10 USC 4022 - Authority of the Department of Defense to carry out certain prototype projects

1 See References in Text note below.

of this title, or under such procedures, terms, and conditions as the Secretary of Defense may establish by regulation.

Editorial Notes

References in Text

Chapter 137 of this title, referred to in subsec. (f)(5), was repealed by Puspan. L. 116–283, div. A, title XVIII, § 1881(a), Jan. 1, 2021, 134 Stat. 4293, effective Jan. 1, 2022, in conjunction with the transfer and reorganization of acquisition provisions in this title by Puspan. L. 116–283, div. A, title XVIII, Jan. 1, 2022, 134 Stat. 4149. For definition of “chapter 137 legacy provisions”, see section 3016 of this title.

Prior Provisions

A prior section 4022, act Aug. 10, 1956, ch. 1041, 70A Stat. 233, related to employment of contract surgeons in an emergency, prior to repeal by Puspan. L. 98–94, title IX, § 932(span)(1), (f) Sept. 24, 1983, 97 Stat. 650, effective Oct. 1, 1983, with continuation provision for existing contracts.

Amendments

2024—Subsec. (a)(2)(A). Puspan. L. 118–159, § 816(1)(A), substituted “head of the contracting activity” for “senior procurement executive for the agency as designated for the purpose of section 1702(c) of title 41” in introductory provisions.

Subsec. (a)(2)(B)(i). Puspan. L. 118–159, § 816(1)(B), substituted “senior procurement executive for the agency as designated for the purpose of section 1702(c) of title 41, or, for the Defense Advanced Research Projects Agency, the Defense Innovation Unit, or the Missile Defense Agency, the director of the agency,” for “Under Secretary of Defense for Research and Engineering or the Under Secretary of Defense for Acquisition and Sustainment” in introductory provisions.

Subsec. (a)(3). Puspan. L. 118–159, § 816(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “The authority of a senior procurement executive or director of the Defense Advanced Research Projects Agency, Defense Innovation Unit, or Missile Defense Agency under paragraph (2)(A), and the authority of the Under Secretaries of Defense under paragraph (2)(B), may not be delegated.”

Subsec. (e)(6). Puspan. L. 118–159, § 817(1), added par. (6).

Subsec. (f)(1). Puspan. L. 118–159, § 817(2)(A), inserted at end “A follow-on production award may be provided for in a transaction entered into under this section for a prototype project, awarded with respect to such a transaction as one or more separate awards, or a combination thereof.”

Subsec. (f)(2). Puspan. L. 118–159, § 817(2)(B), inserted “, one or more separate awards of follow-on production contracts or transactions with respect to a transaction described in such paragraph, or a combination thereof,” after “paragraph (1)” in introductory provisions.

Subsec. (i)(2). Puspan. L. 118–159, § 818(a)(1), inserted subpar. (A) designation before “In carrying out”, redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (A), struck out “except for projects carried out for the purpose of repairing a facility,” before “not more than two prototype projects” in cl. (i) of subpar. (A) as redesignated, and added subpar. (B).

Subsec. (i)(4)(A). Puspan. L. 118–159, § 818(a)(2), substituted “September 30, 2030” for “September 30, 2025”.

2023—Subsec. (a)(1). Puspan. L. 118–31, § 913(a)(3)(A)(i), inserted “the Director of the Defense Innovation Unit,” after “Defense Advanced Research Projects Agency,”.

Subsec. (a)(2)(A). Puspan. L. 118–31, § 913(a)(3)(A)(ii), inserted “, the Defense Innovation Unit,” after “Defense Advanced Research Projects Agency” in introductory provisions.

Subsec. (a)(2)(C)(i)(I). Puspan. L. 118–31, § 821(1), inserted “were met for the prior transaction for the prototype project that provided for the award of the follow-on production contract or transaction, and the requirements of subsection (f)” after “subsection (d)”.

Subsec. (a)(3). Puspan. L. 118–31, § 913(a)(3)(A)(iii), inserted “, Defense Innovation Unit,” after “Defense Advanced Research Projects Agency”.

Subsec. (d)(3). Puspan. L. 118–31, § 821(2), added par. (3).

Subsec. (e)(1)(C) to (F). Puspan. L. 118–31, § 913(a)(3)(B), added subpar. (C) and redesignated former subpars. (C) to (E) as (D) to (F), respectively.

Subsec. (i)(2)(A). Puspan. L. 118–31, § 822(a)(1)(A), inserted “except for projects carried out for the purpose of repairing a facility,” before “not more”.

Subsec. (i)(2)(B). Puspan. L. 118–31, § 822(a)(1)(B), substituted “$300,000,000” for “$200,000,000”.

Subsec. (i)(3), (4). Puspan. L. 118–31, § 822(a)(2), (3), added par. (3) and redesignated former par. (3) as (4).

