10 U.S.C. § 4377 | Breach of critical cost growth threshold: actions if program not terminated

(a)

Actions if Program Not Terminated .—

section 4376 of this titleIf the Secretary elects not to terminate a major defense acquisition program pursuant to subsection (b) of , the Secretary shall—

(1)

restructure the program in a manner that addresses the root cause or causes of the critical cost growth, as identified pursuant to subsection (a) of that section, and ensures that the program has an appropriate management structure as set forth in the certification submitted pursuant to subsection (b)(2)(E) of that section;

(2)

rescind the most recent Milestone approval for the program and withdraw any associated certification under section 4251 or 4252 of this title;

(3)

require a new Milestone approval for the program before taking any contract action to enter a new contract, exercise an option under an existing contract, or otherwise extend the scope of an existing contract under the program, except to the extent determined necessary by the Milestone Decision Authority, on a non-delegable basis, to ensure that the program can be restructured as intended by the Secretary without unnecessarily wasting resources;

(4)

include in the report specified in subsection (b) a description of all funding changes made as a result of the growth in cost of the program, including reductions made in funding for other programs to accommodate such cost growth; and

(5)

conduct regular reviews of the program in accordance with the requirements of section 205 of the Weapon Systems Acquisition Reform Act of 2009.

(b)

Identification of Report for Description of Funding Changes .—

section 4351 of this title section 1105 of title 31For purposes of subsection (a)(4), the report specified in this subsection is the first Selected Acquisition Report for the program submitted pursuant to after the President submits a budget pursuant to , in the calendar year following the year in which the program was restructured.

(c)

Inapplicability of Certain Subsection (a) Requirements.—

(1)

Conditions for inapplicability .—

The requirements of paragraphs (2), (3), and (5) of subsection (a) shall not apply to a program or subprogram if—

(A)

section 4376(a) of this title the Milestone Decision Authority determines in writing, on the basis of a cost assessment and root cause analysis conducted pursuant to , that—

(i)

but for a change in the quantity of items to be purchased under the program or subprogram, the program acquisition unit cost or procurement unit cost for the program or subprogram would not have increased by a percentage equal to or greater than the cost growth thresholds for the program or subprogram set forth in paragraph (2); and

(ii)

the change in quantity of items described in clause (i) was not made as a result of an increase in program cost, a delay in the program, or a problem meeting program requirements;

(B)

the Secretary determines in writing that the cost to the Department of Defense of complying with such requirements is likely to exceed the benefits to the Department of complying with such requirements; and

(C)

section 4375 of this title section 4351(f) of this title the Secretary submits to Congress, before the end of the 60-day period beginning on the day the Selected Acquisition Report containing the information described in subsections (d) and (e) of is required to be submitted under —

(i)

a copy of the written determination under subparagraph (A) and an explanation of the basis for the determination; and

(ii)

a copy of the written determination under subparagraph (B) and an explanation of the basis for the determination.

(2)

Cost growth thresholds .—

The cost growth thresholds specified in this paragraph are as follows:

(A)

In the case of a major defense acquisition program or designated major defense subprogram, a percentage increase in the program acquisition unit cost for the program or subprogram of—

(i)

5 percent over the program acquisition unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; and

(ii)

10 percent over the program acquisition unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.

(B)

In the case of a major defense acquisition program or designated major defense subprogram that is a procurement program, a percentage increase in the procurement unit cost for the program or subprogram of—

(i)

5 percent over the procurement unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; and

(ii)

10 percent over the procurement unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.

Pub. L. 116–283, div. A, title XVIII, § 1850(a)Jan. 1, 2021134 Stat. 4265 Pub. L. 117–81, div. A, title XVII, § 1701oDec. 27, 2021135 Stat. 2148 (Added and amended , (k), , , 4270; ()(6)(E)(vi), (vii), , .)

