- § 4371. Cost growth definitions; applicability of reporting requirements; constant base year dollars
- § 4372. Unit cost reports: quarterly report from program manager to service acquisition executive
- § 4373. Unit cost reports: immediate report from program manager to service acquisition executive upon breach of significant cost growth threshold
- § 4374. Unit cost reports: determinations by service acquisition executive and secretary concerned of breach of significant cost growth threshold or critical cost growth threshold; reports to Congress
- § 4375. Breach of significant cost growth threshold or critical cost growth threshold: required action
- § 4376. Breach of critical cost growth threshold: reassessment of program; presumption of program termination
- § 4377. Breach of critical cost growth threshold: actions if program not terminated
§ 4371. Cost growth definitions; applicability of reporting requirements; constant base year dollars
(a)Definitions.—In this chapter:
(1)Program acquisition unit cost; procurement unit cost; major contract.—Except as provided in section 4203(d) of this title, the terms “program acquisition unit cost”, “procurement unit cost”, and “major contract” have the same meanings as provided in section 4351(a) of this title.
(2)Significant cost growth threshold.—The term “significant cost growth threshold” means the following:
(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) at least 15 percent over the program acquisition unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or
(ii) at least 30 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) at least 15 percent over the procurement unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or
(ii) at least 30 percent over the procurement unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.
(3)Critical cost growth threshold.—The term “critical cost growth threshold” means the following:
(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) at least 25 percent over the program acquisition unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or
(ii) at least 50 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) at least 25 percent over the procurement unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or
(ii) at least 50 percent over the procurement unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.
(4)Baseline estimate.—The term “Baseline Estimate”, with respect to a unit cost report that is submitted under this chapter to the service acquisition executive designated by the Secretary concerned on a major defense acquisition program or designated major subprogram, means the cost estimate included in the baseline description for the program or subprogram under section 4214 of this title.
(5)Original baseline estimate.—The term “original Baseline Estimate” has the same meaning as provided in section 4214(d) of this title.
(6)Procurement program.—The term “procurement program” means a program for which funds for procurement are authorized to be appropriated in a fiscal year.
(b) Reporting under this chapter shall not apply if a program has received a limited reporting waiver under section 4351(h) of this title.
(c) Any determination of a percentage increase under this chapter shall be stated in terms of constant base year dollars (as described in section 4202 of this title).
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1850(a)–(d), Jan. 1, 2021, 134 Stat. 4265, 4266; Pub. L. 117–81, div. A, title XVII, § 1701(o)(6)(E)(i), (ii), Dec. 27, 2021, 135 Stat. 2147, 2148.)
§ 4372. Unit cost reports: quarterly report from program manager to service acquisition executive
(a)Required Reports.—
(1)Requirement.—The program manager for a major defense acquisition program (other than a program not required to be included in the Selected Acquisition Report for that quarter under section 4351(b)(3) of this title) shall, on a quarterly basis, submit to the service acquisition executive designated by the Secretary concerned a written report on the unit costs of the program (or of each designated major subprogram under the program).
(2)Time for submittal.—Each report shall be submitted not more than 30 calendar days after the end of that quarter.
(b)Matter to Be Included in Unit Cost Reports.—The program manager shall include in each such unit cost report the following information with respect to the program (as of the last day of the quarter for which the report is made):
(1) The program acquisition unit cost for the program (or for each designated major subprogram under the program).
(2) In the case of a procurement program, the procurement unit cost for the program (or for each designated major subprogram under the program).
(3) Any cost variance or schedule variance in a major contract under the program since the contract was entered into.
(4) Any changes from program schedule milestones or program performances reflected in the baseline description established under section 4214 of this title that are known, expected, or anticipated by the program manager.
(5) Any significant changes in the total program cost for development and procurement of the software component of the program or subprogram, schedule milestones for the software component of the program or subprogram, or expected performance for the software component of the program or subprogram that are known, expected, or anticipated by the program manager.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1850(a), (e), Jan. 1, 2021, 134 Stat. 4265, 4266; Pub. L. 117–81, div. A, title XVII, § 1701(b)(18), (o)(6)(E)(iii), Dec. 27, 2021, 135 Stat. 2135, 2148.)
