10 USC 4864 - Miscellaneous limitations on the procurement of goods other than United States goods

View all text of Subchapter II [§ 4861 - § 4864]

§ 4864. Miscellaneous limitations on the procurement of goods other than United States goods

(a)Limitation on Certain Procurements.—The Secretary of Defense may procure any of the following items only if the manufacturer of the item satisfies the requirements of subsection (b):

(1)Buses.—Multipassenger motor vehicles (buses).

(2)Components for naval vessels.—The following components of vessels, to the extent they are unique to marine applications:

(A) Gyrocompasses.

(B) Electronic navigation chart systems.

(D) Propulsion and machinery control systems.

(E) Totally enclosed lifeboats.

(F) Welded shipboard anchor and mooring chain.

(3)Components for auxiliary ships.—Subject to subsection (k), large medium-speed diesel engines.

(4)Components for t–ao 205 and t–arc class vessels.—The following components of T–AO 205 and T–ARC class vessels:

(A) Auxiliary equipment, including pumps, for all shipboard services.

(B) Propulsion system components, including engines, reduction gears, and propellers.

(D) Spreaders for shipboard cranes.

(5)Star tracker.—A star tracker used in a satellite weighing more than 400 pounds whose principal purpose is to support the national security, defense, or intelligence needs of the United States Government.

(b)Manufacturer in the National Technology and Industrial Base.—

(1) Except as provided in paragraph (2), a manufacturer meets the requirements of this subsection if the manufacturer is part of the national technology and industrial base.

(2) A manufacturer of welded shipboard anchor and mooring chain for naval vessels meets the requirements of this subsection if the manufacturer is part of the national technology and industrial base.

(c)Applicability to Certain Items.—Subsection (a) does not apply to a procurement of spare or repair parts needed to support components for naval vessels produced or manufactured outside the United States.

(d)The Secretary of Defense may waive the limitation in subsection (a) with respect to the procurement of an item listed in that subsection if the Secretary determines that any of the following apply:

(1) Application of the limitation would cause unreasonable costs or delays to be incurred.

(2) United States producers of the item would not be jeopardized by competition from a foreign country, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.

(3) Application of the limitation would impede cooperative programs entered into between the Department of Defense and a foreign country, or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items that is entered into under section 4851 of this title, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.

(4) Satisfactory quality items manufactured by an entity that is part of the national technology and industrial base (as defined in section 4801(1) of this title) are not available.

(5) Application of the limitation would result in the existence of only one source for the item that is an entity that is part of the national technology and industrial base (as defined in section 4801(1) of this title).

(6) The procurement is for an amount less than the simplified acquisition threshold and simplified purchase procedures are being used.

(7) Application of the limitation is not in the national security interests of the United States.

(8) Application of the limitation would adversely affect a United States company.

(e)Sonobuoys.—

(1)Limitation.—The Secretary of Defense may not procure a sonobuoy manufactured in a foreign country if United States firms that manufacture sonobuoys are not permitted to compete on an equal basis with foreign manufacturing firms for the sale of sonobuoys in that foreign country.

(2)Waiver authority.—The Secretary may waive the limitation in paragraph (1) with respect to a particular procurement of sonobuoys if the Secretary determines that such procurement is in the national security interests of the United States.

(3)Definition.—In this subsection, the term “United States firm” has the meaning given such term in section 4852(d)(1) of this title.

(f)Principle of Construction With Future Laws.—A provision of law may not be construed as modifying or superseding the provisions of this section, or as requiring funds to be limited, or made available, by the Secretary of Defense to a particular domestic source by contract, unless that provision of law—

(1) specifically refers to this section;

(2) specifically states that such provision of law modifies or supersedes the provisions of this section; and

(3) specifically identifies the particular domestic source involved and states that the contract to be awarded pursuant to such provision of law is being awarded in contravention of this section.

(g)Inapplicability to Contracts under Simplified Acquisition Threshold.—This section does not apply to a contract or subcontract for an amount that does not exceed the simplified acquisition threshold.

(h)Implementation of Naval Vessel Component Limitation.—In implementing subsection (a)(2), the Secretary of Defense—

(1) may not use contract clauses or certifications; and

(2) shall use management and oversight techniques that achieve the objective of the subsection without imposing a significant management burden on the Government or the contractor involved.

