10 U.S.C. § 3372 — Undefinitized contractual actions: re-

Page 2474 TITLE 10—ARMED FORCES § 3372 plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3372. Undefinitized contractual actions: re- quirements and limitations relating to definitization of contractual terms, specifica- tions, and price (a) CONTRACTUAL ACTION TO PROVIDE TIME FOR DEFINITIZATION OF CONTRACTUAL TERMS, SPECI- FICATIONS, AND PRICE; LIMITATIONS ON OBLIGA- TION OF FUNDS.— (1) TERMS FOR TIME FOR DEFINITIZATION TO BE INCLUDED IN CONTRACTUAL ACTION.—A con- tracting officer of the Department of Defense may not enter into an undefinitized contrac- tual action unless the contractual action pro- vides for agreement upon contractual terms, specifications, and price by the earlier of— (A) the end of the 180-day period beginning on the date on which the contractor submits a qualifying proposal to definitize the con- tractual terms, specifications, and price; or (B) the date on which the amount of funds obligated under the contractual action is equal to more than 50 percent of the nego- tiated overall ceiling price for the contrac- tual action. (2) LIMITATION ON OBLIGATION OF FUNDS BE- FORE DEFINITIZATION.— (A) 50 PERCENT LIMITATION.—Except as pro- vided in subparagraph (B), the contracting officer for an undefinitized contractual ac- tion may not obligate with respect to such contractual action an amount that is equal to more than 50 percent of the negotiated overall ceiling price until the contractual terms, specifications, and price are defini- tized for such contractual action. (B) 75 PERCENT LIMITATION WHEN CON- TRACTOR SUBMITS QUALIFYING PROPOSAL.—If a contractor submits a qualifying proposal (as defined in section 3377(b) of this title) to de- finitize an undefinitized contractual action before an amount equal to more than 50 per- cent of the negotiated overall ceiling price is obligated on such action, the contracting of- ficer for such action may not obligate with respect to such contractual action an amount that is equal to more than 75 per- cent of the negotiated overall ceiling price until the contractual terms, specifications, and price are definitized for such contrac- tual action. (3) WAIVER AUTHORITY.—The head of an agen- cy may waive the provisions of this subsection with respect to a contract of that agency if that head of an agency determines that the waiver is necessary in order to support any of the following operations: (A) A contingency operation. (B) A humanitarian or peacekeeping oper- ation. (4) INAPPLICABILITY WITH RESPECT TO PUR- CHASE OF INITIAL SPARES.—This subsection does not apply to an undefinitized contractual action for the purchase of initial spares. (b) LIMITATION ON UNILATERAL DEFINITIZATION BY CONTRACTING OFFICER.— (1) IN GENERAL.—With respect to any undefinitized contractual action with a value greater than $50,000,000, if agreement is not reached on contractual terms, specifications, and price within the period or by the date pro- vided in subsection (a)(1), the contracting offi- cer may not unilaterally definitize those terms, specifications, or price over the objec- tion of the contractor until— (A) the service acquisition executive for the military department that awarded the contract, or the Under Secretary of Defense for Acquisition and Sustainment if the con- tract was awarded by a Defense Agency or other component of the Department of De- fense, approves the definitization in writing; (B) the contracting officer provides a copy of the written approval to the contractor; and (C) a period of 30 calendar days has elapsed after the written approval is provided to the contractor. (2) TREATMENT OF UNILATERAL DEFINITIZATION OF A CONTRACT AS A FINAL DECI- SION.—A unilateral definitization by a con- tracting officer shall be considered a final de- cision under chapter 71 of title 41, and a con- tractor may appeal this decision to the Armed Services Board of Contract Appeals or the United States Court of Federal Claims. (c) FOREIGN MILITARY CONTRACTS.— (1) 180-DAY REQUIREMENT.