§ 4373. Unit cost reports: immediate report from program manager to service acquisition executive upon breach of significant cost growth threshold
If the program manager of a major defense acquisition program for which a unit cost report has previously been submitted under section 4372 of this title determines at any time during a quarter that there is reasonable cause to believe that the program acquisition unit cost for the program (or for a designated major subprogram under the program) or the procurement unit cost for the program (or for such a subprogram), as applicable, has increased by a percentage equal to or greater than the significant cost growth threshold; and if a unit cost report indicating an increase of such percentage or more has not previously been submitted to the service acquisition executive designated by the Secretary concerned, then the program manager shall immediately submit to such service acquisition executive a unit cost report containing the information, determined as of the date of the report, required under section 4372 of this title.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1850(a), (f), Jan. 1, 2021, 134 Stat. 4265, 4266.)
§ 4374. Unit cost reports: determinations by service acquisition executive and secretary concerned of breach of significant cost growth threshold or critical cost growth threshold; reports to Congress
(a)Determination of Breach by Service Acquisition Executive.—When a unit cost report is submitted to the service acquisition executive designated by the Secretary concerned under this chapter with respect to a major defense acquisition program or any designated major subprogram under the program, the service acquisition executive shall determine whether the current program acquisition unit cost for the program or subprogram has increased by a percentage equal to or greater than the significant cost growth threshold, or the critical cost growth threshold, for the program or subprogram.
(b)Additional Determination by Service Acquisition Executive When Program or Subprogram Is a Procurement Program.—When a unit cost report is submitted to the service acquisition executive designated by the Secretary concerned under this chapter with respect to a major defense acquisition program or any designated major subprogram under the program that is a procurement program, the service acquisition executive, in addition to the determination under subsection (a), shall determine whether the procurement unit cost for the program or subprogram has increased by a percentage equal to or greater than the significant cost growth threshold, or the critical cost growth threshold, for the program or subprogram.
(c)Determination of Breach by Secretary Concerned; Notification to Congress.—
(1)In general.—If, based upon the service acquisition executive’s determination, the Secretary concerned determines that the current program acquisition unit cost has increased by a percentage equal to or greater than the significant cost growth threshold or critical cost growth threshold or that the procurement unit cost has increased by a percentage equal to or greater than the significant cost growth threshold or critical cost growth threshold, the Secretary shall notify Congress in writing of such determination and of the increase with respect to the program or subprogram concerned.
(2)Time for submission of notification to congress.—In the case of a determination based on a quarterly report submitted in accordance with section 4372 of this title, the Secretary shall submit the notification to Congress within 45 days after the end of the quarter. In the case of a determination based on a report submitted in accordance with section 4373 of this title, the Secretary shall submit the notification to Congress within 45 days after the date of that report.
(3)Inclusion of date of determination.—The Secretary shall include in the notification the date on which the determination was made.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1850(a), (g), Jan. 1, 2021, 134 Stat. 4265, 4267.)
§ 4375. Breach of significant cost growth threshold or critical cost growth threshold: required action
(a)Breach of significant cost growth threshold; submission of a selected acquisition report.—
(1)General rule.—Except as provided in paragraph (2), whenever the Secretary concerned determines under section 4374 of this title that the program acquisition unit cost or the procurement unit cost of a major defense acquisition program or designated major subprogram has increased by a percentage equal to or greater than the significant cost growth threshold for the program or subprogram, a Selected Acquisition Report shall be submitted to Congress for the first fiscal-year quarter ending on or after the date of the determination or for the fiscal-year quarter which immediately precedes the first fiscal-year quarter ending on or after that date. The report shall include the information described in section 4351(e) of this title and shall be submitted in accordance with section 4351(f) of this title.
(2) Whenever the Secretary makes a determination referred to in paragraph (1) in the case of a major defense acquisition program or designated major subprogram during the second quarter of a fiscal year and before the date on which the President transmits the budget for the following fiscal year to Congress pursuant to section 1105 of title 31, the Secretary is not required to file a Selected Acquisition Report under paragraph (1) but shall include the information described in subsection (d) regarding that program or subprogram in the comprehensive annual Selected Acquisition Report submitted in that quarter.
(b)Breach of Critical Cost Growth Threshold.—If the program acquisition unit cost or procurement unit cost of a major defense acquisition program or designated major subprogram (as determined by the Secretary under section 4374 of this title) increases by a percentage equal to or greater than the critical cost growth threshold for the program or subprogram, the Secretary of Defense shall take actions consistent with the requirements of sections 4376 and 4377 of this title.
