US Code

Public Law 119-73 (01/23/2026)

10 U.S.C. § 3208

Planning for future competition in contracts for major systems

(a)

Development Contract.—

(1)

Determining whether proposals are necessary .—

The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a development contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system’s required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror’s price.
(2)

Contents of proposals .—

Proposals referred to in the first sentence of paragraph (1) are the following:
(A)
Proposals to incorporate in the design of the major system items which are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source.
(B)
With respect to items that are likely to be required in substantial quantities during the system’s service life, proposals to incorporate in the design of the major system items which the United States will be able to acquire competitively in the future.
(b)

Production Contract.—

(1)

Determining whether proposals are necessary .—

The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a production contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system’s required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror’s price.
(2)

Contents of proposals .—

Proposals referred to in the first sentence of paragraph (1) are proposals identifying opportunities to ensure that the United States will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals submitted in response to such requirement may include the following:
(A)
Proposals to provide to the United States the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the United States, if any, of acquiring such technical data and the right to use such data.
(B)
Proposals for the qualification or development of multiple sources of supply for the item.
(c)

Consideration of Factors as Objectives in Negotiations .—

If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in subsections (a) and (b) to be considered in evaluating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. Such objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.
(d)

Items Developed Exclusively at Private Expense.—

(1)

Limitation .—

Whenever the head of an agency requires that proposals described in subsection (a)(2) or (b)(2) be submitted by an offeror in its offer, the offeror shall not be required to provide a proposal that enables the United States to acquire competitively in the future an identical item if the item was developed exclusively at private expense unless the head of the agency determines that—
(A)
the original supplier of such item will be unable to satisfy program schedule or delivery requirements; or
(B)
proposals by the original supplier of such item to meet the mobilization requirements are insufficient to meet the agency’s mobilization needs.
(2)

Evaluation .—

In considering offers in response to a solicitation requiring proposals described in subsection (a)(2) or (b)(2), the head of an agency shall base any evaluation of items developed exclusively at private expense on an analysis of the total value, in terms of innovative design, life-cycle costs, and other pertinent factors, of incorporating such items in the system.

Pub. L. 116–283, div. A, title XVIII, § 1811(g)134 Stat. 4173(Added and amended , , .)

Editorial Notes

Codification

section 2305 of this titlePub. L. 116–283, § 1811(g)(2)Pub. L. 98–525, title XII, § 1213(a)98 Stat. 2591Pub. L. 100–456, div. A, title VIII, § 806102 Stat. 2010The text of subsec. (d) of , which was transferred to this section and amended by –(6) was based on , , ; , , .

Prior Provisions

act Aug. 10, 1956, ch. 104170A Stat. 174Pub. L. 85–861, § 1(60)72 Stat. 1462Pub. L. 90–130, § 1(9)(E)81 Stat. 375Pub. L. 95–485, title VIII, § 820(c)(1)92 Stat. 1627Pub. L. 96–513, title II, § 20294 Stat. 2878A prior section 3209, , ; , , ; , , ; , (2), , , prescribed, with exception of Army Nurse Corps and Army Medical Specialist Corps, the authorized strength of each branch in commissioned officers on active list of Regular Army, prior to repeal by , title VII, § 701, , , 2955, effective .

section 7110 of this titleA prior section 3210 was renumbered .

Aug. 10, 1956, ch. 104170A Stat. 175Pub. L. 85–861, § 1(67)72 Stat. 1463Pub. L. 90–130, § 1(9)(F)81 Stat. 375section 3296 of this titlePub. L. 96–513, title II, § 20294 Stat. 2878A prior section 3211, acts , ; , , ; , , , prescribed authorized strength of Regular Army in officers in each regular grade on promotion lists set forth in , prior to repeal by , title VII, § 701, , , 2955, effective . See section 521 et seq. of this title.

Aug. 10, 1956, ch. 104170A Stat. 175Pub. L. 85–861, § 1(68)72 Stat. 1463Pub. L. 86–559, § 1(6)74 Stat. 265Pub. L. 90–130, § 1(9)(G)81 Stat. 375Pub. L. 96–513, title V, § 502(6)94 Stat. 2909Pub. L. 103–337, div. A, title XVI108 Stat. 2988section 12009 of this titleA prior section 3212, acts , ; , , ; , , ; , , ; , , , related to temporary increases in authorized strength in grades of Army Reserve and Army National Guard of United States, prior to repeal by , §§ 1662(a)(3), 1691, , , 3026, effective . See .

