Collapse to view only § 3603. Software acquisition pathways
- § 3601. Procedures for urgent acquisition and deployment of capabilities needed in response to urgent operational needs or vital national security interest
- § 3602. Middle tier of acquisition for rapid prototyping and rapid fielding
- § 3603. Software acquisition pathways
- § 3604. Program to accelerate the procurement and fielding of innovative technologies
§ 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 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)Rapid acquisition pathway defined.—In this section, the term “rapid acquisition pathway” means the rapid prototyping or the rapid fielding acquisition pathway authorized under section 3602 of this title.
(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 section 3602 of this title.
(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 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 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,1
1 See References in Text note below.
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 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 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 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; Pub. L. 118–159, div. A, title VIII, § 804(c)(1), title XVII, § 1701(a)(37), Dec. 23, 2024, 138 Stat. 1968, 2205.)
§ 3602. Middle tier of acquisition for rapid prototyping and rapid fielding
(a)Guidance Required.—The Under Secretary of Defense for Acquisition and Sustainment, in consultation with the Comptroller of the Department of Defense and the Vice Chairman of the Joint Chiefs of Staff, shall establish pathways as described under subsection (b) to establish a process for conducting middle tier acquisitions for programs or projects that are intended to be completed in a period of two to five years.
(b)Acquisition Pathways.—The Under Secretary of Defense for Acquisition and Sustainment shall establish the following two acquisition pathways:
(1)Rapid prototyping.—The rapid prototyping pathway shall provide for the use of innovative technologies to rapidly develop fieldable prototypes to demonstrate new capabilities and meet emerging military needs. The objective of an acquisition program or project under this pathway shall be to field a prototype that can be demonstrated in an operational environment and provide for a residual operational capability within five years of the development of an approved requirement.
(2)Rapid fielding.—The rapid fielding pathway shall provide for the use of proven technologies to field production quantities of new or upgraded systems with minimal development required. The objective of an acquisition program or project under this pathway shall be to begin production within six months and complete fielding within five years of the development of an approved requirement.
(c)Expedited Process.—
(1)In general.—Before using the authority under this section, the Under Secretary shall develop a streamlined and coordinated requirements, budget, and acquisition process that results in the development of an approved requirement for each acquisition program or project in a period of not more than six months from the time that the process is initiated. Programs or projects carried out under the authority of this section shall not be subject to the Joint Capabilities Integration and Development System Manual and Department of Defense Directive 5000.01.
(2)Rapid prototyping.—With respect to the rapid prototyping pathway, the process described in paragraph (1) shall include—
(A) a merit-based process for the consideration of innovative technologies and new capabilities to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders;
(B) a process for developing and implementing acquisition and funding strategies for a program or project to be carried out under such pathway;
(C) a process for demonstrating and evaluating the performance of fieldable prototypes developed pursuant to such program or project in an operational environment;
(D) a process for transitioning successful prototypes to new or existing acquisition programs for production and fielding under the rapid fielding pathway or the major capability acquisition pathway (as defined under Department of Defense Instruction 5000.85 or successor instruction); and
(E) a process for iterating prototyping and fielding within the rapid prototyping pathway that may use a process described in paragraph (4)(F).
(3)Rapid fielding.—With respect to the rapid fielding pathway, the process described in paragraph (1) shall include—
(A) a merit-based process for the consideration of existing products and proven technologies to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders;
(B) a process for demonstrating performance and evaluating for current operational purposes the proposed products and technologies;
(C) a process for developing and implementing acquisition and funding strategies for a program or project to be carried out under such pathway;
(D) a process for considering lifecycle costs and addressing issues of logistics support and system interoperability; and
(E) a process for identifying and exploiting opportunities to use the rapid fielding pathway to reduce total ownership costs.
(4)Streamlined procedures.—The process described in paragraph (1) may provide for any of the following streamlined procedures:
(A) The service acquisition executive of the military department concerned may appoint a program manager for a program or project for which the authority under this section is used from among candidates from among civilian employees or members of the armed forces who have significant and relevant experience managing large and complex programs.
(B) A program manager appointed under subparagraph (A) may be provided staff positions for a technical staff, including experts in business management, cost estimation, contracting, auditing, engineering, certification, testing, and logistics, to enable the program manager to manage the program without the technical assistance of another element of the Department of Defense to the maximum extent practicable.
(C) A program manager appointed under subparagraph (A) may, in coordination with the users of the good or service to be acquired under such a program or project and the test community, to make trade-offs among life-cycle costs, requirements, and schedules to meet the goals of the program or project.
(D) Each service acquisition executive, acting in coordination with the defense acquisition executive, may serve as the decision authority for a program or project for which the authority under this section is used, or shall delegate such decision authority.
