§ 3601. Procedures for urgent acquisition and deployment of capabilities needed in response to urgent operational needs or vital national security interest
(a)Procedures.—
(1)In general.—The Secretary of Defense shall prescribe procedures for the urgent acquisition and deployment of capabilities needed in response to urgent operational needs. The capabilities for which such procedures may be used in response to an urgent operational need are those—
(A) that, subject to such exceptions as the Secretary considers appropriate for purposes of this section—
(i) can be fielded within a period of two to 24 months;
(ii) do not require substantial development effort;
(iii) are based on technologies that are proven and available; and
(iv) can appropriately be acquired under fixed-price contracts;
(B) that can be developed or procured under a section 804 rapid acquisition pathway; or
(C) with respect to an armed attack by a country of concern (as defined in section 1(m) of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2651a(m)), to which the United States is not a party, for purposes of—
(i) replenishing United States stockpiles of defense articles when such stockpiles are diminished as a result of the United States providing defense articles in response to such armed attack by a country of concern against—(I) a United States ally (as that term is defined in section 201(d) of the Act of December 2, 1942, titled “To provide benefits for the injury, disability, death, or enemy detention of employees of contractors with the United States, and for other purposes” (56 Stat. 1028, chapter 668; 42 U.S.C. 1711(d))); or(II) a United States partner; or
(ii) contracting for the movement or delivery of defense articles transferred to such ally or partner through the President’s drawdown authorities under sections 506(a)(1) and 614 of the Foreign Assistance Act of 1961 (22 U.S.C. 2318(a)(1) and 2364) in connection with such response.
(2)Definition.—In this section, the term “section 804 rapid acquisition pathway” means the rapid fielding acquisition pathway or the rapid prototyping acquisition pathway authorized under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 3201 prec.).1
1 So in original. Probably should be “10 U.S.C. 3201 note prec.).”
(b)Matters to Be Included.—The procedures prescribed under subsection (a) shall include the following:
(1) A process for streamlined communications between the Chairman of the Joint Chiefs of Staff, the acquisition community, and the research and development community, including—
(A) a process for the commanders of the combatant commands and the Chairman of the Joint Chiefs of Staff to communicate their 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 capabilities that meet the needs communicated by the combatant commands and the Chairman of the Joint Chiefs of Staff.
(2) Procedures for demonstrating, rapidly acquiring, and deploying a capability proposed pursuant to paragraph (1)(B), including—
(A) a process for demonstrating and evaluating for current operational purposes the performance of the capability;
(B) a process for developing an acquisition and funding strategy for the deployment of the capability; and
(C) a process for making deployment and utilization determinations based on information obtained pursuant to subparagraphs (A) and (B).
(3) A process to determine the disposition of a capability, including termination (demilitarization or disposal), continued sustainment, or transition to a program of record.
(4) Specific procedures in accordance with the guidance developed under section 804(a) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 3201 note prec.).
(c)Response to Combat Emergencies and Certain Urgent Operational Needs.—
(1)Determination of need for urgent acquisition and deployment.—
(A) In the case of any capability that, as determined in writing by the Secretary of Defense, is urgently needed to eliminate a documented deficiency that has resulted in combat casualties, or is likely to result in combat casualties, the Secretary may use the procedures developed under this section in order to accomplish the urgent acquisition and deployment of the needed capability.
(B) In the case of any capability that, as determined in writing by the Secretary of Defense, is urgently needed to eliminate a documented deficiency that impacts an ongoing or anticipated contingency operation and that, if left unfulfilled, could potentially result in loss of life or critical mission failure, the Secretary may use the procedures developed under this section in order to accomplish the urgent acquisition and deployment of the needed capability.
(C)
(i) In the case of any cyber capability that, as determined in writing by the Secretary of Defense, is urgently needed to eliminate a deficiency that as the result of a cyber attack has resulted in critical mission failure, the loss of life, property destruction, or economic effects, or if left unfilled is likely to result in critical mission failure, the loss of life, property destruction, or economic effects, the Secretary may use the procedures developed under this section in order to accomplish the urgent acquisition and deployment of the needed offensive or defensive cyber capability.
(ii) In this subparagraph, the term “cyber attack” means a deliberate action to alter, disrupt, deceive, degrade, or destroy computer systems or networks or the information or programs resident in or transiting these systems or networks.
(2)Designation of senior official responsible.—
(A)
(i) Except as provided under clause (ii), whenever the Secretary of Defense makes a determination under subparagraph (A), (B), or (C) of paragraph (1) that a capability is urgently needed to eliminate a deficiency described in that subparagraph, the Secretary shall designate a senior official of the Department of Defense to ensure that the needed capability is acquired and deployed as quickly as possible, with a goal of awarding a contract for the acquisition of the capability within 15 days.
(ii) Clause (i) does not apply to an acquisition initiated in the case of a determination by the Secretary of Defense that funds are necessary to immediately initiate a project under a section 804 rapid acquisition pathway if the designated official for acquisitions using such pathway is a service acquisition executive.
(B) Upon designation of a senior official under subparagraph (A) with respect to a needed capability, the Secretary shall authorize that senior official to waive any provision of law or regulation described in subsection (d) that such senior official determines in writing would unnecessarily impede the urgent acquisition and deployment of such capability. In a case in which such capability cannot be acquired without an extensive delay, the senior official shall require that an interim solution be implemented and deployed using the procedures developed under this section to minimize adverse consequences resulting from the urgent need.
