Us Code § 4425 - Definition of weapon system component
Full text of Us Code United States Code § 4425 — Definition of weapon system component, with citation guidance and answers to common questions.
§ 4425. Definition of weapon system component
In this subchapter, the term "weapon system component" has the meaning given the term "major system component" in section 4401 of this title.
(Added Pub. L. 114–328, div. A, title VIII, §806(a)(1), Dec. 23, 2016, 130 Stat. 2259, §2447e; renumbered §4425 and amended Pub. L. 116–283, div. A, title XVIII, §1851(c)(1), (5), Jan. 1, 2021, 134 Stat. 4272, 4273.)
Editorial Notes
Amendments
2021—Pub. L. 116–283, §1851(c)(5), substituted "section 4401" for "section 2446a".
Pub. L. 116–283, §1851(c)(1), renumbered section 2447e of this title as this section.
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
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.
Effective Date
Section effective Jan. 1, 2017, see section 806(a)(2) of Pub. L. 114–328, set out as a note under section 4421 of this title.
Subpart G—Other Special Categories Of Contracting
Editorial Notes
Amendments
2018—Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1830, added subpart heading.
Statutory Notes and Related Subsidiaries
Requiring Defense Microelectronics Products and Services Meet Trusted Supply Chain and Operational Security Standards
Pub. L. 116–92, div. A, title II, §224, Dec. 20, 2019, 133 Stat. 1266, provided that:
"(a)
"(1) no such product or service is available for purchase that meets such standards; or
"(2) no such product or service is available for purchase that—
"(A) meets such standards; and
"(B) is available at a price that the Secretary does not consider prohibitively expensive.
"(b)
"(1)
"(B) For purposes of this section, a trusted supply chain and operational security standard—
"(i) is a standard that systematizes best practices relevant to—
"(I) manufacturing location;
"(II) company ownership;
"(III) workforce composition;
"(IV) access during manufacturing, suppliers' design, sourcing, manufacturing, packaging, and distribution processes;
"(V) reliability of the supply chain; and
"(VI) other matters germane to supply chain and operational security; and
"(ii) is not a military standard (also known as 'MIL-STD') or a military specification (also known as 'MIL-SPEC') for microelectronics that—
"(I) specifies individual features for Department of Defense microelectronics; or
"(II) otherwise inhibits the acquisition by the Department of securely manufactured, commercially-available products.
"(2)
"(A) The Secretary of Homeland Security, the Secretary of State, the Secretary of Commerce, and the Director of the National Institute of Standards and Technology.
"(B) Suppliers of microelectronics products and services from the United States and allies and partners of the United States.
"(C) Representatives of major United States industry sectors that rely on a trusted supply chain and the operational security of microelectronics products and services.
"(D) Representatives of the United States insurance industry.
"(3)
"(4)
"(5)
"(c)
"(1)
"(2)
"(d)
"(1) providers of microelectronics products and services that meet the standards established under subsection (b) are exposed to competitive market pressures to achieve competitive pricing and sustained innovation; and
"(2) the industrial base of microelectronics products and services that meet the standards established under subsection (b) includes providers manufacturing in the United States or in countries that are allies or partners of the United States."
Standards and Certification for Private Security Contractors
Pub. L. 111–383, div. A, title VIII, §833, Jan. 7, 2011, 124 Stat. 4276, provided that:
"(a)
"(1) determine whether the private sector has developed—
"(A) operational and business practice standards applicable to private security contractors; and
"(B) third-party certification processes for determining whether private security contractors adhere to standards described in subparagraph (A); and
"(2) review any standards and processes identified pursuant to paragraph (1) to determine whether the application of such standards and processes will make a substantial contribution to the successful performance of private security functions in areas of combat operations or other significant military operations.
"(b)
"(1) establish criteria for defining standard practices for the performance of private security functions, which shall reflect input from industry representatives as well as the Inspector General of the Department of Defense; and
"(2) establish criteria for weapons training programs for contractors performing private security functions, including minimum requirements for weapons training programs of instruction and minimum qualifications for instructors for such programs.