(E) A program manager appointed under subparagraph (A) may seek an expedited waiver from any regulatory requirement, or in the case of a statutory requirement, a waiver from Congress, that the program manager determines adds cost, schedule, or performance delays with little or no value to the management of such program or project.
(F) If an operational capability is fielded for a program or project for which the authority under this section is used, the appropriate service acquisition executive may permit continuous iterative prototyping and fielding under the same program or project for an unlimited number of subsequent periods, where each period is intended to be five years.
(Added Pub. L. 118–159, div. A, title VIII, § 804(a), Dec. 23, 2024, 138 Stat. 1966.)
§ 3603. Software acquisition pathways
(a)Software Acquisition and Development Pathways.—The Secretary of Defense shall establish pathways as described under subsection (b) to provide for the efficient and effective acquisition, development, integration, and timely delivery of software and covered hardware. Such a pathway shall include the following: 1
1 So in original.
(b)Pathways.—The Secretary of Defense may establish as many pathways under this section as the Secretary determines appropriate and shall establish the following pathways:
(1)Applications.—The applications pathway shall provide for the use of rapid development and implementation of applications and other software or software improvements operated by the Department of Defense, which may include applications and associated procurement of covered hardware (including modifications of a type not customarily available in the commercial marketplace to meet Department requirements), commercially available cloud computing platforms, and other nondevelopmental items.
(2)Embedded systems.—The embedded systems pathway shall provide for the rapid development and insertion of upgrades and improvements for software and covered hardware embedded in weapon systems and other hardware systems unique to the Department of Defense.
(c)Requirements for Pathways.—A pathway established under this section shall provide for the use of proven technologies and solutions to continuously engineer and deliver capabilities for software and covered hardware.
(d)Considerations for Use of Authority.—In using the authority under this section, the Secretary shall consider how such use will—
(1) initiate the engineering of new software capabilities quickly and, if applicable, the integration of such capabilities into covered hardware;
(2) demonstrate the viability and effectiveness of such capabilities for operational use not later than one year after the date on which funds are first obligated to acquire or develop software; and
(3) allow for the continuous updating and delivery of new capabilities not less frequently than annually to iteratively meet a requirement.
(e)Treatment Not as Major Defense Acquisition Program.—Software and covered hardware acquired or developed using the authority under this section shall not be treated as a major defense acquisition program for purposes of section 4201 of title 10, United States Code, or Department of Defense Directive 5000.01 without the specific designation of such software and covered hardware by the Under Secretary of Defense for Acquisition and Sustainment or a service acquisition executive.
(f)Risk-based Approach.—The Secretary of Defense shall use a risk-based approach for the consideration of innovative technologies and new capabilities for software and covered hardware to be acquired or developed under this authority to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders.
(g)Expedited Process.—
(1)In general.—A pathway established under this section shall provide for—
(A) a streamlined and coordinated requirements, budget, and acquisition process to support rapid fielding of software applications and of software upgrades to embedded systems for operational use in a period of not more than one year from the time that the process is initiated;
(B) the collection of data on software and covered hardware fielded; and
(C) continuous engagement with the users of software and covered hardware to support—
(i) engineering activities of the Department of Defense; and
(ii) delivery of software and covered hardware for operational use in periods of not more than one year.
(2)Expedited software requirements process.—
(A)Inapplicability of joint capabilities integration and development system manual.—Software and covered hardware acquisition or development conducted under the authority of this section shall not be subject to the Joint Capabilities Integration and Development System Manual, except pursuant to a modified process specifically provided for the acquisition or development of software by the Vice Chairman of the Joint Chiefs of Staff, in consultation with Under Secretary of Defense for Acquisition and Sustainment and each service acquisition executive.
(B)Inapplicability of defense acquisition system directive.—Software and covered hardware acquisition or development conducted under the authority of this section shall not be subject to Department of Defense Directive 5000.01, except when specifically provided for the acquisition or development of software by the Under Secretary of Defense for Acquisition and Sustainment, in consultation with the Vice Chairman of the Joint Chiefs of Staff and each service acquisition executive.
