c)(2), substituted “an eligible entity” for “any person in the private sector” and “the eligible entity” for “the person”.
(a)
(b)
(c)
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 546; amended Pub. L. 107–314, div. B, title XXVIII, §2802(b)(1), (2), Dec. 2, 2002, 116 Stat. 2703.)
2002—Pub. L. 107–314, §2802(b)(2), in section catchline struck out “to be constructed” after “Leasing of housing”.
Subsec. (a). Pub. L. 107–314, §2802(b)(1)(B), added subsec. (a) and struck out heading and text of former subsec. (a). Text read as follows: “The Secretary concerned may enter into contracts for the lease of military family housing units or military unaccompanied housing units to be constructed under this subchapter.”
Subsecs. (b), (c). Pub. L. 107–314, §2802(b)(1), added subsec. (b) and redesignated former subsec. (b) as (c).
(a)
(b)
(c)
(2) If the Secretary concerned conveys land or facilities to an eligible entity as all or part of an investment in the eligible entity under this section, the total value of the investment by the Secretary under this section may not exceed an amount equal to 45 percent of the capital cost (as determined by the Secretary) of the project or projects that the eligible entity proposes to carry out under this section with the investment.
(3) In this subsection, the term “capital cost”, with respect to a project for the acquisition or construction of housing, means the total amount of the costs included in the basis of the housing for Federal income tax purposes.
(d)
(e)
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 546; amended Pub. L. 105–85, div. B, title XXVIII, §2805, Nov. 18, 1997, 111 Stat. 1991; Pub. L. 106–65, div. B, title XXVIII, §2803(d), (h)(1), Oct. 5, 1999, 113 Stat. 849; Pub. L. 108–136, div. A, title X, §1031(a)(50), Nov. 24, 2003, 117 Stat. 1602.)
2003—Subsec. (e). Pub. L. 108–136 inserted before period at end “or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notice and justification is provided in an electronic medium pursuant to section 480 of this title”.
1999—Pub. L. 106–65, §2803(h)(1), struck out “in nongovernmental entities” after “Investments” in section catchline.
Subsec. (a). Pub. L. 106–65, §2803(d)(1), substituted “an eligible entity” for “nongovernmental entities”.
Subsec. (c). Pub. L. 106–65, §2803(d)(2), substituted “an eligible entity” for “a nongovernmental entity” in pars. (1) and (2) and “the eligible entity” for “the entity” wherever appearing in pars. (1) and (2).
Subsec. (d). Pub. L. 106–65, §2803(d)(3), substituted “eligible” for “nongovernmental”.
Subsec. (e). Pub. L. 106–65, §2803(d)(4), substituted “an eligible entity” for “a nongovernmental entity”.
1997—Subsec. (e). Pub. L. 105–85 added subsec. (e).
The Secretary concerned may enter into agreements with eligible entities that acquire or construct military family housing units or military unaccompanied housing units under this subchapter in order to assure—
(1) the occupancy of such units at levels specified in the agreements; or
(2) rental income derived from rental of such units at levels specified in the agreements.
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 546; amended Pub. L. 106–65, div. B, title XXVIII, §2803(e), Oct. 5, 1999, 113 Stat. 849.)
1999—Pub. L. 106–65 substituted “eligible entities” for “private persons” in introductory provisions.
Pursuant to an agreement entered into by the Secretary concerned and a lessor of military family housing or military unaccompanied housing to members of the armed forces, the Secretary may pay the lessor an amount in addition to the rental payments for the housing made by the members as the Secretary determines appropriate to encourage the lessor to make the housing available to members of the armed forces as military family housing or as military unaccompanied housing.
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 547; amended Pub. L. 106–65, div. B, title XXVIII, §2803(f), Oct. 5, 1999, 113 Stat. 849.)
1999—Pub. L. 106–65 substituted “a lessor” for “a private lessor”.
(a)
(b)
(c)
(d)
(2) As part or all of the consideration for a conveyance or lease under this section, the purchaser or lessor (as the case may be) shall enter into an agreement with the Secretary to ensure that a suitable preference will be afforded members of the armed forces and their dependents in the lease or sublease of a reasonable number of the housing units covered by the conveyance or lease, as the case may be, or in the lease of other suitable housing units made available by the purchaser or lessee.
(e)
(1) Section 2667 of this title.
(2) Subtitle I of title 40 and division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(3) Section 1302 of title 40.
(4) Section 501 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411).
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 547; amended Pub. L. 105–85, div. A, title X, §1073(a)(60), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 106–65, div. B, title XXVIII, §2803(g), Oct. 5, 1999, 113 Stat. 849; Pub. L. 107–107, div. A, title X, §1048(d)(1), Dec. 28, 2001, 115 Stat. 1227; Pub. L. 107–217, §3(b)(23), Aug. 21, 2002, 116 Stat. 1297; Pub. L. 110–417, div. B, title XXVIII, §2805(d), Oct. 14, 2008, 122 Stat. 4723; Pub. L. 111–350, §5(b)(50), Jan. 4, 2011, 124 Stat. 3846.)
2011—Subsec. (e)(2). Pub. L. 111–350, which directed substitution of “division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” for “title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)” in subsec. (d)(2), was executed by making the substitution in subsec. (e)(2) to reflect the probable intent of Congress and the amendment by Pub. L. 110–417. See 2008 Amendment note below.
2008—Subsecs. (c) to (e). Pub. L. 110–417 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively.
2002—Subsec. (d)(2). Pub. L. 107–217, §3(b)(23)(A), substituted “Subtitle I of title 40 and title III of the” for “The” and “(41 U.S.C. 251 et seq.)” for “(40 U.S.C. 471 et seq.)”.
Subsec. (d)(3). Pub. L. 107–217, §3(b)(23)(B), substituted “Section 1302 of title 40” for “Section 321 of the Act of June 30, 1932 (commonly known as the Economy Act) (40 U.S.C. 303b)”.
2001—Subsec. (d)(4). Pub. L. 107–107 substituted “McKinney-Vento Homeless Assistance Act” for “Stewart B. McKinney Homeless Assistance Act”.
1999—Subsec. (a). Pub. L. 106–65 substituted “eligible entities” for “private persons”.
1997—Subsec. (d)(4). Pub. L. 105–85 substituted “11411” for “11401”.
Section, added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 547, related to interim leases of completed units pending completion of a project to acquire or construct military family housing units or military unaccompanied housing units.
(a)
(b)
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 548; amended Pub. L. 108–136, div. B, title XXVIII, §2806, Nov. 24, 2003, 117 Stat. 1722; Pub. L. 109–364, div. B, title XXVIII, §2807(b), Oct. 17, 2006, 120 Stat. 2469.)
2006—Subsec. (b). Pub. L. 109–364 substituted “Sections 2826 and 2856” for “(1) Section 2826”, inserted “or military unaccompanied housing” after “military family housing”, and struck out par. (2) which read as follows: “The regulations prescribed under section 2856 of this title shall not apply to any military unaccompanied housing unit acquired or constructed under this subchapter.”
2003—Subsec. (b)(2). Pub. L. 108–136 struck out “unless the unit is located on a military installation” before period at end.
(a)
(b)
(1) the Army and Air Force Exchange Service;
(2) the Navy Exchange Service Command;
(3) a Marine Corps exchange;
(4) the Defense Commissary Agency; or
(5) any nonappropriated fund activity of the Department of Defense for the morale, welfare, and recreation of members of the armed forces.
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 548; amended Pub. L. 106–65, div. B, title XXVIII, §2804, Oct. 5, 1999, 113 Stat. 849; Pub. L. 109–163, div. B, title XXVIII, §2805(a), Jan. 6, 2006, 119 Stat. 3507.)
2006—Subsec. (b). Pub. L. 109–163 inserted “(other than a child development center)” after “ancillary supporting facility” in introductory provisions.
1999—Pub. L. 106–65 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).
Pub. L. 109–163, div. B, title XXVIII, §2805(c), Jan. 6, 2006, 119 Stat. 3507, provided that: “Nothing in the amendment made by subsection (a) [amending this section] may be construed to alter any law and regulation applicable to the operation of a child development center, as defined in section 2871(2) of title 10, United States Code.”
(a)
(b)
(c)
(2) The partial basic allowance for housing paid for a member at a higher rate under this subsection may be paid directly to the private sector source of the housing to whom the member is obligated to pay rent or other charge for residing in such housing if the private sector source credits the amount so paid against the amount owed by the member for the rent or other charge.
(d)
(2) Subject to 30 days prior notification to the appropriate committees of Congress, such additional amounts as the Secretary of Defense considers necessary may be transferred to the Department of Defense Military Unaccompanied Housing Improvement Fund from amounts appropriated for construction of military unaccompanied housing in military construction accounts. The amounts so transferred shall be merged with and be available for the same purposes and for the same period of time as amounts appropriated directly to the Fund.
(e)
(A) each contract for the acquisition of military unaccompanied housing that the Secretary proposes to solicit under the pilot projects;
(B) each conveyance or lease proposed under section 2878 of this title in furtherance of the pilot projects; and
(C) the proposed partial basic allowance for housing rates for each contract as they vary by grade of the member and how they compare to basic allowance for housing rates for other contracts written under the authority of the pilot programs.
(2) The report shall describe the proposed contract, conveyance, or lease and the intended method of participation of the United States in the contract, conveyance, or lease and provide a justification of such method of participation. The report shall be submitted not later than 30 days before the date on which the Secretary issues the contract solicitation or offers the conveyance or lease or, if earlier, a period of 20 days has elapsed from the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title.
(f)
(Added Pub. L. 107–314, div. B, title XXVIII, §2803(a)(1), Dec. 2, 2002, 116 Stat. 2703; amended Pub. L. 109–163, div. A, title X, §1056(c)(10), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 109–364, div. B, title XXVIII, §2812, Oct. 17, 2006, 120 Stat. 2473; Pub. L. 111–383, div. B, title XXVIII, §2803(f), Jan. 7, 2011, 124 Stat. 4459.)
2011—Subsec. (e)(2). Pub. L. 111–383 inserted before period at end “or, if earlier, a period of 20 days has elapsed from the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title”.
2006—Subsecs. (d)(2), (e)(2). Pub. L. 109–364, §2812(a), substituted “30 days” for “90 days”.
Subsec. (f). Pub. L. 109–364, §2812(b), substituted “2009” for “2007”.
Pub. L. 109–163 substituted “The” for “Notwithstanding section 2885 of this title, the”.
(a)
(b)
(c)
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 548; amended Pub. L. 105–85, div. A, title VI, §603(d)(2)(C), Nov. 18, 1997, 111 Stat. 1783; Pub. L. 110–417, div. B, title XXVIII, §2805(e)(1), Oct. 14, 2008, 122 Stat. 4723.)
2008—Pub. L. 110–417 amended section generally. Prior to amendment, section related to assignment of members of the armed forces to housing units by the Secretary concerned, treatment of such housing as quarters of the United States, entitlement to a basic allowance for housing, and making of lease payments through pay allotments.
1997—Subsec. (b)(1). Pub. L. 105–85, §603(d)(2)(C)(i), substituted “section 403” for “section 403(b)”.
Subsec. (b)(2). Pub. L. 105–85, §603(d)(2)(C)(ii), substituted “basic allowance for housing under section 403 of title 37” for “basic allowance for quarters under section 403 of title 37 and, if in a high housing cost area, a variable housing allowance under section 403a of that title”.
Amendment by Pub. L. 105–85 effective Jan. 1, 1998, see section 603(e) of Pub. L. 105–85, set out as a note under section 5561 of Title 5, Government Organization and Employees.
(a)
(1) The Department of Defense Family Housing Improvement Fund.
(2) The Department of Defense Military Unaccompanied Housing Improvement Fund.
(b)
(2) Amounts in the Department of Defense Family Housing Improvement Fund may be used only to carry out activities under this subchapter with respect to military family housing.
(3) Amounts in the Department of Defense Military Unaccompanied Housing Improvement Fund may be used only to carry out activities under this subchapter with respect to military unaccompanied housing.
(c)
(A) Amounts authorized for and appropriated to that Fund.
(B) Subject to subsection (f), any amounts that the Secretary of Defense transfers, in such amounts as provided in appropriation Acts, to that Fund from amounts authorized and appropriated to the Department of Defense for the acquisition, improvement, or construction of military family housing.
(C) Proceeds from the conveyance or lease of property or facilities under section 2878 of this title for the purpose of carrying out activities under this subchapter with respect to military family housing.
(D) Income derived from any activities under this subchapter with respect to military family housing, including interest on loans made under section 2873 of this title, income and gains realized from investments under section 2875 of this title, and any return of capital invested as part of such investments.
(E) Any amounts that the Secretary of the Navy transfers to that Fund pursuant to section 2814(i)(3) of this title, subject to the restrictions on the use of the transferred amounts specified in that section.
(F) Any amounts that the Secretary concerned transfers to that Fund pursuant to section 2869 of this title.
(G) Subject to subsection (f), any amounts that the Secretary of Defense transfers to that Fund from amounts in the Department of Defense Base Closure Account 2005.
(2) There shall be credited to the Department of Defense Military Unaccompanied Housing Improvement Fund the following:
(A) Amounts authorized for and appropriated to that Fund.
(B) Subject to subsection (f), any amounts that the Secretary of Defense transfers, in such amounts as provided in appropriation Acts, to that Fund from amounts authorized and appropriated to the Department of Defense for the acquisition or construction of military unaccompanied housing.
(C) Proceeds from the conveyance or lease of property or facilities under section 2878 of this title for the purpose of carrying out activities under this subchapter with respect to military unaccompanied housing.
(D) Income derived from any activities under this subchapter with respect to military unaccompanied housing, including interest on loans made under section 2873 of this title, income and gains realized from investments under section 2875 of this title, and any return of capital invested as part of such investments.
(E) Any amounts that the Secretary of the Navy transfers to that Fund pursuant to section 2814(i)(3) of this title, subject to the restrictions on the use of the transferred amounts specified in that section.
(F) Any amounts that the Secretary concerned transfers to that Fund pursuant to section 2869 of this title.
(G) Subject to subsection (f), any amounts that the Secretary of Defense transfers to that Fund from amounts in the Department of Defense Base Closure Account 2005.