Editorial Notes

References in Text

section 205 of Pub. L. 111–23 section 4252 of this title section 2366b of this titleSection 205 of the Weapon Systems Acquisition Reform Act of 2009, referred to in subsec. (a)(5), is , which amended and enacted provisions set out as notes under this section and former .

Codification

section 2433a of this title Pub. L. 116–283, § 1850(k)(1)Pub. L. 111–23, title II, § 206(a)(1)May 22, 2009123 Stat. 1726 Pub. L. 112–81, div. A, title VIIIDec. 31, 2011125 Stat. 1484 Pub. L. 112–239, div. A, title VIII, § 813Jan. 2, 2013126 Stat. 1829 The text of subsec. (c) of , which was transferred to this section and redesignated as subsec. (a) by , was based on , , ; , §§ 801(e)(4), 831, , , 1503; , , .

Prior Provisions

Pub. L. 88–647, title III, § 301(10)Oct. 13, 196478 Stat. 1072 Prior sections 4381 to 4387 were repealed by , , .

act Aug. 10, 1956, ch. 1041 70A Stat. 246 Section 4381, , , defined “advanced training” for purposes of chapter 405.

act Aug. 10, 1956, ch. 1041 70A Stat. 246 Section 4382, , , provided for the establishment and composition of the Reserve Officers’ Training Corps.

act Aug. 10, 1956, ch. 1041 70A Stat. 247 Section 4383, , , related to admission and training of medical, dental, pharmacy, and veterinary students.

act Aug. 10, 1956, ch. 1041 70A Stat. 247 Pub. L. 85–861, § 1(104)Sept. 2, 195872 Stat. 1489 Section 4384, , ; , , , set out courses of training.

act Aug. 10, 1956, ch. 1041 70A Stat. 247 Section 4385, , , authorized the operation and maintenance of training camps.

act Aug. 10, 1956, ch. 1041 70A Stat. 248 Section 4386, , , provided for supplies and uniforms.

act Aug. 10, 1956, ch. 1041 70A Stat. 248 Section 4387, , , provided for advanced training and compensation.

Amendments

Pub. L. 116–283, § 1850(k)(2)2021—, redesignated pars. (2) and (3) of subsec. (a) as subsecs. (b) and (c), respectively.

Pub. L. 116–283, § 1850(k)(1)section 2433a of this title, transferred subsec. (c) of to this section and redesignated it as subsec. (a).

Pub. L. 116–283, § 1850(k)(3)(A)section 4376 of this titleSubsec. (a). –(C), struck out par. (1) designation before “If the Secretary”, inserted “of ” after “subsection (b)” in introductory provisions, and redesignated subpars. (A) to (E) as pars. (1) to (5), respectively.

Pub. L. 116–283, § 1850(k)(3)(D)Subsec. (a)(1). , inserted “of that section” after “subsection (a)” and “subsection (b)(2)(E)”.

Pub. L. 116–283, § 1850(k)(3)(E)Subsec. (a)(2). , substituted “section 4251 or 4252” for “section 2366a or 2366b”.

Pub. L. 116–283, § 1850(k)(3)(F)Subsec. (a)(4). , substituted “subsection (b)” for “paragraph (2)”.

Pub. L. 116–283, § 1850(k)(4)Pub. L. 117–81, § 1701oSubsec. (b). , as amended by ()(6)(E)(vi), inserted heading and substituted “subsection (a)(4)” for “paragraph (1)(D)”, “in this subsection” for “in this paragraph”, and “section 4351” for “section 2432”.

Pub. L. 116–283, § 1850(k)(5)Subsec. (c). , inserted subsec. heading, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, inserted par. headings, and substituted “The requirements of paragraphs (2), (3), and (5) of subsection (a)” for “The requirements of subparagraphs (B), (C), and (E) of paragraph (1)” in introductory provisions of par. (1).

Pub. L. 116–283, § 1850(k)(6)(A)Subsec. (c)(1). , redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively.