"(c)
"(1)
"(2)
"(d)
"(1)
"(A) a contract of the Department of Defense for the performance of services;
"(B) a subcontract at any tier under such a contract; or
"(C) a task order or delivery order issued under such a contract or subcontract.
"(2)
"(3)
"(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.
"(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.
"(e)
Contracts in Iraq and Afghanistan and Private Security Contracts in Areas of Other Significant Military Operations
Pub. L. 111–383, div. A, title VIII, §831(b), Jan. 7, 2011, 124 Stat. 4274, provided that:
"(1)
"(2)
"(A) Any contract that is awarded on or after the date that is 120 days after the date of the enactment of this Act.
"(B) Any task or delivery order that is issued on or after the date that is 120 days after the date of the enactment of this Act pursuant to a contract that is awarded before, on, or after the date that is 120 days after the date of the enactment of this Act.
"(3)
"(A) Any contract described in paragraph (2)(A).
"(B) Any task or delivery order described in paragraph (2)(B)."
Pub. L. 111–383, div. A, title VIII, §832(b), Jan. 7, 2011, 124 Stat. 4275, provided that:
"(1)
"(A) The Horn of Africa region.
"(B) Yemen.
"(C) The Philippines.
"(2)
Pub. L. 110–417, [div. A], title VIII, §854(b), Oct. 14, 2008, 122 Stat. 4545, provided that:
"(1)
"(2)
Pub. L. 110–417, [div. A], title VIII, §854(c), Oct. 14, 2008, 122 Stat. 4545, provided that: "Beginning not later than 270 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall make publicly available a numerical accounting of alleged offenses described in section 861(b)(6) of Public Law 110–181 [set out below] that have been reported under that section that occurred after the date of the enactment of this Act. The information shall be updated no less frequently than semi-annually."
Pub. L. 110–181, div. A, title VIII, subtitle F, Jan. 28, 2008, 122 Stat. 253, as amended by Pub. L. 110–417, [div. A], title VIII, §§853, 854(a), (d), Oct. 14, 2008, 122 Stat. 4544, 4545; Pub. L. 111–84, div. A, title VIII, §813(a)–(c), Oct. 28, 2009, 123 Stat. 2406, 2407; Pub. L. 111–383, div. A, title VIII, §§831(a), 832(a), (c), 835, title X, §1075(d)(9), Jan. 7, 2011, 124 Stat. 4273, 4275, 4276, 4279, 4373; Pub. L. 112–81, div. A, title VIII, §844(c), Dec. 31, 2011, 125 Stat. 1515; Pub. L. 112–239, div. A, title VIII, §847, Jan. 2, 2013, 126 Stat. 1850; Pub. L. 113–291, div. A, title X, §1071(b)(2)(D), Dec. 19, 2014, 128 Stat. 3506, provided that:
"SEC. 861. MEMORANDUM OF UNDERSTANDING ON MATTERS RELATING TO CONTRACTING.
"(a)
"(b)
"(1) Identification of the major categories of contracts in Iraq or Afghanistan being awarded by the Department of Defense, the Department of State, or the United States Agency for International Development.
"(2) Identification of the roles and responsibilities of each department or agency for matters relating to contracting for contracts in Iraq or Afghanistan.
"(3) Responsibility for establishing procedures for, and the coordination of, movement of contractor personnel in Iraq or Afghanistan.
"(4) Identification of common databases that will serve as repositories of information on contracts in Iraq or Afghanistan and contractor personnel in Iraq or Afghanistan, including agreement on the elements to be included in the databases, including, at a minimum—
"(A) with respect to each contract—
"(i) a brief description of the contract (to the extent consistent with security considerations);
"(ii) the total value of the contract; and
"(iii) whether the contract was awarded competitively; and
"(B) with respect to contractor personnel—
"(i) the total number of personnel employed on contracts in Iraq or Afghanistan;
"(ii) the total number of personnel performing security functions under contracts in Iraq or Afghanistan; and
"(iii) the total number of personnel working under contracts in Iraq or Afghanistan who have been killed or wounded.
"(5) Responsibility for maintaining and updating information in the common databases identified under paragraph (4).