(d)
(2) In such amounts as provided in appropriation Acts and except as provided in subsection (e), the Secretary of Defense may use amounts in the Department of Defense Military Unaccompanied Housing Improvement Fund to carry out activities under this subchapter with respect to military unaccompanied housing, including activities required in connection with the planning, execution, and administration of contracts entered into under the authority of this subchapter. The Secretary may also use for expenses of activities required in connection with the planning, execution, and administration of such contracts funds that are otherwise available to the Department of Defense for such types of expenses.
(3) Amounts made available under this subsection shall remain available until expended. The Secretary of Defense may transfer amounts made available under this subsection to the Secretaries of the military departments to permit such Secretaries to carry out the activities for which such amounts may be used.
(e)
(2) The Funds established under subsection (a) shall be the sole source of funds for activities carried out under this subchapter.
(f)
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 548; amended Pub. L. 104–201, div. B, title XXVIII, §2804, Sept. 23, 1996, 110 Stat. 2788; Pub. L. 106–65, div. B, title XXVIII, §2802(b), Oct. 5, 1999, 113 Stat. 848; Pub. L. 108–136, div. A, title X, §1031(a)(51), div. B, title XXVIII, §2805(c), Nov. 24, 2003, 117 Stat. 1603, 1721; Pub. L. 108–375, div. B, title XXVIII, §2805(a), Oct. 28, 2004, 118 Stat. 2122; Pub. L. 109–163, div. B, title XXVIII, §2806(a), (b), Jan. 6, 2006, 119 Stat. 3507; Pub. L. 110–181, div. B, title XXVII, §2705, Jan. 28, 2008, 122 Stat. 533.)
2008—Subsec. (c)(1)(G). Pub. L. 110–181, §2705(a)(1), added subpar. (G).
Subsec. (c)(2)(G). Pub. L. 110–181, §2705(a)(2), added subpar. (G).
Subsec. (f). Pub. L. 110–181, §2705(b), substituted “subparagraph (B) or (G) of paragraph (1) or subparagraph (B) or (G) of paragraph (2)” for “paragraph (1)(B) or (2)(B)” and inserted at end “In addition, the notice required in connection with a transfer under subparagraph (G) of paragraph (1) or subparagraph (G) of paragraph (2) shall include a certification that the amounts to be transferred from the Department of Defense Base Closure Account 2005 were specified in the conference report to accompany the most recent Military Construction Authorization Act.”
2006—Subsec. (c)(1)(B). Pub. L. 109–163, §2806(b), substituted “acquisition, improvement, or construction” for “acquisition or construction”.
Subsec. (e). Pub. L. 109–163, §2806(a), designated existing provisions as par. (1) and added par. (2).
2004—Subsec. (g). Pub. L. 108–375 struck out heading and text of subsec. (g). Text read as follows: “The total value in budget authority of all contracts and investments undertaken using the authorities provided in this subchapter shall not exceed—
“(1) $850,000,000 for the acquisition or construction of military family housing; and
“(2) $150,000,000 for the acquisition or construction of military unaccompanied housing.”
2003—Subsec. (c)(1)(F). Pub. L. 108–136, §2805(c)(1), added subpar. (F).
Subsec. (c)(2)(F). Pub. L. 108–136, §2805(c)(2), added subpar. (F).
Subsec. (f). Pub. L. 108–136, §1031(a)(51), inserted before period at end “or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notice and justification is provided in an electronic medium pursuant to section 480 of this title”.
1999—Subsec. (c)(1)(E). Pub. L. 106–65, §2802(b)(1), added subpar. (E).
Subsec. (c)(2)(E). Pub. L. 106–65, §2802(b)(2), added subpar. (E).
1996—Subsec. (d)(1), (2). Pub. L. 104–201 inserted at end “The Secretary may also use for expenses of activities required in connection with the planning, execution, and administration of such contracts funds that are otherwise available to the Department of Defense for such types of expenses.”
(a)
(b)
(c)
(Added Pub. L. 107–107, div. B, title XXVIII, §2804(a), Dec. 28, 2001, 115 Stat. 1305.)
(a)
(A) each contract for the acquisition or construction of family housing units or unaccompanied housing units that the Secretary proposes to solicit under this subchapter; and
(B) each conveyance or lease proposed under section 2878 of this title.
(2) For each proposed contract, conveyance, or lease described in paragraph (1), the report required by such paragraph shall include the following:
(A) A description of the contract, conveyance, or lease, including a summary of the terms of the contract, conveyance, or lease.
(B) A description of the authorities to be utilized in entering into the contract, conveyance, or lease and the intended method of participation of the United States in the contract, conveyance, or lease, including a justification of the intended method of participation.
(C) A statement of the scored cost of the contract, conveyance, or lease, as determined by the Office of Management and Budget.
(D) A statement of the United States funds required for the contract, conveyance, or lease and a description of the source of such funds, including a description of the specific construction, acquisition, or improvement projects from which funds were transferred to the Funds established under section 2883 of this title in order to finance the contract, conveyance, or lease.
(E) An economic assessment of the life cycle costs of the contract, conveyance, or lease, including an estimate of the amount of United States funds that would be paid over the life of the contract, conveyance, or lease from amounts derived from payments of government allowances, including the basic allowance for housing under section 403 of title 37, if the housing affected by the project were fully occupied by military personnel over the life of the contract, conveyance, or lease.
(3)(A) In the case of a contract described in paragraph (1) proposed to be entered into with a private party, the report shall specify whether the contract will or may include a guarantee (including the making of mortgage or rental payments) by the Secretary to the private party in the event of—
(i) the closure or realignment of the installation for which housing will be provided under the contract;
(ii) a reduction in force of units stationed at such installation; or
(iii) the extended deployment of units stationed at such installation.
(B) If the contract will or may include such a guarantee, the report shall also—
(i) describe the nature of the guarantee; and
(ii) assess the extent and likelihood, if any, of the liability of the United States with respect to the guarantee.
(4) The report shall be submitted not later than 30 days before the date on which the Secretary issues the contract solicitation or offers the conveyance or lease or, if earlier, a period of 20 days has elapsed from the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title.
(b)
(1) A separate report on the expenditures and receipts during the preceding fiscal year covering each of the Funds established under section 2883 of this title, including a description of the specific construction, acquisition, or improvement projects from which funds were transferred and the privatization projects or contracts to which those funds were transferred. Each report shall also include, for each military department or defense agency, a description of all funds to be transferred to such Funds for the current fiscal year and the next fiscal year.
(2) A methodology for evaluating the extent and effectiveness of the use of the authorities under this subchapter during such preceding fiscal year, and such recommendations as the Secretary considers necessary for improving the extent and effectiveness of the use of such authorities in the future.
(3) A review of activities of the Secretary under this subchapter during such preceding fiscal year, shown for military family housing, military unaccompanied housing, dual military family housing and military unaccompanied housing, and ancillary supporting facilities.
(4) If a contract for the acquisition or construction of military family housing, military unaccompanied housing, or dual military family housing and military unaccompanied housing entered into during the preceding fiscal year did not include the acquisition or construction of the types of ancillary supporting facilities specifically referred to in section 2871(1) of this title, a explanation of the reasons why such ancillary supporting facilities were not included.
(5) A report setting forth, by armed force—
(A) an estimate of the amounts of basic allowance for housing under section 403 of title 37 that will be paid, during the current fiscal year and the fiscal year for which the budget is submitted, to members of the armed forces living in housing provided under the authorities in this subchapter; and
(B) the number of units of military family housing and military unaccompanied housing upon which the estimate under subparagraph (A) for the current fiscal year and the next fiscal year is based.
(6) A description of the Secretary's plans for housing privatization activities under this subchapter: (A) during the fiscal year for which the budget is submitted; and (B) during the period covered by the then-current future-years defense plan under section 221 of this title.
(7) A report on best practices for the execution of housing privatization initiatives, including—
(A) effective means to track and verify proper performance, schedule, and cash flow;
(B) means of overseeing the actions of bondholders to properly monitor construction progress and construction draws;
(C) effective structuring of transactions to ensure the United States Government has adequate abilities to oversee project owner performance;
(D) ensuring that notices to proceed on new work are not issued until proper bonding is in place; and
(E) such other topics that are identified as pertinent by the Department of Defense.
(8) A report identifying each family housing unit acquired or constructed under this subchapter that is used, or intended to be used, as quarters for a general officer or flag officer and for which the total operation, maintenance, and repair costs for the unit exceeded $50,000. For each housing unit so identified, the report shall also include the total of such operation, maintenance, and repair costs.
(Added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 550; amended Pub. L. 108–136, div. B, title XXVIII, §2807, Nov. 24, 2003, 117 Stat. 1722; Pub. L. 108–375, div. B, title XXVIII, §2806, Oct. 28, 2004, 118 Stat. 2122; Pub. L. 109–163, div. B, title XXVIII, §2806(c), Jan. 6, 2006, 119 Stat. 3507; Pub. L. 110–417, div. B, title XXVIII, §2805(b), (f), Oct. 14, 2008, 122 Stat. 4723, 4724; Pub. L. 111–383, div. A, title X, §1075(h)(6), div. B, title XXVIII, §2803(g), Jan. 7, 2011, 124 Stat. 4377, 4459.)
2011—Subsec. (a)(4). Pub. L. 111–383, §2803(g), inserted before period at end “or, if earlier, a period of 20 days has elapsed from the date on which a copy of the report is provided in an electronic medium pursuant to section 480 of this title”.
Subsec. (b)(1). Pub. L. 111–383, §1075(h)(6), made technical correction to directory language of Pub. L. 109–163, §2806(c)(2)(A). See 2006 Amendment note below.
2008—Subsec. (b)(7). Pub. L. 110–417, §2805(b), added par. (7).
Subsec. (b)(8). Pub. L. 110–417, §2805(f), added par. (8).
2006—Subsec. (a)(2)(D). Pub. L. 109–163, §2806(c)(1), inserted before period “, including a description of the specific construction, acquisition, or improvement projects from which funds were transferred to the Funds established under section 2883 of this title in order to finance the contract, conveyance, or lease”.
Subsec. (b)(1). Pub. L. 109–163, §2806(c)(2)(B), (C), substituted “covering each of the Funds” for “covering the Funds” and inserted before period at end “, including a description of the specific construction, acquisition, or improvement projects from which funds were transferred and the privatization projects or contracts to which those funds were transferred. Each report shall also include, for each military department or defense agency, a description of all funds to be transferred to such Funds for the current fiscal year and the next fiscal year”.
Pub. L. 109–163, §2806(c)(2)(A), as amended by Pub. L. 111–383, §1075(h)(6), substituted “A separate report” for “A report”.
2004—Subsec. (a)(2). Pub. L. 108–375, §2806(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The report shall describe the proposed contract, conveyance, or lease and the intended method of participation of the United States in the contract, conveyance, or lease and provide a justification of such method of participation.”
Subsec. (b)(5), (6). Pub. L. 108–375, §2806(b), added par. (5) and redesignated former par. (5) as (6).
2003—Subsec. (a)(2) to (4). Pub. L. 108–136, §2807(a), designated second sentence of par. (2) as par. (4) and added par. (3).
Subsec. (b)(2). Pub. L. 108–136, §2807(b)(1), inserted before period at end “, and such recommendations as the Secretary considers necessary for improving the extent and effectiveness of the use of such authorities in the future”.
Subsec. (b)(3) to (5). Pub. L. 108–136, §2807(b)(2), added pars. (3) to (5) and struck out former par. (3) which read as follows: “A description of the objectives of the Department of Defense for providing military family housing and military unaccompanied housing for members of the armed forces.”
Pub. L. 111–383, div. A, title X, §1075(h), Jan. 7, 2011, 124 Stat. 4377, provided that amendment by section 1075(h)(6) is effective as of Jan. 6, 2006, and as if included in Pub. L. 109–163 as enacted.
Pub. L. 104–106, div. B, title XXVIII, §2801(b), Feb. 10, 1996, 110 Stat. 551, provided that, not later than Mar. 1, 2000, the Secretary of Defense was to submit to the congressional defense committees a report on the use by the Secretary of Defense and the Secretaries of the military departments of the authorities provided by subchapter IV of chapter 169 of this title.
(a)
(1) The installation asset manager shall conduct monthly site visits and provide quarterly reports on the progress of the construction or renovation of the housing units. The reports shall be submitted quarterly to the assistant secretary for installations and environment of the respective military department.
(2) The installation asset manager, and, as applicable, the resident construction manager, privatization asset manager, bondholder representative, project owner, developer, general contractor, and construction consultant for the project shall conduct meetings to ensure that the construction or renovation of the units meets performance and schedule requirements and that appropriate operating and ground lease agreements are in place and adhered to.
(3) If a project is 90 days or more behind schedule or otherwise appears to be substantially failing to adhere to the obligations or milestones under the contract, the assistant secretary for installations and environment of the respective military department shall submit a notice of deficiency to the Deputy Under Secretary of Defense (Installations and Environment), the Secretary concerned, the managing member, and the trustee for the project.
(4)(A) Not later than 15 days after the submittal of a notice of deficiency under paragraph (3), the Secretary concerned or designated representative shall submit to the project owner, developer, or general contractor responsible for the project a summary of deficiencies related to the project.
(B) If the project owner, developer, or general contractor responsible for the privatization project is unable, within 60 days after receiving a notice of deficiency under subparagraph (A), to make progress on the issues outlined in such notice, the Secretary concerned shall notify the congressional defense committees of the status of the project, and shall provide a recommended course of action to correct the problems.
(b)
(c)
(d)
(e)
(2) Each military department shall consult all records maintained under paragraph (1) when reviewing the past performance of owners, developers, and contractors in the bidding process for a contract or other agreement for a military housing privatization initiative project.
(Added Pub. L. 110–417, div. B, title XXVIII, §2805(a)(1), Oct. 14, 2008, 122 Stat. 4721.)
A prior section 2885, added Pub. L. 104–106, div. B, title XXVIII, §2801(a)(1), Feb. 10, 1996, 110 Stat. 551; amended Pub. L. 105–85, div. A, title X, §1073(a)(61), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 106–398, §1 [div. B, title XXVIII, §2806], Oct. 30, 2000, 114 Stat. 1654, 1654A–415; Pub. L. 107–107, div. B, title XXVIII, §2805, Dec. 28, 2001, 115 Stat. 1306, related to expiration of authority to enter into a contract under this subchapter, prior to repeal by Pub. L. 108–375, div. B, title XXVIII, §2805(b)(1), Oct. 28, 2004, 118 Stat. 2122.