—Except as pro- vided in paragraph (2), a contracting officer of the Department of Defense may not enter into an undefinitized contractual action for a for- eign military sale unless the contractual ac- tion provides for agreement upon contractual terms, specifications, and price by the end of the 180-day period described in subsection (a)(1)(A). (2) WAIVER AUTHORITY.—The requirement under paragraph (1) may be waived in accord- ance with subsection (a)(3). (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1819(a), (c), Jan. 1, 2021, 134 Stat. 4189; Pub. L. 118–159, div. A, title VIII, § 803, Dec. 23, 2024, 138 Stat. 1965.) Editorial Notes CODIFICATION The text of subsec. (b) of section 2326 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, § 1819(c)(1), (2), was based on Pub. L. 99–500, § 101(c) [title X, § 908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–140, and Pub. L. 99–591, § 101(c) [title X, § 908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–140; Pub. L. 99–661, div. A, title IX, formerly title IV, § 908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 103–355, title I, § 1505(a), (b), Oct. 13, 1994, 108 Stat. 3298; Pub. L. 105–85, div. A, title VIII, § 803(a), Nov. 18, 1997, 111 Stat. 1831; Pub. L. 115–91, div. A, title VIII, § 815(b), Dec. 12, 2017, 131 Stat. 1462. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections. The text of subsec. (c) of section 2326 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, § 1819(c)(1), (3), was based on Pub. L. 115–91, div. A, title VIII, § 815(a)(2), Dec. 12, 2017, 131 Stat. 1462. The text of subsec. (h) of section 2326 of this title, which was transferred to this section, redesignated as Page 2475 TITLE 10—ARMED FORCES § 3373 subsec. (c), and amended by Pub. L. 116–283, § 1819(c)(1), (4), was based on Pub. L. 114–328, div. A, title VIII, § 811(3), Dec. 23, 2016, 130 Stat. 2268; Pub. L. 115–91, div. A, title VIII, § 815(a)(1), Dec. 12, 2017, 131 Stat. 1462. AMENDMENTS 2024—Subsec. (b). Pub. L. 118–159 designated introduc- tory provisions as par. (1) and inserted heading, redes- ignated former pars. (1) to (3) as subpars. (A) to (C), re- spectively, of par. (1) and realigned margins, and added par. (2). 2021—Subsec. (a). Pub. L. 116–283, § 1819(c)(1), (2)(A), redesignated subsec. (b) of section 2326 of this title as subsec. (a) of this section and substituted ‘‘Contractual Action to Provide Time for Definitization of Contrac- tual Terms, Specifications, and Price; Limitations on Obligation of Funds’’ for ‘‘Limitations on Obligation of Funds’’ in heading. Subsec. (a)(1). Pub. L. 116–283, § 1819(c)(2)(A), inserted heading. Subsec. (a)(2). Pub. L. 116–283, § 1819(c)(2)(C), inserted par. (2) designation and heading. Former par. (2) redes- ignated subpar. (A) of par. (2). Subsec. (a)(2)(A). Pub. L. 116–283, § 1819(c)(2)(B), (D), redesignated subsec. (a)(2) as (a)(2)(A), inserted head- ing, realigned margin, and substituted ‘‘Except as pro- vided in subparagraph (B),’’ for ‘‘Except as provided in paragraph (3),’’. Subsec. (a)(2)(B). Pub. L. 116–283, § 1819(c)(2)(B), (E), redesignated subsec. (a)(3) as (a)(2)(B), inserted head- ing, realigned margin, and substituted ‘‘section 3377(b) of this title’’ for ‘‘subsection (h)’’. Subsec. (a)(3). Pub. L. 116–283, § 1819(c)(2)(F), redesig- nated par. (4) as (3) and inserted heading. Former par. (3) redesignated subpar. (B) of par. (2). Subsec. (a)(4), (5). Pub. L. 116–283, § 1819(c)(2)(G), re- designated par. (5) as (4) and inserted heading. Former par. (4) redesignated (3). Subsec. (b). Pub. L. 116–283, § 1819(c)(1), (3), redesig- nated subsec. (c) of section 2326 of this title as subsec. (b) of this section and substituted ‘‘subsection (a)(1)’’ for ‘‘subsection (b)(1)’’ in introductory provisions. Subsec. (c). Pub. L. 116–283, § 1819(c)(1), redesignated subsec. (h) of section 2326 of this title as subsec. (c) of this section. Subsec. (c)(1). Pub. L. 116–283, § 1819(c)(4)(A), (B), in- serted heading and substituted ‘‘subsection (a)(1)(A)’’ for ‘‘subsection (b)(1)(A)’’. Subsec. (c)(2). Pub. L. 