"(6) Responsibility for the collection and referral to the appropriate Government agency of any information relating to offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) or chapter 212 of title 18, United States Code (commonly referred to as the Military Extraterritorial Jurisdiction Act), including a clarification of responsibilities under section 802(a)(10) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), as amended by section 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364).
"(7) Mechanisms for ensuring that contractors are required to report offenses described in paragraph (6) that are alleged to have been committed by or against contractor personnel to appropriate investigative authorities.
"(8) Responsibility for providing victim and witness protection and assistance to contractor personnel in connection with alleged offenses described in paragraph (6).
"(9) Development of a requirement that a contractor shall provide to all contractor personnel who will perform work on a contract in Iraq or Afghanistan, before beginning such work, information on the following:
"(A) How and where to report an alleged offense described in paragraph (6).
"(B) Where to seek the assistance required by paragraph (8).
"(c)
"(d)
"(1)
"(2)
"(3)
"(4)
"SEC. 862. CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS IN AREAS OF COMBAT OPERATIONS OR OTHER SIGNIFICANT MILITARY OPERATIONS.
"(a)
"(1)
"(2)
"(A) a process for registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations or other significant military operations;
"(B) a process for authorizing and accounting for weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations or other significant military operations;
"(C) a process for the registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors performing private security functions in an area of combat operations or other significant military operations;
"(D) a process under which contractors are required to report all incidents, and persons other than contractors are permitted to report incidents, in which—
"(i) a weapon is discharged by personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) personnel performing private security functions in an area of combat operations or other significant military operations are killed or injured;
"(iii) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;
"(iv) a weapon is discharged against personnel performing private security functions in an area of combat operations or other significant military operations or personnel performing such functions believe a weapon was so discharged; or
"(v) active, non-lethal countermeasures (other than the discharge of a weapon) are employed by the personnel performing private security functions in an area of combat operations or other significant military operations in response to a perceived immediate threat to such personnel;
"(E) a process for the independent review and, if practicable, investigation of—
"(i) incidents reported pursuant to subparagraph (D); and
"(ii) incidents of alleged misconduct by personnel performing private security functions in an area of combat operations or other significant military operations;
"(F) requirements for qualification, training, screening (including, if practicable, through background checks), and security for personnel performing private security functions in an area of combat operations or other significant military operations;
"(G) guidance to the commanders of the combatant commands on the issuance of—
"(i) orders, directives, and instructions to contractors performing private security functions relating to equipment, force protection, security, health, safety, or relations and interaction with locals;
"(ii) predeployment training requirements for personnel performing private security functions in an area of combat operations or other significant military operations, addressing the requirements of this section, resources and assistance available to contractor personnel, country information and cultural training, and guidance on working with host country nationals and military; and
"(iii) rules on the use of force for personnel performing private security functions in an area of combat operations or other significant military operations;
"(H) a process by which a commander of a combatant command may request an action described in subsection (b)(3); and
"(I) a process by which the training requirements referred to in subparagraph (G)(ii) shall be implemented.
"(3)
"(b)
"(1)
"(2)
"(A) ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with regulations prescribed under subsection (a), including any revisions or updates to such regulations, and follow the procedures established in such regulations for—
"(i) registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) authorizing and accounting of weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations or other significant military operations;
"(iii) registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors and subcontractors performing private security functions in an area of combat operations or other significant military operations; and
"(iv) the reporting of incidents in which—
"(I) a weapon is discharged by personnel performing private security functions in an area of combat operations or other significant military operations;
"(II) personnel performing private security functions in an area of combat operations or other significant military operations are killed or injured; or
"(III) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;
"(B) ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with—
"(i) qualification, training, screening (including, if practicable, through background checks), and security requirements established by the Secretary of Defense for personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) applicable laws and regulations of the United States and the host country, and applicable treaties and international agreements, regarding the performance of the functions of the contractor;
"(iii) orders, directives, and instructions issued by the applicable commander of a combatant command relating to equipment, force protection, security, health, safety, or relations and interaction with locals; and
"(iv) rules on the use of force issued by the applicable commander of a combatant command for personnel performing private security functions in an area of combat operations or other significant military operations;
"(C) cooperate with any investigation conducted by the Department of Defense pursuant to subsection (a)(2)(E) by providing access to employees of the contractor and relevant information in the possession of the contractor regarding the incident concerned; and
"(D) ensure that the contract clause is included in subcontracts awarded to any subcontractor at any tier who is responsible for performing private security functions under the contract.
