10 U.S.C. § 2366b (ARMED FORCES)
§ 2366b. Major defense acquisition programs: certification required before Milestone B approval
(a) Certifications and Determination Required.—
A major defense acquisition program may not receive Milestone B approval until the milestone decision authority—
(1) has received a preliminary design review and conducted a formal post-preliminary design review assessment, and certifies on the basis of such assessment that the program demonstrates a high likelihood of accomplishing its intended mission;
(2) further certifies that the technology in the program has been demonstrated in a relevant environment, as determined by the milestone decision authority on the basis of an independent review and assessment by the Assistant Secretary of Defense for Research and Engineering, in consultation with the Deputy Assistant Secretary of Defense for Developmental Test and Evaluation;
(3) determines in writing that—
(A) the program is affordable when considering the ability of the Department of Defense to accomplish the program’s mission using alternative systems;
(B) appropriate trade-offs among cost, schedule, technical feasibility, and performance objectives have been made to ensure that the program is affordable when considering the per unit cost and the total 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 1
(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;
(E) appropriate market research has been conducted prior to technology development to reduce duplication of existing technology and products;
(F) the Department of Defense has completed an analysis of alternatives with respect to the program;
(G) 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;
(H) life-cycle sustainment planning, including corrosion prevention and mitigation planning, has identified and evaluated relevant sustainment costs throughout development, production, operation, sustainment, and disposal of the program, and any alternatives, and that such costs are reasonable and have been accurately estimated;
(I) an estimate has been made of the requirements for core logistics capabilities and the associated sustaining workloads required to support such requirements;
(J) there is a plan to mitigate and account for any costs in connection with any anticipated de-certification of cryptographic systems and components during the production and procurement of the major defense acquisition program to be acquired;
(K) the program complies with all relevant policies, regulations, and directives of the Department of Defense; and
(L) the Secretary of the military department concerned and the Chief of the armed force concerned concur in the trade-offs made in accordance with subparagraph (B); and
(4) in the case of a space system, performs a cost benefit analysis for any new or follow-on satellite system using a dedicated ground control system instead of a shared ground control system, except that no cost benefit analysis is required to be performed under this paragraph for any Milestone B approval of a space system after December 31, 2019.
(b) Changes to Certifications or Determination.—
(1) The program manager for a major defense acquisition program that has received certifications or a determination under subsection (a) shall immediately notify the milestone decision authority of any changes to the program or a designated major subprogram of such program that—
(A) alter the substantive basis for the certifications or determination of the milestone decision authority relating to any component of such certifications or determination specified in paragraph (1), (2), or (3) of subsection (a); or
(B) otherwise cause the program or subprogram to deviate significantly from the material provided to the milestone decision authority in support of such certifications or determination.
(2) Upon receipt of information under paragraph (1), the milestone decision authority may withdraw the certifications or determination concerned or rescind Milestone B approval if the milestone decision authority determines that such certifications, determination, or approval are no longer valid.
(c) Submission to Congress.—
(1) The certifications and determination under subsection (a) with respect to a major defense acquisition program shall be submitted to the congressional defense committees with the first Selected Acquisition Report submitted under section 2432 of this title after completion of the certification.
(2) The milestone decision authority shall retain records of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a).
(3) At the request of any of the congressional defense committees, the Secretary of Defense shall submit to the committee an explanation of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a) with respect to a major defense acquisition program. The explanation shall be submitted in unclassified form, but may include a classified annex.
(d) Waiver for National Security.—
(1) The milestone decision authority may, at the time of Milestone B approval or at the time that such milestone decision authority withdraws a certification or rescinds Milestone B approval pursuant to subsection (b)(2), waive the applicability to a major defense acquisition program of one or more components (as specified in paragraph (1), (2), or (3) of subsection (a)) of the certification and determination requirements if the milestone decision authority determines that, but for such a waiver, the Department would be unable to meet critical national security objectives.
