10 U.S.C. § 3603 — Software acquisition pathways

Page 2515 TITLE 10—ARMED FORCES § 3603 1 So in original. Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in Pub. L. 114–92, div. A, title VIII, § 804, Nov. 25, 2015, 129 Stat. 882, as amended by Pub. L. 114–328, div. A, title VIII, §§ 849(a), 864(b), 897, title X, § 1081(c)(2), Dec. 23, 2016, 130 Stat. 2293, 2304, 2327, 2419; Pub. L. 115–91, div. A, title VIII, § 866, Dec. 12, 2017, 131 Stat. 1495; Pub. L. 116–92, div. A, title IX, § 902(33), Dec. 20, 2019, 133 Stat. 1546; Pub. L. 116–283, div. A, title VIII, § 805, Jan. 1, 2021, 134 Stat. 3742, which was set out in a note preceding section 3201 of this title, prior to repeal by Pub. L. 118–159, div. A, title VIII, § 804(b), Dec. 23, 2024, 138 Stat. 1968. § 3603. Software acquisition pathways (a) SOFTWARE ACQUISITION AND DEVELOPMENT PATHWAYS.—The Secretary of Defense shall es- tablish pathways as described under subsection (b) to provide for the efficient and effective ac- quisition, development, integration, and timely delivery of software and covered hardware. Such a pathway shall include the following: 1 (b) PATHWAYS.—The Secretary of Defense may establish as many pathways under this section as the Secretary determines appropriate and shall establish the following pathways: (1) APPLICATIONS.—The applications pathway shall provide for the use of rapid development and implementation of applications and other software or software improvements operated by the Department of Defense, which may in- clude applications and associated procurement of covered hardware (including modifications of a type not customarily available in the commercial marketplace to meet Department requirements), commercially available cloud computing platforms, and other nondevelop- mental items. (2) EMBEDDED SYSTEMS.—The embedded sys- tems pathway shall provide for the rapid de- velopment and insertion of upgrades and im- provements for software and covered hardware embedded in weapon systems and other hard- ware systems unique to the Department of De- fense. (c) REQUIREMENTS FOR PATHWAYS.—A pathway established under this section shall provide for the use of proven technologies and solutions to continuously engineer and deliver capabilities for software and covered hardware. (d) CONSIDERATIONS FOR USE OF AUTHORITY.— In using the authority under this section, the Secretary shall consider how such use will— (1) initiate the engineering of new software capabilities quickly and, if applicable, the in- tegration of such capabilities into covered hardware; (2) demonstrate the viability and effective- ness of such capabilities for operational use not later than one year after the date on which funds are first obligated to acquire or develop software; and (3) allow for the continuous updating and de- livery of new capabilities not less frequently than annually to iteratively meet a require- ment. (e) TREATMENT NOT AS MAJOR DEFENSE ACQUI- SITION PROGRAM.—Software and covered hard- ware acquired or developed using the authority under this section shall not be treated as a major defense acquisition program for purposes of section 4201 of title 10, United States Code, or Department of Defense Directive 5000.01 without the specific designation of such software and covered hardware by the Under Secretary of De- fense for Acquisition and Sustainment or a serv- ice acquisition executive. (f) RISK-BASED APPROACH.—The Secretary of Defense shall use a risk-based approach for the consideration of innovative technologies and new capabilities for software and covered hard- ware to be acquired or developed under this au- thority to meet needs communicated by the Joint Chiefs of Staff and the combatant com- manders. (g) EXPEDITED PROCESS.— (1) IN GENERAL.—A pathway established under this section shall provide for— (A) a streamlined and coordinated require- ments, budget, and acquisition process to support rapid fielding of software applica- tions and of software upgrades to embedded systems for operational use in a period of not more than one year from the time that the process is initiated; (B) the collection of data on software and covered hardware fielded; and (C) continuous engagement with the users of software and covered hardware to sup- port— (i) engineering activities of the Depart- ment of Defense; and (ii) delivery of software and covered hardware for operational use in periods of not more than one year. (2) EXPEDITED SOFTWARE REQUIREMENTS PROCESS.— (A) INAPPLICABILITY OF JOINT CAPABILITIES INTEGRATION AND DEVELOPMENT SYSTEM MAN- UAL.