Section 2891, added Pub. L. 100–456, div. A, title III, §342(a)(1), Sept. 29, 1988, 102 Stat. 1959; amended Pub. L. 102–484, div. A, title III, §372, Oct. 23, 1992, 106 Stat. 2384, required Secretary of Defense to submit to Congress for each of fiscal years 1992, 1993, and 1994, a report regarding security and control of Department of Defense supplies.
Section 2892, added Pub. L. 100–456, div. A, title III, §342(a)(1), Sept. 29, 1988, 102 Stat. 1960, directed Secretary of Defense to require investigations of discrepancies in accounting for Department supplies and to separate offices ordering supplies from offices receiving supplies.
(a) The Secretary of Defense shall establish a program to be known as the “Strategic Environmental Research and Development Program”.
(b) The purposes of the program are as follows:
(1) To address environmental matters of concern to the Department of Defense and the Department of Energy through support for basic and applied research and development of technologies that can enhance the capabilities of the departments to meet their environmental obligations.
(2) To identify research, technologies, and other information developed by the Department of Defense and the Department of Energy for national defense purposes that would be useful to governmental and private organizations involved in the development of energy technologies and of technologies to address environmental restoration, waste minimization, hazardous waste substitution, and other environmental concerns, and to share such research, technologies, and other information with such governmental and private organizations.
(3) To furnish other governmental organizations and private organizations with data, enhanced data collection capabilities, and enhanced analytical capabilities for use by such organizations in the conduct of environmental research, including research concerning global environmental change.
(4) To identify technologies developed by the private sector that are useful for Department of Defense and Department of Energy defense activities concerning environmental restoration, hazardous and solid waste minimization and prevention, hazardous material substitution, and provide for the use of such technologies in the conduct of such activities.
(Added Pub. L. 101–510, div. A, title XVIII, §1801(a)(1), Nov. 5, 1990, 104 Stat. 1751.)
(a) There is a Strategic Environmental Research and Development Program Council (hereinafter in this chapter referred to as the “Council”).
(b) The Council is composed of 12 members as follows:
(1) The official within the Office of the Assistant Secretary of Defense for Research and Engineering who is responsible for science and technology.
(2) The Vice Chairman of the Joint Chiefs of Staff.
(3) The official within the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics who is responsible for environmental security.
(4) The Assistant Secretary of Energy for Defense programs.
(5) The Assistant Secretary of Energy responsible for environmental restoration and waste management.
(6) The Director of the Department of Energy Office of Science.
(7) The Administrator of the Environmental Protection Agency.
(8) One representative from each of the Army, Navy, Air Force, and Coast Guard.
(9) The Executive Director of the Council (appointed pursuant to section 2903 of this title), who shall be a nonvoting member.
(c) The Secretary of Defense shall designate a member of the Council as chairman for each odd numbered fiscal year. The Secretary of Energy shall designate a member of the Council as chairman for each even-numbered fiscal year.
(d) The Council shall have the following responsibilities:
(1) To prescribe policies and procedures to implement the Strategic Environmental Research and Development Program.
(2) To enter into contracts, grants, and other financial arrangements, in accordance with other applicable law, to carry out the purposes of the Strategic Environmental Research and Development Program.
(3) To prepare an annual report that contains the following:
(A) A description of activities of the strategic environmental research and development program carried out during the fiscal year before the fiscal year in which the report is prepared.
(B) A general outline of the activities planned for the program during the fiscal year in which the report is prepared.
(C) A summary of projects continued from the fiscal year before the fiscal year in which the report is prepared and projects expected to be started during the fiscal year in which the report is prepared and during the following fiscal year.
(D) A summary of the actions of the Strategic Environmental Research and Development Program Scientific Advisory Board during the year preceding the year in which the report is submitted and any recommendations, including recommendations on program direction and legislation, that the Advisory Board considers appropriate regarding the program.
(4) To promote the maximum exchange of information, and to minimize duplication, regarding environmentally related research, development, and demonstration activities through close coordination with the military departments and Defense Agencies, the Department of Energy, the Environmental Protection Agency, the National Oceanic and Atmospheric Administration, the National Aeronautics and Space Administration, other departments and agencies of the Federal Government or any State and local governments, including the National Science and Technology Council, and other organizations engaged in such activities.
(5) To ensure that research and development activities under the Strategic Environmental Research and Development Program do not duplicate other ongoing activities sponsored by the Department of Defense, the Department of Energy, the Environmental Protection Agency, the National Oceanic and Atmospheric Administration, the National Aeronautics and Space Administration, or any other department or agency of the Federal Government.
(6) To ensure that the research and development programs identified for support pursuant to policies and procedures prescribed by the council utilize, to the maximum extent possible, the talents, skills, and abilities residing at the Federal laboratories, including the Department of Energy multiprogram and defense laboratories, the Department of Defense laboratories, and Federal contract research centers. To utilize the research capabilities of institutions of higher education and private industry to the extent practicable.
(e) In carrying out subsection (d)(1), the Council shall prescribe policies and procedures that—
(1) provide for appropriate access by Federal Government personnel, State and local government personnel, college and university personnel, industry personnel, and the general public to data under the control of, or otherwise available to, the Department of Defense that is relevant to environmental matters by—
(A) identifying the sources of such data;
(B) publicizing the availability and sources of such data by appropriately-targeted dissemination of information to such personnel and the general public, and by other means; and
(C) providing for review of classified data relevant to environmental matters with a view to declassifying or preparing unclassified summaries of such data;
(2) provide governmental and nongovernmental entities with analytic assistance, consistent with national defense missions, including access to military platforms for sensor deployment and access to computer capabilities, in order to facilitate environmental research;
(3) provide for the identification of energy technologies developed for national defense purposes (including electricity generation systems, energy storage systems, alternative fuels, biomass energy technology, and applied materials technology) that might have environmentally sound, energy efficient applications for other programs of the Department of Defense and the Department of Energy national security programs;
(4) provide for the identification and support of programs of basic and applied research, development, and demonstration in technologies useful—
(A) to facilitate environmental compliance, remediation, and restoration activities of the Department of Defense and at Department of Energy defense facilities;
(B) to minimize waste generation, including reduction at the source, by such departments; or
(C) to substitute use of nonhazardous, nontoxic, nonpolluting, and other environmentally sound materials and substances for use of hazardous, toxic, and polluting materials and substances by such departments;
(5) provide for the identification and support of research, development, and application of other technologies developed for national defense purposes which not only are directly useful for programs, projects, and activities of such departments, but also have useful applications for solutions to such national and international environmental problems as climate change and ozone depletion;
(6) provide for the Secretary of Defense, the Secretary of Energy, and the Administrator of the Environmental Protection Agency, in cooperation with other Federal and State agencies, as appropriate, to conduct joint research, development, and demonstration projects relating to innovative technologies, management practices, and other approaches for purposes of—
(A) preventing pollution from all sources;
(B) minimizing hazardous and solid waste, including recycling; and
(C) treating hazardous and solid waste, including the use of thermal, chemical, and biological treatment technologies;
(7) encourage transfer of technologies referred to in clauses (2) through (6) to the private sector under the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3701 et seq.) and other applicable laws;
(8) provide for the identification of, and planning for the demonstration and use of, existing environmentally sound, energy-efficient technologies developed by the private sector that could be used directly by the Department of Defense;
(9) provide for the identification of military specifications that prevent or limit the use of environmentally beneficial technologies, materials, and substances in the performance of Department of Defense contracts and recommend changes to such specifications; and
(10) to ensure that the research and development programs identified for support pursuant to the policies and procedures prescribed by the Council are closely coordinated with, and do not duplicate, ongoing activities sponsored by the Department of Defense, the Department of Energy, the Environmental Protection Agency, the National Aeronautics and Space Administration, the National Oceanic and Atmospheric Administration, or other Federal agencies.
(f) The Council shall be subject to the authority, direction, and control of the Secretary of Defense in prescribing policies and procedures under subsection (d)(1).
(g) Not later than February 1 of each year, the Council shall submit to the Secretary of Defense the annual report prepared pursuant to subsection (d)(3).
(Added Pub. L. 101–510, div. A, title XVIII, §1801(a)(1), Nov. 5, 1990, 104 Stat. 1751; amended Pub. L. 102–190, div. A, title II, §257(a), title X, §1061(a)(19), Dec. 5, 1991, 105 Stat. 1331, 1473; Pub. L. 102–484, div. A, title X, §1052(38), Oct. 23, 1992, 106 Stat. 2501; Pub. L. 103–160, div. A, title II, §265(a), Nov. 30, 1993, 107 Stat. 1611; Pub. L. 104–106, div. A, title II, §203(a)–(b)(2), (c), Feb. 10, 1996, 110 Stat. 217, 218; Pub. L. 105–245, title III, §309(b)(2)(B), Oct. 7, 1998, 112 Stat. 1853; Pub. L. 106–65, div. A, title III, §324, Oct. 5, 1999, 113 Stat. 563; Pub. L. 106–398, §1 [[div. A], title III, §313(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–55; Pub. L. 108–136, div. A, title X, §1031(a)(52), Nov. 24, 2003, 117 Stat. 1603; Pub. L. 111–383, div. A, title IX, §901(j)(5), Jan. 7, 2011, 124 Stat. 4324.)
The Stevenson-Wydler Technology Innovation Act of 1980, referred to in subsec. (e)(7), is Pub. L. 96–480, Oct. 21, 1980, 94 Stat. 2311, as amended, which is classified generally to chapter 63 (§3701 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 3701 of Title 15 and Tables.
2011—Subsec. (b)(1). Pub. L. 111–383, §901(j)(5)(A), substituted “official within the Office of the Assistant Secretary of Defense for Research and Engineering who is responsible for science and technology” for “Deputy Under Secretary of Defense for Science and Technology”.
Subsec. (b)(3). Pub. L. 111–383, §901(j)(5)(B), substituted “official within the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics who is” for “Deputy Under Secretary of Defense”.
2003—Subsec. (g). Pub. L. 108–136 struck out designation for par. (1) before “Not later than February” and struck out par. (2) which read as follows: “Not later than March 15 of each year, the Secretary of Defense shall submit such annual report to Congress, along with such comments as the Secretary considers appropriate.”
2000—Subsec. (d)(3)(D). Pub. L. 106–398 added subpar. (D).
1999—Subsec. (b)(1). Pub. L. 106–65 substituted “Deputy Under Secretary of Defense for Science and Technology” for “Director of Defense Research and Engineering”.
1998—Subsec. (b)(6). Pub. L. 105–245 substituted “Science” for “Energy Research”.
1996—Subsec. (b). Pub. L. 104–106, §203(a)(1), substituted “12” for “thirteen” in introductory provisions.
Subsec. (b)(3) to (7). Pub. L. 104–106, §203(a)(2), (3), redesignated pars. (4) to (8) as (3) to (7), respectively, and struck out former par. (3) which read as follows: “The Assistant Secretary of the Air Force responsible for matters relating to space.”
Subsec. (b)(8). Pub. L. 104–106, §203(a)(3), (4), redesignated par. (9) as (8) and struck out “, who shall be nonvoting members” after “Coast Guard”. Former par. (8) redesignated (7).
Subsec. (b)(9), (10). Pub. L. 104–106, §203(a)(3), redesignated pars. (9) and (10) as (8) and (9), respectively.
Subsec. (d)(3). Pub. L. 104–106, §203(b)(1)(A), added par. (3) and struck out former par. (3) which read as follows: “To prepare an annual five-year strategic environmental research and development plan that shall cover the fiscal year in which the plan is prepared and the four fiscal years following such fiscal year.”
Subsec. (d)(4). Pub. L. 104–106, §203(b)(1)(B), substituted “National Science and Technology Council” for “Federal Coordinating Council on Science, Engineering, and Technology”.
Subsec. (e)(3). Pub. L. 104–106, §203(c), substituted “national security programs” for “national security programs, particularly technologies that have the potential for industrial, commercial, and other governmental applications, and to support programs of research in and development of such applications”.
Subsecs. (f), (g). Pub. L. 104–106, §203(b)(2), added subsec. (g), redesignated former subsec. (g) as (f), and struck out former subsec. (f) which authorized Secretaries of Defense and Energy to submit to the Council proposals for conducting environmental research under this chapter.
Subsec. (h). Pub. L. 104–106, §203(b)(2)(A), struck out subsec. (h) which required Council to submit to Secretary of Defense and to Congress an annual report on annual five-year strategic environmental research and development plan.
1993—Subsec. (b)(1) to (4). Pub. L. 103–160, §265(a)(1)–(3), redesignated pars. (2) to (4) as (1) to (3), respectively, added par. (4), and struck out former par. (1) which read as follows: “The Assistant Secretary of Defense responsible for matters relating to production and logistics.”
Subsec. (b)(6). Pub. L. 103–160, §265(a)(4), added par. (6) and struck out former par. (6) which read as follows: “The Director of the Department of Energy Office of Environmental Restoration and Waste Management.”
1992—Subsec. (b)(9). Pub. L. 102–484 substituted “nonvoting” for “non-voting”.
1991—Subsec. (b). Pub. L. 102–190, §257(a)(1), substituted “thirteen” for “nine” in introductory provisions.
Subsec. (b)(9), (10). Pub. L. 102–190, §257(a)(2), (3), added par. (9) and redesignated former par. (9) as (10).
Subsec. (f)(2)(A). Pub. L. 102–190, §1061(a)(19), substituted “department's” for “Department's”.
Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.
Section 203(b)(3) of Pub. L. 104–106 provided that: “The amendments made by this subsection [amending this section] shall apply with respect to the annual report prepared during fiscal year 1997 and each fiscal year thereafter.”
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
Section 1801(c) of Pub. L. 101–510 provided that the first annual report required by former subsec. (h) of this section be submitted to Secretary of Defense, Secretary of Energy, and Administrator of the Environmental Protection Agency not later than Feb. 1, 1992, that the Strategic Environmental Research and Development Program Council conduct and include as part of report an assessment of advisability of, and various alternatives to, charging fees for information released, as required pursuant to section 2901(b)(3) of this title and subsecs. (e)(1), (2), and (g)(2)(I) [now (f)(2)(I)] of this section, to private sector entities operating for a profit, and that Secretary of Defense, Secretary of Energy, and Administrator of the Environmental Protection Agency submit to Congress any recommendations for changes in structure or personnel of Council that Secretaries and Administrator consider necessary to carry out environmental activities of strategic environmental research and development program.