(h)Elements.—In implementing a pathway established under the authority of this section, the Secretary shall tailor requirements relating to—
(1) iterative development of requirements for software and covered hardware to be acquired or developed under the authority of this section through engagement with the user community and through user feedback, in order to continuously define and update priorities for such requirements;
(2) early identification of the warfighter or user needs including the rationale for how software and covered hardware to be acquired or developed under the authority of this section will be tailored to address such needs;
(3) initial contract requirements and format, including the use of summary-level lists of problems in existing software and desired features or capabilities of new or upgraded software;
(4) continuous refinement and prioritization of contract requirements, informed by continuous engagement with users throughout the period of development and implementation of software and covered hardware to be acquired or developed under this section;
(5) continuous consideration of issues related to lifecycle costs, technical data rights, and systems interoperability;
(6) planning for support of capabilities of software to be acquired or developed under this section if the software developer stops supporting the software;
(7) rapid contracting procedures, including expedited timeframes for making awards, selecting contract types, defining teaming arrangements, and defining options;
(8) program execution processes, including supporting development and test infrastructure, automation and tools, digital engineering, data collection and sharing with Department of Defense stakeholders and with Congress, the role of developmental and operational testing activities, key decision-making and oversight events, and supporting processes and activities (such as independent costing activity, operational demonstration, and performance metrics);
(9) assurances that cybersecurity metrics of the software to be acquired or developed, such as metrics relating to the density of vulnerabilities within the code of such software, the time from vulnerability identification to patch availability, the existence of common weaknesses within such code, and other cybersecurity metrics based on widely-recognized standards and industry best practices, are generated and made available to the Department of Defense and the congressional defense committees;
(10) administrative procedures, including procedures relating to who may initiate and approve an acquisition under this authority, the roles and responsibilities of persons implementing or supporting the use of authority under this section, team selection and staffing process, governance and oversight roles and responsibilities, and appropriate independent technology assessments, testing, and cost estimation (including relevant thresholds or designation criteria);
(11) mechanisms and waivers designed to ensure flexibility in the implementation of a pathway under this section, including the use of other transaction authority, broad agency announcements, and other procedures; and
(12) mechanisms the Secretary will use for appropriate reporting to Congress on the use of the authority under this section, including notice of initiation of the use of a pathway and data regarding individual programs or acquisition activities, how acquisition activities are reflected in budget justification materials or requests to reprogram appropriated funds, and compliance with other reporting requirements.
(i)Definitions.—In this section:
(1) The term “covered hardware” means hardware—
(A) that is a commercial product (as defined in section 103 of title 41) or a nondevelopmental item; and
(B) in which software acquired under this section is embedded.
(2) The term “nondevelopmental item” has the meaning given in section 110 of title 41.
(Added Pub. L. 118–159, div. A, title VIII, § 805(a), Dec. 23, 2024, 138 Stat. 1969.)
§ 3604. Program to accelerate the procurement and fielding of innovative technologies
(a)Program.—Subject to availability of appropriations, the Secretary of Defense shall establish a competitive, merit-based program to accelerate the procurement and fielding of innovative technologies by, with respect to such technologies—
(1) reducing acquisition or life-cycle costs;
(2) addressing technical risks;
(3) improving the timeliness and thoroughness of test and evaluation outcomes; and
(4) rapidly implementing such technologies to directly support defense missions.
(b)Guidelines.—
(1)In general.—The Secretary shall issue guidelines for the operation of the program established under this section.
(2)Contents.—At a minimum, the guidelines for the operation of the program established under this section required under paragraph (1) shall provide for the following:
(A) The issuance of one or more solicitations for proposals by the Department of Defense in support of the program, with a priority established for technologies developed by small business concerns (as defined under section 3 of the Small Business Act (15 U.S.C. 632)) or nontraditional defense contractors (as defined under section 3014 of this title).
(B) The issuance of not more than two solicitations for proposals by the Department of Defense in support of the program each fiscal year for innovative technologies from entities that, during the one-year period preceding the issuance of the solicitation, have not performed on contracts and subcontracts for the Department under which the aggregate obligations of the Department to such entity for such period exceeds $400,000,000.
(C) A process for—
(i) the review of proposals received in response to a solicitation issued under subparagraph (A) by the Secretary of Defense and by each Secretary of a military department;
(ii) the merit-based selection of the most promising cost-effective proposals; and
(iii) the procurement of goods or services offered by such a proposal through contracts, cooperative agreements, other transaction authority, or by another appropriate process.
(c)Maximum Amount.—The total amount of funding provided for any proposal selected for an award under the program established under this section shall not exceed $50,000,000, unless the Secretary (or designee of the Secretary) approves a greater amount of funding.
(d)Data Collection.—
(1)Plan required before implementation.—The Secretary of Defense may not provide funding under this section until the date on which the Secretary—
(A) completes a plan for carrying out the data collection required under paragraph (2); and
(B) submits the plan to the congressional defense committees.
(2)Data collection required.—The Secretary of Defense shall collect and analyze data on the program established under this section for the purposes of—
(A) developing and sharing best practices for achieving the objectives of the program;
(B) providing information on the implementation of the program and related policy issues; and
(C) reporting to the congressional defense committees as required under subsection (e).
(e)Biannual Report.—Not later than March 1 and September 1 of each year beginning after the date of the enactment of this section, the Secretary of Defense shall submit to the congressional defense committees a report on the program established under this section.
(f)Congressional Notification.—The Secretary of Defense shall notify the congressional defense committees within 30 days after funding has been provided for a proposal selected for an award under the program established under this section.
(Added Pub. L. 118–159, div. A, title VIII, § 861(a), Dec. 23, 2024, 138 Stat. 1999.)