Pub. L. 116–283, § 1850(k)(6)(C)(i)section 4376(a) of this titleSubsec. (c)(1)(A). , substituted “pursuant to ” for “pursuant to subsection (a)” in introductory provisions.

Pub. L. 116–283, § 1850(k)(6)(B), redesignated subcls. (I) and (II) as cls. (i) and (ii), respectively.

Pub. L. 116–283, § 1850(k)(6)(C)(ii)Subsec. (c)(1)(A)(i). , substituted “paragraph (2)” for “subparagraph (B)”.

Pub. L. 116–283, § 1850(k)(6)(C)(iii)Subsec. (c)(1)(A)(ii). , substituted “clause (i)” for “subclause (I)”.

Pub. L. 116–283, § 1850(k)(6)(D)(i)Pub. L. 117–81, § 1701oSubsec. (c)(1)(C). , as amended by ()(6)(E)(vii), substituted “subsections (d) and (e) of section 4375” for “section 2433(g)” and “section 4351(f)” for “section 2432(f)” in introductory provisions.

Pub. L. 116–283, § 1850(k)(6)(B), redesignated subcls. (I) and (II) as cls. (i) and (ii), respectively.

Pub. L. 116–283, § 1850(k)(6)(D)(ii)Subsec. (c)(1)(C)(i). , substituted “subparagraph (A)” for “clause (i)”.

Pub. L. 116–283, § 1850(k)(6)(D)(iii)Subsec. (c)(1)(C)(ii). , substituted “subparagraph (B)” for “clause (ii)”.

Pub. L. 116–283, § 1850(k)(7)(A)Subsec. (c)(2). , (B), substituted “this paragraph” for “this subparagraph” in introductory provisions and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

Pub. L. 116–283, § 1850(k)(7)(C)Subsec. (c)(2)(A), (B). , redesignated subcls. (I) and (II) as cls. (i) and (ii), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Pub. L. 117–81 Pub. L. 116–283 section 1701(a)(2) of Pub. L. 117–81 section 3001 of this titleAmendment by applicable as if included in the enactment of title XVIII of as enacted, see , set out in a note preceding and Effective Date note below.

Effective Date

Pub. L. 116–283Jan. 1, 2022section 1801(d) of Pub. L. 116–283 section 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 .

Reviews of Programs Restructured After Experiencing Critical Cost Growth

Pub. L. 111–23, title II, § 205(c)May 22, 2009123 Stat. 1725 Pub. L. 111–383, div. A, title VIII, § 813(e)Jan. 7, 2011124 Stat. 4266

section 2430 of this title 10 U.S.C. 4273 section 2433(e) of title 10 10 U.S.C. 4375(a)10 U.S.C. 4376 10 U.S.C. 4377(a)(3)“The official designated to perform oversight of performance assessment pursuant to section 103 of this Act [formerly set out as a note under , see ], shall assess the performance of each major defense acquisition program that has exceeded critical cost growth thresholds established pursuant to [former] , United States Code [see to (c)], but has not been terminated in accordance with [former] section 2433a of such title [see , 4377] (as added by section 206(a) of this Act) not less often than semi-annually until one year after the date on which such program receives a new milestone approval, in accordance with [former] section 2433a(c)(1)(C) of such title [see ] (as so added). The results of reviews performed under this subsection shall be reported to the Under Secretary of Defense for Acquisition, Technology, and Logistics and summarized in the next annual report of such designated official.”

, , , as amended by , title X, § 1075(k)(2), , , 4378, provided that:

Pub. L. 111–383, div. A, title VIII, § 813(e)Jan. 7, 2011124 Stat. 4266 section 205(c) of Pub. L. 111–23May 22, 2009Pub. L. 111–23[, , , provided that the amendment made by section 813(e) to , set out above, is effective as of , and as if included in , as enacted.]

section 205(c) of Pub. L. 111–23 section 2(2) of Pub. L. 111–23 section 4321 of this title[For definition of “major defense acquisition program” as used in , set out above, see , set out as a note preceding .]