(a) There shall be an Executive Director of the Council appointed by the Secretary of Defense after consultation with the Secretary of Energy.
(b) Subject to the authority, direction, and control of the Secretary of Defense, the Executive Director is responsible for the management of the Strategic Environmental Research and Development Program in accordance with the policies established by the Council.
(c) The Executive Director may enter into contracts using competitive procedures. The Executive Director may enter into other agreements in accordance with applicable law. In either case, the Executive Director shall first obtain the approval of the Council for any contract or agreement in an amount equal to or in excess of $500,000 or such lesser amount as the Council may prescribe.
(d)(1) The Executive Director, with the concurrence of the Council, may appoint such professional and clerical staff as may be necessary to carry out the responsibilities and policies of the Council.
(2) The Executive Director, with the concurrence of the Council and without regard to the provisions of chapter 51 of title 5 and subchapter III of chapter 53 of such title, may establish the rates of basic pay for professional, scientific, and technical employees appointed pursuant to paragraph (1).
(Added Pub. L. 101–510, div. A, title XVIII, §1801(a)(1), Nov. 5, 1990, 104 Stat. 1755; amended Pub. L. 102–25, title VII, §701(h)(2), Apr. 6, 1991, 105 Stat. 115; Pub. L. 103–160, div. A, title II, §265(b), Nov. 30, 1993, 107 Stat. 1611; Pub. L. 104–106, div. A, title II, §203(d), (e)(1), Feb. 10, 1996, 110 Stat. 218.)
1996—Subsec. (c). Pub. L. 104–106, §203(d), substituted “contracts using competitive procedures. The Executive Director may enter into” for “contracts or” and “law. In either case,” for “law, except that”.
Subsec. (d)(2). Pub. L. 104–106, §203(e)(1), struck out at end “The authority provided in the preceding sentence shall expire on September 30, 1995.”
1993—Subsec. (d)(2). Pub. L. 103–160 substituted “September 30, 1995” for “November 5, 1992”.
1991—Subsec. (d)(2). Pub. L. 102–25 substituted “on November 5, 1992” for “two years after the date of the enactment of the National Defense Authorization Act for Fiscal Year 1991”.
Section 203(e)(2) of Pub. L. 104–106 provided that: “The amendment made by paragraph (1) [amending this section] shall take effect as of September 29, 1995.”
(a) The Secretary of Defense and the Secretary of Energy, in consultation with the Administrator of the Environmental Protection Agency, shall jointly appoint a Strategic Environmental Research and Development Program Scientific Advisory Board (hereafter in this section referred to as the “Advisory Board”) consisting of not less than six and not more than 14 members.
(b)(1) The following persons shall be permanent members of the Advisory Board:
(A) The Science Advisor to the President, or his designee.
(B) The Administrator of the National Oceanic and Atmospheric Administration, or his designee.
(2) Other members of the Advisory Board shall be appointed from among persons eminent in the fields of basic sciences, engineering, ocean and environmental sciences, education, research management, international and security affairs, health physics, health sciences, or social sciences, with due regard given to the equitable representation of scientists and engineers who are women or who represent minority groups. At least one member of the Advisory Board shall be a representative of environmental public interest groups and one member shall be a representative of the interests of State governments.
(3) The Secretary of Defense and the Secretary of Energy, in consultation with the Administrator of the Environmental Protection Agency, shall request—
(A) that the head of the National Academy of Sciences, in consultation with the head of the National Academy of Engineering and the head of the Institutes of Medicine of the National Academy of Sciences, nominate persons for appointment to the Advisory Board;
(B) that the Council on Environmental Quality nominate for appointment to the Advisory Board at least one person who is a representative of environmental public interest groups; and
(C) that the National Association of Governors nominate for appointment to the Advisory Board at least one person who is representative of the interests of State governments.
(4) Members of the Advisory Board shall be appointed for terms of not less than two and not more than four years.
(c) A member of the Advisory Board who is not otherwise employed by the Federal Government shall not be considered to be a Federal employee, except for the purposes of chapter 81 of title 5 (relating to compensation for work-related injuries) and chapter 171 of title 28 (relating to tort claims).
(d) The Advisory Board shall prescribe procedures for carrying out its responsibilities. Such procedures shall define a quorum as a majority of the members, provide for annual election of the Chairman by the members of the Advisory Board, and require at least four meetings of the Advisory Board each year.
(e) The Council shall refer to the Advisory Board, and the Advisory Board shall review, each proposed research project including its estimated cost, for research in and development of technologies related to environmental activities in excess of $1,000,000. The Advisory Board shall make any recommendations to the Council that the Advisory Board considers appropriate regarding such project or proposal.
(f) The Advisory Board may make recommendations to the Council regarding technologies, research, projects, programs, activities, and, if appropriate, funding within the scope of the Strategic Environmental Research and Development Program.
(g) The Advisory Board shall assist and advise the Council in identifying the environmental data and analytical assistance activities that should be covered by the policies and procedures prescribed pursuant to section 2902(d)(1) of this title.
(h) Each member of the Advisory Board shall be required to file a financial disclosure report under title I of the Ethics in Government Act of 1978 (5 U.S.C. App.).
(Added Pub. L. 101–510, div. A, title XVIII, §1801(a)(1), Nov. 5, 1990, 104 Stat. 1756; amended Pub. L. 102–190, div. A, title II, §257(b), Dec. 5, 1991, 105 Stat. 1331; Pub. L. 105–85, div. A, title III, §341, Nov. 18, 1997, 111 Stat. 1686; Pub. L. 106–398, §1 [[div. A], title III, §313(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–55.)
The Ethics in Government Act of 1978, referred to in subsec. (h), is Pub. L. 95–521, Oct. 26, 1978, 92 Stat. 1824, as amended. Title I of the Act is set out in the Appendix to Title 5, Government Organization and Employees. For complete classification of this Act to the Code, see Short Title note set out under section 101 of Pub. L. 95–521 in the Appendix to Title 5 and Tables.
2000—Subsecs. (h), (i). Pub. L. 106–398 redesignated subsec. (i) as (h) and struck out former subsec. (h) which read as follows: “Not later than March 15 of each year, the Advisory Board shall submit to the Congress an annual report setting forth its actions during the year preceding the year in which the report is submitted and any recommendations, including recommendations on projects, programs, and information exchange and recommendations for legislation, that the Advisory Board considers appropriate regarding the Strategic Environmental Research and Development Program.”
1997—Subsec. (b)(4). Pub. L. 105–85 substituted “not less than two and not more than four” for “three years”.
1991—Subsec. (a). Pub. L. 102–190, §257(b)(1), substituted “14 members” for “13 members”.
Subsec. (b)(1). Pub. L. 102–190, §257(b)(2), added par. (1) and struck out former par. (1) which read as follows: “The Science Advisor to the President, or his designee, shall be a permanent member of the Advisory Board.”
Section 1801(b) of Pub. L. 101–510 directed Secretary of Defense and Secretary of Energy to make the appointments required by 10 U.S.C. 2904(a) not later than 60 days after Nov. 5, 1990, and provided that up to one-half of the members originally appointed to the Strategic Environmental Research and Development Program Scientific Advisory Board could be appointed for terms of not more than six and not less than two years in order to provide for staggered expiration of the terms of members.
Section 1801(d) of Pub. L. 101–510 directed that first annual report of the Strategic Environmental Research and Development Program Scientific Advisory Board be submitted not later than Mar. 15, 1992.
Advisory boards established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a board established by the President or an officer of the Federal Government, such board is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a board established by the Congress, its duration is otherwise provided for by law. See sections 3(2) and 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, 776, set out in the Appendix to Title 5, Government Organization and Employees.
2011—Pub. L. 111–383, div. A, title X, §1075(b)(47), Jan. 7, 2011, 124 Stat. 4371, inserted “Sec.” above “2911”.
2011—Pub. L. 111–383, div. B, title XXVIII, §2832(c)(2), Jan. 7, 2011, 124 Stat. 4470, added items 2911 and 2915 and struck out former items 2911 “Energy performance goals and plan for Department of Defense” and 2915 “New construction: use of renewable forms of energy and energy efficient products”.
2009—Pub. L. 111–84, div. B, title XXVIII, §2843(b), Oct. 28, 2009, 123 Stat. 2682, added item 2919.
(a)
(2) The energy performance goals shall be submitted annually not later than the date on which the President submits to Congress the budget for the next fiscal year under section 1105 of title 31 and cover that fiscal year as well as the next five, l0, and 20 years. The Secretary shall identify changes to the energy performance goals since the previous submission.
(b)
(2) The master plan shall include the following:
(A) A separate master plan, developed by each military department and Defense Agency, for the achievement of energy performance goals.
(B) The use of a baseline standard for the measurement of energy consumption by transportation systems, support systems, utilities, and facilities and infrastructure that is consistent for all of the military departments.
(C) A method of measurement of reductions or conservation in energy consumption that provides for the taking into account of changes in the current size of fleets, number of facilities, and overall square footage of facility plants.
(D) Metrics to track annual progress in meeting energy performance goals.
(E) A description of specific requirements, and proposed investments, in connection with the achievement of energy performance goals reflected in the budget of the President for each fiscal year (as submitted to Congress under section 1105(a) of title 31).
(3) Not later than 30 days after the date on which the budget of the President is submitted to Congress for a fiscal year under section 1105(a) of title 31, the Secretary shall submit the current version of the master plan to Congress.
(c)
(1) Opportunities to reduce the current rate of consumption of energy.
(2) Opportunities to reduce the future demand and the requirements for the use of energy.
(3) Opportunities to implement conservation measures to improve the efficient use of energy.
(4) Opportunities to pursue alternative energy initiatives, including the use of alternative fuels and hybrid-electric drive in military vehicles and equipment.
(5) Opportunities for the high-performance construction, lease, operation, and maintenance of buildings.
(6) Cost effectiveness, cost savings, and net present value of alternatives.
(7) The value of diversification of types and sources of energy used.
(8) The value of economies-of-scale associated with fewer energy types used.
(9) The value of the use of renewable energy sources.
(10) The value of incorporating electric, hybrid-electric, and high efficiency vehicles into vehicle fleets.
(11) The potential for an action to serve as an incentive for members of the armed forces and civilian personnel to reduce energy consumption or adopt an improved energy performance measure.
(d)
(A) are readily available;
(B) demonstrate an economic return on the investment;
(C) are consistent with the energy performance goals and energy performance master plan for the Department; and
(D) are supported by the special considerations specified in subsection (c).
(2) In this subsection, the term “energy efficient maintenance” includes—
(A) the repair of military vehicles, equipment, or facility and infrastructure systems, such as lighting, heating, or cooling equipment or systems, or industrial processes, by replacement with technology that—
(i) will achieve energy savings over the life-cycle of the equipment or system being repaired; and
(ii) will meet the same end needs as the equipment or system being repaired; and
(B) improvements in an operation or maintenance process, such as improved training or improved controls, that result in energy savings.
(e)
(A) to produce or procure not less than 25 percent of the total quantity of facility energy it consumes within its facilities during fiscal year 2025 and each fiscal year thereafter from renewable energy sources; and
(B) to produce or procure facility energy from renewable energy sources whenever the use of such renewable energy sources is consistent with the energy performance goals and energy performance master plan for the Department and supported by the special considerations specified in subsection (c).
(2) In this subsection, the term “renewable energy source” means energy generated from renewable sources, including the following:
(A) Solar.
(B) Wind.
(C) Biomass.
(D) Landfill gas.
(E) Ocean, including tidal, wave, current, and thermal.
(F) Geothermal, including electricity and heat pumps.
(G) Municipal solid waste.
(H) New hydroelectric generation capacity achieved from increased efficiency or additions of new capacity at an existing hydroelectric project. For purposes of this subparagraph, hydroelectric generation capacity is “new” if it was placed in service on or after January 1, 1999.
(I) Thermal energy generated by any of the preceding sources.
(Added and amended Pub. L. 109–364, div. B, title XXVIII, §§2851(a)(1), 2852, Oct. 17, 2006, 120 Stat. 2489, 2496; Pub. L. 111–84, div. B, title XXVIII, §2842, Oct. 28, 2009, 123 Stat. 2680; Pub. L. 111–383, div. B, title XXVIII, §§2831, 2832(a), Jan. 7, 2011, 124 Stat. 4467, 4468.)
2011—Pub. L. 111–383, §2832(a)(3), substituted “Energy performance goals and master plan for the Department of Defense” for “Energy performance goals and plan for Department of Defense” in section catchline.
Pub. L. 111–383, §2832(a)(2), substituted “master plan” for “plan” wherever appearing in subsecs. (c) to (e).
Subsec. (b). Pub. L. 111–383, §2832(a)(1), amended subsec. (b) generally. Prior to amendment, text read as follows: “The Secretary of Defense shall develop, and update as necessary, a comprehensive plan to help achieve the energy performance goals for the Department of Defense.”
Subsec. (c)(4). Pub. L. 111–383, §2831(1), inserted “and hybrid-electric drive” after “alternative fuels”.
Subsec. (c)(5) to (11). Pub. L. 111–383, §2831(2)–(5), added pars. (5) and (10) and redesignated former pars. (5) to (8) and (9) as (6) to (9) and (11), respectively.
2009—Subsec. (e). Pub. L. 111–84, §2842(c), substituted “Facility Energy Needs” for “Electricity Needs” in heading.
Pub. L. 111–84, §2842(a), (b), designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), in par. (1)(A), substituted “facility energy” for “electric energy” and struck out “and in its activities” after “facilities” and “(as defined in section 203(b) of the Energy Policy Act of 2005 (42 U.S.C. 15852(b)))” after “sources”, in par. (1)(B), substituted “facility energy” for “electric energy”, and added par. (2).
2006—Subsec. (e). Pub. L. 109–364, §2852, added subsec. (e).
Pub. L. 111–383, div. A, title II, §242, Jan. 7, 2011, 124 Stat. 4176, provided that:
“(a)
“(b)
“(1) A commitment to participate made by a military installation being considered for selection.
“(2) The findings and recommendations of relevant energy security assessments of military installations being considered for selection.
