10 U.S.C. § 2306...2307 (ARMED FORCES)
[§§ 2306 to 2307. Repealed. Pub. L. 116–283, div. A, title XVIII, § 1881(a), Jan. 1, 2021, 134 Stat. 4293]
text: Section 2306, act 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; Pub. L. 112–81, div. B, title XXVIII, § 2801(a), Dec. 31, 2011, 125 Stat. 1684; Pub. L. 115–232, div. A, title VIII, § 836(c)(4), Aug. 13, 2018, 132 Stat. 1865; Pub. L. 116–283, div. A, title XVIII, § 1817(b), (c), (e), (g)(1), Jan. 1, 2021, 134 Stat. 4186, 4187, related to kinds of contracts.
text: Section 2306a, 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; Pub. L. 113–291, div. A, title X, § 1071(a)(3), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §§ 812, 851(b), 852(e), 853, Nov. 25, 2015, 129 Stat. 891, 916, 918, 919; Pub. L. 114–328, div. A, title VIII, § 822, Dec. 23, 2016, 130 Stat. 2276; Pub. L. 115–91, div. A, title VIII, § 811(a)(1), (b), Dec. 12, 2017, 131 Stat. 1459; Pub. L. 115–232, div. A, title VIII, § 836(c)(5), Aug. 13, 2018, 132 Stat. 1865; Pub. L. 116–92, div. A, title VIII, § 803, Dec. 20, 2019, 133 Stat. 1483; Pub. L. 116–283, div. A, title VIII, § 814(a)(1), title X, § 1081(d)(4)(B)(i), title XVIII, § 1831(b), (c)(1), (d)(1), (e)(1), (f)(1), (g)(1), (h)(1), (i), Jan. 1, 2021, 134 Stat. 3749, 3874, 4209, 4211, 4213, 4214, 4216; 117–81, div. A, title VIII, § 804(a), title XVII, § 1701(b)(10)(A), Dec. 27, 2021, 135 Stat. 1816, 2133, related to cost or pricing data and truth in negotiations.
text: Section 2306b, 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; Pub. L. 113–291, div. A, title VIII, § 816(a), (b), Dec. 19, 2014, 128 Stat. 3430, 3432; Pub. L. 114–92, div. A, title VIII, § 811, Nov. 25, 2015, 129 Stat. 891; Pub. L. 115–91, div. A, title X, § 1051(a)(14), Dec. 12, 2017, 131 Stat. 1561; Pub. L. 115–232, div. A, title VIII, § 817, Aug. 13, 2018, 132 Stat. 1852; Pub. L. 116–92, div. A, title IX, § 902(48), Dec. 20, 2019, 133 Stat. 1548; Pub. L. 116–283, div. A, title XVIII, § 1822(b)(1), (c)(1), (d)(1), (e)(1), (f)(1), (g)(1), (h)(1), (i)(1), (j)(1)(A)(i), (iii), (iv), (B), (C), (k), (l), Jan. 1, 2021, 134 Stat. 4197–4199, 4201, 4202, related to multiyear contracts for acquisition of property. See section 3501 of this title.
text: Section 2306c, 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; Pub. L. 116–283, div. A, title XVIII, § 1822(n)(1), (o), (p), (q)(2), (r), (s)(1), Jan. 1, 2021, 134 Stat. 4203, 4204, related to multiyear contracts for acquisition of services. See section 3531 of this title.
text: Section 2307, act 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; Pub. L. 114–328, div. A, title VIII, § 831(a), Dec. 23, 2016, 130 Stat. 2282; Pub. L. 115–232, div. A, title VIII, §§ 836(c)(6), 852, Aug. 13, 2018, 132 Stat. 1866, 1884; Pub. L. 116–92, div. A, title XVII, § 1731(a)(40), Dec. 20, 2019, 133 Stat. 1814; Pub. L. 116–283, div. A, title VIII, § 815, title XVIII, §§ 1834(b)(1), (c)(1), (d), (e)(1), (f)(1), (g)(1), (h), 1876(e), Jan. 1, 2021, 134 Stat. 3750, 4234–4237, 4239, 4291; Pub. L. 117–81, div. A, title VIII, § 814, title XVII, § 1701(n)(2), (3), Dec. 27, 2021, 135 Stat. 1823, 2145, 2146, related to contract financing.
