Major defense acquisition programs: incentive program for contractors to purchase capital assets manufactured in United States

10 U.S.C. § 4293

• Title: 10 — Armed Forces
• Chapter: SUBCHAPTER V—CONTRACTORS

Text

(a) Establishment of Incentive Program.—The Secretary of Defense shall plan and establish an incentive program in accordance with this section for contractors to purchase capital assets manufactured in the United States in part with funds available to the Department of Defense.
(b) Defense Industrial Capabilities Fund May Be Used.—The Secretary of Defense may use the Defense Industrial Capabilities Fund, established under section 814 of the National Defense Authorization Act for Fiscal Year 2004, for incentive payments under the program established under this section.
(c) Applicability to Major Defense Acquisition Program Contracts.—The incentive program shall apply to contracts for the procurement of a major defense acquisition program.
(d) Consideration.—The Secretary of Defense shall provide consideration in source selection in any request for proposals for a major defense acquisition program for offerors with eligible capital assets.

History

(Added Pub. L. 108–136, div. A, title VIII, §822(a)(1), Nov. 24, 2003, 117 Stat. 1546, §2436; renumbered §4293, Pub. L. 116–283, div. A, title XVIII, §1847(f)(2), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

Editorial Notes

References in Text
Section 814 of the National Defense Authorization Act for Fiscal Year 2004, referred to in subsec. (b), is section 814 of Pub. L. 108–136, which is set out in a note under section 4811 of this title.

Prior Provisions
Prior sections 4301 to 4303 and 4306 were renumbered sections 7401 to 7403 and 7406 of this title, respectively.
Prior sections 4307 and 4308 were repealed by Pub. L. 104–106, div. A, title XVI, §1624(a)(1), (c) Feb. 10, 1996, 110 Stat. 522, effective on the earlier of the date on which the Secretary of the Army submits a certification in accordance with section 5523 of former Title 36, Patriotic Societies and Observances, or Oct. 1, 1996.
Section 4307, act Aug. 10, 1956, ch. 1041, 70A Stat. 235, permitted President to detail commissioned officer of the Army or of the Marine Corps as director of civilian marksmanship.
Section 4308, acts Aug. 10, 1956, ch. 1041, 70A Stat. 236; Nov. 14, 1986, Pub. L. 99–661, div. A, title III, §318(a), 100 Stat. 3855; Nov. 5, 1990, Pub. L. 101–510, div. A, title III, §328(b)–(d), (g)(1), 104 Stat. 1533, 1534; Oct. 23, 1992, Pub. L. 102–484, div. A, title III, §380(a)(1), 106 Stat. 2389; Nov. 30, 1993, Pub. L. 103–160, div. A, title III, §372, 107 Stat. 1635, related to authority of Secretary of the Army to promote civilian marksmanship. See section 40701 et seq. of Title 36, Patriotic and National Observances, Ceremonies, and Organizations.
A prior section 4309 was renumbered section 7409 of this title.
Prior sections 4310 and 4311 were repealed by Pub. L. 104–106, div. A, title XVI, §1624(a)(1), (c), Feb. 10, 1996, 110 Stat. 522, effective on the earlier of the date on which the Secretary of the Army submits a certification in accordance with section 5523 of former Title 36, Patriotic Societies and Observances, or Oct. 1, 1996.
Section 4310, act Aug. 10, 1956, ch. 1041, 70A Stat. 236, permitted President and Secretary of the Army to detail members of Army as rifle instructors for civilians.
Section 4311, acts Aug. 10, 1956, ch. 1041, 70A Stat. 237; Nov. 5, 1990, Pub. L. 101–510, div. A, title III, §328(f), 104 Stat. 1534, permitted Secretary of the Army to provide for issue of military rifles and sale of ammunition for use in rifle instruction for civilians.
Prior sections 4312 and 4313 were repealed by Pub. L. 105–225, §6(b), Aug. 12, 1998, 112 Stat. 1499.
Section 4312, act Aug. 10, 1956, ch. 1041, 70A Stat. 237, related to National rifle and pistol matches and small-arms firing school.
Section 4313, act Aug. 10, 1956, ch. 1041, 70A Stat. 237; Pub. L. 99–145, title XIII, §1301(b)(3)(B), Nov. 8, 1985, 99 Stat. 735; Pub. L. 99–661, div. A, title III, §318(b), Nov. 14, 1986, 100 Stat. 3855; Pub. L. 101–510, div. A, title III, §328(a), Nov. 5, 1990, 104 Stat. 1533; Pub. L. 102–484, div. A, title III, §380(c)(1), Oct. 23, 1992, 106 Stat. 2391; Pub. L. 103–35, title II, §201(g)(10)(A), May 31, 1993, 107 Stat. 100; Pub. L. 104–106, div. A, title XVI, §1624(b)(1), Feb. 10, 1996, 110 Stat. 522, related to expenses of National Matches and small-arms school.
Prior sections 4314 and 4315 were renumbered sections 7414 and 7415 of this title, respectively.
A prior section 4316, added Pub. L. 102–484, div. A, title III, §380(d)(1), Oct. 23, 1992, 106 Stat. 2391; amended Pub. L. 104–106, div. A, title XVI, §1624(b)(2), Feb. 10, 1996, 110 Stat. 522, related to reporting requirements of the Secretary of the Army, prior to repeal by Pub. L. 115–91, div. A, title X, §1051(a)(27)(A), Dec. 12, 2017, 131 Stat. 1562.
Prior sections 4317 to 4320 were renumbered sections 7417 to 7420 of this title, respectively.