“(3) The availability of renewable energy sources at a military installation being considered for selection.
“(4) Potential synergies between the expertise and capabilities of a national laboratory being considered for selection and the infrastructure, interests, or other energy security needs of a military installation being considered for selection.
“(5) The effects of any utility tariffs, surcharges, or other considerations on the feasibility of enabling any excess electricity generated on a military installation being considered for selection to be sold or otherwise made available to the local community near the installation.
“(c)
“(1) Under the pilot program, the Secretaries shall evaluate and validate the performance of new energy technologies that may be incorporated into operating environments.
“(2) The pilot program shall involve collaboration with the Office of Electricity Delivery and Energy Reliability of the Department of Energy and other offices and agencies within the Department of Energy, as appropriate, and the Environmental Security Technical Certification Program of the Department of Defense.
“(3) Under the pilot program, the Secretary of Defense shall investigate opportunities for any excess electricity created for the military installation to be sold or otherwise made available to the local community near the installation.
“(4) The Secretary of Defense shall use the results of the pilot program as the basis for informing key performance parameters and validating energy components and designs that could be implemented in various military installations across the country and at forward operating bases.
“(5) The pilot program shall support the effort of the Secretary of Defense to use the military as a test bed to demonstrate innovative energy technologies.
“(d)
“(e)
“(1)
“(2)
“(f)
“(1) The term ‘appropriate congressional committees’ means—
“(A) the Committee on Armed Services, the Committee on Energy and Commerce, and the Committee on Science and Technology of the House of Representatives; and
“(B) the Committee on Armed Services, the Committee on Energy and Natural Resources, and the Committee on Commerce, Science, and Transportation of the Senate.
“(2) The term ‘microgrid’ means an integrated energy system consisting of interconnected loads and distributed energy resources (including generators, energy storage devices, and smart controls) that can operate with the utility grid or in an intentional islanding mode.
“(3) The term ‘national laboratory’ means—
“(A) a national laboratory (as defined in section 2 of the Energy Policy Act of 2005 (42 U.S.C. 15801)); or
“(B) a national security laboratory (as defined in section 3281 of the National Nuclear Security Administration Act (50 U.S.C. 2471)).”
Pub. L. 111–84, div. A, title III, §335, Oct. 28, 2009, 123 Stat. 2259, provided that:
“(a)
“(1)
“(2)
“(A) An identification of the areas of vulnerability as described in paragraph (1), and an identification of priorities in addressing such areas of vulnerability.
“(B) A schedule for the actions to be taken by the Department to address such areas of vulnerability.
“(C) A strategy for working with other public or private sector entities to address such areas of vulnerability that are beyond the control of the Department.
“(D) An estimate of and consideration for the costs to the Department associated with implementation of the strategy.
“(b)
Pub. L. 110–417, [div. A], title III, §332, Oct. 14, 2008, 122 Stat. 4420, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(5), Jan. 7, 2011, 124 Stat. 4374, provided that:
“(a)
“(b)
“(c)
“(d)
“(e)
“(f)
“(1) an explanation of the reasons why the requirements, or portions of the requirements, have not been implemented; and
“(2) a revised plan under subsection (d) to complete implementation or a rationale regarding why portions of the requirements cannot or should not be implemented.
“(g)
Pub. L. 110–417, [div. A], title III, §335, Oct. 14, 2008, 122 Stat. 4422, provided that:
“(a)
“(b)
“(1)
“(2)
“(A) prioritize the mission critical installations, facilities, and activities that are subject to the greatest and most urgent risks; and
“(B) consider the cost effectiveness of risk mitigation options.
“(c)
“(1)
“(2)
Pub. L. 110–181, div. B, title XXVIII, §2863, Jan. 28, 2008, 122 Stat. 560, provided that:
“(a)
“(b)
“(c)
“(1) the life cycle cost effectiveness of the fixture or bulb;
“(2) the compatibility of the fixture or bulb with existing equipment;
“(3) whether use of the fixture or bulb could result in interference with productivity;
“(4) the aesthetics relating to use of the fixture or bulb; and
“(5) such other factors as the Secretary concerned determines appropriate.
“(d)
“(1) the fixture or bulb is certified under the Energy Star program established by section 324A of the Energy Policy and Conservation Act (42 U.S.C. 6294a); or
“(2) the Secretary of Defense or the Secretary of a military department has otherwise determined that the fixture or bulb is energy efficient.
“(e)
“(f)
“(g)
Pub. L. 110–181, div. B, title XXVIII, §2864, Jan. 28, 2008, 122 Stat. 561, provided that:
“(a)
“(1) The extent to which energy from renewable energy sources is used to meet the electricity needs of the Department of Defense, to be stated as a percentage of total facility electricity use for the previous fiscal year.
“(2) The extent to which energy from renewable energy sources was procured through alternative financing methods, to be stated as a percentage of total renewable energy procurement and as a dollar amount for the previous fiscal year.
“(3) The extent to which energy from renewable energy sources was procured through the use of appropriated funds, to be stated as a percentage of total renewable energy procurement and as a dollar amount for the previous fiscal year.
“(4) A graphical illustration of energy use from renewable energy sources by the Department as a percentage of total facility electricity use over time, starting no later than fiscal year 2000 and running through fiscal year 2025, including projected future trends in renewable energy consumption through fiscal year 2025 in order to meet the goals for renewable energy set forth in section 2911(e) of title 10, United States Code, or other goals, as appropriate.
“(b)
“(c)
Pub. L. 109–364, div. A, title III, §358, Oct. 17, 2006, 120 Stat. 2164, provided that: “The Secretary of Defense shall consider the utilization of fuel cells as replacements for current back-up power systems in a variety of Department of Defense operations and activities, including in telecommunications networks, perimeter security, individual equipment items, and remote facilities, in order to increase the operational longevity of back-up power systems and stand-by power systems in such operations and activities.”
Pub. L. 109–364, div. A, title III, §360(a), Oct. 17, 2006, 120 Stat. 2164, provided that: “It shall be the policy of the Department of Defense to improve the fuel efficiency of weapons platforms, consistent with mission requirements, in order to—
“(1) enhance platform performance;
“(2) reduce the size of the fuel logistics systems;
“(3) reduce the burden high fuel consumption places on agility;
“(4) reduce operating costs; and
“(5) dampen the financial impact of volatile oil prices.”
Pub. L. 107–107, div. A, title III, §317, Dec. 28, 2001, 115 Stat. 1054, provided that:
“(a)
“(b)
“(c)
“(1) In the case of industrial and laboratory facilities, reductions in the average energy consumption per square foot of such facilities, per unit of production or other applicable unit, relative to energy consumption in 1990—
“(A) by 20 percent by 2005; and
“(B) by 25 percent by 2010.
“(2) In the case of other facilities, reductions in average energy consumption per gross square foot of such facilities, relative to energy consumption per gross square foot in 1985—
“(A) by 30 percent by 2005; and
“(B) by 35 percent by 2010.
“(d)
“(1) purchase energy-efficient products, as so designated by the Environmental Protection Agency and the Department of Energy, and other products that are energy-efficient;
“(2) utilize energy savings performance contracts, utility energy-efficiency service contracts, and other contracts designed to achieve energy conservation;
“(3) use life-cycle cost analysis, including assessment of life-cycle energy costs, in making decisions about investments in products, services, construction, and other projects;
“(4) conduct energy efficiency audits for approximately 10 percent of all Department of Defense facilities each year;
“(5) explore opportunities for energy efficiency in industrial facilities for steam systems, boiler operation, air compressor systems, industrial processes, and fuel switching; and
“(6) retire inefficient equipment on an accelerated basis where replacement results in lower life-cycle costs.
“(e)
(a)
(b)
(1) One-half of the amount shall be used for the implementation of additional energy conservation measures at buildings, facilities, or installations of the Department of Defense or related to vehicles and equipment of the Department, which are designated, in accordance with regulations prescribed by the Secretary of Defense, by the head of the department, agency, or instrumentality that realized the savings referred to in subsection (a).
(2) One-half of the amount shall be used at the installation at which the savings were realized, as determined by the commanding officer of such installation consistent with applicable law and regulations, for—
(A) improvements to existing military family housing units;
(B) any unspecified minor construction project that will enhance the quality of life of personnel; or
(C) any morale, welfare, or recreation facility or service.
(c)
(d)
(Added Pub. L. 109–364, div. B, title XXVIII, §2851(a)(1), Oct. 17, 2006, 120 Stat. 2491.)
Pub. L. 109–148, div. A, title VIII, §8054, Dec. 30, 2005, 119 Stat. 2710, provided that: “Appropriations available under the heading ‘Operation and Maintenance, Defense-Wide’ for the current fiscal year and hereafter for increasing energy and water efficiency in Federal buildings may, during their period of availability, be transferred to other appropriations or funds of the Department of Defense for projects related to increasing energy and water efficiency, to be merged with and to be available for the same general purposes, and for the same time period, as the appropriation or fund to which transferred.”
Similar provisions for specified fiscal years were contained in the following prior appropriation acts:
Pub. L. 108–287, title VIII, §8058, Aug. 5, 2004, 118 Stat. 983.
Pub. L. 108–87, title VIII, §8058, Sept. 30, 2003, 117 Stat. 1085.
Pub. L. 107–248, title VIII, §8059, Oct. 23, 2002, 116 Stat. 1550.
Pub. L. 107–117, div. A, title VIII, §8064, Jan. 10, 2002, 115 Stat. 2261.
Pub. L. 106–259, title VIII, §8063, Aug. 9, 2000, 114 Stat. 688.
Pub. L. 106–79, title VIII, §8066, Oct. 25, 1999, 113 Stat. 1245.
Pub. L. 105–262, title VIII, §8066, Oct. 17, 1998, 112 Stat. 2312.
Pub. L. 105–56, title VIII, §8072, Oct. 8, 1997, 111 Stat. 1235.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8081], Sept. 30, 1996, 110 Stat. 3009–71, 3009–104.
Pub. L. 104–61, title VIII, §8097, Dec. 1, 1995, 109 Stat. 671.
Pub. L. 103–139, title VIII, §8149, Nov. 11, 1993, 107 Stat. 1475.
(a)
(2) In carrying out paragraph (1), the Secretary of Defense may—
(A) request statements of qualifications (as prescribed by the Secretary of Defense), including financial and performance information, from firms engaged in providing shared energy savings contracting;
(B) designate from the statements received, with an update at least annually, those firms that are presumptively qualified to provide shared energy savings services;
(C) select at least three firms from the qualifying list to conduct discussions concerning a particular proposed project, including requesting a technical and price proposal from such selected firms for such project; and
(D) select from such firms the most qualified firm to provide shared energy savings services pursuant to a contractual arrangement that the Secretary determines is fair and reasonable, taking into account the estimated value of the services to be rendered and the scope and nature of the project.
(3) In carrying out paragraph (1), the Secretary may also provide for the direct negotiation, by departments, agencies, and instrumentalities of the Department of Defense, of contracts with shared energy savings contractors that have been selected competitively and approved by any gas or electric utility serving the department, agency, or instrumentality concerned.
(b)
(c)
(d)
(2) If an agreement under this subsection provides for a utility to advance financing costs for the design or implementation of a program referred to in that paragraph to be repaid by the United States, the cost of such advance may be recovered by the utility under terms no less favorable than those applicable to its most favored customer.
(3) Subject to the availability of appropriations, repayment of costs advanced under paragraph (2) shall be made from funds available to a military department for the purchase of utility services.
(4) An agreement under this subsection shall provide that title to any energy-saving device or technology installed at a military installation pursuant to the agreement vest in the United States. Such title may vest at such time during the term of the agreement, or upon expiration of the agreement, as determined to be in the best interests of the United States.
(Added and amended Pub. L. 109–364, div. B, title XXVIII, §§2851(a)(1), 2853, Oct. 17, 2006, 120 Stat. 2491, 2496; Pub. L. 110–140, title V, §511(c), Dec. 19, 2007, 121 Stat. 1658; Pub. L. 110–181, div. B, title XXVIII, §2861, Jan. 28, 2008, 122 Stat. 559.)
2008—Subsec. (e). Pub. L. 110–181, which directed the amendment of this section by striking out subsec. (e), could not be executed because subsec. (e) was previously repealed by Pub. L. 110–140, §511(c). See 2007 Amendment note below.
2007—Subsec. (e). Pub. L. 110–140 struck out heading and text of subsec. (e). Text read as follows: “When a decision is made to award an energy savings performance contract that contains a clause setting forth a cancellation ceiling in excess of $7,000,000, the Secretary of Defense shall submit to the appropriate committees of Congress written notification of the proposed contract and of the proposed cancellation ceiling for the contract. The notification shall include the justification for the proposed cancellation ceiling. The contract may then be awarded only after the end of the 30-day period beginning on the date the notification is received by such committees or, if earlier, the end of the 15-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.”
2006—Subsec. (e). Pub. L. 109–364, §2853, added subsec. (e).
Amendment by Pub. L. 110–140 effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as an Effective Date note under section 1824 of Title 2, The Congress.
(a)
(b)
(Added Pub. L. 109–364, div. B, title XXVIII, §2851(a)(1), Oct. 17, 2006, 120 Stat. 2493.)
(a)
(b)
(A) is consistent with the energy performance goals and energy performance master plan for the Department of Defense developed under section 2911 of this title; and
(B) supported by the special considerations specified in subsection (c) of such section.
(2) The Secretary concerned shall require that contracts for construction resulting from such design include a requirement that energy systems using solar energy or other renewable forms of energy be installed if such systems can be shown to be cost effective.
(c)
(2) A determination under paragraph (1) concerning whether a cost-differential can be recovered over the expected life of a facility shall be made using the life-cycle cost methods and procedures established pursuant to section 544(a) of the National Energy Conservation Policy Act (42 U.S.C. 8254(a)).
(d)
(e)
(2) For purposes of this subsection, energy efficient products may include, at a minimum, the following technologies, consistent with the products specified in paragraph (3):
(A) Roof-top solar thermal, photovoltaic, and energy reducing coating technologies.
(B) Energy management control and supervisory control and data acquisition systems.
(C) Energy efficient heating, ventilation, and air conditioning systems.
(D) Thermal windows and insulation systems.
(E) Electric meters.
(F) Lighting, equipment, and appliances that are designed to use less electricity.