"(3)
"(4)
"(5)
"(A) an assessment of the feasibility and advisability of carrying out the pilot program; and
"(B) if the Inspector General determines that carrying out the pilot program is feasible and advisable—
"(i) recommendations on the range of contracts and subcontracts to which the pilot program should apply; and
"(ii) a schedule of fines to be imposed under the pilot program for various types of personnel actions or failures.
"(c)
"(1) ensure that the contractor responsible for performing private security functions under such contract comply with the regulatory requirements prescribed pursuant to subsection (a) and the contract requirements established pursuant to subsection (b); and
"(2) make the determinations required by subsection (d).
"(d)
"(1) shall be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of the past performance of the contractor for the purpose of a contract award decision, as provided in section 1126 of title 41, United States Code;
"(2) in the case of an award fee contract—
"(A) shall be considered in any evaluation of contract performance by the contractor for the relevant award fee period; and
"(B) may be a basis for reducing or denying award fees for such period, or for recovering all or part of award fees previously paid for such period; and
"(3) in the case of a failure to comply that is severe, prolonged, or repeated—
"(A) shall be referred to the suspension or debarment official for the appropriate agency; and
"(B) may be a basis for suspension or debarment of the contractor.
"(e)
"(f)
"(1)
"(2)
"(3)
"(4)
"(5)
"(g)
"(h)
"(1)
"(2)
"SEC. 863. ANNUAL JOINT REPORT ON CONTRACTING IN IRAQ AND AFGHANISTAN.
"(a)
"(b)
"(1) Total number of contracts awarded.
"(2) Total number of active contracts.
"(3) Total value of all contracts awarded.
"(4) Total value of active contracts.
"(5) The extent to which such contracts have used competitive procedures.
"(6) Percentage of contracts awarded on a competitive basis as compared to established goals for competition in contingency contracting actions.
"(7) Total number of contractor personnel working on contracts at the end of each quarter of the reporting period.
"(8) Total number of contractor personnel who are performing security functions at the end of each quarter of the reporting period.
"(9) Total number of contractor personnel killed or wounded.
"(c)
"(1) The sources of information and data used to compile the information required under subsection (b).
"(2) A description of any known limitations of the data reported under subsection (b), including known limitations of the methodology and data sources used to compile the report.
"(3) Any plans for strengthening collection, coordination, and sharing of information on contracts in Iraq and Afghanistan through improvements to the common databases identified under section 861(b)(4).
"(d)
"(e)
"(f)
"(g)
"SEC. 864. DEFINITIONS AND OTHER GENERAL PROVISIONS.
"(a)
"(1)
"(2)
"(3)
"(A) a contract of a Federal agency for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862;
"(B) a subcontract at any tier under such a contract;
"(C) a task order or delivery order issued under such a contract or subcontract;
"(D) a grant for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862; or
"(E) a cooperative agreement for the performance of services in such an area of combat operations.
"(4)
"(A) in the case of a covered contract that is a contract, subcontract, task order, or delivery order, the contractor or subcontractor carrying out the covered contract;
"(B) in the case of a covered contract that is a grant, the grantee; and
"(C) in the case of a covered contract that is a cooperative agreement, the recipient.
"(5)
"(6)
"(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.
"(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.
"(7)
"(A) The Committees on Armed Services of the Senate and the House of Representatives.
"(B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives.
"(C) The Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.
"(D) For purposes of contracts relating to the National Foreign Intelligence Program, the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
"(b)
CHAPTER 341—ACQUISITION OF SERVICES GENERALLY
Editorial Notes
Prior Provisions
A prior chapter 341 "CONTRACTING FOR PERFORMANCE OF CIVILIAN COMMERCIAL OR INDUSTRIAL TYPE FUNCTIONS", consisting of reserved section 4501, was repealed by Pub. L. 116–283, div. A, title XVIII, §1856(b), Jan. 1, 2021, 134 Stat. 4273.
