- § 4251. Major defense acquisition programs: determination required before Milestone A approval
- § 4252. Major defense acquisition programs: certification required before Milestone B approval
- § 4253. Major defense acquisition programs: submissions to Congress on Milestone C
§ 4251. Major defense acquisition programs: determination required before Milestone A approval
(a)Responsibilities.—Before granting Milestone A approval for a major defense acquisition program or a major subprogram, the milestone decision authority for the program or subprogram shall ensure that—
(1) information about the program or subprogram is sufficient to warrant entry of the program or subprogram into the risk reduction phase;
(2) the Secretary of the military department concerned and the Chief of the armed force concerned concur in the cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program; and
(3) there are sound plans for progression of the program or subprogram to the development phase.
(b)Written Determination Required.—A major defense acquisition program or subprogram may not receive Milestone A approval or otherwise be initiated prior to Milestone B approval until the milestone decision authority determines in writing, after consultation with the Joint Requirements Oversight Council on matters related to program requirements and military needs—
(1) that the program fulfills an approved initial capabilities document;
(2) that the program has been developed in light of appropriate market research;
(3) if the program duplicates a capability already provided by an existing system, the duplication provided by such program is necessary and appropriate;
(4) that, with respect to any identified areas of risk, including risks determined by the identification of critical technologies required under section 4272(a)(1) of this title or any other risk assessment, there is a plan to reduce the risk;
(5) that planning for sustainment has been addressed and that a determination of applicability of core logistics capabilities requirements has been made;
(6) that an analysis of alternatives has been performed consistent with study guidance developed by the Director of Cost Assessment and Program Evaluation;
(7) that a cost estimate for the program has been submitted, with the concurrence of the Director of Cost Assessment and Program Evaluation, and that the level of resources required to develop, procure, and sustain the program is sufficient for successful program execution;
(8) that, with respect to a program initiated after January 1, 2019, technology shall be developed in the program (after Milestone A approval) only if the milestone decision authority determines with a high degree of confidence that such development will not delay the fielding target of the program, or, if the milestone decision authority does not make such determination for a major system component being developed under the program, the milestone decision authority ensures that the technology related to the major system component shall be sufficiently matured and demonstrated in a relevant environment (after Milestone A approval) separate from the program using the prototyping authorities in subchapter II of chapter 327 of this title or other authorities, as appropriate, and have an effective plan for adoption or insertion by the relevant program; and
(9) that the program or subprogram meets any other considerations the milestone decision authority considers relevant.
(c)Submissions to Congress on Milestone A.—
(1)Brief summary report.—Not later than 15 days after granting Milestone A approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a brief summary report that contains the following elements:
(A) The program cost and fielding targets established under section 4271(a) of this title.
(B) The estimated cost and schedule for the program established by the military department concerned, including—
(i) the dollar values estimated for the program acquisition unit cost and total life-cycle cost; and
(ii) the planned dates for each program milestone and initial operational capability.
(C) The independent estimated cost for the program established pursuant to section 3221(b)(6) of this title, and any independent estimated schedule for the program, including—
(i) as assessment of the major contributors to the program acquisition unit cost and total life-cycle cost; and
(ii) the planned dates for each program milestone and initial operational capability.
(D) A summary of the technical or manufacturing risks associated with the program, as determined by the military department concerned, including identification of any critical technologies or manufacturing processes that need to be matured.
(E) A summary of the independent technical risk assessment conducted or approved under section 4272 of this title, including identification of any critical technologies or manufacturing processes that need to be matured.
(F) A summary of any sufficiency review conducted by the Director of Cost Assessment and Program Evaluation of the analysis of alternatives performed for the program (as referred to in subsection (b)(6)).
(G) Any other information the milestone decision authority considers relevant.
(2)Additional information.—
(A) At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee an explanation of the basis for a determination made under subsection (b) with respect to a major defense acquisition program, together with a copy of the written determination, or further information or underlying documentation for the information in a brief summary report submitted under paragraph (1), including the independent cost and schedule estimates and the independent technical risk assessments referred to in that paragraph.
(B) The explanation or information shall be submitted in unclassified form, but may include a classified annex.
(d)Definitions.—In this section:
(1) The term “initial capabilities document” means any capabilities requirement document approved by the Joint Requirements Oversight Council that establishes the need for a materiel approach to resolve a capability gap.
(2) The term “Milestone A approval” means a decision to enter into technology maturation and risk reduction pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.
(3) The term “Milestone B approval” has the meaning provided that term in section 4172(e)(7) of this title.
(4) The term “core logistics capabilities” means the core logistics capabilities identified under section 2464(a) of this title.
(5) The term “milestone decision authority”, with respect to a major defense acquisition program or a major subprogram, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program or subprogram, including authority to approve entry of the program or subprogram into the next phase of the acquisition process.