(G) Hybrid vehicle plug-in charging stations.
(H) Solar-power collecting structures to shade vehicle parking areas.
(I) Wall and roof insulation systems and air infiltration-mitigation systems, such as weatherproofing.
(3) In determining the energy efficiency of products, the Secretary shall consider products that—
(A) meet or exceed Energy Star specifications; or
(B) are listed on the Federal Energy Management Program Product Energy Efficiency Recommendations product list of the Department of Energy.
(Added Pub. L. 97–214, §2(a), July 12, 1982, 96 Stat. 166, §2857; amended Pub. L. 97–321, title VIII, §801(b)(1), (2), Oct. 15, 1982, 96 Stat. 1571; Pub. L. 98–525, title XIV, §1405(45)(A), Oct. 19, 1984, 98 Stat. 2625; Pub. L. 101–218, §8(b), Dec. 11, 1989, 103 Stat. 1868; Pub. L. 101–510, div. B, title XXVIII, §2852(b), Nov. 5, 1990, 104 Stat. 1804; Pub. L. 102–25, title VII, §701(g)(2), Apr. 6, 1991, 105 Stat. 115; renumbered §2915 and amended Pub. L. 109–364, div. B, title XXVIII, §§2851(b)(1), (3)(A), 2854, Oct. 17, 2006, 120 Stat. 2494, 2497; Pub. L. 111–383, div. B, title XXVIII, §2832(b), Jan. 7, 2011, 124 Stat. 4468.)
2011—Pub. L. 111–383, §2832(b)(4), substituted “Facilities: use of renewable forms of energy and energy efficient products” for “New construction: use of renewable forms of energy and energy efficient products” in section catchline.
Subsec. (a). Pub. L. 111–383, §2832(b)(1), inserted “and facility repairs and renovations” after “military family housing projects)” and substituted “energy performance master plan” for “energy performance plan”.
Subsec. (b)(1). Pub. L. 111–383, §2832(b)(2), substituted “the design for the construction, repair, or renovation of facilities (including family housing and back-up power generation facilities) requires consideration of energy systems using solar energy or other renewable forms of energy when use of a renewable form of energy—” for “the design of all new facilities (including family housing) shall include consideration of energy systems using solar energy or other renewable forms of energy.” and added subpars. (A) and (B).
Subsec. (e). Pub. L. 111–383, §2832(b)(3)(A), substituted “Use of Energy Efficient Products in Facilities” for “Use of Energy Efficiency Products in New Construction” in heading.
Subsec. (e)(1). Pub. L. 111–383, §2832(b)(3)(B), substituted “construction, repair, or renovation of facilities” for “new facility construction” and “energy performance master plan” for “energy performance plan”.
Subsec. (e)(2), (3). Pub. L. 111–383, §2832(b)(3)(C), (D), added par. (2) and redesignated former par. (2) as (3).
2006—Pub. L. 109–364, §2854(b)(1), substituted “New construction: use of renewable forms of energy and energy efficient products” for “Use of renewable forms of energy in new facilities” in section catchline.
Pub. L. 109–364, §2851(b)(1), renumbered section 2857 of this title as this section.
Subsec. (a). Pub. L. 109–364, §2854(b)(2),(3)(A)(i), inserted heading and substituted “is consistent with the energy performance goals and energy performance plan for the Department of Defense developed under section 2911 of this title and supported by the special considerations specified in subsection (c) of such section” for “would be practical and economically feasible”.
Subsec. (b). Pub. L. 109–364, §2854(b)(3), inserted heading.
Subsec. (b)(1). Pub. L. 109–364, §2851(b)(3)(A)(ii), struck out “in those cases in which use of such forms of energy has the potential for reduced energy costs” before period at end.
Subsecs. (c), (d). Pub. L. 109–364, §2854(b)(4), (5) inserted headings.
Subsec. (e). Pub. L. 109–364, §2854(a), added subsec. (e).
1991—Subsec. (c)(2). Pub. L. 102–25 inserted “(42 U.S.C. 8254(a))” after “Policy Act”.
1990—Subsec. (c)(2), (3). Pub. L. 101–510 added par. (2) and struck out former pars. (2) and (3) which read as follows:
“(2) A determination under paragraph (1) of whether a cost-differential can be recovered over the expected life of a facility shall be made using accepted life-cycle costing procedures and shall include—
“(A) the use of all capital expenses and all operating and maintenance expenses associated with the energy system with and without an energy system using solar energy or other renewable forms of energy over the expected life of the facility or during a period of 25 years, whichever is shorter;
“(B) the use of fossil fuel costs (and a rate of cost growth for fossil fuel costs) as determined by the Secretary of Defense; and
“(C) the use of a discount rate of 7 percent per year for all expenses of the energy system.
“(3) For the purpose of any life-cycle cost analysis under this subsection, the original investment cost of the energy system using solar energy or other renewable forms of energy shall be reduced by 10 percent to reflect an allowance for an investment cost credit.”
1989—Subsec. (b)(1). Pub. L. 101–218 substituted “reduced energy costs” for “significant savings of fossil-fuel-derived energy”.
1984—Subsec. (b)(1). Pub. L. 98–525 substituted “use of such forms of energy has the potential for” for “use of solar energy has the potential for”.
1982—Pub. L. 97–321, §801(b)(2), substituted “renewable forms of energy in new facilities” for “solar energy systems” in section catchline.
Subsec. (a). Pub. L. 97–321, §801(b)(1)(A), substituted “energy systems using solar energy or other renewable forms of energy” and “such form of energy would” for “solar energy systems” and “solar energy would”, respectively.
Subsec. (b)(1). Pub. L. 97–321, §801(b)(1)(B), substituted “energy systems using solar energy or other renewable forms of energy” for “solar energy systems” and directed that “such form of energy has” be substituted for “a solar energy has”, but “a solar energy has” did not appear in par. (1). See 1984 Amendment note above.
Subsec. (b)(2). Pub. L. 97–321, §801(b)(1)(B)(i), substituted “energy systems using solar energy or other renewable forms of energy” for “solar energy systems”.
Subsec. (c). Pub. L. 97–321, §801(b)(1)(C)–(E), substituted: in par. (1) “an energy system using solar energy or other renewable forms of energy” for “a solar energy system” before “for a facility” and in items (A) and (B) “such a system” for “a solar energy system”; in par. (2)(A) “an energy system using solar energy or other renewable forms of energy” for “a solar energy system”; and in par. (3) “energy system using solar energy or other renewable forms of energy” for “solar energy system”, respectively.
Subsec. (d). Pub. L. 97–321, §801(b)(1)(F), substituted “heating equipment, cooling equipment, or both heating and cooling equipment using solar energy or other renewable forms of energy or with a passive energy energy system using solar energy or other renewable forms of energy” for “solar heating equipment, solar cooling equipment, or both solar heating and solar cooling equipment, or with a passive solar energy system”.
Pub. L. 98–525, title XIV, §1405(45)(B), Oct. 19, 1984, 98 Stat. 2625, provided that: “The amendment made by subparagraph (A) [amending this section] shall take effect as if it had been included in the amendments made by section 801 of Public Law 97–321.”
For effective date and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a) The Secretary of a military department may sell, contract to sell, or authorize the sale by a contractor to a public or private utility company of electrical energy generated from alternate energy or cogeneration type production facilities which are under the jurisdiction (or produced on land which is under the jurisdiction) of the Secretary concerned. The sale of such energy shall be made under such regulations, for such periods, and at such prices as the Secretary concerned prescribes consistent with the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601 et seq.).
(b)(1) Proceeds from sales under subsection (a) shall be credited to the appropriation account currently available to the military department concerned for the supply of electrical energy.
(2) Subject to the availability of appropriations for this purpose, proceeds credited under paragraph (1) may be used to carry out military construction projects under the energy performance plan developed by the Secretary of Defense under section 2911(b) of this title, including minor military construction projects authorized under section 2805 of this title that are designed to increase energy conservation.
(c) Before carrying out a military construction project described in subsection (b) using proceeds from sales under subsection (a), the Secretary concerned shall notify Congress in writing of the project, the justification for the project, and the estimated cost of the project. The project may be carried out only after the end of the 21-day period beginning on the date the notification is received by Congress or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title.
(Added Pub. L. 98–407, title VIII, §810(a), Aug. 28, 1984, 98 Stat. 1523, §2483; amended Pub. L. 103–160, div. B, title XXVIII, §2802, Nov. 30, 1993, 107 Stat. 1884; renumbered §2867, Pub. L. 105–85, div. A, title III, §371(b)(2), Nov. 18, 1997, 111 Stat. 1705; Pub. L. 108–136, div. A, title X, §1031(a)(49), Nov. 24, 2003, 117 Stat. 1602; renumbered §2916 and amended Pub. L. 109–364, div. B, title XXVIII, §2851(b)(1), (3)(B), Oct. 17, 2006, 120 Stat. 2494.)
The Public Utility Regulatory Policies Act of 1978, referred to in subsec. (a), is Pub. L. 95–617, Nov. 9, 1978, 92 Stat. 3117, as amended. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 16, Conservation, and Tables.
2006—Pub. L. 109–364, §2851(b)(1), renumbered section 2867 of this title as this section.
Subsec. (b)(2). Pub. L. 109–364, §2851(b)(3)(B), substituted “2911(b)” for “2865(a)”.
2003—Subsec. (c). Pub. L. 108–136 inserted before period at end “or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of this title”.
1997—Pub. L. 105–85 renumbered section 2483 of this title as this section.
1993—Subsec. (b). Pub. L. 103–160, §2802(a), designated existing provisions as par. (1) and added par. (2).
Subsec. (c). Pub. L. 103–160, §2802(b), added subsec. (c).
The Secretary of a military department may develop, or authorize the development of, any geothermal energy resource within lands under the Secretary's jurisdiction, including public lands, for the use or benefit of the Department of Defense if that development is in the public interest, as determined by the Secretary concerned, and will not deter commercial development and use of other portions of such resource if offered for leasing.
(Added Pub. L. 97–214, §6(c)(1), July 12, 1982, 96 Stat. 172, §2689; renumbered §2917, Pub. L. 109–364, div. B, title XXVIII, §2851(b)(1), Oct. 17, 2006, 120 Stat. 2494.)
2006—Pub. L. 109–364 renumbered section 2689 of this title as this section.
Section effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)(1) The Secretary of the military department concerned shall provide that the primary fuel source to be used in any new heating system constructed on lands under the jurisdiction of the military department is the most cost effective fuel for that heating system over the life cycle of the system.
(2) The Secretary of Defense shall prescribe regulations for the determination of the life-cycle cost effectiveness of a fuel for the purposes of paragraph (1).
(b) The Secretary of a military department may not convert a heating facility at a United States military installation in Europe from a coal-fired facility to an oil-fired facility, or to any other energy source facility, unless the Secretary determines that the conversion—
(1) is required by the government of the country in which the facility is located; or
(2) is cost-effective over the life cycle of the facility.
(Added Pub. L. 97–214, §6(c)(1), July 12, 1982, 96 Stat. 173, §2690; amended Pub. L. 99–661, div. A, title XII, §1205(a)(1), Nov. 14, 1986, 100 Stat. 3971; Pub. L. 105–85, div. A, title X, §1041(a), Nov. 18, 1997, 111 Stat. 1885; renumbered §2918, Pub. L. 109–364, div. B, title XXVIII, §2851(b)(1), Oct. 17, 2006, 120 Stat. 2494.)
2006—Pub. L. 109–364 renumbered section 2690 of this title as this section.
1997—Subsec. (b). Pub. L. 105–85 substituted “unless the Secretary determines that the conversion—” for “unless the Secretary—” in introductory provisions, added pars. (1) and (2), and struck out former pars. (1) and (2) which read as follows:
“(1) determines that the conversion (A) is required by the government of the country in which the facility is located, or (B) is cost effective over the life cycle of the facility; and
“(2) submits to Congress notification of the proposed conversion and a period of 30 days has elapsed following the date on which Congress receives the notice.”
1986—Pub. L. 99–661 substituted “Fuel sources for heating systems; prohibition on converting certain heating facilities” for “Restriction on fuel sources for new heating systems” in section catchline and amended text generally. Prior to amendment, text read as follows:
“(a) Except as provided in subsection (b), a new heating system that requires a heat input rate of fifty million British thermal units per hour or more and that uses oil or gas (or a derivative of oil or gas) as fuel may not be constructed on lands under the jurisdiction of a military department.
“(b) The Secretary of the military department concerned may waive the provisions of subsection (a) in rare and unusual cases, but such a waiver may not become effective until after the Secretary has notified the appropriate committees of Congress in writing of the waiver.
“(c) The Secretary of the military department concerned may not provide service for a new heating system in increments in order to avoid the prohibition contained in subsection (a).”
Section effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a)
(1) An electric utility.
(2) An independent system operator.
(3) A State agency.
(4) A third party entity (such as a demand response aggregator or curtailment service provider) implementing demand response programs on behalf of an electric utility, independent system operator, or State agency.
(b)
(1) received as a cost reduction in the utility bill for a facility; or
(2) deposited into the fund established under subsection (c) for use, to the extent provided for in an appropriations Act, by the military department, Defense Agency, or instrumentality receiving such financial incentive for energy management initiatives.
(c)
(Added Pub. L. 111–84, div. B, title XXVIII, §2843(a), Oct. 28, 2009, 123 Stat. 2681.)
2009—Pub. L. 111–84, div. B, title XXVIII, §2844(b), Oct. 28, 2009, 123 Stat. 2682, added item 2922g.
(a)
(b)
(c)
(Added Pub. L. 85–861, §1(46), Sept. 2, 1958, 72 Stat. 1457, §2388; amended Pub. L. 97–214, §10(a)(3), July 12, 1982, 96 Stat. 175; Pub. L. 97–258, §3(b)(6), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 97–295, §1(27), Oct. 12, 1982, 96 Stat. 1291; Pub. L. 98–525, title XIV, §1405(56)(A), Oct. 19, 1984, 98 Stat. 2626; Pub. L. 101–510, div. A, title XIII, §1322(a)(6), Nov. 5, 1990, 104 Stat. 1671; Pub. L. 103–160, div. A, title VIII, §825, Nov. 30, 1993, 107 Stat. 1711; Pub. L. 103–355, title III, §3064, Oct. 13, 1994, 108 Stat. 3337; renumbered §2922, Pub. L. 109–364, div. B, title XXVIII, §2851(b)(2), Oct. 17, 2006, 120 Stat. 2494.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2388(a) 2388(b) |
50:98i (1st sentence). 50:98i (2d sentence). |
Aug. 3, 1956, ch. 939, §416, 70 Stat. 1018. |
| 2388(c) | 50:98i (less 1st and 2d sentences and proviso of last sentence). | |
| 2388(d) | 50:98i (proviso of last sentence). |
In subsection (b), the words “section applies only” are substituted for the words “authority is limited”. The word “standards” is substituted for the word “criteria”.