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. 114–328, div. A, title VIII, § 831(b), Dec. 23, 2016, 130 Stat. 2283, provided that: “Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the Department of Defense Federal Acquisition Regulation Supplement to conform with section 2307(b) of title 10, United States Code, as amended by subsection (a).”
Pub. L. 114–92, div. A, title VIII, § 851(d), Nov. 25, 2015, 129 Stat. 917, provided that: “Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Defense Federal Acquisition Regulation Supplement shall be updated to reflect the requirements of this section [enacting section 2380 of this title, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] and the amendments made by this section.”
Pub. L. 101–510, div. A, title VIII, § 803(c), Nov. 5, 1990, 104 Stat. 1590, 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 section 2306a of this title, 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.
heading: Construction
text: Pub. L. 114–92, div. A, title VIII, § 851(e), Nov. 25, 2015, 129 Stat. 917, provided that: “Nothing in this section [enacting section 2380 of this title, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] or the amendments made by this section shall be construed to preclude the contracting officer for the procurement of a commercial item from requiring the contractor to supply information that is sufficient to determine the reasonableness of price, regardless of whether or not the contractor was required to provide such information in connection with any earlier procurement.”
heading: Transition Provision
text: Pub. L. 101–189, div. A, title VIII, § 805(c), Nov. 29, 1989, 103 Stat. 1489, 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].”
heading: Pilot Program To Accelerate Contracting and Pricing Processes
text: Pub. L. 115–232, div. A, title VIII, § 890, Aug. 13, 2018, 132 Stat. 1919, as amended by Pub. L. 116–92, div. A, title VIII, § 825, Dec. 20, 2019, 133 Stat. 1491; Pub. L. 116–283, div. A, title XVIII, § 1831(j)(7), Jan. 1, 2021, 134 Stat. 4217, provided that:
“(a) In General.—
The Secretary of Defense shall establish a pilot program to reform and accelerate the contracting and pricing processes associated with contracts in excess of $50,000,000 by—
“(1) basing price reasonableness determinations on actual cost and pricing data for purchases of the same or similar products for the Department of Defense; and
“(2) reducing the cost and pricing data to be submitted in accordance with of [sic] chapter 271 of title 10, United States Code.
“(b) Report.—
Not later than January 30, 2021, 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 on the results of the pilot program authorized under subsection (a).
“(c) Sunset.—
The authority to carry out the pilot program under this section shall expire on January 2, 2023.”
heading: Pilot Program for Longer Term Multiyear Service Contracts
text: Pub. L. 115–91, div. A, title VIII, § 854, Dec. 12, 2017, 131 Stat. 1492, provided that:
“(a) Establishment.—
The Secretary of Defense shall carry out a pilot program under which the Secretary may use the authority under subsection (a) of section 2306c of title 10, United States Code, to enter into up to five contracts for periods of not more than 10 years for services described in subsection (b) of such section. Each contract entered into pursuant to this subsection may be extended for up to five additional one-year terms.
“(b) Study.—
“(1) In general.—
Not later than 90 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall enter into an agreement with an independent organization with relevant expertise to study best practices and lessons learned from using services contracts for periods longer than five years by commercial companies, foreign governments, and State governments, as well as service contracts for periods longer than five years used by the Federal Government, such as energy savings performance contracts (as defined in section to section [sic] 804(3) of the National Energy Conservation Policy Act (42 U.S.C. 8287c(3)).
“(2) Report.—
Not later than one year after the date of the enactment of this Act, 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 on the study conducted under paragraph (1).