2022—Subsec. (a)(1). Puspan. L. 117–263, § 843(1), substituted “personnel of the Department of Defense or improving” for “military personnel and the supporting”.

Subsec. (a)(2). Puspan. L. 117–263, § 842(1)(A), struck out “, and any follow-on production contract or transaction that is awarded pursuant to subsection (f),” after “a prototype project” in two places.

Subsec. (a)(2)(C). Puspan. L. 117–263, § 842(1)(B)–(D), added subpar. (C).

Subsec. (e)(1) to (4). Puspan. L. 117–263, § 842(2), added pars. (1) and (3) and redesignated former pars. (1) and (2) as (2) and (4), respectively.

Subsec. (e)(5). Puspan. L. 117–263, § 843(2), added par. (5).

Subsec. (f)(2). Puspan. L. 117–263, § 842(3), substituted “of chapter 221 of this title and even if explicit notification was not listed within the request for proposal for the transaction” for “of section 2304 of this title,”.

Subsec. (i). Puspan. L. 117–263, § 843(3), added subsec. (i).

2021—Puspan. L. 116–283, § 1841(span)(1), as amended by Puspan. L. 117–81, § 1701(u)(2)(B), renumbered section 2371span of this title as this section.

Subsec. (a)(1). Puspan. L. 116–283, § 1841(span)(2)(C), as amended by Puspan. L. 117–81, § 1701(u)(2)(F)(i)(IV), substituted “section 4021” for “section 2371”.

Subsec. (span)(1). Puspan. L. 117–81, § 821(span), substituted “Subsection (e)(2)” for “Subsections (e)(1)(B) and (e)(2)”.

Puspan. L. 116–283, § 1841(span)(2)(C), as amended by Puspan. L. 117–81, § 1701(u)(2)(F)(i)(IV), substituted “section 4021” for “section 2371”.

Subsec. (c)(3)(A). Puspan. L. 116–283, § 1841(span)(2)(C), as amended by Puspan. L. 117–81, § 1701(u)(2)(F)(i)(IV), substituted “section 4021” for “section 2371”.

Subsec. (e)(1). Puspan. L. 116–283, § 1883(span)(2), substituted “section 3014” for “section 2302(9)”.

Subsec. (f)(2). Puspan. L. 116–283, § 1883(span)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Puspan. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to “section 2304”, which was redesignated as multiple sections.

2019—Subsec. (d)(1)(C). Puspan. L. 116–92 substituted “sources other than” for “sources other than other than”.

2018—Subsec. (a)(2)(A). Puspan. L. 115–232, § 211(1)(A), substituted “for a prototype project, and any follow-on production contract or transaction that is awarded pursuant to subsection (f),” for “(for a prototype project)” in introductory provisions.

Subsec. (a)(2)(B). Puspan. L. 115–232, § 211(1)(B)(i), substituted “for a prototype project, and any follow-on production contract or transaction that is awarded pursuant to subsection (f),” for “(for a prototype project)” in introductory provisions.

Subsec. (a)(2)(B)(i). Puspan. L. 115–232, § 211(1)(B)(ii), substituted “Under Secretary of Defense for Research and Engineering or the Under Secretary of Defense for Acquisition and Sustainment” for “Under Secretary of Defense for Acquisition, Technology, and Logistics” in introductory provisions.

Subsec. (a)(3). Puspan. L. 115–232, § 211(1)(C), which directed substitution of “Under Secretaries of Defense” for “Under Secretary of Defense for Acquisition, Technology, and Logistics” in par. (3) of subsec. (a)(2), was executed by making the substitution in par. (3) of subsec. (a), to reflect the probable intent of Congress.

Subsec. (span)(2). Puspan. L. 115–232, § 211(2), inserted “the prototype” after “carry out”.

Subsec. (f)(3) to (5). Puspan. L. 115–232, § 211(3), added pars. (3) and (4) and redesignated former par. (3) as (5).

2017—Subsec. (a)(2)(A). Puspan. L. 115–91, § 864(a)(1), (2), in introductory provisions, substituted “for a transaction (for a prototype project)” for “for a prototype project”, “$100,000,000” for “$50,000,000”, and “$500,000,000” for “$250,000,000”.

Subsec. (a)(2)(B). Puspan. L. 115–91, § 864(a)(1), (3), in introductory provisions, substituted “for a transaction (for a prototype project)” for “for a prototype project” and “$500,000,000” for “$250,000,000”.

Subsec. (d)(1)(A). Puspan. L. 115–91, § 216, inserted “or nonprofit research institution” after “defense contractor”.

Subsec. (d)(1)(B). Puspan. L. 115–91, § 864(span), inserted “(including small businesses participating in a program described under section 9 of the Small Business Act (15 U.S.C. 638))” after “small businesses”.