(6) The term “fielding target” has the meaning given that term in section 4271(a) of this title.
(7) The term “major system component” has the meaning given that term in section 4401(b)(3) of this title.
(8) The term “congressional intelligence committees” has the meaning given that term in section 437(c) of this title.
(Added Pub. L. 110–181, div. A, title IX, § 943(a)(1), Jan. 28, 2008, 122 Stat. 288, § 2366b; renumbered § 2366a and amended Pub. L. 110–417, [div. A], title VIII, § 813(b), (e)(1), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–23, title I, § 101(d)(3), title II, §§ 201(e), 204(a), (b), May 22, 2009, 123 Stat. 1710, 1720, 1723; Pub. L. 111–383, div. A, title VIII, § 814(b), title X, § 1075(b)(33), Jan. 7, 2011, 124 Stat. 4266, 4370; Pub. L. 112–81, div. A, title VIII, § 801(a), (e)(1), Dec. 31, 2011, 125 Stat. 1482, 1483; Pub. L. 112–239, div. A, title III, § 322(e)(1), title X, § 1076(a)(10), Jan. 2, 2013, 126 Stat. 1695, 1948; Pub. L. 114–92, div. A, title VIII, § 823(a), Nov. 25, 2015, 129 Stat. 902; Pub. L. 114–328, div. A, title VIII, §§ 806(b), 807(d), 808(a), Dec. 23, 2016, 130 Stat. 2259, 2262; Pub. L. 115–232, div. A, title VIII, § 831(b)(2), Aug. 13, 2018, 132 Stat. 1857; Pub. L. 116–92, div. A, title XVII, § 1731(a)(44), Dec. 20, 2019, 133 Stat. 1814; renumbered § 4251 and amended Pub. L. 116–283, div. A, title XVIII, § 1847(d)(1), Jan. 1, 2021, 134 Stat. 4254.)
§ 4252. Major defense acquisition programs: certification required before Milestone B approval
(a)Certifications and Determination Required.—A major defense acquisition program may not receive Milestone B approval until the milestone decision authority—
(1) has received a preliminary design review and conducted a formal post-preliminary design review assessment, and certifies on the basis of such assessment that the program demonstrates a high likelihood of accomplishing its intended mission;
(2) further certifies that the technology in the program has been demonstrated in a relevant environment, as determined by the milestone decision authority on the basis of an independent review and technical risk assessment conducted under section 4272 of this title;
(3) determines in writing that—
(A) the program is affordable when considering the ability of the Department of Defense to accomplish the program’s mission using alternative systems;
(B) appropriate trade-offs among cost, schedule, technical feasibility, and performance objectives have been made to ensure that the program is affordable when considering the per unit cost and the total life-cycle cost;
(C) reasonable cost and schedule estimates have been developed to execute, with the concurrence of the Director of Cost Assessment and Program Evaluation, the product development and production plan under the program;
(D) the estimated procurement unit cost for the program and the estimated date for initial operational capability for the baseline description for the program (established under section 4214 of this title) do not exceed the program cost and fielding targets established under section 4271(a) of this title, or, if such estimated cost is higher than the program cost targets or if such estimated date is later than the fielding target, the program cost targets have been increased or the fielding target has been delayed by the milestone decision authority;
(E) funding is expected to be available to execute the product development and production plan for the program, consistent with the estimates described in subparagraph (C) for the program;
(F) appropriate market research has been conducted prior to technology development to reduce duplication of existing technology and products;
(G) the Department of Defense has completed an analysis of alternatives with respect to the program;
(H) the Joint Requirements Oversight Council has accomplished its duties with respect to the program pursuant to section 181(b) of this title, including an analysis of the operational requirements for the program;
(I) life-cycle sustainment planning, including corrosion prevention and mitigation planning, has identified and evaluated relevant sustainment costs throughout development, production, operation, sustainment, and disposal of the program, and any alternatives, and that such costs are reasonable and have been accurately estimated;
(J) an estimate has been made of the requirements for core logistics capabilities and the associated sustaining workloads required to support such requirements;
(K) there is a plan to mitigate and account for any costs in connection with any anticipated de-certification of cryptographic systems and components during the production and procurement of the major defense acquisition program to be acquired;
(L) the program complies with all relevant policies, regulations, and directives of the Department of Defense;
(M) the Secretary of the military department concerned and the Chief of the armed force concerned concur in the trade-offs made in accordance with subparagraph (B);
(N) the requirements of section 4402(e) of this title are met;
(O) appropriate actions have been taken to negotiate and enter into a contract or contract options for the technical data required to support the program; and
(P) has approved the life cycle sustainment plan required under section 4324(b) of this title.1
1 So in original. Does not fit with par. (3) introductory provisions and period at end probably should be a semicolon.
(4) in the case of a space system, performs a cost benefit analysis for any new or follow-on satellite system using a dedicated ground control system instead of a shared ground control system, except that no cost benefit analysis is required to be performed under this paragraph for any Milestone B approval of a space system after December 31, 2019; and
(5) in the case of a naval vessel program, certifies compliance with the requirements of section 8669b of this title.