“(c) Comptroller General Report.—
Not later than five 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 pilot program carried out under this section.”
heading: Preference for Fixed-Price Contracts
text: Pub. L. 114–328, div. A, title VIII, § 829, Dec. 23, 2016, 130 Stat. 2281, as amended by Pub. L. 116–92, div. A, title IX, § 902(47), Dec. 20, 2019, 133 Stat. 1548, provided for the establishment of a preference for fixed-price contracts in the determination of contract type, prior to repeal by Pub. L. 117–81, div. A, title VIII, § 817, Dec. 27, 2021, 135 Stat. 1825.
heading: Multiple Program Multiyear Contract Pilot Demonstration Program
text: Pub. L. 114–328, div. A, title VIII, § 853, Dec. 23, 2016, 130 Stat. 2296, provided that:
“(a) Authority.—
The Secretary of Defense may conduct a multiyear contract, over a period of up to four years, for the purchase of units for multiple defense programs that are produced at common facilities at a high rate, and which maximize commonality, efficiencies, and quality, in order to provide maximum benefit to the Department of Defense. Contracts awarded under this section should allow for significant savings, as determined consistent with the authority under section 2306b of title 10, United States Code, to be achieved as compared to using separate annual contracts under individual programs to purchase such units, and may include flexible delivery across the overall period of performance.
“(b) Scope.—
The contracts authorized in subsection (a) shall at a minimum provide for the acquisition of units from three discrete programs from two of the military departments.
“(c) Documentation.—
Each contract awarded under subsection (a) shall include the documentation required to be provided for a multiyear contract proposal under section 2306b(i) of title 10.
“(d) Definitions.—
In this section:
“(1) The term ‘high rate’ means total annual production across the multiple defense programs of more than 200 end-items per year.
“(2) The term ‘common facilities’ means production facilities operating within the same general and allowable rate structure.
“(e) Sunset.—
No new contracts may be awarded under the authority of this section after September 30, 2021.”
heading: Pilot Program for Streamlining Awards for Innovative Technology Projects
text: Pub. L. 114–92, div. A, title VIII, § 873(a)–(g), Nov. 25, 2015, 129 Stat. 939, 940, as amended by Pub. L. 114–328, div. A, title VIII, § 896, Dec. 23, 2016, 130 Stat. 2326; Pub. L. 116–283, div. A, title VIII, § 832, Jan. 1, 2021, 134 Stat. 3753; Pub. L. 117–81, div. A, title VIII, § 862(a), Dec. 27, 2021, 135 Stat. 1852, provided that:
“(a) Exception From Certified Cost and Pricing Data Requirements.—
The requirements under section 2306a(a) of title 10, United States Code [now 10 U.S.C. 3702], shall not apply to a contract, subcontract, or modification of a contract or subcontract valued at less than $7,500,000 awarded to a small business or nontraditional defense contractor pursuant to—
“(1) a technical, merit-based selection procedure, such as a broad agency announcement, or
“(2) the Small Business Innovation Research Program or Small Business Technology Transfer Program,
unless the head of the agency determines that submission of cost and pricing data should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.
“(b) Exception From Records Examination Requirement.—
The requirements under subparagraphs (A), (B), and (C) of section 2313(a)(2) of title 10, United States Code [now 10 U.S.C. 3841(b)(2)(A)–(C)], and subsection (b) of section 2313 of title 10, United States Code [now 10 U.S.C. 3841(c)], shall not apply to a contract valued at less than $7,500,000 awarded to a small business or nontraditional defense contractor pursuant to—
“(1) a technical, merit-based selection procedure, such as a broad agency announcement, or
“(2) the Small Business Innovation Research Program,
unless the head of the agency determines that auditing of records should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award, and if such performance audit is initiated within 18 months of the contract completion.
“(c) Treatment as Competitive Procedures.—
Use of a technical, merit-based selection procedure or the Small Business Innovation Research Program or Small Business Technology Transfer Program for the pilot program under this section shall be considered to be use of competitive procedures for purposes of [former] chapter 137 of title 10, United States Code.
“(d) Discretion To Use Non-certified Accounting Systems.—
In executing programs under this pilot program, the Secretary of Defense shall establish procedures under which a small business or nontraditional contractor may engage an independent certified public accountant for the review and certification of its accounting system for the purposes of any audits required by regulation, unless the head of the agency determines that this is not appropriate based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.