Another prior chapter 341 was renumbered chapter 721 of this title.
Statutory Notes and Related Subsidiaries
Preventing Conflicts of Interest for Entities That Provide Certain Consulting Services to the Department of Defense
Pub. L. 118–31, div. A, title VIII, §812, Dec. 22, 2023, 137 Stat. 323, provided that:
"(a)
"(1)
"(A) neither the entity nor any subsidiaries or affiliates of the entity (as that term is defined in section 2.101 of the Federal Acquisition Regulation) hold a contract for consulting services with one or more covered foreign entities; or
"(B) the entity maintains a Conflict of Interest Mitigation plan described under subsection (b) that is auditable by a contract oversight entity.
"(2)
"(b)
"(1) an identification, where such identification is not otherwise prohibited by law or regulation, of any covered contracts of an entity described in subsection (a) with a covered foreign entity;
"(2) a written analysis, including a course of action for avoiding, neutralizing, or mitigating the actual or potential conflict of interest of such a covered contract with the Department of Defense;
"(3) a description of the procedures adopted by an entity to ensure that individuals who will be performing a covered contract will not, for the duration of such contract, also provide any consulting services to any covered foreign entity; and
"(4) a description of the procedures by which an entity will submit to the contract oversight entities a notice of an unmitigated conflict of interest with respect to a covered contract within 15 days of determining that such a conflict has arisen.
"(c)
"(d)
"(e)
"(1)
"(2)
"(A) the specific justification for providing the waiver;
"(B) an identification of the covered foreign entity that is the subject of the waiver request;
"(C) the number of bidders for the covered contract for which the waiver was granted;
"(D) the number of bidders for the covered contract that did not request a waiver; and
"(E) the total dollar value of the covered contract.
"(f)
"(1) The term 'consulting services' has the meaning given the term 'advisory and assistance services' in section 2.101 of the Federal Acquisition Regulation, except that the term does not include the provision of products or services related to—
"(A) compliance with legal, audit, accounting, tax, reporting, or other requirements of the laws and standards of countries; or
"(B) participation in a judicial, legal, or equitable dispute resolution proceeding.
"(2) The term 'contract oversight entity' means any of the following:
"(A) The contracting officer.
"(B) The contracting officer representative.
"(C) The Defense Contract Management Agency.
"(D) The Defense Contract Audit Agency.
"(E) The Office of Inspector General of the Department of Defense or any subcomponent of such office.
"(F) The Government Accountability Office.
"(3) The term 'covered contract' means a contract of the Department of Defense for consulting services.
"(4) The term 'covered foreign entity' means any of the following:
"(A) The Government of the People's Republic of China, the Chinese Communist Party, the People's Liberation Army, the Ministry of State Security, or other security service or intelligence agency of the People's Republic of China.
"(B) The Government of the Russian Federation or any entity sanctioned by the Secretary of the Treasury under Executive Order 13662 titled 'Blocking Property of Additional Persons Contributing to the Situation in Ukraine' (79 Fed. Reg. 16169) [listed in a table under section 1701 of Title 50, War and National Defense].
"(C) The government of any country if the Secretary of State determines that such government has repeatedly provided support for acts of international terrorism pursuant to any of the following:
"(i) Section 1754(c)(1)(A) of the Export Control Reform Act of 2018 (50 U.S.C. 4318(c)(1)(A)) [sic; probably should be "(50 U.S.C. 4813(c)(1)(A))"].
"(ii) Section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).
"(iii) Section 40 of the Arms Export Control Act (22 U.S.C. 2780).
"(iv) Any other provision of law.
"(D) Any entity included on any of the following lists maintained by the Department of Commerce:
"(i) The Entity List set forth in Supplement No. 4 to part 744 of the Export Administration Regulations.
"(ii) The Denied Persons List as described in section 764.3(a)(2) of the Export Administration Regulations.
"(iii) The Unverified List set forth in Supplement No. 6 to part 744 of the Export Administration Regulations.