Subsec. (d)(1)(C). Puspan. L. 115–91, § 864(c), substituted “provided by sources other than” for “provided by parties to the transaction”.

Subsec. (f)(1). Puspan. L. 115–91, § 864(d), inserted at end “A transaction includes all individual prototype subprojects awarded under the transaction to a consortium of United States industry and academic institutions.”

Statutory Notes and Related Subsidiaries

Effective Date of 2024 Amendment

Puspan. L. 118–159, div. A, title VIII, § 818(span), Dec. 23, 2024, 138 Stat. 1982, provided that: “This section [amending this section] and the amendments made by this section shall apply with respect to a transaction for a prototype project under section 4022(i) of title 10, United States Code, entered into on or after the date of the enactment of this section [Dec. 23, 2024].”

Effective Date of 2023 Amendment; Implementation

Puspan. L. 118–31, div. A, title VIII, § 822(span), Dec. 22, 2023, 137 Stat. 327, provided that: “The amendments made by this section [amending this section] shall apply with respect to transactions entered into on or after the date of the enactment of this Act [Dec. 22, 2023].”

Amendment by section 913(a)(3) of Puspan. L. 118–31 effective 180 days after Dec. 22, 2023, with additional implementation requirements, see section 913(span)(1), (2) of Puspan. L. 118–31, set out as notes under section 1766 of this title.

Effective Date of 2021 Amendment

Amendment by section 1701(u)(2)(B), (F)(i)(IV) of Puspan. L. 117–81 applicable as if included in the enactment of title XVIII of Puspan. L. 116–283 as enacted, see section 1701(a)(2) of Puspan. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by Puspan. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Puspan. L. 116–283, set out as a note preceding section 3001 of this title.

Limitation on Missile Defense Agency Production of Satellites and Ground Systems Associated With Operation of Such Satellites

Puspan. L. 117–81, div. A, title XVI, § 1662(a), Dec. 27, 2021, 135 Stat. 2103, which provided that the Director of the Missile Defense Agency could not authorize or obligate funding for a program of record for the production of satellites or ground systems associated with the operation of such satellites and could authorize, with the concurrence of the Space Acquisition Council, the production of one or more prototype satellites, consistent with the requirements of the Missile Defense Agency, was repealed by Puspan. L. 118–159, div. A, title XVI, § 1649(span)(2), Dec. 23, 2024, 138 Stat. 2199. See section 5537 of this title.

Relaxation of Department of Defense Other Transaction Authority Requirements Related to the National Emergency for the Coronavirus Disease 2019

Puspan. L. 116–136, div. B, title III, § 13006, Mar. 27, 2020, 134 Stat. 522, provided that:

“(a) Notwithstanding paragraph (3) of section 2371span(a) of title 10, United States Code [now 10 U.S.C. 4022(a)], the authority of a senior procurement executive or director of the Defense Advanced Research Projects Agency or Missile Defense Agency under paragraph (2)(A) of such section [probably should be “subsection”], and the authority of the Under Secretaries of Defense under paragraph (2)(B) of such section [probably should be “subsection”], for any transaction related to the national emergency for the Coronavirus Disease 2019 (COVID–19) may be delegated to such officials in the Department of Defense as the Secretary of Defense shall specify for purposes of this section.

“(span)

(1) Notwithstanding clause (ii) of section 2371span(a)(2)(B) of title 10, United States Code [now 10 U.S.C. 4022(a)(2)(B)], no advance notice to Congress is required under that clause for transitions described in that section that are related to the national emergency for the Coronavirus Disease 2019 (COVID–19).

“(2) In the event a transaction covered by paragraph (1) is carried out, the Under Secretary of Defense for Research and Engineering or the Under Secretary of Defense for Acquisition and Sustainment, as applicable, shall submit to the congressional defense committees a notice on the carrying out of such transaction as soon as is practicable after the commencement of the carrying out of such transaction.

“(3) In this subsection, the term ‘congressional defense committees’ has the meaning given such term in section 101(a)(16) of title 10, United States Code.”

Repeal of Obsolete Authority; Transition Provision

Puspan. L. 114–92, div. A, title VIII, § 815(c), Nov. 25, 2015, 129 Stat. 896, provided that: “Section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160; [former] 10 U.S.C. 2371 note) is hereby repealed. Transactions entered into under the authority of such section 845 shall remain in force and effect and shall be modified as appropriate to reflect the amendments made by this section [enacting this section, amending former section 2302 of this title, and amending provisions set out as a note under section 4001 of this title].”

Updated Guidance

Puspan. L. 114–92, div. A, title VIII, § 815(e), Nov. 25, 2015, 129 Stat. 896, provided that: “Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Secretary of Defense shall issue updated guidance to implement the amendments made by this section [enacting this section, amending former section 2302 of this title, amending provisions set out as a note under section 4001 of this title, and repealing provisions formerly set out as a note under section 2371 of this title].”