1. (a) Authority.— The Secretary of Defense and the Secretaries of the military departments may acquire innovative commercial products and commercial services through a competitive selection of proposals resulting from a general solicitation and the peer review of such proposals.
2. (b) Treatment as Competitive Procedures.— Use of general solicitation competitive procedures under subsection (a) shall be considered to be use of competitive procedures for purposes of chapter 221 of this title.

3. (c) Limitations.—

   1. (1) The Secretary may not enter into a contract or agreement in excess of $100,000,000 using the authority under subsection (a) without a written determination from the Under Secretary of Defense for Acquisition and Sustainment or the relevant service acquisition executive of the efficacy of the effort to meet mission needs of the Department of Defense or the relevant military department.
   2. (2) Contracts or agreements entered into using the authority under subsection (a) shall be fixed-price, including fixed-price incentive contracts.
   3. (3) Notwithstanding section 3451(1) of this title, products and services acquired using the authority under subsection (a) shall be treated as commercial products and commercial services.

4. (d) Congressional Notification Required.—

   1. (1) Not later than 45 days after the award of a contract for an amount exceeding $100,000,000 using the authority in subsection (a), the Secretary shall notify the congressional defense committees of such award.

   2. (2) Notice of an award under paragraph (1) shall include the following:

      1. (A) Description of the innovative commercial product or commercial service acquired.
      2. (B) Description of the requirement, capability gap, or potential technological advancement with respect to which the innovative commercial product or commercial service acquired provides a solution or a potential new capability.
      3. (C) Amount of the contract awarded.
      4. (D) Identification of the contractor awarded the contract.

5. (e) Innovative Defined.— In this section, the term “innovative” means—

   1. (1) any technology, process, or method, including research and development, that is new as of the date of submission of a proposal; or
   2. (2) any application that is new as of the date of submission of a proposal of a technology, process, or method existing as of such date.

(Added § 2380c, renumbered § 3458, and amended Pub. L. 117–81, div. A, title VIII, § 803(a)(1), (b)(1), (3), Dec. 27, 2021, 135 Stat. 1814–1816; Pub. L. 117–263, div. A, title VIII, § 814(a), Dec. 23, 2022, 136 Stat. 2707.)

Editorial Notes

Amendments

2022—Subsec. (c)(2). Pub. L. 117–263 substituted “fixed-price incentive contracts” for “fixed-price incentive fee contracts”.

2021—Pub. L. 117–81, § 803(b)(1), renumbered section 2380c of this title as this section.

Subsec. (b). Pub. L. 117–81, § 803(b)(3)(A), substituted “chapter 221” for “chapter 137”.

Subsec. (c)(3). Pub. L. 117–81, § 803(b)(3)(B), substituted “section 3451(1)” for “section 2376(1)”.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Pub. L. 117–81, div. A, title VIII, § 803(b)(4), Dec. 27, 2021, 135 Stat. 1816, provided that:

“The transfer, redesignation, and amendments made by this subsection [amending this section and repealing provisions set out as a note under

section 2302 of this title] shall take [sic] as if included in title XVIII of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (

Public Law 116–283).”

Data Collection

Pub. L. 117–81, div. A, title VIII, § 803(a)(3), Dec. 27, 2021, 135 Stat. 1815, provided that:

1. “(A) In general.— The Secretary of Defense and each Secretary of a military department shall collect and analyze data on the use of the authority under section 2380c of title 10, United States Code [now 10 U.S.C. 3458], as added by paragraph (1), for the purposes of—

   1. “(i) developing and sharing best practices for achieving the objectives of the authority;
   2. “(ii) gathering information on the implementation of the authority and related policy issues; and
   3. “(iii) informing the congressional defense committees on the use of the authority.
2. “(B) Plan required.— The authority under section 2380c [now 3458] of title 10, United States Code, as added by paragraph (1), may not be exercised by the Secretary of Defense or any Secretary of a military department during the period beginning on October 1, 2022, and ending on the date on which the Secretary of Defense submits to the congressional defense committees a completed plan for carrying out the data collection required under paragraph (1).
3. “(C) Congressional defense committees; military department defined.— In this paragraph, the terms ‘congressional defense committees’ and ‘military department’ have the meanings given such terms in section 101(a) of title 10, United States Code.”

References; Savings Provision; Rule of Construction

Pub. L. 117–81, div. A, title VIII, § 803(b)(5), Dec. 27, 2021, 135 Stat. 1816, provided that:

“Sections 1883 through 1885 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (

Public Law 116–283) [set out as notes preceding

section 3001 of this title] shall apply with respect to the transfers, redesignations, and amendments made under this subsection [amending this section and repealing provisions set out as a note under

section 2302 of this title] as if such transfers, redesignations, and amendments were made under title XVIII of such Act.”