(c)Prohibition on Obligation of Funds for Certain Purposes When Required Action Not Taken.—
(1)Prohibition.—If a determination of an increase by a percentage equal to or greater than the significant cost growth threshold is made by the Secretary under section 4374 of this title and a Selected Acquisition Report containing the information described in subsection (d) is not submitted to Congress under subsection (a), or if a determination of an increase by a percentage equal to or greater than the critical cost growth threshold is made by the Secretary under section 4374 of this title and the certification of the Secretary of Defense is not submitted to Congress under subsection (b), funds appropriated for military construction, for research, development, test, and evaluation, and for procurement may not be obligated for a major contract under the program.
(2)Termination of prohibition.—The prohibition under paragraph (1) on the obligation of funds for a major defense acquisition program shall cease to apply at the end of a period of 30 days of continuous session of Congress (as determined under section 8677(b)(2) of this title) beginning on the date—
(A) on which Congress receives the Selected Acquisition Report under subsection (a) with respect to that program, in the case of a determination of an increase by a percentage equal to or greater than the significant cost growth threshold (as determined in section 4374 of this title); or
(B) on which Congress has received both the Selected Acquisition Report under subsection (a) and the certification of the Secretary of Defense under section 4376 with respect to that program, in the case of an increase by a percentage equal to or greater than the critical cost growth threshold (as determined under section 4374 of this title).
(d)Matter to Be Included in Reports.—Except as provided in subsection (e), each report under this section with respect to a major defense acquisition program shall include the following:
(1) The name of the major defense acquisition program.
(2) The date of the preparation of the report.
(3) The program phase as of the date of the preparation of the report.
(4) The estimate of the program acquisition cost for the program (and for each designated major subprogram under the program) as shown in the Selected Acquisition Report in which the program or subprogram was first included, expressed in constant base-year dollars and in current dollars.
(5) The current program acquisition cost for the program (and for each designated major subprogram under the program) in constant base-year dollars and in current dollars.
(6) A statement of the reasons for any increase in program acquisition unit cost or procurement unit cost for the program (or for any designated major subprogram under the program).
(7) The completion status of the program and each designated major subprogram under the program—
(A) expressed as the percentage that the number of years for which funds have been appropriated for the program or subprogram is of the number of years for which it is planned that funds will be appropriated for the program or subprogram; and
(B) expressed as the percentage that the amount of funds that have been appropriated for the program or subprogram is of the total amount of funds which it is planned will be appropriated for the program or subprogram.
(8) The fiscal year in which information on the program and each designated major subprogram under the program was first included in a Selected Acquisition Report (referred to in this paragraph as the “base year”) and the date of that Selected Acquisition Report in which information on the program or subprogram was first included.
(9) The type of the Baseline Estimate that was included in the baseline description under section 4214 of this title and the date of the Baseline Estimate.
(10) The current change and the total change, in dollars and expressed as a percentage, in the program acquisition unit cost for the program (or for each designated major subprogram under the program), stated both in constant base-year dollars and in current dollars.
(11) The current change and the total change, in dollars and expressed as a percentage, in the procurement unit cost for the program (or for each designated major subprogram under the program), stated both in constant base-year dollars and in current dollars and the procurement unit cost for the program (or for each designated major subprogram under the program) for the succeeding fiscal year expressed in constant base-year dollars and in current year dollars.
(12) The quantity of end items to be acquired under the program and the current change and total change, if any, in that quantity.
(13) The identities of the military and civilian officers responsible for program management and cost control of the program.
(14) The action taken and proposed to be taken to control future cost growth of the program.
(15) Any changes made in the performance or schedule milestones of the program and the extent to which such changes have contributed to the increase in program acquisition unit cost or procurement unit cost for the program (or for any designated major subprogram under the program).
(16) The following contract performance assessment information with respect to each major contract under the program or subprogram:
(A) The name of the contractor.
(B) The phase that the contract is in at the time of the preparation of the report.
(C) The percentage of work under the contract that has been completed.
(D) Any current change and the total change, in dollars and expressed as a percentage, in the contract cost.
(E) The percentage by which the contract is currently ahead of or behind schedule.
(F) A narrative providing a summary explanation of the most significant occurrences, including cost and schedule variances under major contracts of the program and any designated major subprogram under the program, contributing to the changes identified and a discussion of the effect these occurrences will have on future program costs and the program schedule.
(17) In any case in which one or more problems with the software component of the program or any designated major subprogram under the program significantly contributed to the increase in program unit costs, the action taken and proposed to be taken to solve such problems.