Pub. L. 96–513, title II, § 20294 Stat. 2878Prior sections 3213 and 3214 were repealed by , title VII, § 701, , , 2955, effective .

act Aug. 10, 1956, ch. 104170A Stat. 176Section 3213, , , prescribed authorized strength of Regular Army in warrant officers on active list.

Aug. 10, 1956, ch. 104170A Stat. 176Pub. L. 85–861, § 1(64)72 Stat. 1463Section 3214, acts , ; , , , prescribed authorized strength of Regular Army in enlisted members on active duty, exclusive of officer candidates.

Aug. 10, 1956, ch. 104170A Stat. 176Pub. L. 90–130, § 1(9)(H)81 Stat. 375Pub. L. 95–485, title VIII, § 820(c)(3)92 Stat. 1627A prior section 3215, acts , ; , , , authorized strength of Women’s Army Corps of Regular Army in warrant officers on active list and in enlisted members on active duty to be prescribed by Secretary, prior to repeal by , , .

act Aug. 10, 1956, ch. 104170A Stat. 176Pub. L. 96–513, title II, § 20294 Stat. 2878A prior section 3216, , , prescribed authorized strength of Corps of Engineers in enlisted members on active duty, prior to repeal by , title VII, § 701, , , 2955, effective .

Pub. L. 103–337, div. A, title XVI108 Stat. 2988Prior sections 3217 to 3220 were repealed by , §§ 1662(a)(3), 1691, , , 3026, effective .

Pub. L. 85–861, § 1(69)(A)72 Stat. 1463section 12003 of this titleSection 3217, added , , , related to authorized strength of Army in reserve commissioned officers in active status. See .

Pub. L. 85–861, § 1(69)(A)72 Stat. 1463Pub. L. 96–107, title III, § 302(a)93 Stat. 806Pub. L. 100–456, div. A, title XII, § 1234(a)(1)102 Stat. 2059Pub. L. 102–190, div. A, title X, § 1061(a)(20)(B)105 Stat. 1473section 12004 of this titleSection 3218, added , , ; amended , , ; , , ; , , , related to authorized strength of Army in reserve general officers in active status. See .

Pub. L. 85–861, § 1(69)(A)72 Stat. 1464section 12005(a) of this titleSection 3219, added , , , related to authorized strength of Army in reserve commissioned officers in active status in grades below brigadier general. See .

Pub. L. 85–861, § 1(69)(A)72 Stat. 1464Pub. L. 95–485, title VIII, § 820(c)(4)92 Stat. 1627section 12007 of this titleSection 3220, added , , ; amended , , , related to distribution of reserve commissioned officers by Secretary of the Army. See .

Amendments

Pub. L. 116–283, § 1811(g)(2)section 2305 of this title2021—, redesignated subsec. (d) of as subsec. (a) of this section and redesignated pars. (2) to (4) thereof as subsecs. (b) to (d), respectively.

Pub. L. 116–283, § 1811(g)(3)Subsec. (a). , inserted subsec. heading, redesignated par. (1)(A) as (1), inserted par. heading, and substituted “paragraph (2)” for “subparagraph (B)”, and redesignated par. (1)(B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respectively, inserted par. heading, and substituted “paragraph (1)” for “subparagraph (A)” in introductory provisions.

Pub. L. 116–283, § 1811(g)(2)Subsec. (b). , (4), redesignated subsec. (a)(2) as (b), inserted subsec. heading, redesignated subpar. (A) as par. (1), inserted par. heading, and substituted “paragraph (2)” for “subparagraph (B)”, and redesignated subpar. (B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respectively, inserted par. heading, and substituted “paragraph (1)” for “subparagraph (A)” in introductory provisions.

Pub. L. 116–283, § 1811(g)(2)Subsec. (c). , (5), redesignated subsec. (a)(3) as (c), inserted heading, and substituted “subsections (a) and (b)” for “paragraphs (1) and (2)”.

Pub. L. 116–283, § 1811(g)(2)Subsec. (d). , (6), redesignated subsec. (a)(4) as (d), inserted subsec. heading, and substituted “subsection (a)(2) or (b)(2)” for “paragraph (1)(B) or (2)(B)” in introductory provisions; redesignated subpar. (A) and its cls. (i) and (ii) as par. (1) and subpars. (A) and (B), respectively, inserted par. heading, and realigned margins; and redesignated subpar. (B) as par. (2), inserted heading, realigned margin, and substituted “subsection (a)(2) or (b)(2)” for “paragraph (1)(B) or (2)(B)”.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 116–283section 1801(d) of Pub. L. 116–283section 3001 of this titleSection and amendment by effective , with additional provisions for delayed implementation and applicability of existing law, see , set out as an Effective Date of 2021 Amendment note preceding .