“(e) Guidance and Training.—
The Secretary of Defense shall ensure that acquisition and auditing officials are provided guidance and training on the flexible use and tailoring of authorities under the pilot program to maximize efficiency and effectiveness.
“(f) Sunset.—
The exceptions under subsections (a) and (b) shall terminate on October 1, 2024.
“(g) Definitions.—
In this section [enacting this note and amending section 638 of Title 15, Commerce and Trade]:
“(1) Small business.—
The term ‘small business’ has the meaning given the term ‘small business concern’ under section 3 of the Small Business Act (15 U.S.C. 632).
“(2) Nontraditional defense contractor.—
The term ‘nontraditional defense contractor’ has the meaning given that term in section 2302(9) of title 10, United States Code [now 10 U.S.C. 3014].”
[Section 896(2)(B) of Pub. L. 114–328, which directed amendment of par. (2) of subsec. (b) of section 873 of Pub. L. 114–92, set out above, by inserting “, and if such performance audit is initiated within 18 months of the contract completion” before the period at the end, was executed by making the insertion before the period at the end of the concluding provisions of subsec. (b), to reflect the probable intent of Congress.]
heading: Pilot Program Regarding Risk-Based Contracting for Smaller Contract Actions Under the Truth in Negotiations Act
text: Pub. L. 114–92, div. A, title VIII, § 899, Nov. 25, 2015, 129 Stat. 955, provided that:
“(a) Pilot Program Authorized.—
The Secretary of Defense may conduct a pilot program to demonstrate the efficacy of using risk-based techniques in requiring submission of data on a sampling basis for purposes of section 2306a of title 10, United States Code [now 10 U.S.C. 3701 et seq.] (popularly known as the ‘Truth in Negotiations Act’).
“(b) Increase in Thresholds.—
For purposes of a pilot program under subsection (a), $5,000,000 shall be the threshold applicable to requirements under paragraph (1) of section 2306a(a) of such title [now 10 U.S.C. 3702], as follows:
“(1) The requirement under subparagraph (A) of such paragraph to submit cost or pricing data for a prime contract entered into during the pilot program period.
“(2) The requirement under subparagraph (B) of such paragraph to submit cost or pricing data for the change or modification to a prime contract made during the pilot program period.
“(3) The requirement under subparagraph (C) of such paragraph to submit cost or pricing data for a subcontract entered into during the pilot program period.
“(4) The requirement under subparagraph (D) of such paragraph to submit cost or pricing data for the change or modification to a subcontract made during the pilot program period.
“(c) Risk-based Contracting.—
“(1) Authority to require submission of cost or pricing data on below-threshold contracts.—
Subject to paragraph (4), when certified cost or pricing data are not required to be submitted pursuant to subsection (b) for a contract or subcontract entered into or modified during the pilot program period, such data may nevertheless be required to be submitted by the head of the procuring activity, if the head of the procuring activity—
“(A) determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract; or
“(B) requires the submission of such data in accordance with a risk-based contracting approach established pursuant to paragraph (3).
“(2) Written determination required.—
In any case in which the head of the procuring activity requires certified cost or pricing data to be submitted under paragraph (1)(A), the head of the procuring activity shall justify in writing the reason for such requirement.
“(3) Risk-based contracting.—
The head of an agency shall establish a risk-based sampling approach under which the submission of certified cost or pricing data may be required for a risk-based sample of contracts, the price of which is expected to exceed $750,000 but not $5,000,000. The authority to require certified cost or pricing data under this paragraph shall not apply to any contract of an offeror that has not been awarded, for at least the one-year period preceding the issuance of a solicitation for the contract, any other contract in excess of $5,000,000 under which the offeror was required to submit certified cost or pricing data under section 2306a of title 10, United States Code [now 10 U.S.C. 3701 et seq.].
“(4) Exception.—
The head of the procuring activity may not require certified cost or pricing data to be submitted under this subsection for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in subparagraph (A) or (B) of section 2306a(b)(1) of title 10, United States Code [now 10 U.S.C. 3703(a)(1), (2)].