(e)Breach Due to Termination or Cancellation of Program or Subprogram.—
(1)Limited reporting.—If a program acquisition unit cost increase or a procurement unit cost increase for a major defense acquisition program or designated major subprogram that results in a report under this subsection is due to termination or cancellation of the entire program or subprogram, only the information specified in paragraphs (1) through (6) of subsection (d) and the percentage change in program acquisition unit cost or procurement unit cost that resulted in the report need be included in the report.
(2)Certification not required.—The certification of the Secretary of Defense under subsection (b) is not required to be submitted for termination or cancellation of a program or subprogram.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1850(a), (h), (i), Jan. 1, 2021, 134 Stat. 4265, 4267, 4269; Pub. L. 117–81, div. A, title XVII, § 1701(c)(4), (d)(12), (o)(6)(E)(iv), Dec. 27, 2021, 135 Stat. 2136, 2137, 2148.)
§ 4376. Breach of critical cost growth threshold: reassessment of program; presumption of program termination
(a)Reassessment of Program.—If the program acquisition unit cost or procurement unit cost of a major defense acquisition program or designated subprogram (as determined by the Secretary under section 4374 of this title) increases by a percentage equal to or greater than the critical cost growth threshold for the program or subprogram, the Secretary of Defense, after consultation with the Joint Requirements Oversight Council regarding program requirements, shall—
(1) determine the root cause or causes of the critical cost growth in accordance with applicable statutory requirements and Department of Defense policies, procedures, and guidance; and
(2) in consultation with the Director of Cost Assessment and Program Evaluation, carry out an assessment of—
(A) the projected cost of completing the program if current requirements are not modified;
(B) the projected cost of completing the program based on reasonable modification of such requirements;
(C) the rough order of magnitude of the costs of any reasonable alternative system or capability; and
(D) the need to reduce funding for other programs due to the growth in cost of the program.
(b)Presumption of Termination.—
(1)Termination unless secretary submits certification and report.—After conducting the reassessment required by subsection (a) with respect to a major defense acquisition program, the Secretary shall terminate the program unless 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 section 4375(d) and (e) of this title is required to be submitted under section 4351(f) of this title, a written certification in accordance with paragraph (2).
(2)Certification.—A certification described by this paragraph with respect to a major defense acquisition program is a written certification that—
(A) the continuation of the program is essential to the national security;
(B) there are no alternatives to the program which will provide acceptable capability to meet the joint military requirement (as defined in section 181(g)(1) of this title) at less cost;
(C) the new estimates of the program acquisition unit cost or procurement unit cost have been determined by the Director of Cost Assessment and Program Evaluation to be reasonable;
(D) the program is a higher priority than programs whose funding must be reduced to accommodate the growth in cost of the program; and
(E) the management structure for the program is adequate to manage and control program acquisition unit cost or procurement unit cost.
(3)Report.—A written certification under paragraph (2) shall be accompanied by a report presenting the root cause analysis and assessment carried out pursuant to subsection (a) and the basis for each determination made in accordance with subparagraphs (A) through (E) of paragraph (2), together with supporting documentation.
(c)Actions if Program Terminated.—If a major defense acquisition program is terminated pursuant to subsection (b), the Secretary shall submit to Congress a written report setting forth—
(1) an explanation of the reasons for terminating the program;
(2) the alternatives considered to address any problems in the program; and
(3) the course the Department plans to pursue to meet any continuing joint military requirements otherwise intended to be met by the program.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1850(a), (j), Jan. 1, 2021, 134 Stat. 4265, 4269; Pub. L. 117–81, div. A, title XVII, § 1701(o)(6)(E)(v), Dec. 27, 2021, 135 Stat. 2148.)
§ 4377. Breach of critical cost growth threshold: actions if program not terminated
(a)Actions if Program Not Terminated.—If the Secretary elects not to terminate a major defense acquisition program pursuant to subsection (b) of section 4376 of this title, 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.—For purposes of subsection (a)(4), the report specified in this subsection is the first Selected Acquisition Report for the program submitted pursuant to section 4351 of this title after the President submits a budget pursuant to section 1105 of title 31, in the calendar year following the year in which the program was restructured.
(c)
(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) the Milestone Decision Authority determines in writing, on the basis of a cost assessment and root cause analysis conducted pursuant to section 4376(a) of this title, 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) 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 section 4375 of this title is required to be submitted under section 4351(f) of this title—
(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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1850(a), (k), Jan. 1, 2021, 134 Stat. 4265, 4270; Pub. L. 117–81, div. A, title XVII, § 1701(o)(6)(E)(vi), (vii), Dec. 27, 2021, 135 Stat. 2148.)