Amendments
2021—Pub. L. 116–283 renumbered section 2436 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment
Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date
Pub. L. 108–136, div. A, title VIII, §822(c), Nov. 24, 2003, 117 Stat. 1547, provided that: "Section 2436 of title 10, United States Code [now 10 U.S.C. 4293], as added by subsection (a), shall apply with respect to contracts entered into after the expiration of the 18-month period beginning on the date of the enactment of this Act [Nov. 24, 2003]."

Regulations
Pub. L. 108–136, div. A, title VIII, §822(b), Nov. 24, 2003, 117 Stat. 1547, provided that:
"(1) The Secretary of Defense shall prescribe regulations as necessary to carry out section 2436 of title 10, United States Code [now 10 U.S.C. 4293], as added by this section.
"(2) The Secretary may prescribe interim regulations as necessary to carry out such section. For this purpose, the Secretary is excepted from compliance with the notice and comment requirements of section 553 of title 5, United States Code. All interim rules prescribed under the authority of this paragraph that are not earlier superseded by final rules shall expire no later than 270 days after the effective date of section 2436 of title 10, United States Code [now 10 U.S.C. 4293] [see Effective Date note above], as added by this section."

Editorial Notes

Prior Provisions
A prior chapter 323 "INNOVATION", consisting of reserved section 4301, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

Amendments
2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(9), Dec. 27, 2021, 135 Stat. 2140, added item 4324 and struck out former item 4324 "Major systems: life-cycle management and product support".

Statutory Notes and Related Subsidiaries

Standardized Policy Guidance for Calculating Aircraft Operation and Sustainment Costs
Pub. L. 116–92, div. A, title XVII, §1747, Dec. 20, 2019, 133 Stat. 1847, provided that: "Not later than 270 days after the date of the enactment of this Act [Dec. 20, 2019], the Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Director of Cost Analysis and Program Evaluation and in consultation with the Secretary of each of the military services, shall develop and implement standardized policy guidance for calculating aircraft operation and sustainment costs for the Department of Defense. Such guidance shall provide for a standardized calculation of—
"(1) aircraft cost per flying hour;
"(2) aircraft cost per aircraft tail per year;
"(3) total cost of ownership per flying hour for aircraft systems;
"(4) average annual operation and sustainment cost per aircraft; and
"(5) any other cost metrics the Under Secretary of Defense determines appropriate."

Requirements Prior to Low-Rate Initial Production
Pub. L. 112–81, div. A, title VIII, §801(c), Dec. 31, 2011, 125 Stat. 1483, as amended by Pub. L. 112–239, div. A, title III, §322(e)(3), Jan. 2, 2013, 126 Stat. 1695, provided that: "Prior to entering into a contract for low-rate initial production of a major defense acquisition program, the Secretary of Defense shall ensure that the detailed requirements for core logistics capabilities and the associated sustaining workloads required to support such requirements, have been defined."

