Sec. 804. Amendments to other transaction authority
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Chapter 193 of title 10, United States Code, is amended by inserting after section 2371a the following new section: Subject to paragraph (2), the Director of the Defense Advanced Research Projects Agency, the Secretary of a military department, or any other official designated by the Secretary of Defense may, under the authority of section 2371 of this title, carry out prototype projects that are directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the armed forces.
The authority of this section— may be exercised for a prototype project that is expected to cost the Department of Defense in excess of $50,000,000 but not in excess of $250,000,000 (including all options) only upon a written determination by the senior procurement executive for the agency as designated for the purpose of section 1702(c) of title 41, or, for the Defense Advanced Research Projects Agency or the Missile Defense Agency, the director of the agency that— the requirements of subsection
(d)will be met; and the use of the authority of this section is essential to promoting the success of the prototype project; and may be exercised for a prototype project that is expected to cost the Department of Defense in excess of $250,000,000 (including all options) only if— the Under Secretary of Defense for Acquisition, Technology, and Logistics determines in writing that— the requirements of subsection
(d)will be met; and the use of the authority of this section is essential to meet critical national security objectives; and the congressional defense committees are notified in writing at least 30 days before such authority is exercised. The authority of a senior procurement executive or director of the Defense Advanced Research Projects Agency or Missile Defense Agency under paragraph (2)(A), and the authority of the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (2)(B), may not be delegated. Subsections (e)(1)(B) and (e)(2) of such section 2371 shall not apply to projects carried out under subsection (a). To the maximum extent practicable, competitive procedures shall be used when entering into agreements to carry out projects under subsection (a). Each agreement entered into by an official referred to in subsection
(a)to carry out a project under that subsection that provides for payments in a total amount in excess of $5,000,000 shall include a clause that provides for the Comptroller General, in the discretion of the Comptroller General, to examine the records of any party to the agreement or any entity that participates in the performance of the agreement. The requirement in paragraph
(1)shall not apply with respect to a party or entity, or a subordinate element of a party or entity, that has not entered into any other agreement that provides for audit access by a Government entity in the year prior to the date of the agreement. The right provided to the Comptroller General in a clause of an agreement under paragraph
(1)is limited as provided in subparagraph
(B)in the case of a party to the agreement, an entity that participates in the performance of the agreement, or a subordinate element of that party or entity if the only agreements or other transactions that the party, entity, or subordinate element entered into with Government entities in the year prior to the date of that agreement are cooperative agreements or transactions that were entered into under this section or section 2371 of this title. The only records of a party, other entity, or subordinate element referred to in subparagraph
(A)that the Comptroller General may examine in the exercise of the right referred to in that subparagraph are records of the same type as the records that the Government has had the right to examine under the audit access clauses of the previous agreements or transactions referred to in such subparagraph that were entered into by that particular party, entity, or subordinate element. The head of the contracting activity that is carrying out the agreement may waive the applicability of the requirement in paragraph
(1)to the agreement if the head of the contracting activity determines that it would not be in the public interest to apply the requirement to the agreement. The waiver shall be effective with respect to the agreement only if the head of the contracting activity transmits a notification of the waiver to Congress and the Comptroller General before entering into the agreement. The notification shall include the rationale for the determination. The Comptroller General may not examine records pursuant to a clause included in an agreement under paragraph
(1)more than three years after the final payment is made by the United States under the agreement. The Secretary of Defense shall ensure that no official of an agency enters into a transaction (other than a contract, grant, or cooperative agreement) for a prototype project under the authority of this section unless one of following conditions is met: There is at least one nontraditional defense contractor participating to a significant extent in the prototype project. All parties to the transaction other than the Federal Government are innovative small businesses and non-traditional contractors with unique capabilities relevant to the prototype project. At least one third of the total cost of the prototype project is to be paid out of funds provided by parties to the transaction other than the Federal Government. The senior procurement executive for the agency determines in writing that exceptional circumstances justify the use of a transaction that provides for innovative business arrangements or structures that would not be feasible or appropriate under a contract. Except as provided in subparagraph (B), the amounts counted for the purposes of this subsection as being provided, or to be provided, by a party to a transaction with respect to a prototype project that is entered into under this section other than the Federal Government do not include costs that were incurred before the date on which the transaction becomes effective. Costs that were incurred for a prototype project by a party after the beginning of negotiations resulting in a transaction (other than a contract, grant, or cooperative agreement) with respect to the project before the date on which the transaction becomes effective may be counted for purposes of this subsection as being provided, or to be provided, by the party to the transaction if and to the extent that the official responsible for entering into the transaction determines in writing that— the party incurred the costs in anticipation of entering into the transaction; and it was appropriate for the party to incur the costs before the transaction became effective in order to ensure the successful implementation of the transaction. In this section: The term nontraditional defense contractor has the meaning given the term under section 2302(9) of this title. The term small business means a small business concern as defined under section 3 of the Small Business Act ( 15 U.S.C. 632 ). A transaction entered into under this section for a prototype project may provide for the award of a follow-on production contract or transactions to the participants in the transaction. A follow-on production contract or transaction provided for in a transaction under paragraph
(1)may be awarded to the participants in the transaction without the use of competitive procedures, notwithstanding the requirements of section 2304 of this title, if— competitive procedures were used for the selection of parties for participation in the transaction; and the participants in the transaction successfully completed the prototype project provided for in the transaction. Contracts and transactions entered into pursuant to this subsection may be awarded using the authority in subsection (a), under the authority of chapter 137 of this title, or under such procedures, terms, and conditions as the Secretary of Defense may establish by regulation. An agreement entered pursuant to the authority of subsection
(a)or a follow-on contract entered pursuant to the authority of subsection
(f)may provide for prototypes or follow-on production items to be provided to another contractor as government-furnished equipment. An agreement entered into under the authority of this section shall be treated as a Federal agency procurement for the purposes of chapter 21 of title 41. . The table of sections at the beginning of chapter 139 of such title is amended by inserting after the item relating to section 2371a the following new item: 2371b. Authority of the Defense Advanced Research Projects Agency to carry out certain prototype projects. . Section 2302(9) of such title is amended to read as follows: The term nontraditional defense contractor , with respect to a procurement or with respect to a transaction authorized under section 2371(a) of this title, means an entity that— is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract that is subject to full coverage under the cost accounting standards prescribed pursuant to 1502 of title 41 and the regulations implementing such section; and has not been awarded, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any other contract under which the contractor was required to submit certified cost or pricing data under section 2306a of this title. . Section 845 of the National Defense Authorization Act for Fiscal Year 1994 ( Public Law 103–160 ; 10 U.S.C. 2371 note) is hereby repealed. Section 1601(c)(1) of the National Defense Authorization Act for Fiscal Year 2004 ( Public Law 108–136 ; 10 U.S.C. 2370a note) is amended by restating subparagraph
(B)to read as follows: sections 2371 and 2371b of title 10, United States Code. .
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- Pub. L. 103-160
- Pub. L. 108-136
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Sec. 804
Amendments to other transaction authority
Pub. L.Pub. L. 103-160
Pub. L.Pub. L. 108-136
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