(2) Whenever the milestone decision authority makes such a determination and authorizes such a waiver—
(A) the waiver, the waiver determination, and the reasons for the waiver determination shall be submitted in writing to the congressional defense committees within 30 days after the waiver is authorized; and
(B) the milestone decision authority shall review the program not less often than annually to determine the extent to which such program currently satisfies the certification and determination components specified in paragraphs (1), (2), and (3) of subsection (a) until such time as the milestone decision authority determines that the program satisfies all such certification and determination components.
(3) The requirement in paragraph (2)(B) shall not apply to a program for which a certification was required pursuant to section 2433a(c) of this title if the milestone decision authority—
(A) determines in writing that—
(i) the program has reached a stage in the acquisition process at which it would not be practicable to meet the certification component that was waived; and
(ii) the milestone decision authority has taken appropriate alternative actions to address the underlying purposes of such certification component; and
(B) submits the written determination, and an explanation of the basis for the determination, to the congressional defense committees.
(e) Designation of Certification Status in Budget Documentation.—
Any budget request, budget justification material, budget display, reprogramming request, Selected Acquisition Report, or other budget documentation or performance report submitted by the Secretary of Defense to the President regarding a major defense acquisition program receiving a waiver pursuant to subsection (d) shall prominently and clearly indicate that such program has not fully satisfied the certification requirements of this section until such time as the milestone decision authority makes the determination that such program has satisfied all such certification requirements.
(f) Nondelegation.—
The milestone decision authority may not delegate the certification requirement under subsection (a) or the authority to waive any component of such requirement under subsection (d).
(g) Definitions.—
In this section:
(1) The term “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 official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program, including authority to approve entry of the program into the next phase of the acquisition process.
(4) The term “Milestone B approval” has the meaning provided that term in section 2366(e)(7) of this title.
(5) The term “core logistics capabilities” means the core logistics capabilities identified under section 2464(a) of this title.
(Added Pub. L. 109–163, div. A, title VIII, § 801(a), Jan. 6, 2006, 119 Stat. 3366, § 2366a; amended Pub. L. 109–364, div. A, title VIII, § 805, Oct. 17, 2006, 120 Stat. 2314; Pub. L. 110–181, div. A, title VIII, § 812, Jan. 28, 2008, 122 Stat. 219; renumbered § 2366b, Pub. L. 110–417, [div. A], title VIII, § 813(a), (b), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–23, title I, § 101(d)(4), title II, §§ 201(f), 205(a), May 22, 2009, 123 Stat. 1710, 1720, 1724; Pub. L. 111–383, div. A, title VIII, §§ 813(d)(1), 814(c), title IX, § 901(j)(4), title X, § 1075(k)(1), Jan. 7, 2011, 124 Stat. 4265, 4266, 4324, 4378; Pub. L. 112–81, div. A, title VIII, §§ 801(b), (e)(2), 819(b), Dec. 31, 2011, 125 Stat. 1483, 1484, 1501; Pub. L. 112–239, div. A, title III, § 322(e)(2), title IX, § 904(e)(2), Jan. 2, 2013, 126 Stat. 1695, 1867; Pub. L. 113–66, div. A, title VIII, §§ 821(a), 822(a), title X, § 1091(b)(1), Dec. 26, 2013, 127 Stat. 809, 876; Pub. L. 114–92, div. A, title VIII, § 824(a), Nov. 25, 2015, 129 Stat. 903.)
heading: Prior Provisions
text: A prior section 2366b was renumbered section 2366a of this title.
heading: Amendments
text: 2015—Pub. L. 114–92 amended section generally. Prior to amendment, section related to certification required before Milestone B approval of major defense acquisition programs.
2013—Subsec. (a)(3)(D). Pub. L. 112–239, § 904(e)(2), substituted “the Assistant Secretary of Defense for Research and Engineering, in consultation with the Deputy Assistant Secretary of Defense for Developmental Test and Evaluation” for “the Assistant Secretary of Defense for Research and Engineering”.