(b)Changes to Certifications or Determination.—
(1) The program manager for a major defense acquisition program that has received certifications or a determination under subsection (a) shall immediately notify the milestone decision authority of any changes to the program or a designated major subprogram of such program that—
(A) alter the substantive basis for the certifications or determination of the milestone decision authority relating to any component of such certifications or determination specified in paragraph (1), (2), or (3) of subsection (a); or
(B) otherwise cause the program or subprogram to deviate significantly from the material provided to the milestone decision authority in support of such certifications or determination.
(2) Upon receipt of information under paragraph (1), the milestone decision authority may withdraw the certifications or determination concerned or rescind Milestone B approval if the milestone decision authority determines that such certifications, determination, or approval are no longer valid.
(c)Submissions to Congress on Milestone B.—
(1)Brief summary report.—Not later than 15 days after granting Milestone B approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a brief summary report that contains the following elements:
(A) The program cost and fielding targets established under section 4271(a) of this title.
(B) The estimated cost and schedule for the program established by the military department concerned, including—
(i) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and
(ii) the planned dates for each program milestone, initial operational test and evaluation, and initial operational capability.
(C) The independent estimated cost for the program established pursuant to section 3221(b)(6) of this title, and any independent estimated schedule for the program, including—
(i) the dollar values and ranges estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and
(ii) the planned dates for each program milestone, initial operational test and evaluation, and initial operational capability.
(D) A summary of the technical and manufacturing risks associated with the program, as determined by the military department concerned, including identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.
(E) A summary of the independent technical risk assessment conducted or approved under section 4272 of this title, including identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.
(F) A statement of whether a modular open system approach is being used for the program.
(G) An assessment of the sufficiency of developmental test and evaluation plans, including the use of automated data analytics or modeling and simulation tools and methodologies.
(H) A summary of the life cycle sustainment plan required under section 4324 of this title.
(I) Any other information the milestone decision authority considers relevant.
(2)Certifications and determinations.—
(A) The certifications and determination under subsection (a) with respect to a major defense acquisition program shall be submitted to the congressional defense committees with the first Selected Acquisition Report submitted under section 4351 of this title after completion of the certification.
(B) The milestone decision authority shall retain records of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a).
(3)Additional information.—
(A) At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee an explanation of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a) with respect to a major defense acquisition program or further information or underlying documentation for the information in a brief summary report submitted under paragraph (1), including the independent cost and schedule estimates and the independent technical risk assessments referred to in that paragraph.
(B) The explanation or information shall be submitted in unclassified form, but may include a classified annex.
(d)Waiver for National Security.—
(1) The milestone decision authority may, at the time of Milestone B approval or at the time that such milestone decision authority withdraws a certification or rescinds Milestone B approval pursuant to subsection (b)(2), waive the applicability to a major defense acquisition program of one or more components (as specified in paragraph (1), (2), or (3) of subsection (a)) of the certification and determination requirements if the milestone decision authority determines that, but for such a waiver, the Department would be unable to meet critical national security objectives.
(2) Whenever the milestone decision authority makes such a determination and authorizes such a waiver—
(A) the waiver, the waiver determination, and the reasons for the waiver determination shall be submitted in writing to the congressional defense committees within 30 days after the waiver is authorized; and
(B) the milestone decision authority shall review the program not less often than annually to determine the extent to which such program currently satisfies the certification and determination components specified in paragraphs (1), (2), and (3) of subsection (a) until such time as the milestone decision authority determines that the program satisfies all such certification and determination components.
(3) The requirement in paragraph (2)(B) shall not apply to a program for which a certification was required pursuant to section 4377 of this title if the milestone decision authority—
(A) determines in writing that—
(i) the program has reached a stage in the acquisition process at which it would not be practicable to meet the certification component that was waived; and
(ii) the milestone decision authority has taken appropriate alternative actions to address the underlying purposes of such certification component; and
(B) submits the written determination, and an explanation of the basis for the determination, to the congressional defense committees.
(e)Designation of Certification Status in Budget Documentation.—Any budget request, budget justification material, budget display, reprogramming request, Selected Acquisition Report, or other budget documentation or performance report submitted by the Secretary of Defense to the President regarding a major defense acquisition program receiving a waiver pursuant to subsection (d) shall prominently and clearly indicate that such program has not fully satisfied the certification requirements of this section until such time as the milestone decision authority makes the determination that such program has satisfied all such certification requirements.