“(5) Delegation of authority prohibited.—
The head of a procuring activity may not delegate functions under this subsection.
“(d) Reports.—
Not later than January 1, 2017, and January 1, 2019, 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 on activities undertaken under this section.
“(e) Definitions.—
In this section:
“(1) Head of an agency.—
The term ‘head of an agency’ has the meaning given the term in section 2302 of title 10, United States Code [now 10 U.S.C. 3004].
“(2) Pilot program period.—
The term ‘pilot program period’ means the period beginning on October 1, 2016, and ending on September 30, 2019.”
heading: Guidance and Training Related to Evaluating Reasonableness of Price
text: Pub. L. 112–239, div. A, title VIII, § 831, Jan. 2, 2013, 126 Stat. 1842, provided that:
“(a) Guidance.—
Not later than 180 days after the date of the enactment of this Act [Jan. 2, 2013], the Under Secretary of Defense for Acquisition, Technology, and Logistics shall issue guidance on the use of the authority provided by sections 2306a(d) [now 10 U.S.C. 3705] and 2379 [now 10 U.S.C. 3455] of title 10, United States Code. The guidance shall—
“(1) include standards for determining whether information on the prices at which the same or similar items have previously been sold is adequate for evaluating the reasonableness of price;
“(2) include standards for determining the extent of uncertified cost information that should be required in cases in which price information is not adequate for evaluating the reasonableness of price;
“(3) ensure that in cases in which such uncertified cost information is required, the information shall be provided in the form in which it is regularly maintained by the offeror in its business operations; and
“(4) provide that no additional cost information may be required by the Department of Defense in any case in which there are sufficient non-Government sales to establish reasonableness of price.
“(b) Training and Expertise.—
Not later than 270 days after the date of the enactment of this Act, the Under Secretary of Defense for Acquisition, Technology, and Logistics shall develop and begin implementation of a plan of action to—
“(1) train the acquisition workforce on the use of the authority provided by sections 2306a(d) [now 10 U.S.C. 3705] and 2379 [now 10 U.S.C. 3455] of title 10, United States Code, in evaluating reasonableness of price in procurements of commercial items; and
“(2) develop a cadre of experts within the Department of Defense to provide expert advice to the acquisition workforce in the use of the authority provided by such sections in accordance with the guidance issued pursuant to subsection (a).
“(c) Documentation Requirements.—
The Under Secretary of Defense for Acquisition, Technology, and Logistics shall ensure that requests for uncertified cost information for the purposes of evaluating reasonableness of price are sufficiently documented. The Under Secretary shall require that the contract file include, at a minimum, the following:
“(1) A justification of the need for additional cost information.
“(2) A copy of any request from the Department of Defense to a contractor for additional cost information.
“(3) Any response received from the contractor to the request, including any rationale or justification provided by the contractor for a failure to provide the requested information.
“(d) Comptroller General Review and Report.—
“(1) Review requirement.—
The Comptroller General of the United States shall conduct a review of data collected pursuant to sections 2306a(d) [now 10 U.S.C. 3705] and 2379 [now 10 U.S.C. 3455] of title 10, United States Code, during the two-year period beginning on the date of the enactment of this Act.
“(2) Report requirement.—
Not later than 180 days after the end of the two-year period referred to in paragraph (1), the Comptroller General shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on—
“(A) the extent to which the Department of Defense needed access to additional cost information pursuant to sections 2306a(d) [now 10 U.S.C. 3705] and 2379 [now 10 U.S.C. 3455] of title 10, United States Code, during such two-year period in order to determine price reasonableness;
“(B) the extent to which acquisition officials of the Department of Defense complied with the guidance issued pursuant to subsection (a) during such two-year period;
“(C) the extent to which the Department of Defense needed access to additional cost information during such two-year period to determine reasonableness of price, but was not provided such information by the contractor on request; and
“(D) recommendations for improving evaluations of reasonableness of price by Department of Defense acquisition professionals, including recommendations for any amendments to law, regulations, or guidance.”