Subsec. (a)(3)(F). Pub. L. 112–239, § 322(e)(2), as amended by Pub. L. 113–66, § 1091(b)(1), substituted “core logistics capabilities” for “core depot-level maintenance and repair capabilities, as well as the associated logistics capabilities”.
Subsec. (a)(3)(G), (H). Pub. L. 113–66, § 821(a), added subpar. (G) and redesignated former subpar. (G) as (H).
Subsec. (a)(4). Pub. L. 113–66, § 822(a), added par. (4).
2011—Pub. L. 112–81, § 801(e)(2)(A), struck out “or Key Decision Point B” after “Milestone B” in section catchline.
Subsec. (a). Pub. L. 112–81, § 801(e)(2)(B), struck out “, or Key Decision Point B approval in the case of a space program,” after “Milestone B approval” in introductory provisions.
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. (a)(3)(E) to (G). Pub. L. 112–81, § 801(b)(1), added subpars. (E) and (F) and redesignated former subpar. (E) as (G).
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. (b)(2). Pub. L. 112–81, § 801(e)(2)(C), struck out “(or Key Decision Point B approval in the case of a space program)” after “Milestone B approval”.
Subsec. (d)(1). Pub. L. 112–81, § 801(e)(2)(C), struck out “(or Key Decision Point B approval in the case of a space program)” after “Milestone B approval” in two places.
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. (d)(3). Pub. L. 112–81, § 819(b), added par. (3).
Subsec. (g)(2) to (4). Pub. L. 111–383, § 814(c)(2), added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. Former par. (4) redesignated (5).
Subsec. (g)(5). Pub. L. 112–81, § 801(b)(2), added par. (5) and struck out former par. (5) which read as follows: “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.”
Pub. L. 111–383, § 814(c)(2)(A), redesignated par. (4) as (5).
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)”.
heading: Effective Date of 2013 Amendment
text: Pub. L. 113–66, div. A, title VIII, § 821(b), Dec. 26, 2013, 127 Stat. 809, provided that: “The amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Dec. 26, 2013], and shall apply with respect to major defense acquisition programs which are subject to Milestone B approval on or after the date occurring six months after the date of the enactment of this Act.”
Pub. L. 113–66, div. A, title X, § 1091(b), Dec. 26, 2013, 127 Stat. 876, provided in part that the amendment made by section 1091(b)(1) is effective as of Jan. 2, 2013, and as if included in Pub. L. 112–239 as enacted.
Amendment by section 322(e)(2) of Pub. L. 112–239 effective Dec. 31, 2011, immediately after enactment of Pub. L. 112–81, see section 322(f) of Pub. L. 112–239, set out as an note under section 2366a of this title.
heading: Effective Date of 2011 Amendment
text: 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.
heading: Milestone B Decisions
text: Pub. L. 114–92, div. A, title VIII, § 802(d)(3), Nov. 25, 2015, 129 Stat. 880, provided that: “The Chief of the Armed Force concerned shall advise the milestone decision authority for a major defense acquisition program of the Chief’s views on cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program, as provided in section 2366b(b)(3) of title 10, United States Code, as amended by section 824 of this Act, prior to a Milestone B decision on the program.”
heading: Certification and Review of Programs Entering Development Prior to Enactment of Section 2366b of Title 10
text: 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, which related to certification and review of programs entering development prior to enactment of section 2366b of this title, was repealed by Pub. L. 112–239, div. A, title VIII, § 814, Jan. 2, 2013, 126 Stat. 1830.
heading: Formal Review Process for Bandwidth Requirements
text: 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) In general.—
The Secretary of Defense and the Director of National Intelligence shall, as part of the Milestone B or Key Decision Point B approval process for any major defense acquisition program or major system acquisition program, establish a formal review process to ensure that—
“(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) Reports.—
Not later than January 1 of each year, the Secretary of Defense and the Director of National Intelligence shall each submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of Representatives a report on any determinations made under paragraph (1) with respect to meeting the bandwidth requirements for major defense acquisition programs and major system acquisition programs during the preceding fiscal year.”