Acquisition Strategies To Ensure Competition Throughout the Lifecycle of Major Defense Acquisition Programs
Pub. L. 111–23, title II, §202, May 22, 2009, 123 Stat. 1720, as amended by Pub. L. 112–81, div. A, title VIII, §837, Dec. 31, 2011, 125 Stat. 1509; Pub. L. 112–239, div. A, title VIII, §825, Jan. 2, 2013, 126 Stat. 1833, provided that:
"(a) Acquisition Strategies To Ensure Competition.—The Secretary of Defense shall ensure that the acquisition strategy for each major defense acquisition program includes—
"(1) measures to ensure competition, or the option of competition, at both the prime contract level and the subcontract level (at such tier or tiers as are appropriate) of such program throughout the life-cycle of such program as a means to improve contractor performance; and
"(2) adequate documentation of the rationale for the selection of the subcontract tier or tiers under paragraph (1).
"(b) Measures To Ensure Competition.—The measures to ensure competition, or the option of competition, for purposes of subsection (a)(1) may include measures to achieve the following, in appropriate cases if such measures are cost-effective:
"(1) Competitive prototyping.
"(2) Dual-sourcing.
"(3) Unbundling of contracts.
"(4) Funding of next-generation prototype systems or subsystems.
"(5) Use of modular, open architectures to enable competition for upgrades.
"(6) Use of build-to-print approaches to enable production through multiple sources.
"(7) Acquisition of complete technical data packages.
"(8) Periodic competitions for subsystem upgrades.
"(9) Licensing of additional suppliers.
"(10) Periodic system or program reviews to address long-term competitive effects of program decisions.
"(c) Additional Measures To Ensure Competition at Subcontract Level.—The Secretary shall take actions to ensure competition or the option of competition at the subcontract level on major defense acquisition programs by—
"(1) where appropriate, breaking out a major subsystem, conducting a separate competition for the subsystem, and providing the subsystem to the prime contractor as Government-furnished equipment;
"(2) requiring prime contractors to give full and fair consideration to qualified sources other than the prime contractor for the development or construction of major subsystems and components of major weapon systems;
"(3) providing for government surveillance of the process by which prime contractors consider such sources and determine whether to conduct such development or construction in-house or through a subcontract; and
"(4) providing for the assessment of the extent to which a contractor has given full and fair consideration to qualified sources other than the contractor in sourcing decisions as a part of past performance evaluations.
"(d) Consideration of Competition Throughout Maintenance and Sustainment of Major Weapon Systems and Subsystems.—Whenever a decision regarding source of repair results in a plan to award a contract for performance of maintenance and sustainment of a major weapon system or subsystem of a major weapon system, the Secretary shall take actions to ensure that, to the maximum extent practicable and consistent with statutory requirements, contracts for such maintenance and sustainment, or for components needed for such maintenance and sustainment, are awarded on a competitive basis and give full consideration to all sources (including sources that partner or subcontract with public or private sector repair activities).
"(e) Applicability.—
"(1) Strategy and measures to ensure competition.—The requirements of subsections (a) and (b) shall apply to any acquisition plan for a major defense acquisition program that is developed or revised on or after the date that is 60 days after the date of the enactment of this Act [May 22, 2009].
"(2) Additional actions.—The actions required by subsections (c) and (d) shall be taken within 180 days after the date of the enactment of this Act."

Preservation of Tooling for Major Defense Acquisition Programs
Pub. L. 110–417, [div. A], title VIII, §815, Oct. 14, 2008, 122 Stat. 4530, directed the Secretary of Defense to issue, not later than 270 days after Oct. 14, 2008, guidance requiring the preservation and storage of unique tooling associated with the production of hardware for a major defense acquisition program through the end of the service life of the end item associated with such a program.

Definitions
Pub. L. 111–23, §2, May 22, 2009, 123 Stat. 1704, as amended by Pub. L. 119–60, div. A, title VIII, §811(c)(3)(A), Dec. 18, 2025, 139 Stat. 950, provided that: "In this Act [see Short Title of 2009 Amendment note set out under section 101 of this title]:
"(1) The term 'congressional defense committees' has the meaning given that term in section 101(a)(16) of title 10, United States Code.
"(2) The term 'major defense acquisition program' has the meaning given that term in section 2430 of title 10, United States Code [now 10 U.S.C. 4201].
"(3) The term 'major weapon system' has the meaning given that term in section 101(a) of title 10, United States Code."