(i)Implementation of Certain Waiver Authority.—

(1) The Secretary of Defense may exercise the waiver authority described in paragraph (2) only if the waiver is made for a particular item listed in subsection (a) and for a particular foreign country.

(2) This subsection applies to the waiver authority provided by subsection (d) on the basis of the applicability of paragraph (2) or (3) of that subsection.

(3) The waiver authority described in paragraph (2) may not be delegated below the Under Secretary of Defense for Acquisition and Sustainment.

(4) At least 15 days before the effective date of any waiver made under the waiver authority described in paragraph (2), the Secretary shall publish in the Federal Register and submit to the congressional defense committees a notice of the determination to exercise the waiver authority.

(5) Any waiver made by the Secretary under the waiver authority described in paragraph (2) shall be in effect for a period not greater than one year, as determined by the Secretary.

(j)Limitation on Certain Procurements Application Process.—

(1)In general.—The Secretary of Defense shall administer a process to analyze and assess potential items for consideration to be required to be procured from a manufacturer that is part of the national technology and industrial base.

(2)Elements.—The application process required under paragraph (1) shall include the following elements:

(A) The Secretary shall designate an official within the Office of the Secretary of Defense responsible for administration of the limitation on certain procurements application process and associated policy.

(B) A person or organization that meets the definition of national technology and industrial base under section 4801(1) of this title shall have the opportunity to apply for status as an item required to be procured from a manufacturer that is part of the national technology and industrial base. The application shall include, at a minimum, the following information:

(i) Information demonstrating the applicant meets the criteria of a manufacturer in the national technology and industrial base under section 4801(1) of this title.

(ii) For each item the applicant seeks to be required to be procured from a manufacturer that is part of the national technology and industrial base, the applicant shall include the following information:(I) The extent to which such item has commercial applications.(II) The number of such items to be procured by current programs of record.(III) The criticality of such item to a military unit’s mission accomplishment.(IV) The estimated cost and other considerations of reconstituting the manufacturing capability of such item, if not maintained in the national technology and industrial base.(V) National security regulations or restrictions imposed on such item that may not be imposed on a non-national technology and industrial base competitor.(VI) Non-national security-related Federal, State, and local government regulations imposed on such item that may not be imposed on a non-national technology and industrial base competitor.(VII) The extent to which such item is fielded in current programs of record.(VIII) The extent to which cost and pricing data for such item has been deemed fair and reasonable.

(3)Consideration of applications.—

(A)Responsibility of designated official.—The official designated pursuant to paragraph (2)(A) shall be responsible for providing complete applications submitted pursuant to this subsection to the appropriate component acquisition executive for consideration not later than 15 days after receipt of such application.

(B)Review.—Not later than 120 days after receiving a complete application, the component acquisition executive shall review such application, make a determination, and return the application to the official designated pursuant to paragraph (2)(A).

(C)Elements of determination.—The determination required under subparagraph (B) shall, for each item proposed pursuant to paragraph (2)(B)(ii)—

(i) recommend inclusion under this section;

(ii) recommend inclusion under this section with further modifications; or

(iii) not recommend inclusion under this section.

(D)Justification.—The determination required under subparagraph (B) shall also include the rationale and justification for the determination.

(4)Recommendations for legislation.—For applications recommended under subsection (3), the official designated pursuant to paragraph (2)(A) shall be responsible for preparing a legislative proposal for consideration by the Secretary.

(k)Implementation of Auxiliary Ship Component Limitation.—Subsection (a)(3) applies only with respect to contracts awarded by the Secretary of a military department for new construction of an auxiliary ship after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2020 using funds available for National Defense Sealift Fund programs or Shipbuilding and Conversion, Navy. For purposes of this subsection, the term “auxiliary ship” does not include an icebreaker or a special mission ship.

(l)Periodic Review.—

(1)Recommendation.—Not later than November 1, 2024, and every five years thereafter, the Under Secretary of Defense for Acquisition and Sustainment shall review each item described in subsections (a) and (e) of this section and submit to the congressional defense committees, in writing, one of the following recommendations:

(A) Recommend continued inclusion of the item under this section.

