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10 U.S.C. § 4376 — Breach of critical cost growth threshold: reassessment of program; presumption of program termination

Federal law — U.S. Code and appendices · legal_authorities

10 U.S.C. § 4376 — Breach of critical cost growth threshold: reassessment of program; presumption of program termination

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Source file: Laws/federal/codes/united-states-code/title-10/section-4376-breach-of-critical-cost-growth-threshold-reassessment-of-program-presump--fd243ca745.md
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Source location: Title 10, Chapter 325, § 4376; chapter-325-cost-growth-unit-cost-reports-nunn-mccurdy.md

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**(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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section4374&num=0&edition=prelim)) increases by a percentage equal to or greater than the critical cost growth threshold for the program or subprogram, the Secretary of Defense 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section4351/f&num=0&edition=prelim), 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 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 military requirements otherwise intended to be met by the program.

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Federal law — U.S. Code and appendices · legal_authorities

10 U.S.C. § 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 sign

Source: Supplied U.S. Code snapshot — release unconfirmed · 10 U.S.C. § 4374

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Federal law — U.S. Code and appendices · legal_authorities

10 U.S.C. § 3001 — Defense acquisition system; element of the defense acquisition system

**(a) Defense Acquisition System.—** In this part, the term “defense acquisition system” means— (1) the workforce engaged in carrying out the acquisition of property and services for the Department of Defense; (2) the management structure responsible for directing and overseeing the acquisition of property and services for the Department of Defense; and (3) the statutory, regulatory, and policy framework that guides the acquisition of property and services for the Department of Defense. **(b) Element of the Defense Acquisition System.—** In this part, the term “element of the defense acquisition system” means an organization that— (1) employs members of the acquisition workforce; (2) carries out acquisition functions; and (3) focuses primarily on acquisition. **(c) Acquisition.—** In this part, the term “acquisition” has the meaning provided in [section 131 of title 41](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section131&num=0&edition=prelim).

Source: Supplied U.S. Code snapshot — release unconfirmed · 10 U.S.C. § 3001

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Federal law — U.S. Code and appendices · legal_authorities

10 U.S.C. § 2433a — Repealed. Pub. L. 116–283, div. A, title XVIII, § 1850(l), Jan. 1, 2021, 134 Stat. 4271]

### Statutory Notes Section, added Pub. L. 111–23, title II, § 206(a)(1), May 22, 2009, 123 Stat. 1726; amended Pub. L. 111–383, div. A, title X, § 1075(b)(35), Jan. 7, 2011, 124 Stat. 4371; Pub. L. 112–81, div. A, title VIII, §§ 801(e)(4), 831, Dec. 31, 2011, 125 Stat. 1484, 1503; Pub. L. 112–239, div. A, title VIII, § 813, Jan. 2, 2013, 126 Stat. 1829; Pub. L. 116–283, div. A, title XVIII, § 1850(j)(1), (2), (k)(1), Jan. 1, 2021, 134 Stat. 4269, 4270, related to critical cost growth in major defense acquisition programs. See sections 4376 and 4377 of this title. #### Effective Date of Repeal Repeal 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3001&num=0&edition=prelim).

Source: Supplied U.S. Code snapshot — release unconfirmed · 10 U.S.C. § 2433a

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Federal law — U.S. Code and appendices · legal_authorities