(3)Use of funds.—
(A) Subject to subparagraph (C), in any fiscal year in which the Secretary of Defense makes a determination described in subparagraph (A), (B), or (C) of paragraph (1) with respect to a capability, or upon the Secretary making a determination that funds are necessary to immediately initiate a project under a section 804 rapid acquisition pathway based on a compelling national security need, the Secretary may use any funds available to the Department of Defense to urgently acquire and deploy such capability or immediately initiate such project, respectively, if the determination includes a written finding that the use of such funds is necessary to address in a timely manner the deficiency documented or identified under such subparagraph (A), (B), or (C) or the compelling national security need identified for purposes of such section 804 pathway, respectively.
(B) The authority provided by this section may only be used to acquire capability—
(i) in the case of determinations by the Secretary under paragraph (1)(A), in an amount aggregating not more than $200,000,000 during any fiscal year;
(ii) in the case of determinations by the Secretary under paragraph (1)(B), in an amount aggregating not more than $200,000,000 during any fiscal year;
(iii) in the case of determinations by the Secretary under paragraph (1)(C), in an amount aggregating not more than $200,000,000 during any fiscal year; and
(iv) in the case of a determination by the Secretary that funds are necessary to immediately initiate a project under a section 804 rapid acquisition pathway, in an amount aggregating not more than $50,000,000 during any fiscal year.
(C) In exercising the authority under this section—
(i) none of the amounts appropriated for Operation and Maintenance may be used to carry out this section except for amounts appropriated for—(I) Operation and Maintenance, Defense-wide;(II) Operation and Maintenance, Army;(III) Operation and Maintenance, Navy;(IV) Operation and Maintenance, Marine Corps;(V) Operation and Maintenance, Air Force; or(VI) Operation and Maintenance, Space Force; and
(ii) when funds are utilized for sustainment purposes, this authority may not be used for more than 2 years.
(4)Notification to congressional defense committees.—
(A) In the case of a determination by the Secretary of Defense under subparagraph (A) or (C) of paragraph (1), the Secretary shall notify the congressional defense committees of the determination within 15 days after the date of the determination.
(B) In the case of a determination by the Secretary under paragraph (1)(B), the Secretary shall notify the congressional defense committees of the determination at least 10 days before the date on which the determination is effective.
(C) In the case of a determination by the Secretary under paragraph (3)(A) that funds are necessary to immediately initiate a project under a section 804 rapid acquisition pathway, the Secretary shall notify the congressional defense committees of the determination within 10 days after the date of the use of such funds.
(D) A notice under this paragraph shall include the following:
(i) Identification of the capability to be acquired.
(ii) The amount anticipated to be expended for the acquisition.
(iii) The source of funds for the acquisition.
(E) A notice under this paragraph shall fulfill any requirement to provide notification to Congress for a program (referred to as a “new start program”) that has not previously been specifically authorized by law or for which funds have not previously been appropriated.
(F) A notice under this paragraph shall be provided in consultation with the Director of the Office of Management and Budget.
(5)Limitation on officers with authority.—The authority to make determinations under subparagraph (A), (B), or (C) of paragraph (1) and under paragraph (3)(A) that funds are necessary to immediately initiate a project under a section 804 rapid acquisition pathway, to designate a senior official responsible under paragraph (3), and to provide notification to the congressional defense committees under paragraph (4) may be exercised only by the Secretary of Defense or the Deputy Secretary of Defense.
(d)Authority to Waive Certain Laws and Regulations.—
(1)Authority.—Following a determination described in subsection (c)(1), the senior official designated in accordance with subsection (c)(2), with respect to that designation, may waive any provision of law or regulation addressing—
(A) the establishment of a requirement or specification for the capability to be acquired;
(B) the research, development, test, and evaluation of the capability to be acquired;
(C) the production, fielding, and sustainment of the capability to be acquired; or
(D) the solicitation, selection of sources, and award of the contracts for procurement of the capability to be acquired.
(2)Limitations.—Nothing in this subsection authorizes the waiver of—
(A) the requirements of this section;
(B) any provision of law imposing civil or criminal penalties; or
(C) any provision of law governing the proper expenditure of appropriated funds.
(e)Operational Assessments.—
(1)In general.—The process prescribed under subsection (b)(2)(A) for demonstrating and evaluating for current operational purposes the performance of a capability proposed pursuant to subsection (b)(1)(B) shall include the following:
(A) An operational assessment in accordance with procedures prescribed by the Director of Operational Test and Evaluation.
(B) A requirement to provide information about any deficiency of the capability in meeting the original requirements for the capability (as stated in a statement of the urgent operational need or similar document) to the deployment decision-making authority.
(2)Limitation.—The process prescribed under subsection (b)(2)(A) may not include a requirement for any deficiency of capability identified in the operational assessment to be the determining factor in deciding whether to deploy the capability.
(3)Director of operational test and evaluation access.—If a capability is deployed under the procedures prescribed pursuant to this section, or under any other authority, before operational test and evaluation of the capability is completed, the Director of Operational Test and Evaluation shall have access to operational records and data relevant to such capability in accordance with section 139(e)(3) of this title for the purpose of completing operational test and evaluation of the capability. Such access shall be provided in a time and manner determined by the Secretary of Defense consistent with requirements of operational security and other relevant operational requirements.
(Added Pub. L. 117–263, div. A, title VIII, § 804(a), Dec. 23, 2022, 136 Stat. 2696; amended Pub. L. 118–31, div. A, title VIII, § 831, title XVIII, § 1801(a)(28), Dec. 22, 2023, 137 Stat. 336, 684.)