10 U.S.C. § 2326 (ARMED FORCES)
[§ 2326. Repealed. Pub. L. 116–283, div. A, title XVIII, § 1881(a), Jan. 1, 2021, 134 Stat. 4293]
text: Section, 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. 114–328, div. A, title VIII, § 811, Dec. 23, 2016, 130 Stat. 2268; Pub. L. 115–91, div. A, title VIII, § 815(a), (b), Dec. 12, 2017, 131 Stat. 1462; Pub. L. 116–92, div. A, title IX, § 902(50), Dec. 20, 2019, 133 Stat. 1548; Pub. L. 116–283, div. A, title XVIII, § 1819(b), (c)(1), (d), (e)(1), (f), (g), Jan. 1, 2021, 134 Stat. 4189–4191, related to restrictions for undefinitized contractual actions.
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 2326 was renumbered section 2346 of this title.
heading: Statutory Notes and Related Subsidiaries
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: Regulations
text: Pub. L. 115–91, div. A, title VIII, § 815(c), Dec. 12, 2017, 131 Stat. 1462, provided that: “Not later than 120 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to implement section 2326 of title 10, United States Code, as amended by this section.”
heading: Relaxation of Undefinitized Contract Action Limitations and Restrictions Related to National Emergency for Coronavirus Disease 2019
text: Pub. L. 116–136, div. B, title III, § 13004, Mar. 27, 2020, 134 Stat. 522, provided that:
“(a) Section 2326(b)(3) of title 10, United States Code [now 10 U.S.C. 3372(a)(2)(B)], shall not apply to any undefinitized contract action of the Department of Defense related to the national emergency for the Coronavirus Disease 2019 (COVID–19).
“(b) In this section, the term ‘undefinitized contract action’ has the meaning given that term in section 2326(j)(6) of title 10, United States Code [probably means section 2326(j)(1) of title 10, now 10 U.S.C. 3377(b)(1), which defines “undefinitized contractual action”].”
Pub. L. 116–136, div. B, title III, § 13005, Mar. 27, 2020, 134 Stat. 522, provided that:
“(a) The head of an agency may waive the provisions of section 2326(b) of title 10, United States Code [now 10 U.S.C. 3372(a)], with respect to a contract of such agency if the head of the agency determines that the waiver is necessary due to the national emergency for the Coronavirus Disease 2019 (COVID–19).
“(b) In this section, the term ‘head of an agency’ has the meaning given that term in section 2302(2) [probably means section 2302(1); now 10 U.S.C. 3004] of title 10, United States Code.”
heading: Revision of Defense Supplement Relating to Payment of Costs Prior to Definitization
text: Pub. L. 111–84, div. A, title VIII, § 812, Oct. 28, 2009, 123 Stat. 2406, provided that:
“(a) Revision Required.—
Not later than 180 days after the date of the enactment of this Act [Oct. 28, 2009], the Secretary of Defense shall revise the Defense Supplement to the Federal Acquisition Regulation to ensure that any limitations described in subsection (b) are applicable to all categories of undefinitized contractual actions (including undefinitized task orders and delivery orders).
“(b) Limitations.—
The limitations referred to in subsection (a) are any limitations on the reimbursement of costs and the payment of profits or fees with respect to costs incurred before the definitization of an undefinitized contractual action of the Department of Defense, including—
“(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).”
heading: Implementation and Enforcement of Requirements Applicable to Undefinitized Contractual Actions
text: Pub. L. 110–181, div. A, title VIII, § 809, Jan. 28, 2008, 122 Stat. 216, provided that:
“(a) Guidance and Instructions.—
Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall issue guidance, with detailed implementation instructions, for the Department of Defense to ensure the implementation and enforcement of requirements applicable to undefinitized contractual actions.
“(b) Elements.—
The guidance and instructions issued pursuant to subsection (a) shall address, at a minimum—
“(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) Reports.—
“(1) Report on guidance and instructions.—
Not later than 210 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report setting forth the guidance and instructions issued pursuant to subsection (a).
“(2) GAO report.—
Not later than two years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the congressional defense committees a report on the extent to which the guidance and instructions issued pursuant to subsection (a) have resulted in improvements to—
“(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.”
heading: Limitation on Use of Funds for Undefinitized Contractual Actions; Oversight by Inspector General; Waiver Authority
text: Pub. L. 99–500, § 101(c) [title X, § 908(a)–(c), (e)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–139, 1783–140, 1783–142, Pub. L. 99–591, § 101(c) [title X, § 908(a)–(c), (e)], Oct. 18, 1986, 100 Stat. 3341–82, 3341–139, 3341–140, 3341–142, and Pub. L. 99–661, div. A, title IX, formerly title IV, § 908(a)–(c), (e), Nov. 14, 1986, 100 Stat. 3918, 3919, 3921, 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, which related to limitations on funding for undefinitized contractual actions, Inspector General audits and oversight, and waiver authority, were repealed by Pub. L. 115–232, div. A, title VIII, § 812(b)(21), Aug. 13, 2018, 132 Stat. 1848.