"(iv) The Military End User List set forth in Supplement No. 7 to part 744 of the Export Administration Regulations.
"(E) Any entity identified by the Secretary of Defense pursuant to section 1237(b) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105–261; 50 U.S.C. 1701 note).
"(F) Any entity on the Non-SDN Chinese Military-Industrial Complex Companies List (NS–CMIC List) maintained by the Office of Foreign Assets Control of the Department of the Treasury under Executive Order 14032 (86 Fed. Reg. 30145; relating to addressing the threat from securities investments that finance certain companies of the People's Republic of China), or any successor order."
Contracts for Studies, Analysis, or Consulting Services Entered Into Without Competition on the Basis of an Unsolicited Proposal
Pub. L. 114–113, div. C, title VIII, §8039, Dec. 18, 2015, 129 Stat. 2359, provided that:
"None of the funds appropriated by this Act [div. C of Pub. L. 114–113, see Tables for classification] and hereafter shall be available for a contract for studies, analysis, or consulting services entered into without competition on the basis of an unsolicited proposal unless the head of the activity responsible for the procurement determines—
"(1) as a result of thorough technical evaluation, only one source is found fully qualified to perform the proposed work;
"(2) the purpose of the contract is to explore an unsolicited proposal which offers significant scientific or technological promise, represents the product of original thinking, and was submitted in confidence by one source; or
"(3) the purpose of the contract is to take advantage of unique and significant industrial accomplishment by a specific concern, or to insure that a new product or idea of a specific concern is given financial support: Provided, That this limitation shall not apply to contracts in an amount of less than $25,000, contracts related to improvements of equipment that is in development or production, or contracts as to which a civilian official of the Department of Defense, who has been confirmed by the Senate, determines that the award of such contract is in the interest of the national defense."
Competition for Religious Services Contracts
Pub. L. 114–92, div. A, title VIII, §898, Nov. 25, 2015, 129 Stat. 955, provided that: "The Department of Defense may not preclude a non-profit organization from competing for a contract for religious related services on a United States military installation."
Requirements for Risk Assessments Related to Contractor Performance
Pub. L. 112–239, div. A, title VIII, §846, Jan. 2, 2013, 126 Stat. 1848, provided that:
"(a)
"(b)
"(1)
"(2)
"(A) the operation is not expected to continue for more than one year; and
"(B) the total amount of obligations for contracts for support of the operation for the covered agency is not expected to exceed $250,000,000.
"(3)
"(A) the operation has continued for more than one year; or
"(B) the total amount of obligations for contracts for support of the operation for the covered agency exceeds $250,000,000.
"(c)
"(1) The goals and objectives of the operation (such as risks from contractor behavior or performance that may injure innocent members of the local population or offend their sensibilities).
"(2) The continuity of the operation (such as risks from contractors refusing to perform or being unable to perform when there may be no timely replacements available).
"(3) The safety of military and civilian personnel of the United States if the presence or performance of contractor personnel creates unsafe conditions or invites attack.
"(4) The safety of contractor personnel employed by the covered agency.
"(5) The managerial control of the Government over the operation (such as risks from over-reliance on contractors to monitor other contractors or inadequate means for Government personnel to monitor contractor performance).
"(6) The critical organic or core capabilities of the Government, including critical knowledge or institutional memory of key operations areas and subject-matter expertise.
"(7) The ability of the Government to control costs, avoid organizational or personal conflicts of interest, and minimize waste, fraud, and abuse.
"(d)
"(1) For each high-risk area identified in the comprehensive risk assessment for the operation performed under subsection (b)—
"(A) specific actions to mitigate or reduce such risk, including the development of alternative capabilities to reduce reliance on contractor performance of critical functions;
"(B) measurable milestones for the implementation of planned risk mitigation or risk reduction measures; and
"(C) a process for monitoring, measuring, and documenting progress in mitigating or reducing risk.
"(2) A continuing process for identifying and addressing new and changed risks arising in the course of the operation, including the periodic reassessment of risks and the development of appropriate risk mitigation or reduction plans for any new or changed high-risk area identified.
