Amendments
2023—Subsec. (a)(1)(C). [Pub. L. 118–31, § 831], added subpar. (C).
Subsec. (b)(4). [Pub. L. 118–31, § 1801(a)(28)], inserted “note” before “prec.”
Statutory Notes and Related Subsidiaries
Rapid Response to Emergent Technology Advancements or Threats
[Pub. L. 118–31, div. A, title II, § 229], Dec. 22, 2023, [137 Stat. 200], provided that:“(a)
Authorities.—
Upon approval by the Secretary of Defense of a determination described in subsection (b), the Secretary of a military department may use the rapid acquisition and funding authorities established pursuant to
section 3601 of title 10, United States Code, to initiate urgent or emerging operational development activities for a period of up to one year, in order to—
“(1)
leverage an emergent technological advancement of value to the national defense to address a military service-specific need; or
“(2)
provide a rapid response to an emerging threat identified by a military service.
“(b)
Determination.—
A determination described in this subsection is a determination by the Secretary of a military department submitted in writing to the Secretary of Defense that provides the following:
“(1)
Identification of a compelling urgent or emergency national security need to immediately initiate development activity in anticipation of a programming or budgeting action, in order to leverage an emergent technological advancement or provide a rapid response to an emerging threat.
“(2)
Justification for why the effort cannot be delayed until the next submission of the budget of the President (under
section 1105(a) of title 31, United States Code) without harming the national defense.
“(3)
Funding is identified for the effort in the current fiscal year to initiate the activity.
“(4)
An appropriate acquisition pathway and programmed funding for transition to continued development, integration, or sustainment is identified to on-ramp this activity within two years.
“(c)
Additional Procedures.—
“(1)
In general.—
Not later than 180 days after the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense shall amend the procedures for the rapid acquisition and deployment of capabilities needed in response to urgent operational needs prescribed pursuant to such section 3601 to carry out this section. Such updated procedures shall be provided to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] concurrently with the promulgation to the rest of the Department of Defense.
“(2)
Requirements to be included.—
The procedures amended under paragraph (1) shall include the following requirements:
“(A)
Funding.—
(i)
Subject to clause (ii), in any fiscal year in which a determination described in subsection (b) is made, the Secretary of the military department making the determination may initiate the activities authorized under subsection (a) using any funds available to the Secretary for such fiscal year for—
“(I)
procurement; or
“(II)
research, development, test, and evaluation.
“(ii)
The total cost of all developmental activities within the Department of Defense, funded under this section, may not exceed $100,000,000 for any fiscal year.
“(B)
Waiver authority.—
(i)
Subject to clause (ii), the Secretary of the military department making a determination under subsection (b) may issue a waiver under subsection (d) of such section 3601.
“(ii)
Chapter 221 of title 10, United States Code, may not be waived pursuant to clause (i).
“(C)
Transition.—
(i)
Any acquisition initiated under subsection (a) shall transition to an appropriate acquisition pathway for transition and integration of the development activity, or be transitioned to a newly established program element or procurement line for completion of such activity.
“(ii)
(I)
Transition shall be completed within one year of initiation, but may be extended one time only at the discretion of the Secretary of the military department for one additional year.
“(II)
In the event an extension determination is made under subclause (I), the affected Secretary of the military department shall submit to the congressional defense committees, not later than 30 days before the extension takes effect, written notification of the extension with a justification for the extension.
“(3)
Submittal to congress.—
Concurrent with promulgation to the Department of the amendments to the procedures under paragraph (1), the Secretary shall submit to the congressional defense committees the procedures updated by such amendments.
“(d)
Congressional Notification.—
Within 15 days after the Secretary of Defense approves a determination described in subsection (b), the Secretary of the military department making the determination shall provide written notification of such determination to the congressional defense committees following the procedures for notification in subsections (c)(4)(D) and (c)(4)(F) of such section 3601. A notice under this subsection shall be sufficient to fulfill any requirement to provide notification to Congress for a new start program.”
Special Authority for Rapid Contracting for Commanders of Combatant Commands
[Pub. L. 118–31, div. A, title VIII, § 843], Dec. 22, 2023, [137 Stat. 342], provided that:“(a)
In General.—
The commander of a combatant command, upon providing a written determination to a senior contracting official (as defined in
section 1737 of title 10, United States Code), may request use of the special authorities described in subsection (b)—
“(2)
to facilitate the defense against or recovery from a cyber attack, nuclear attack, biological attack, chemical attack, or radiological attack against the United States;
“(3)
in support of a humanitarian or peacekeeping operation (as the term is defined in
section 3015(2) of title 10, United States Code); and
“(4)
for purposes of protecting the national security interests of the United States during directed operations that are below the threshold of traditional armed conflict.
“(b)
Special Authorities Described.—
The special authorities for contracting that may be used by the senior contracting official to rapidly respond to time-sensitive or unplanned emergency situations are as follows:
“(1)
Procedures applicable to purchases below micro-purchase threshold (described in
section 1902 of title 41, United States Code), with respect to a single contracting action taken under subsection (a) for a contract to be awarded and performed, or purchase to be made—
“(A)
in the United States, with a value less than $15,000; or
“(B)
outside the United States, with a value less than $25,000.
“(2)
Simplified acquisition procedures (described in
section 1901 of title 41, United States Code), with respect to a single contracting action taken under subsection (a) for a contract to be awarded and performed, or purchase to be made—
“(A)
in the United States, with a value less than $750,000; or
“(B)
outside the United States, with a value less than $1,500,000.
“(3)
For simplified procedures for purchases under
section 3205 of title 10, United States Code, subsection (a)(2) of such section shall be applied by substituting ‘$10,000,000’ for ‘$5,000,000’.
