10 U.S.C. § 2333 (ARMED FORCES)
§ 2333. Joint policies on requirements definition, contingency program management, and contingency contracting
(a) Joint Policy Requirement.—
The Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff, shall develop joint policies for requirements definition, contingency program management, and contingency contracting during combat operations and post-conflict operations.
(b) Requirements Definition Matters Covered.—
The joint policy for requirements definition required by subsection (a) shall, at a minimum, provide for the following:
(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) Contingency Program Management Matters Covered.—
The joint policy for contingency program management required by subsection (a) shall, at a minimum, provide for the following:
(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) Contingency Contracting Matters Covered.—
(1) The joint policy for contingency contracting required by subsection (a) shall, at a minimum, provide for the following:
(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) Training for Personnel Outside Acquisition Workforce.—
(1) The joint policy for requirements definition, contingency program management, and contingency contracting required by subsection (a) shall provide for training of military personnel outside the acquisition workforce (including operational field commanders and officers performing key staff functions for operational field commanders) who are expected to have acquisition responsibility, including oversight duties associated with contracts or contractors, during combat operations, post-conflict operations, and contingency operations.
(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) Definitions.—
In this section:
(1) Contingency contracting personnel.—
The term “contingency contracting personnel” means members of the armed forces and civilian employees of the Department of Defense who are members of the defense acquisition workforce and, as part of their duties, are assigned to provide support to contingency operations (whether deployed or not).
(2) Contingency contracting.—
The term “contingency contracting” means all stages of the process of acquiring property or services by the Department of Defense during a contingency operation.
(3) Contingency operation.—
The term “contingency operation” has the meaning provided in section 101(a)(13) of this title.
(4) Acquisition support agencies.—
The term “acquisition support agencies” means Defense Agencies and Department of Defense Field Activities that carry out and provide support for acquisition-related activities.
(5) Contingency program management.—
The term “contingency program management” means the process of planning, organizing, staffing, controlling, and leading the combined efforts of participating civilian and military personnel and organizations for the management of a specific defense acquisition program or programs during combat operations, post-conflict operations, and contingency operations.
(6) Requirements definition.—
The term “requirements definition” means the process of translating policy objectives and mission needs into specific requirements, the description of which will be the basis for awarding acquisition contracts for projects to be accomplished, work to be performed, or products to be delivered.
(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; Pub. L. 116–283, div. A, title XVIII, § 1810(b), Jan. 1, 2021, 134 Stat. 4162.)
heading: Amendment of Section
text: Pub. L. 116–283, div. A, title XVIII, §§ 1801(d), 1810(b), Jan. 1, 2021, 134 Stat. 4151, 4162, provided that, effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, this section is amended as follows:
(1) by transferring subsection (a) to section 3151 of this title;
(2) by transferring subsection (b) to section 3152 of this title;
(3) by transferring subsection (c) to section 3153 of this title;
(4) by transferring subsection (d) to section 3154(a) of this title;
(5) by transferring subsection (e) as follows:
(A) paragraphs (1) and (2) to section 3155(a) of this title; and
(B) paragraph (3) to section 3156 of this title; and
(6) by transferring subsection (f)(1), (2), (5), and (6) to section 3157(4), (3), (2), and (1), respectively, of this title.
See 2021 Amendment notes below.
heading: Repeal of Section
text: Pub. L. 116–283, div. A, title XVIII, §§ 1801(d), 1881(a), Jan. 1, 2021, 134 Stat. 4151, 4293, provided that, effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, this section is repealed.
heading: References in Text
text: 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.
heading: Amendments
text: 2021—Subsec. (a). Pub. L. 116–283, § 1810(b)(1), redesignated subsec. (a) as section 3151 of this title.
Subsec. (b). Pub. L. 116–283, § 1810(b)(2), redesignated subsec. (b) as section 3152 of this title.
Subsec. (c). Pub. L. 116–283, § 1810(b)(3), redesignated subsec. (c) as section 3153 of this title.
Subsec. (d). Pub. L. 116–283, § 1810(b)(4), redesignated subsec. (d) as section 3154(a) of this title.
Subsec. (e)(1), (2). Pub. L. 116–283, § 1810(b)(5), redesignated pars. (1) and (2) as section 3155(a) of this title.