"(e)
"(1) Private security functions, as that term is defined in section 864(a)(6) of the National Defense Authorization Act for Fiscal Year 2008 [Pub. L. 110–181] (10 U.S.C. 2302 note) [now 10 U.S.C. 4571 note prec.].
"(2) Training and advising Government personnel, including military and security personnel, of a host nation.
"(3) Conducting intelligence or information operations.
"(4) Any other functions that are closely associated with inherently governmental functions, including the functions set forth in section 7.503(d) of the Federal Acquisition Regulation.
"(5) Any other functions that are deemed critical to the success of the operation.
"(f)
Requirements for the Acquisition of Services
Pub. L. 111–383, div. A, title VIII, §863(a)–(h), Jan. 7, 2011, 124 Stat. 4293, 4294, as amended by Pub. L. 112–81, div. A, title IX, §933(c), Dec. 31, 2011, 125 Stat. 1544; Pub. L. 112–239, div. A, title X, §1076(a)(18), Jan. 2, 2013, 126 Stat. 1949, provided that:
"(a)
"(b)
"(1) that the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, and the Commandant of the Marine Corps implement and bear chief responsibility for carrying out, within the Armed Force concerned, the process established pursuant to subsection (a) for such Armed Force; and
"(2) that commanders of unified combatant commands and other officers identified or designated as joint qualified officers have an opportunity to participate in the process of each military department to provide input on joint requirements for the acquisition of services.
"(c)
"(d)
"(1) The organization of such process.
"(2) The level of command responsibility required for identifying, assessing, reviewing, and validating requirements for the acquisition of services in accordance with the requirements of this section and the categories established under section 2330(a)(1)(C) of title 10, United States Code [now 10 U.S.C. 4501(d)].
"(3) The composition of positions necessary to operate such process.
"(4) The training required for personnel engaged in such process.
"(5) The relationship between doctrine and such process.
"(6) Methods of obtaining input on joint requirements for the acquisition of services.
"(7) Procedures for coordinating with the acquisition process.
"(8) Considerations relating to opportunities for strategic sourcing.
"(9) Considerations relating to total force management policies and procedures established under section 129a of title 10, United States Code.
"(e)
"(f)
"(g)
"(h)
Independent Management Reviews of Contracts for Services
Pub. L. 110–181, div. A, title VIII, §808, Jan. 28, 2008, 122 Stat. 215, as amended by Pub. L. 111–383, div. A, title X, §1075(f)(3), Jan. 7, 2011, 124 Stat. 4376; Pub. L. 115–232, div. A, title VIII, §812(b)(23), Aug. 13, 2018, 132 Stat. 1849, provided that:
"(a)
"(1) contract performance in terms of cost, schedule, and requirements;
"(2) the use of contracting mechanisms, including the use of competition, the contract structure and type, the definition of contract requirements, cost or pricing methods, the award and negotiation of task orders, and management and oversight mechanisms;
"(3) the contractor's use, management, and oversight of subcontractors;
"(4) the staffing of contract management and oversight functions; and
"(5) the extent of any pass-throughs, and excessive pass-through charges (as defined in section 852 of the John Warner National Defense Authorization Act for Fiscal Year 2007 [Pub. L. 109–364, 10 U.S.C. 3761 note prec.]), by the contractor.
"(b)
"(1) the extent of the agency's reliance on the contractor to perform acquisition functions closely associated with inherently governmental functions as defined in section 2383(b)(3) of title 10, United States Code [now 10 U.S.C. 4508(b)(3)]; and
"(2) the financial interest of any prime contractor performing acquisition functions described in paragraph (1) in any contract or subcontract with regard to which the contractor provided advice or recommendations to the agency.
"(c)
"(1) the contracts subject to independent management reviews, including any applicable thresholds and exceptions;
"(2) the frequency with which independent management reviews shall be conducted;
"(3) the composition of teams designated to perform independent management reviews;
"(4) any phase-in requirements needed to ensure that qualified staff are available to perform independent management reviews;
"(5) procedures for tracking the implementation of recommendations made by independent management review teams; and
"(6) procedures for developing and disseminating lessons learned from independent management reviews."