heading: Price Trend Analysis for Supplies and Equipment Purchased by the Department of Defense
text: Pub. L. 111–383, div. A, title VIII, § 892, Jan. 7, 2011, 124 Stat. 4310, which provided for the analysis of information on price trends for certain supplies and equipment purchased by the Department of Defense, was repealed by Pub. L. 114–92, div. A, title X, § 1073(f), Nov. 25, 2015, 129 Stat. 996.
heading: Determination of Contract Type for Development Programs
text: Pub. L. 109–364, div. A, title VIII, § 818(b)–(e), Oct. 17, 2006, 120 Stat. 2329, 2330, provided that:
“(b) Modification of Regulations.—
Not later than 120 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall modify the regulations of the Department of Defense regarding the determination of contract type for development programs.
“(c) Elements.—
As modified under subsection (b), the regulations shall require the Milestone Decision Authority for a major defense acquisition program to select the contract type for a development program at the time of a decision on Milestone B approval (or Key Decision Point B approval in the case of a space program) that is consistent with the level of program risk for the program. The Milestone Decision Authority may select—
“(1) a fixed-price type contract (including a fixed price incentive contract); or
“(2) a cost type contract.
“(d) Conditions With Respect to Authorization of Cost Type Contract.—
As modified under subsection (b), the regulations shall provide that the Milestone Decision Authority may authorize the use of a cost type contract under subsection (c) for a development program only upon a written determination that—
“(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 [now 10 U.S.C. 4251].
“(e) Justification for Selection of Contract Type.—
As modified under subsection (b), the regulations shall require the Milestone Decision Authority to document the basis for the contract type selected for a program. The documentation shall include an explanation of the level of program risk for the program and, if the Milestone Decision Authority determines that the level of program risk is high, the steps that have been taken to reduce program risk and reasons for proceeding with Milestone B approval despite the high level of program risk.”
heading: Grants of Exceptions to Cost or Pricing Data Certification Requirements and Waivers of Cost Accounting Standards
text: Pub. L. 107–314, div. A, title VIII, § 817, Dec. 2, 2002, 116 Stat. 2610, as amended by Pub. L. 112–81, div. A, title VIII, § 809(a), Dec. 31, 2011, 125 Stat. 1490; Pub. L. 113–291, div. A, title X, § 1071(b)(7), Dec. 19, 2014, 128 Stat. 3507; Pub. L. 115–91, div. A, title X, § 1051(j), Dec. 12, 2017, 131 Stat. 1563; Pub. L. 115–232, div. A, title VIII, §§ 825, 836(f)(4), Aug. 13, 2018, 132 Stat. 1856, 1871, provided that:
“(a) Guidance for Exceptions in Exceptional Circumstances.—
Not later than 60 days after the date of the enactment of this Act [Dec. 2, 2002], the Secretary of Defense shall issue guidance on the circumstances under which it is appropriate to grant an exceptional case exception or waiver with respect to certified cost and pricing data and cost accounting standards.
“(b) Determination Required for Exceptional Case Exception or Waiver.—
The guidance shall, at a minimum, include a limitation that a grant of an exceptional case exception or waiver is appropriate with respect to a contract, subcontract, or (in the case of submission of certified cost and pricing data) modification only upon a determination that—
“(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; or
“(3) there are demonstrated benefits to granting the exception or waiver.
“(c) Applicability of New Guidance.—
The guidance issued under subsection (a) shall apply to each exceptional case exception or waiver that is granted on or after the date on which the guidance is issued.
“(d) Definitions.—
In this section:
“(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 [now 10 U.S.C. 3703(a)(3)], relating to submission of certified cost and pricing data.
“(B) A waiver pursuant to section 1502(b)(3)(B) of title 41, United States Code, relating to the applicability of cost accounting standards to contracts and subcontracts.
“(2) The term ‘commercial product-commercial service exception’ means an exception pursuant to section 2306a(b)(1)(B) of title 10, United States Code [now 10 U.S.C. 3703(a)(2)], relating to submission of certified cost and pricing data.”