(B) Recommend continued inclusion of the item under this section with modifications.

(2)Elements.—Each review required under paragraph (1) shall include, with respect to the five-year period preceding the date of submission of the written determination related to such a review, the following elements:

(A) The criticality of the item reviewed to a military unit’s mission accomplishment or other national security objectives.

(B) The extent to which such item is fielded in current programs of record.

(D) The extent to which cost and pricing data for such item has been deemed fair and reasonable.

(3)Justification.—The written determination required under paragraph (1) shall also include the findings of the applicable review conducted under such paragraph and any key justifications for the recommendation.

(Added Pub. L. 97–295, § 1(29)(A), Oct. 12, 1982, 96 Stat. 1294, § 2400; amended Pub. L. 100–180, div. A, title I, § 124(a), (b)(1), title VIII, § 824(a), Dec. 4, 1987, 101 Stat. 1042, 1043, 1134; renumbered § 2502 and amended Pub. L. 100–370, § 3(b)(1), July 19, 1988, 102 Stat. 855; renumbered § 2507 and amended Pub. L. 100–456, div. A, title VIII, §§ 821(b)(1)(A), 822, Sept. 29, 1988, 102 Stat. 2014, 2017; Pub. L. 101–510, div. A, title VIII, § 835(a), title XIV, § 1421, Nov. 5, 1990, 104 Stat. 1614, 1682; Pub. L. 102–190, div. A, title VIII, §§ 834, 835, Dec. 5, 1991, 105 Stat. 1447, 1448; renumbered § 2534 and amended Pub. L. 102–484, div. A, title VIII, §§ 831, 833(a), title X, § 1052(33), div. D, title XLII, §§ 4202(a), 4271(b)(4), Oct. 23, 1992, 106 Stat. 2460, 2461, 2501, 2659, 2696; Pub. L. 103–160, div. A, title IX, § 904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–337, div. A, title VIII, § 814, Oct. 5, 1994, 108 Stat. 2817; Pub. L. 103–355, title IV, § 4102(i), Oct. 13, 1994, 108 Stat. 3341; Pub. L. 104–106, div. A, title VIII, § 806(a)(1)–(4), (b)–(d), title XV, § 1503(a)(30), Feb. 10, 1996, 110 Stat. 390, 391, 512; Pub. L. 104–201, div. A, title VIII, § 810, title X, § 1074(a)(14), Sept. 23, 1996, 110 Stat. 2608, 2659; Pub. L. 105–85, div. A, title III, § 371(d)(1), title VIII, § 811(a), title X, § 1073(a)(55), Nov. 18, 1997, 111 Stat. 1706, 1839, 1903; Pub. L. 106–398, § 1 [[div. A], title VIII, § 805], Oct. 30, 2000, 114 Stat. 1654, 1654A–207; Pub. L. 107–107, div. A, title VIII, § 835(a), title X, § 1048(b)(2), Dec. 28, 2001, 115 Stat. 1191, 1225; Pub. L. 108–136, div. A, title VIII, § 828, Nov. 24, 2003, 117 Stat. 1548; Pub. L. 111–350, § 5(b)(40), Jan. 4, 2011, 124 Stat. 3846; Pub. L. 115–91, div. A, title VIII, § 813(a), Dec. 12, 2017, 131 Stat. 1461; Pub. L. 115–232, div. A, title VIII, § 844(a), Aug. 13, 2018, 132 Stat. 1879; Pub. L. 116–92, div. A, title VIII, § 853, Dec. 20, 2019, 133 Stat. 1511; renumbered § 4864 and amended Pub. L. 116–283, div. A, title VIII, § 845(a), title XVI, § 1603(a), title XVIII, § 1870(c)(2)–(4), Jan. 1, 2021, 134 Stat. 3766, 4043, 4285; Pub. L. 117–81, div. A, title VIII, § 816, title X, § 1081(a)(30), title XVII, § 1701(b)(23), Dec. 27, 2021, 135 Stat. 1825, 1921, 2135; Pub. L. 117–263, div. A, title VIII, §§ 852, 853(a), Dec. 23, 2022, 136 Stat. 2721, 2722.)