[(d) Repealed. Pub. L. 115–232, div. A, title VIII, §812(b)(23), Aug. 13, 2018, 132 Stat. 1849.]
Limitation on Contracts for the Acquisition of Certain Services
Pub. L. 109–364, div. A, title VIII, §832, Oct. 17, 2006, 120 Stat. 2331, as amended by Pub. L. 110–181, div. A, title VIII, §883, Jan. 28, 2008, 122 Stat. 264; Pub. L. 110–417, [div. A], title X, §1061(b)(5), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 113–291, div. A, title X, §1071(b)(3)(A), Dec. 19, 2014, 128 Stat. 3506, provided that:
"(a)
"(b)
"(1) determines that a waiver is in the national interest; and
"(2) provides to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] an economic analysis as described in subsection (c) at least 30 days before the waiver takes effect.
"(c)
"(1) A clear explanation of the need for the contract.
"(2) An examination of at least two alternatives for fulfilling the requirements that the contract is meant to fulfill, including the following with respect to each alternative:
"(A) A rationale for including the alternative.
"(B) A cost estimate of the alternative and an analysis of the quality of each cost estimate.
"(C) A discussion of the benefits to be realized from the alternative.
"(D) A best value determination of each alternative and a detailed explanation of the life-cycle cost calculations used in the determination.
"(d)
"(1) The term 'military flight simulator' means any major system to simulate the form, fit, and function of a military aircraft that has no commonly available commercial variant.
"(2) The term 'service contract' means any contract entered into by the Department of Defense the principal purpose of which is to furnish services in the United States through the use of service employees.
"(3) The term 'service employees' has the meaning provided in section 6701(3) of title 41, United States Code.
"(e)
"(1) the contract was in effect as of October 17, 2006;
"(2) the number of flight simulators to be acquired under the contract (or renewal, extension, or follow-on) will not result in the total number of flight simulators acquired by the military department concerned through service contracts to exceed the total number of flight simulators to be acquired under all service contracts of such department for such simulators in effect as of October 17, 2006; and
"(3) in the case of a renewal or extension of, or follow-on contract to, the contract, the Secretary of the military department concerned provides to the congressional defense committees a written notice of the decision to exercise an option to renew or extend the contract, or to issue a solicitation for bids or proposals using competitive procedures for a follow-on contract, and an economic analysis as described in subsection (c) supporting the decision, at least 30 days before carrying out such decision."
Improvements in Procurements of Services
Pub. L. 106–398, §1 [[div. A], title VIII, §821], Oct. 30, 2000, 114 Stat. 1654, 1654A–217, as amended by Pub. L. 108–136, div. A, title XIV, §1431(c), Nov. 24, 2003, 117 Stat. 1672; Pub. L. 115–232, div. A, title VIII, §836(f)(2), Aug. 13, 2018, 132 Stat. 1871, provided that:
"(a)
"(1) A performance-based contract or performance-based task order that contains firm fixed prices for the specific tasks to be performed.
"(2) Any other performance-based contract or performance-based task order.
"(3) Any contract or task order that is not a performance-based contract or a performance-based task order.
"[(b) Repealed. Pub. L. 108–136, div. A, title XIV, §1431(c), Nov. 24, 2003, 117 Stat. 1672.]
"(c)
"(d)
"(2) The Secretary of each military department and the head of each Defense Agency shall ensure that the personnel of the department or agency, as the case may be, who are responsible for the awarding and management of contracts for services receive appropriate training that is focused specifically on contracting for services.
"(e)
"(1) The term 'performance-based', with respect to a contract, a task order, or contracting, means that the contract, task order, or contracting, respectively, includes the use of performance work statements that set forth contract requirements in clear, specific, and objective terms with measurable outcomes.
"(2) The term 'Defense Agency' has the meaning given the term in section 101(a)(11) of title 10, United States Code."
About This Section
10 U.S.C. § 4425 is part of Title 10 of the United States Code. The United States Code is the official codification of federal statutes maintained by the Office of the Law Revision Counsel of the U.S. House of Representatives. Congress amends the Code through new public laws, which are eventually incorporated into the relevant title.
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