“(4)
The property or service being procured may be treated as a commercial product or a commercial service for the purpose of carrying out the procurement.
“(c)
Determination.—
A written determination required under subsection (a)—
“(1)
may include more than one requested action;
“(2)
may be directed to more than one senior contracting official; and
“(3)
shall include—
“(A)
the rationale for the request in accordance with paragraphs (1) through (4) of such subsection;
“(B)
a description of any special authority requested; and
“(C)
an attestation that funds are available for such special authority.
“(d)
Sunset.—
The authority under subsection (a) shall terminate on September 30, 2028.
“(e)
Annual Report.—
Not later than January 15, 2025, and annually thereafter for four years, the Chairman of the Joint Chiefs of Staff, in coordination with the Under Secretary of Defense for Acquisition and Sustainment, 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 use of the authority under this section for the fiscal year preceding the date of submission of the report. The report shall include a summary of each instance of the authority being used, including—
“(1)
an identification of each commander submitting a request under subsection (a);
“(2)
an identification of each senior contracting official responding to such request; and
“(3)
the specific special authority requested, including an identification of the contractor that performed the contract and the value of the contract.”
Notice to Committees on Appropriations To Be Concurrently Submitted to Subcommittees on Defense
[Pub. L. 118–47, div. A, title VIII, § 8071], Mar. 23, 2024, [138 Stat. 501], provided that: “Any notice that is required to be submitted to the Committees on Appropriations of the House of Representatives and the Senate under section 3601 of title 10, United States Code, as added by section 804(a) of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 shall be submitted pursuant to that requirement concurrently to the Subcommittees on Defense of the Committees on Appropriations of the House of Representatives and the Senate.”
Similar provisions were contained in the following prior appropriation act:
[Pub. L. 117–328, div. C, title VIII, § 8072], Dec. 29, 2022, [136 Stat. 4605].
[Pub. L. 117–103, div. C, title VIII, § 8074], Mar. 15, 2022, [136 Stat. 193], as amended by [Pub. L. 117–263, div. A, title VIII, § 804(d)(2)], Dec. 23, 2022, [136 Stat. 2701].
Rapid Acquisition and Deployment Procedures for United States Special Operations Command
[Pub. L. 113–291, div. A, title VIII, § 851], Dec. 19, 2014, [128 Stat. 3457], as amended by [Pub. L. 117–263, div. A, title VIII, § 804(d)(3)], Dec. 23, 2022, [136 Stat. 2701], provided that:“(a)
Authority to Establish Procedures.—
The Secretary may prescribe procedures for the rapid acquisition and deployment of items for the United States Special Operations Command that are currently under development by the Department of Defense or available from the commercial sector and are—
“(1)
urgently needed to react to an enemy threat or to respond to significant and urgent safety situations;
“(2)
needed to avoid significant risk of loss of life or mission failure; or
“(3)
needed to avoid collateral damage risk where the absence of collateral damage is a requirement for mission success.
“(b)
Issues to Be Addressed.—
The procedures prescribed under subsection (a) shall include the following:
“(1)
A process for streamlined communication between the Commander of the United States Special Operations Command and the acquisition and research and development communities, including—
“(A)
a process for the Commander to communicate needs to the acquisition community and the research and development community; and
“(B)
a process for the acquisition community and the research and development community to propose items that meet the needs communicated by the Commander.
“(2)
Procedures for demonstrating, rapidly acquiring, and deploying items proposed pursuant to paragraph (1)(B), including—
“(A)
a process for demonstrating performance and evaluating for current operational purposes the existing capability of an item;
“(B)
a process for developing an acquisition and funding strategy for the deployment of an item; and
“(C)
a process for making deployment determinations based on information obtained pursuant to subparagraphs (A) and (B).
“(c)
Testing Requirement.—
“(1)
In general.—
The process for demonstrating performance and evaluating for current operational purposes the existing capability of an item prescribed under subsection (b)(2)(A) shall include—
“(A)
an operational assessment in accordance with expedited procedures prescribed by the Director of Operational Testing and Evaluation; and
“(B)
a requirement to provide information to the deployment decision-making authority about any deficiency of the item in meeting the original requirements for the item (as stated in an operational requirements document or similar document).
“(2)
Deficiency not a determining factor.—
The process may not include a requirement for any deficiency of an item to be the determining factor in deciding whether to deploy the item.
“(3)
Additional requirement in case of deficiency.—
In the case of any deficiency of an item, a decision to deploy the item may be made only if the Commander of the United States Special Operations Command determines that, for reasons of national security, the deficiency of the item is acceptable.
“(d)
Limitation.—
The quantity of items of a system procured using the procedures prescribed pursuant to this section may not exceed the number established for low-rate initial production for the system. Any such items shall be counted for purposes of the number of items of the system that may be procured through low-rate initial production.
“(e)
Annual Funding Limitation.—
Of the funds available to the Commander of the United States Special Operations Command in any given fiscal year, not more than $50,000,000 may be used to procure items under this section.
“(f)
Relationship to Other Rapid Acquisition Authority.—
The Commander of the United States Special Operations Command may not use the authority under this section at the same time the Commander uses the authority under
section 3601 of title 10, United States Code.
“(g)
Congressional Notifications.—
“(1)
Notification before procedures go into effect.—
The Secretary of Defense shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] at least 30 days before the procedures prescribed pursuant to this section are made effective.
“(2)
Notification after use of procedures.—
The Secretary of Defense shall notify the congressional defense committees not later than 48 hours after each use of the procedures prescribed pursuant to this section.”