Subsec. (e)(3). Pub. L. 116–283, § 1810(b)(6), redesignated par. (3) as section 3156 of this title.
Subsec. (f)(1), (2). Pub. L. 116–283, § 1810(b)(7), redesignated pars. (1) and (2) as section 3157(4) and (3), respectively, of this title.
Subsec. (f)(5), (6). Pub. L. 116–283, § 1810(b)(7), redesignated pars. (5) and (6) as section 3157(2) and (1), respectively, of this title.
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).
heading: Effective Date of Repeal
text: Repeal effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
heading: Enhancement of Interagency Support During Contingency Operations and Transition Periods
text: Pub. L. 114–328, div. A, title XII, § 1281, Dec. 23, 2016, 130 Stat. 2541, provided that:
“(a) Authority.—
The Secretary of Defense and the Secretary of State may enter into an agreement under which each Secretary may provide covered support, supplies, and services on a reimbursement basis, or by exchange of covered support, supplies, and services, to the other Secretary during a contingency operation and related transition period for up to 2 years following the end of such contingency operation.
“(b) Agreement.—
An agreement entered into under this section shall be in writing and shall include the following terms:
“(1) The price charged by a supplying agency shall be the direct costs that such agency incurred by providing the covered support, supplies, or services to the requesting agency under this section.
“(2) Credits and liabilities of the agencies accrued as a result of acquisitions and transfers of covered support, supplies, and services under this section shall be liquidated not less often than once every 3 months by direct payment to the agency supplying such support, supplies, or services by the agency receiving such support, supplies, or services.
“(3) Exchange entitlements accrued as a result of acquisitions and transfers of covered support, supplies, and services under this section shall be satisfied within 12 months after the date of the delivery of the covered support, supplies, or services. Exchange entitlements not so satisfied shall be immediately liquidated by direct payment to the agency supplying such covered support, supplies, or services.
“(c) Effect of Obligation and Availability of Funds.—
An order placed by an agency pursuant to an agreement under this section is deemed to be an obligation in the same manner that a similar order placed under a contract with, or a contract for similar goods or services awarded to, a private contractor is an obligation. Appropriations remain available to pay an obligation to the servicing agency in the same manner as appropriations remain available to pay an obligation to a private contractor.
“(d) Definitions.—
In this section:
“(1) Covered support, supplies, and services.—
The term ‘covered support, supplies, and services’ means food, billeting, transportation (including airlift), petroleum, oils, lubricants, communications services, medical services, ammunition, base operations support, use of facilities, spare parts and components, repair and maintenance services, and calibration services.
“(2) Contingency operation.—
The term ‘contingency operation’ has the meaning given that term in section 101(a)(13) of title 10, United States Code.
“(e) Crediting of Receipts.—
Any receipt as a result of an agreement entered into under this section shall be credited, at the option of the Secretary of Defense with respect to the Department of Defense and the Secretary of State with respect to the Department of State, 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.
“(f) Notification.—
Not later than 30 days after the end of a fiscal year in which covered support, supplies, and services are provided or exchanged pursuant to an agreement under this section, the Secretary of Defense and the Secretary of State shall jointly submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Foreign Relations of the Senate, and the Committee on Foreign Affairs of the House of Representatives a notification that contains a copy of such agreement and a description of such covered support, supplies, and services.”
heading: Agreements With Foreign Governments To Develop Land-Based Water Resources in Support of and in Preparation for Contingency Operations
text: Pub. L. 114–328, div. A, title XII, § 1291, Dec. 23, 2016, 130 Stat. 2558, provided that:
“(a) Agreements Authorized.—
The Secretary of Defense, with the concurrence of the Secretary of State, is authorized to enter into agreements with the governments of foreign countries to develop land-based water resources in support of and in preparation for contingency operations, including water selection, pumping, purification, storage, distribution, cooling, consumption, water reuse, water source intelligence, research and development, training, acquisition of water support equipment, and water support operations.
“(b) Notification Required.—
Not later than 30 days after entering into an agreement under subsection (a), the Secretary of Defense shall notify the appropriate congressional committees of the existence of the agreement and provide a summary of the terms of the agreement.
“(c) Definition.—
In this section, the term ‘appropriate congressional committees’ means—
“(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.”
heading: Deadline for Development of Joint Policies
text: 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].”