10 U.S.C. § 3221 — Director of Cost Assessment and Program Evaluation

**(a) In General.—** The Director of Cost Assessment and Program Evaluation shall ensure that the cost estimation and cost analysis processes of the Department of Defense provide accurate information and realistic estimates of cost for the acquisition programs of the Department of Defense. **(b) Functions.—** In carrying out the responsibility of the Director under subsection (a), the Director shall— (1) prescribe, by authority of the Secretary of Defense, policies and procedures for the conduct of cost estimation and cost analysis for the acquisition programs of the Department of Defense; (2) with respect to cost estimation in the Department of Defense in general and with respect to specific cost estimates and cost analyses to be conducted in connection with a major defense acquisition program or major subprogram under chapters 321, 324, and 325, subchapter I of chapter 322, and sections 3042, 4232, 4273, 4293, 4321, 4323, and 4328 of this title, provide guidance to and consult with— (A) the Secretary of Defense; (B) the Under Secretary of Defense for Acquisition and Sustainment; (C) the Under Secretary of Defense (Comptroller); (D) the Secretaries of the military departments; and (E) the heads of the Defense Agencies; (3) issue guidance relating to the proper discussion of risk in cost estimates generally, and specifically, for the proper discussion of risk in cost estimates for major defense acquisition programs and major subprograms; (4) issue guidance relating to full consideration of life-cycle management and sustainability costs in major defense acquisition programs and major subprograms; (5) review all cost estimates and cost analyses conducted in connection with major defense acquisition programs and major subprograms; (6) conduct or appro

Source: Supplied U.S. Code snapshot — release unconfirmed · 10 U.S.C. § 3221

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Federal law — U.S. Code and appendices · legal_authorities

10 U.S.C. § 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section4376&num=0&edition=prelim), 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 Acqu

Source: Supplied U.S. Code snapshot — release unconfirmed · 10 U.S.C. § 4377

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Federal law — U.S. Code and appendices · legal_authorities

10 U.S.C. § 4376 — Breach of critical cost growth threshold:

Page 2754 TITLE 10—ARMED FORCES § 4376 (B) as pars. (1) and (2), respectively, inserted par. (1) heading, and substituted ‘‘Except as provided in para- graph (2),’’ for ‘‘Except as provided in subparagraph (B),’’ in par. (1). Subsec. (a)(1). Pub. L. 116–283, § 1850(h)(2)(C), as amended by Pub. L. 117–81, § 1701(o)(6)(E)(iv), sub- stituted ‘‘under section 4374 of this title’’ for ‘‘under subsection (d)’’, ‘‘section 4351(e)’’ for ‘‘section 2432(e)’’, and ‘‘section 4351(f)’’ for ‘‘section 2432(f)’’. Subsec. (a)(2). Pub. L. 116–283, § 1850(h)(2)(D), sub- stituted ‘‘paragraph (1)’’ for ‘‘subparagraph (A)’’ in two places and ‘‘subsection (d)’’ for ‘‘subsection (g)’’. Subsec. (b). Pub. L. 116–283, § 1850(h)(3), inserted head- ing and substituted ‘‘section 4374 of this title’’ for ‘‘sub- section (d)’’ and ‘‘sections 4376 and 4377’’ for ‘‘section 2433a’’. Subsec. (c). Pub. L. 116–283, § 1850(h)(4)(A), (B), in- serted subsec. heading, designated first and second sen- tences as pars. (1) and (2), respectively, and inserted par. (1) heading. Subsec. (c)(1). Pub. L. 116–283, § 1850(h)(4)(C), sub- stituted ‘‘section 4374 of this title’’ for ‘‘subsection (d)’’ in two places, ‘‘subsection (d)’’ for ‘‘subsection (g)’’, ‘‘subsection (a)’’ for ‘‘paragraph (1)’’, and ‘‘subsection (b)’’ for ‘‘paragraph (2)’’. Subsec. (c)(2). Pub. L. 116–283, § 1850(h)(4)(D)(i), in- serted heading and substituted ‘‘The prohibition under paragraph (1)’’ for ‘‘The prohibition’’ in introductory provisions. Subsec. (c)(2)(A). Pub. L. 117–81, § 1701(d)(12)(A), struck out ‘‘or (b)(2)’’ after ‘‘subsection (a)’’. Pub. L. 116–283, § 1850(h)(4)(D)(ii), substituted ‘‘sub- section (a) or (b)(2)’’ for ‘‘paragraph (1) or (2)(B)’’ and ‘‘section 4374 of this title’’ for ‘‘subsection (d)’’. Subsec. (c

Source: Supplied 2024 U.S. Code historical extraction · 10 U.S.C. § 4376

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