[Section 836(f)(4)(A) of Pub. L. 115–232, which directed amendment of section 817(d)(1) of Pub. L. 107–314, set out above, by substituting “commercial product-commercial service exceptions” for “commercial item exceptions”, could not be executed because those words did not appear subsequent to amendment by section 1051(j) of Pub. L. 115–91.]
heading: Multiyear Procurement Contracts
text: 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. 116–260, div. C, title VIII, § 8010, Dec. 27, 2020, 134 Stat. 1304.
Pub. L. 116–93, div. A, title VIII, § 8010, Dec. 20, 2019, 133 Stat. 2337.
Pub. L. 115–245, div. A, title VIII, § 8010, Sept. 28, 2018, 132 Stat. 3000.
Pub. L. 115–141, div. C, title VIII, § 8010, Mar. 23, 2018, 132 Stat. 464.
Pub. L. 115–31, div. C, title VIII, § 8010, May 5, 2017, 131 Stat. 247.
Pub. L. 114–113, div. C, title VIII, § 8010, Dec. 18, 2015, 129 Stat. 2352.
Pub. L. 113–235, div. C, title VIII, § 8010, Dec. 16, 2014, 128 Stat. 2253.
Pub. L. 113–76, div. C, title VIII, § 8010, Jan. 17, 2014, 128 Stat. 105.
Pub. L. 113–6, div. C, title VIII, § 8010, Mar. 26, 2013, 127 Stat. 297.
Pub. L. 112–74, div. A, title VIII, § 8010, Dec. 23, 2011, 125 Stat. 806.
Pub. L. 112–10, div. A, title VIII, § 8010, Apr. 15, 2011, 125 Stat. 57.
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.
heading: Defense Commercial Pricing Management Improvement
text: 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; Pub. L. 113–291, div. A, title X, § 1071(b)(9), Dec. 19, 2014, 128 Stat. 3507, which required revision of the Federal Acquisition Regulation to clarify the procedures and methods to be used for determining the reasonableness of prices of certain commercial items, was repealed by Pub. L. 115–232, div. A, title VIII, § 812(b)(18), Aug. 13, 2018, 132 Stat. 1848.
heading: Relationship of 1994 Amendment to Prompt Payment Requirements
text: Pub. L. 103–355, title II, § 2001(h), Oct. 13, 1994, 108 Stat. 3303, provided that: “The amendments made by this section [amending section 2307 of this title 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.”
heading: Review by Inspector General
text: Pub. L. 101–510, div. A, title VIII, § 803(b), Nov. 5, 1990, 104 Stat. 1590, provided that (1) after increase in threshold for submission of cost or pricing data under subsec. (a) of section 2306a of this title, 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.
heading: Multiyear Procurement Authority; Requests for Relief
text: 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).
heading: Limitations on Progress Payments
text: 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 section 2307 of this title by Pub. L. 100–370, § 1(f)(1), July 19, 1988, 102 Stat. 846.
heading: Technical Data and Computer Software Packages; Procurement; Contracting Period; Deferred Ordering Clause; Exemptions; Report to Congressional Committees; Definitions
text: 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”.
heading: Obligations Entered Into Before November 16, 1973
text: Pub. L. 93–155, title VIII, § 807(e), Nov. 16, 1973, 87 Stat. 616, provided that: “The amendments made by this section [amending this section and sections 1431, 3816, and 4532 of Title 50, War and National Defense] 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].”
heading: Definition of Commercial Item
text: Pub. L. 114–92, div. A, title VIII, § 851(c), Nov. 25, 2015, 129 Stat. 917, provided that: “Nothing in this section [enacting section 2380 of this title, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] or the amendments made by this section shall affect the meaning of the term ‘commercial item’ under subsection (a)(5) of section 2464 of title 10, United States Code, or any requirement under subsection (a)(3) or subsection (c) of such section.”
[Pub. L. 115–232 amended subsecs. (a)(3), (5) and (c) of section 2464 of title 10 by substituting references to “commercial products or commercial services” for references to “commercial items”. See 2018 Amendment notes set out under that section.]