In subsection (c), the words “A contract under this section” are substituted for the words “Such contracts”. The last 33 words are substituted for 50:98i (28 words before proviso of last sentence).
In 10:2388(c), the title 31 citation is substituted on authority of Pub. L. 97–258, §4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted title 31.
2006—Pub. L. 109–364 renumbered section 2388 of this title as this section.
1994—Subsec. (a). Pub. L. 103–355 substituted “liquid fuels or natural gas” for “liquid fuels and natural gas”.
1993—Pub. L. 103–160, §825(b), substituted “Liquid fuels and natural gas: contracts for storage, handling, or distribution” for “Liquid fuels: contracts for storage, handling, and distribution” as section catchline.
Subsecs. (a), (b). Pub. L. 103–160, §825(a)(1), added subsecs. (a) and (b) and struck out former subsecs. (a) and (b) which read as follows:
“(a) The Secretary of a military department may contract for the storage, handling, and distribution of liquid fuels for periods of not more than five years, with options to renew for additional periods of not more than five years each, but not for more than a total of 20 years.
“(b) This section applies only to facilities that conform to standards prescribed by the Secretary of Defense for protection, including dispersal, and that are in a program approved by the Secretary of Defense for the protection of petroleum facilities.”
Subsec. (c). Pub. L. 103–160, §825(a)(2), inserted heading.
1990—Subsec. (d). Pub. L. 101–510 struck out subsec. (d) which read as follows: “The Secretary concerned shall report to the Committees on Armed Services of the Senate and the House of Representatives the terms of the contracts made under this section and the names of the contractors. The reports shall be made at such times and in such form as may be agreed upon by the Secretary and those Committees.”
1984—Subsec. (c). Pub. L. 98–525 substituted “subsections (a) and (b) of section 3324” for “section 3324(a) and (b)”.
1982—Subsec. (c). Pub. L. 97–295, §1(27), substituted “section 3324(a) and (b) of title 31” for “section 3648 of the Revised Statutes (31 U.S.C. 529)”, clarifying the ambiguity created by previous amendments by Pub. L. 97–214 and Pub. L. 97–258.
Pub. L. 97–258, §3(b)(6), directed the substitution of “section 3324(a) and (b) of title 31” for “section 529 of title 31”, which could not be executed in view of prior substitution of language by Pub. L. 97–214.
Pub. L. 97–214, §10(a)(3), substituted “section 3648 of the Revised Statutes (31 U.S.C. 529)” for “section 4774(d) or 9774(d) of this title, section 529 of title 31, or section 259 or 267 of title 40,”.
Amendment by Pub. L. 97–214 effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as an Effective Date note under section 2801 of this title.
Pub. L. 96–107, title VIII, §815, Nov. 9, 1979, 93 Stat. 817, which had authorized the Secretary of Defense to buy domestically produced alcohol and gasohol for use as fuel in Department of Defense motor vehicles, was repealed and reenacted as section 2398 (now 2922c) of this title by Pub. L. 97–295, §§1(29)(A), 6(b), Oct. 12, 1982, 96 Stat. 1293, 1315.
(a) Subject to subsection (b), the Secretary of a military department may enter into contracts for periods of up to 30 years—
(1) under section 2917 of this title; and
(2) for the provision and operation of energy production facilities on real property under the Secretary's jurisdiction or on private property and the purchase of energy produced from such facilities.
(b) A contract may be made under subsection (a) only after the approval of the proposed contract by the Secretary of Defense.
(c) The costs of contracts under this section for any year may be paid from annual appropriations for that year.
(Added Pub. L. 97–214, §6(a)(1), July 12, 1982, 96 Stat. 171, §2394; amended Pub. L. 97–321, title VIII, §805(b)(3), Oct. 15, 1982, 96 Stat. 1573; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 101–510, div. A, title XIII, §1301(12), Nov. 5, 1990, 104 Stat. 1668; renumbered §2922a and amended Pub. L. 109–364, div. B, title XXVIII, §2851(b)(2), (3)(C), Oct. 17, 2006, 120 Stat. 2494.)
2006—Pub. L. 109–364, §2851(b)(2), renumbered section 2394 of this title as this section.
Subsec. (a)(1). Pub. L. 109–364, §2851(b)(3)(C), substituted “section 2917” for “section 2689”.
1990—Subsec. (b). Pub. L. 101–510 substituted “only after the approval of the proposed contract by the Secretary of Defense” for “only—
“(1) after the approval of the proposed contract by the Secretary of Defense; and
“(2) after the Committees on Armed Services and on Appropriations of the Senate and House of Representatives have been notified of the terms of the proposed contract, including the dollar amount of the contract and the amount of energy or fuel to be delivered to the Government under the contract”.
1987—Subsec. (c). Pub. L. 100–26, which directed that “The term” be inserted in each paragraph after the paragraph designation and the first word after the first quotation marks in each paragraph be revised so that the initial letter of such word is lowercase, could not be executed because subsec. (c) contained no paragraphs and no quoted words. The probable intent of Congress was to amend section 2393(c) of this title.
1982—Subsec. (a). Pub. L. 97–321, §805(b)(3)(A), substituted “subsection (b)” for “subsection (c)”.
Subsecs. (c), (d). Pub. L. 97–321, §805(b)(3)(B), redesignated subsec. (d) as (c).
Section effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title.
(a) In procuring energy systems the Secretary of a military department shall procure systems that use solar energy or other renewable forms of energy whenever the Secretary determines that such procurement is possible, suited to supplying the energy needs of the military department under the jurisdiction of the Secretary, consistent with the energy performance goals and energy performance plan for the Department of Defense developed under section 2911 of this title, and supported by the special considerations specified in subsection (c) of such section.
(b) The Secretary of Defense shall from time to time study uses for solar energy and other renewable forms of energy to determine what uses of such forms of energy may be reliable in supplying the energy needs of the Department of Defense. The Secretary of Defense, based upon the results of such studies, shall from time to time issue policy guidelines to be followed by the Secretaries of the military departments in carrying out subsection (a) and section 2915 of this title.
(Added Pub. L. 97–321, title VIII, §801(a)(1), Oct. 15, 1982, 96 Stat. 1569, §2394a; amended Pub. L. 98–525, title XIV, §1405(36), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 101–510, div. A, title XIII, §1322(a)(7), div. B, title XXVIII, §2852(a), Nov. 5, 1990, 104 Stat. 1671, 1804; Pub. L. 102–25, title VII, §701(g)(2), Apr. 6, 1991, 105 Stat. 115; renumbered §2922b and amended Pub. L. 109–364, div. B, title XXVIII, §2851(b)(2), (3)(D), Oct. 17, 2006, 120 Stat. 2494, 2495.)
2006—Pub. L. 109–364, §2851(b)(2), renumbered section 2394a of this title as this section.
Subsec. (a). Pub. L. 109–364, §2851(b)(3)(D)(i), substituted “possible, suited” for “possible and will be cost effective, reliable, and otherwise suited” and “the jurisdiction of the Secretary, consistent with the energy performance goals and energy performance plan for the Department of Defense developed under section 2911 of this title, and supported by the special considerations specified in subsection (c) of such section” for “his jurisdiction”.
Subsec. (b). Pub. L. 109–364, §2851(b)(3)(D)(ii), struck out “cost effective and” before “reliable” and substituted “2915” for “2857”.
Subsec. (c). Pub. L. 109–364, §2851(b)(3)(D)(iii), struck out subsec. (c) which read as follows:
“(c)(1) For the purposes of this section, an energy system using solar energy or other renewable forms of energy shall be considered to be cost effective if the difference between (A) the original investment cost of the energy system using such a form of energy, and (B) the original investment cost of the energy system not using such a form of energy can be recovered over the expected life of the system.
“(2) A determination under paragraph (1) concerning whether a cost-differential can be recovered over the expected life of a system shall be made using the life-cycle cost methods and procedures established pursuant to section 544(a) of the National Energy Conservation Policy Act (42 U.S.C. 8254(a)).”
1991—Subsec. (c)(2). Pub. L. 102–25 inserted “(42 U.S.C. 8254(a))” after “Policy Act”.
1990—Subsec. (b). Pub. L. 101–510, §1322(a)(7), struck out “(1)” after “(b)” and struck out par. (2) which read as follows: “The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives not less often than every two years a report on the studies conducted pursuant to paragraph (1). Each such report shall include any findings of the Secretary with respect to the use of solar energy and other renewable forms of energy in supplying the energy needs of the Department of Defense and any recommendations of the Secretary for changes in law that may be appropriate in light of such studies.”
Subsec. (c)(2), (3). Pub. L. 101–510, §2852(a), added par. (2) and struck out former pars. (2) and (3) which read as follows:
“(2) A determination under paragraph (1) of whether a cost-differential can be recovered over the expected life of a system shall be made using accepted life-cycle costing procedures and shall include—
“(A) the use of all capital expenses and all operating and maintenance expenses associated with the energy system using solar energy or other renewable forms of energy, and not using such a form of energy, over the expected life of the system or during a period of 25 years, whichever is shorter;
“(B) the use of fossil fuel costs (and a rate of cost growth for fossil fuel costs) as determined by the Secretary of Defense; and
“(C) the use of a discount rate of 7 percent per year for all expenses of the energy system.
“(3) For the purpose of any life-cycle cost analysis under this subsection, the original investment cost of the energy system using solar energy or other renewable forms of energy shall be reduced by 10 percent to reflect an allowance for an investment cost credit.”
1984—Pub. L. 98–525 substituted “using” for “powered by” in section catchline.
Section 801(a)(3) of Pub. L. 97–321 required the first report under subsec. (b)(2) of this section to be submitted not later than two years after Oct. 15, 1982.
(a)
(b)
(Added Pub. L. 97–295, §1(29)(A), Oct. 12, 1982, 96 Stat. 1293, §2398; amended Pub. L. 102–190, div. A, title VIII, §841(a), Dec. 5, 1991, 105 Stat. 1448; Pub. L. 104–106, div. A, title X, §1061(h), Feb. 10, 1996, 110 Stat. 443; renumbered §2922c, Pub. L. 109–364, div. B, title XXVIII, §2851(b)(2), Oct. 17, 2006, 120 Stat. 2494.)
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2398 | 10:2388 (note). | Nov. 9, 1979, Pub. L. 96–107, §815, 93 Stat. 817. |
The word “prescribed” is substituted for “determined” because it is more appropriate. The word “Secretary” is substituted for “Department of Defense” because the responsibility is in the head of the agency. The word “shall” is substituted for “is authorized and directed” for clarity.
Executive Order Number 12661, referred to in subsec. (a), is set out under section 8871 of Title 42, The Public Health and Welfare.
Section 4081 of the Internal Revenue Code of 1986, referred to in subsec. (a), is classified to section 4081 of Title 26, Internal Revenue Code.
2006—Pub. L. 109–364 renumbered section 2398 of this title as this section.
1996—Subsec. (a). Pub. L. 104–106, §1061(h)(1), (2)(A), redesignated subsec. (b) as (a) and struck out former subsec. (a) which read as follows: “
Subsec. (b). Pub. L. 104–106, §1061(h)(2), redesignated subsec. (c) as (b) and substituted “subsection (a)” for “subsection (b)”. Former subsec. (b) redesignated (a).
Subsec. (c). Pub. L. 104–106, §1061(h)(2)(A), redesignated subsec. (c) as (b).
1991—Pub. L. 102–190 designated existing provisions as subsec. (a), inserted heading, and added subsecs. (b) and (c).
Pub. L. 102–190, div. A, title VIII, §841(b), Dec. 5, 1991, 105 Stat. 1448, provided that: “Section 2398(b) [now 2922c(a)] of title 10, United States Code, as added by subsection (a), shall apply with respect to contracts awarded pursuant to solicitations issued after the expiration of the 180-day period beginning on the date of the enactment of this Act [Dec. 5, 1991].”
(a)
(b)
(c)
(d)
(e)
(Added Pub. L. 109–58, title III, §369(q)(1), Aug. 8, 2005, 119 Stat. 733, §2398a; renumbered §2922d, Pub. L. 109–364, div. B, title XXVIII, §2851(b)(2), Oct. 17, 2006, 120 Stat. 2494; Pub. L. 111–383, div. A, title X, §1075(b)(48), Jan. 7, 2011, 124 Stat. 4371.)
2011—Subsecs. (b), (d). Pub. L. 111–383 substituted “one or more” for “1 or more” wherever appearing.
2006—Pub. L. 109–364 renumbered section 2398a of this title as this section.
(a)
(1) that market conditions for the defined fuel source have adversely affected (or will in the near future adversely affect) the acquisition of that defined fuel source by the Department of Defense; and
(2) the waiver will expedite or facilitate the acquisition of that defined fuel source for Government needs.
(b)
(c)
(d)
(e)
(f)
(1) Petroleum.
(2) Natural gas.
(3) Coal.
(4) Coke.
(Added Pub. L. 98–525, title XII, §1234(a), Oct. 19, 1984, 98 Stat. 2604, §2404; amended Pub. L. 100–26, §7(k)(3), Apr. 21, 1987, 101 Stat. 284; Pub. L. 101–510, div. A, title XIII, §1322(a)(8), Nov. 5, 1990, 104 Stat. 1671; Pub. L. 103–160, div. A, title VIII, §826, Nov. 30, 1993, 107 Stat. 1711; Pub. L. 106–65, div. A, title VIII, §803(a), (b)(1), Oct. 5, 1999, 113 Stat. 703; renumbered §2922e, Pub. L. 109–364, div. B, title XXVIII, §2851(b)(2), Oct. 17, 2006, 120 Stat. 2494.)
2006—Pub. L. 109–364 renumbered section 2404 of this title as this section.