116–283, § 1819(c)(4)(C), (D), in- serted heading and substituted ‘‘subsection (a)(3)’’ for ‘‘subsection (b)(4)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. EXISTING AGREEMENT LIMITS FOR OPERATION WARP SPEED Pub. L. 117–263, div. A, title VIII, § 883, Dec. 23, 2022, 136 Stat. 2746, provided that: ‘‘The value of any modi- fication to, or order made under, a contract or other agreement by the Department of Defense on or after March 1, 2020, to address the COVID–19 pandemic through vaccines and other therapeutic measures shall not be counted toward any limit established prior to March 1, 2020, on the total estimated amount of all projects to be issued under the contract or other agree- ment (except that the value of such modification or order shall count toward meeting any guaranteed min- imum value under the contract or other agreement).’’ RELAXATION OF UNDEFINITIZED CONTRACT ACTION LIMI- TATIONS AND RESTRICTIONS RELATED TO NATIONAL EMERGENCY FOR CORONAVIRUS DISEASE 2019 Pub. L. 116–136, div. B, title III, § 13004, Mar. 27, 2020, 134 Stat. 522, provided that: ‘‘(a) Section 2326(b)(3) of title 10, United States Code [now 10 U.S.C. 3372(a)(2)(B)], shall not apply to any undefinitized contract action of the Department of De- fense related to the national emergency for the Coronavirus Disease 2019 (COVID–19). ‘‘(b) In this section, the term ‘undefinitized contract action’ has the meaning given that term in section 2326(j)(6) of title 10, United States Code [probably means section 2326(j)(1) of title 10, now 10 U.S.C. 3377(b)(1), which defines ‘‘undefinitized contractual ac- tion’’].’’ Pub. L. 116–136, div. B, title III, § 13005, Mar. 27, 2020, 134 Stat. 522, provided that: ‘‘(a) The head of an agency may waive the provisions of section 2326(b) of title 10, United States Code [now 10 U.S.C. 3372(a)], with respect to a contract of such agen- cy if the head of the agency determines that the waiver is necessary due to the national emergency for the Coronavirus Disease 2019 (COVID–19). ‘‘(b) In this section, the term ‘head of an agency’ has the meaning given that term in section 2302(2) [prob- ably means section 2302(1); now 10 U.S.C. 3004] of title 10, United States Code.’’ § 3373. Undefinitized contractual actions: limita- tion on inclusion of non-urgent requirements and on modification of scope (a) INCLUSION OF NON-URGENT REQUIREMENTS.— Requirements for spare parts and support equip- ment that are not needed on an urgent basis may not be included in an undefinitized contrac- tual action for spare parts and support equip- ment that are needed on an urgent basis unless the head of the agency approves such inclusion as being— (1) good business practice; and (2) in the best interests of the United States. (b) MODIFICATION OF SCOPE.—The scope of an undefinitized contractual action under which performance has begun may not be modified un- less the head of the agency approves such modi- fication as being— (1) good business practice; and (2) in the best interests of the United States. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1819(a), (d), Jan. 1, 2021, 134 Stat. 4189, 4190.) Editorial Notes CODIFICATION The text of subsecs. (d) and (e) of section 2326 of this title, which were transferred to this section, redesig- nated as subsecs. (a) and (b), respectively, and amended by Pub. L. 116–283, § 1819(d), was based on Pub. L. 99–500, § 101(c) [title X, § 908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–141, and Pub. L. 99–591, § 101(c) [title X, § 908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–141; Pub. L. 99–661, div. A, title IX, formerly title IV, § 908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, 3921, renum- bered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 115–91, div. A, title VIII, § 815(a)(1), Dec. 12, 2017, 131 Stat. 1462. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections. AMENDMENTS 2021—Pub. L. 116–283, § 1819(d), redesignated subsecs. (d) and (e) of section 2326 of this title as subsecs. (a) and (b), respectively, of this section.