(f)Nondelegation.—The milestone decision authority may not delegate the certification requirement under subsection (a) or the authority to waive any component of such requirement under subsection (d).
(g)Definitions.—In this section:
(1) The term “milestone decision authority”, with respect to a major defense acquisition program, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program, including authority to approve entry of the program into the next phase of the acquisition process.
(2) The term “Milestone B approval” has the meaning provided that term in section 4172(e)(7) of this title.
(3) The term “core logistics capabilities” means the core logistics capabilities identified under section 2464(a) of this title.
(4) The term “fielding target” has the meaning given that term in section 4271(a) of this title.
(5) The term “major system component” has the meaning given that term in section 4401(b)(3) of this title.
(6) The term “congressional intelligence committees” has the meaning given that term in section 437(c) of this title.
(Added Pub. L. 109–163, div. A, title VIII, § 801(a), Jan. 6, 2006, 119 Stat. 3366, § 2366a; amended Pub. L. 109–364, div. A, title VIII, § 805, Oct. 17, 2006, 120 Stat. 2314; Pub. L. 110–181, div. A, title VIII, § 812, Jan. 28, 2008, 122 Stat. 219; renumbered § 2366b, Pub. L. 110–417, [div. A], title VIII, § 813(a), (b), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–23, title I, § 101(d)(4), title II, §§ 201(f), 205(a), May 22, 2009, 123 Stat. 1710, 1720, 1724; Pub. L. 111–383, div. A, title VIII, §§ 813(d)(1), 814(c), title IX, § 901(j)(4), title X, § 1075(k)(1), Jan. 7, 2011, 124 Stat. 4265, 4266, 4324, 4378; Pub. L. 112–81, div. A, title VIII, §§ 801(b), (e)(2), 819(b), Dec. 31, 2011, 125 Stat. 1483, 1484, 1501; Pub. L. 112–239, div. A, title III, § 322(e)(2), title IX, § 904(e)(2), Jan. 2, 2013, 126 Stat. 1695, 1867; Pub. L. 113–66, div. A, title VIII, §§ 821(a), 822(a), title X, § 1091(b)(1), Dec. 26, 2013, 127 Stat. 809, 876; Pub. L. 114–92, div. A, title VIII, § 824(a), Nov. 25, 2015, 129 Stat. 903; Pub. L. 114–328, div. A, title VIII, §§ 805(a)(3), 807(e), 808(b), 843, Dec. 23, 2016, 130 Stat. 2255, 2262, 2263, 2290; Pub. L. 115–91, div. A, title VIII, §§ 835(b)(1), 838(a)(1), Dec. 12, 2017, 131 Stat. 1471, 1474; Pub. L. 115–232, div. A, title VIII, § 831(b)(3), Aug. 13, 2018, 132 Stat. 1857; Pub. L. 116–92, div. A, title VIII, § 833, Dec. 20, 2019, 133 Stat. 1494; renumbered § 4252 and amended Pub. L. 116–283, div. A, title VIII, § 802(b), title XVIII, §§ 1847(d)(2), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3732, 4255, 4294; Pub. L. 117–81, div. A, title XVII, § 1701(o)(6)(C)(iii), Dec. 27, 2021, 135 Stat. 2147.)
§ 4253. Major defense acquisition programs: submissions to Congress on Milestone C
(a)Brief Summary Report.—Not later than 15 days after granting Milestone C approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a brief summary report that contains the following:
(1) The estimated cost and schedule for the program established by the military department concerned, including—
(A) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and
(B) the planned dates for initial operational test and evaluation and initial operational capability.
(2) The independent estimated cost for the program established pursuant to section 3221(b)(6) of this title, and any independent estimated schedule for the program, including—
(A) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and
(B) the planned dates for initial operational test and evaluation and initial operational capability.
(3) A summary of any production, manufacturing, and fielding risks associated with the program.
(4) An assessment of the sufficiency of the developmental test and evaluation completed, including the use of automated data analytics or modeling and simulation tools and methodologies.
(b)Additional Information.—At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee further information or underlying documentation for the information in a brief summary report submitted under subsection (a), including the independent cost and schedule estimates and the independent technical risk assessments referred to in that subsection.
(c)Congressional Intelligence Committees Defined.—In this section, the term “congressional intelligence committees” has the meaning given that term in section 437(c) of this title.
(Added Pub. L. 114–328, div. A, title VIII, § 808(c)(1), Dec. 23, 2016, 130 Stat. 2265, § 2366c; amended Pub. L. 115–91, div. A, title VIII, § 838(a)(2), Dec. 12, 2017, 131 Stat. 1474; renumbered § 4253 and amended Pub. L. 116–283, div. A, title XVIII, § 1847(d)(3), Jan. 1, 2021, 134 Stat. 4256.)