1999—Pub. L. 106–65, §803(b)(1), substituted “Acquisition of certain fuel sources” for “Acquisition of petroleum and natural gas” in section catchline.
Subsec. (a). Pub. L. 106–65, §803(a)(1), substituted “a defined fuel source” for “petroleum or natural gas” in introductory provisions, “market conditions for the defined fuel source” for “petroleum market conditions or natural gas market conditions, as the case may be,” and “acquisition of that defined fuel source” for “acquisition of petroleum or acquisition of natural gas, respectively,” in par. (1), and “that defined fuel source” for “petroleum or natural gas, as the case may be,” in par. (2).
Subsec. (b). Pub. L. 106–65, §803(a)(2), substituted “a defined fuel source” for “petroleum or natural gas” in second sentence.
Subsec. (c). Pub. L. 106–65, §803(a)(3), which directed the substitution of “a defined fuel source or services related to a defined fuel source by exchange of a defined fuel source or services related to a defined fuel source.” for “ ‘petroleum’ and all that follows through the period”, was executed by substituting the material for “petroleum, petroleum-related services, natural gas, or natural gas-related services by exchange of petroleum, petroleum-related services, natural gas, or natural gas-related services.” to reflect the probable intent of Congress.
Subsec. (d). Pub. L. 106–65, §803(a)(4), substituted “a defined fuel source” for “petroleum or natural gas” in first sentence and “a defined fuel source or services related to a defined fuel source.” for “petroleum, petroleum-related services, natural gas, or natural gas-related services.” in second sentence.
Subsec. (f). Pub. L. 106–65, §803(a)(5), added subsec. (f).
1993—Pub. L. 103–160, §826(d)(2), substituted “petroleum and natural gas: authority to waive contract procedures; acquisition by exchange; sales authority” for “petroleum: authority to waive contract procedures” as section catchline.
Subsec. (a). Pub. L. 103–160, §826(a)(1), (d)(1)(A), inserted heading, inserted “or natural gas” after “petroleum” in introductory provisions, inserted “or natural gas market conditions, as the case may be,” after “petroleum market conditions” and “or acquisition of natural gas, respectively,” after “acquisition of petroleum” in par. (1), and inserted “or natural gas, as the case may be,” after “petroleum” in par. (2).
Subsec. (b). Pub. L. 103–160, §826(a)(2), (d)(1)(B), inserted heading and inserted “or natural gas” after “petroleum” in second sentence.
Subsec. (c). Pub. L. 103–160, §826(b), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “The Secretary of Defense may acquire petroleum by exchange of petroleum or petroleum derivatives.”
Subsec. (d). Pub. L. 103–160, §826(c)(2), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 103–160, §826(c)(1), (d)(1)(C), redesignated subsec. (d) as (e) and inserted heading.
1990—Subsecs. (d), (e). Pub. L. 101–510 redesignated subsec. (e) as (d) and struck out former subsec. (d) which read as follows: “The Secretary of Defense shall notify the Congress within 10 days of the date on which any waiver is made under this section and of the reasons for the necessity of exercising such waiver.”
1987—Subsec. (e). Pub. L. 100–26 inserted “the term” after “In this section,”.
(a) In establishing a new requirement for electric equipment referred to in subsection (b) and in procuring electric equipment referred to in that subsection, the Secretary of a military department or the head of a Defense Agency, as the case may be, shall provide a preference for the procurement of the most energy efficient electric equipment available that meets the requirement or the need for the procurement, if providing such a preference is consistent with the energy performance goals and energy performance plan for the Department of Defense developed under section 2911 of this title and supported by the special considerations specified in subsection (c) of such section.
(b) Subsection (a) applies to the following electric equipment:
(1) Electric lamps.
(2) Electric ballasts.
(3) Electric motors.
(4) Electric refrigeration equipment.
(Added Pub. L. 102–484, div. A, title III, §384(a)(1)(A), Oct. 23, 1992, 106 Stat. 2392, §2410c; renumbered §2922f and amended Pub. L. 109–364, div. B, title XXVIII, §2851(b)(2), (3)(E), Oct. 17, 2006, 120 Stat. 2494, 2495.)
2006—Pub. L. 109–364, §2851(b)(2), renumbered section 2410c of this title as this section.
Subsec. (a). Pub. L. 109–364, §2851(b)(3)(E), substituted “In” for “When cost effective, in” and “if providing such a preference is consistent with the energy performance goals and energy performance plan for the Department of Defense developed under section 2911 of this title and supported by the special considerations specified in subsection (c) of such section” for “as the case may be”.
Pub. L. 102–484, div. A, title III, §384(a)(2), Oct. 23, 1992, 106 Stat. 2393, provided that: “The amendments made by paragraph (1) [enacting this section] shall apply to procurements for which solicitations are issued on or after the date that is 120 days after the date of the enactment of this Act [Oct. 23, 1992].”
Pub. L. 102–484, div. A, title III, §384(b)–(d), Oct. 23, 1992, 106 Stat. 2393, provided that:
“(b)
“(2) The Secretary shall designate 50 facilities owned or leased by the Department of Defense for participation in the demonstration program under this subsection.
“(3) The head of each facility designated pursuant to paragraph (2) and the Director of the Defense Logistics Agency shall jointly audit the electric lighting equipment at the facility in order—
“(A) to identify any potential improvements that would increase the energy efficiency of electric lighting at that facility; and
“(B) to determine the costs of, and the savings that would result from, such improvements.
“(4) Except as provided in subsection (d)(4), on the basis of the results of the audit the head of the facility shall promptly convert to the use of electric lighting equipment at the facility that is more energy efficient than the existing electric lighting equipment to the extent that the conversion is cost effective.
“(5) Energy efficient electric lighting equipment used under the demonstration program may include compact fluorescent lamps, energy efficient electric ballasts and fixtures, and other energy efficient electric lighting equipment.
“(c)
“(2) The Secretary shall designate 50 facilities owned or operated by the Department of Defense for participation in the demonstration program under this subsection.
“(3) The head of each facility designated pursuant to paragraph (2) and the Director of the Defense Logistics Agency shall jointly audit the refrigeration equipment at the facility in order—
“(A) to identify any potential improvements that would increase the energy efficiency of the refrigeration equipment at that facility; and
“(B) to determine the costs of, and the savings that would result from, such improvements.
“(4) Except as provided in subsection (d)(4), on the basis of the results of the audit the head of the facility shall promptly convert to the use of refrigeration equipment at the facility that is more energy efficient than the existing refrigeration equipment to the extent that the conversion is cost effective.
“(d)
“(2) The Secretary of Defense may designate a facility described in subsections (b)(2) and (c)(2) for participation in the demonstration program under subsection (b) and the demonstration program under subsection (c).
“(3) The audits required by subsections (b)(3) and (c)(3) shall be completed not later than January 1, 1994.
“(4) The head of a facility may not carry out a conversion described in subsection (b)(4) or (c)(4) if the conversion prevents the head of the facility from carrying out other improvements relating to energy efficiency that are more cost effective than that conversion.”
(a)
(1) will meet the requirements or needs of the Department of Defense; and
(2) are commercially available at a cost, including operating cost, reasonably comparable to motor vehicles containing only an internal combustion or heat engine using combustible fuel.
(b)
(c)
(d)
(1) an internal combustion or heat engine using combustible fuel; and
(2) a rechargeable energy storage system.
(Added Pub. L. 111–84, div. B, title XXVIII, §2844(a), Oct. 28, 2009, 123 Stat. 2682.)
Pub. L. 111–84, div. B, title XXVIII, §2844(c), Oct. 28, 2009, 123 Stat. 2682, provided that: “The Secretary of Defense shall prescribe regulations to implement section 2922g of title 10, United States Code, as added by subsection (a), within one year after the date of the enactment of this Act [Oct. 28, 2009].”
2008—Pub. L. 110–417, [div. A], title III, §331(b)(2), Oct. 14, 2008, 122 Stat. 4420, added item 2925 and struck out former item 2925 “Annual report”.
(a)
(1) A description of the progress made to achieve the goals of the Energy Policy Act of 2005 (Public Law 109–58), section 2911(e) of this title, section 533 of the National Energy Conservation Policy Act (42 U.S.C. 8259b),1 the Energy Independence and Security Act of 2007 (Public Law 110–140), and the energy performance goals for the Department of Defense during the preceding fiscal year.
(2) A table detailing funding, by account, for all energy projects funded through appropriations.
(3) A table listing all energy projects financed through third party financing mechanisms (including energy savings performance contracts, enhanced use leases, utility energy service contracts, utility privatization agreements, and other contractual mechanisms), the duration of each such mechanism, an estimate of the financial obligation incurred through the duration of each such mechanism, and the estimated payback period for each such mechanism.
(4) A description of the actions taken to implement the energy performance master plan in effect under section 2911 of this title and carry out this chapter during the preceding fiscal year.
(5) A description of the energy savings realized from such actions.
(6) An estimate of the types and quantities of energy consumed by the Department of Defense and members of the armed forces and civilian personnel residing or working on military installations during the preceding fiscal year, including a breakdown of energy consumption by user groups and types of energy, energy costs, and the quantities of renewable energy produced or procured by the Department.
(7) A description of the types and amount of financial incentives received under section 2913 of this title during the preceding fiscal year and the appropriation account or accounts to which the incentives were credited.
(8) A description and estimate of the progress made by the military departments to meet the certification requirements for sustainable green-building standards in construction and major renovations as required by section 433 of the Energy Independence and Security Act of 2007 (Public Law 110–140; 121 Stat. 1612).
(9) A description of steps taken to determine best practices for measuring energy consumption in Department of Defense facilities and installations, in order to use the data for better energy management.
(10) A description of any other issues and strategies the Secretary determines relevant to a comprehensive and renewable energy policy.
(b)
(2) The annual report under this subsection shall address and include the following:
(A) Statistical information on operational energy demands, in terms of expenditures and consumption, for the preceding five fiscal years, including funding made available in regular defense appropriations Acts and any supplemental appropriation Acts.
(B) An estimate of operational energy demands for the current fiscal year and next fiscal year, including funding requested to meet operational energy demands in the budget submitted to Congress under section 1105 of title 31 and in any supplemental requests.
(C) A description of each initiative related to the operational energy strategy and a summary of funds appropriated for each initiative in the previous fiscal year and current fiscal year and requested for each initiative for the next five fiscal years.
(D) An evaluation of progress made by the Department of Defense—
(i) in implementing the operational energy strategy, including the progress of key initiatives and technology investments related to operational energy demand and management; and
(ii) in meeting the operational energy goals set forth in the strategy.
(E) Such recommendations as the Assistant Secretary considers appropriate for additional changes in organization or authority within the Department of Defense to enable further implementation of the energy strategy and such other comments and recommendations as the Assistant Secretary considers appropriate.
(3) If a report under this subsection is submitted in a classified form, the Secretary shall concurrently submit to the congressional defense committees an unclassified version of the information required by this subsection.
(4) In this subsection, the term “operational energy” means the energy required for training, moving, and sustaining military forces and weapons platforms for military operations. The term includes energy used by tactical power systems and generators and weapons platforms.
(Added Pub. L. 109–364, div. B, title XXVIII, §2851(a)(1), Oct. 17, 2006, 120 Stat. 2493; amended Pub. L. 110–417, [div. A], title III, §331(a), (b)(1), div. B, title XXVIII, §2832, Oct. 14, 2008, 122 Stat. 4419, 4420, 4732; Pub. L. 111–84, div. A, title III, §332(a), Oct. 28, 2009, 123 Stat. 2257; Pub. L. 111–383, div. A, title IX, §901(a)(2), div. B, title XXVIII, §2832(c)(1), Jan. 7, 2011, 124 Stat. 4317, 4469.)
The Energy Policy Act of 2005, referred to in subsec. (a)(1), is Pub. L. 109–58, Aug. 8, 2005, 119 Stat. 594, which enacted chapter 149 of Title 42, The Public Health and Welfare, and enacted, amended, and repealed numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 15801 of Title 42 and Tables.
Section 533 of the National Energy Conservation Policy Act (42 U.S.C. 8259b), referred to in subsec. (a)(1), probably means section 553 of the National Energy Conservation Policy Act, which is classified to section 8259b of Title 42, The Public Health and Welfare. The Act does not contain a section 533.
The Energy Independence and Security Act of 2007, referred to in subsec. (a)(1), (8), is Pub. L. 110–140, Dec. 19, 2007, 121 Stat. 1492, which enacted chapter 152 of Title 42, The Public Health and Welfare, and enacted and amended numerous other sections and notes in the Code. Section 433 of the Act amended sections 6832 and 6834 of Title 42 and enacted provisions set out as a note under section 6834 of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 17001 of Title 42 and Tables.
Section 139b of this title, referred to in subsec. (b)(1), was renumbered as section 138c of this title by Pub. L. 111–383, div. A, title IX, §901(b)(7), Jan. 7, 2011, 124 Stat. 4320.
2011—Subsec. (a)(4). Pub. L. 111–383, §2832(c)(1), substituted “energy performance master plan” for “energy performance plan”.
2009—Subsec. (a). Pub. L. 111–84, in par. (1), inserted “section 2911(e) of this title, section 533 of the National Energy Conservation Policy Act (42 U.S.C. 8259b),” after “(Public Law 109–58),”, added pars. (2), (3), (9), and (10), and redesignated former pars. (2) to (6) as (4) to (8), respectively.
2008—Pub. L. 110–417, §331(b)(1), amended section catchline generally. Prior to amendment, catchline read as follows: “Annual report”.
Subsec. (a). Pub. L. 110–417, §2832, in heading substituted “Annual Report Related to Installations Energy Management” for “Report Required”, in par. (1) inserted “, the Energy Independence and Security Act of 2007 (Public Law 110–140),” after “(Public Law 109–58)”, and added par. (6).
Subsec. (b). Pub. L. 110–417, §331(a), added subsec. (b) and struck out former subsec. (b) which related to requirements for the initial report to be submitted by the Secretary of Defense.
“Assistant Secretary of Defense for Operational Energy Plans and Programs” substituted for “Director of Operational Energy Plans and Programs” in subsec. (b)(1) and “Assistant Secretary” substituted for “Director” in two places in subsec. (b)(2)(E) on authority of section 901(a) of Pub. L. 111–383, set out as a note under section 131 of this title.