—Software and covered hardware acqui- sition or development conducted under the authority of this section shall not be subject to the Joint Capabilities Integration and De- velopment System Manual, except pursuant to a modified process specifically provided for the acquisition or development of soft- ware by the Vice Chairman of the Joint Chiefs of Staff, in consultation with Under Secretary of Defense for Acquisition and Sustainment and each service acquisition executive. (B) INAPPLICABILITY OF DEFENSE ACQUISI- TION SYSTEM DIRECTIVE.—Software and cov- ered hardware acquisition or development conducted under the authority of this sec- tion shall not be subject to Department of Defense Directive 5000.01, except when spe- cifically provided for the acquisition or de- velopment of software by the Under Sec- retary of Defense for Acquisition and Sustainment, in consultation with the Vice Chairman of the Joint Chiefs of Staff and each service acquisition executive. (h) ELEMENTS.—In implementing a pathway es- tablished under the authority of this section, the Secretary shall tailor requirements relating to— (1) iterative development of requirements for software and covered hardware to be acquired Page 2516 TITLE 10—ARMED FORCES § 3604 or developed under the authority of this sec- tion through engagement with the user com- munity and through user feedback, in order to continuously define and update priorities for such requirements; (2) early identification of the warfighter or user needs including the rationale for how software and covered hardware to be acquired or developed under the authority of this sec- tion will be tailored to address such needs; (3) initial contract requirements and format, including the use of summary-level lists of problems in existing software and desired fea- tures or capabilities of new or upgraded soft- ware; (4) continuous refinement and prioritization of contract requirements, informed by contin- uous engagement with users throughout the period of development and implementation of software and covered hardware to be acquired or developed under this section; (5) continuous consideration of issues re- lated to lifecycle costs, technical data rights, and systems interoperability; (6) planning for support of capabilities of software to be acquired or developed under this section if the software developer stops supporting the software; (7) rapid contracting procedures, including expedited timeframes for making awards, se- lecting contract types, defining teaming ar- rangements, and defining options; (8) program execution processes, including supporting development and test infrastruc- ture, automation and tools, digital engineer- ing, data collection and sharing with Depart- ment of Defense stakeholders and with Con- gress, the role of developmental and oper- ational testing activities, key decision-mak- ing and oversight events, and supporting proc- esses and activities (such as independent cost- ing activity, operational demonstration, and performance metrics); (9) assurances that cybersecurity metrics of the software to be acquired or developed, such as metrics relating to the density of vulnerabilities within the code of such soft- ware, the time from vulnerability identifica- tion to patch availability, the existence of common weaknesses within such code, and other cybersecurity metrics based on widely- recognized standards and industry best prac- tices, are generated and made available to the Department of Defense and the congressional defense committees; (10) administrative procedures, including procedures relating to who may initiate and approve an acquisition under this authority, the roles and responsibilities of persons imple- menting or supporting the use of authority under this section, team selection and staffing process, governance and oversight roles and responsibilities, and appropriate independent technology assessments, testing, and cost esti- mation (including relevant thresholds or des- ignation criteria); (11) mechanisms and waivers designed to en- sure flexibility in the implementation of a pathway under this section, including the use of other transaction authority, broad agency announcements, and other procedures; and (12) mechanisms the Secretary will use for appropriate reporting to Congress on the use of the authority under this section, including notice of initiation of the use of a pathway and data regarding individual programs or ac- quisition activities, how acquisition activities are reflected in budget justification materials or requests to reprogram appropriated funds, and compliance with other reporting require- ments. (i) DEFINITIONS.—In this section: (1) The term ‘‘covered hardware’’ means hardware— (A) that is a commercial product (as de- fined in section 103 of title 41) or a non- developmental item; and (B) in which software acquired under this section is embedded. (2) The term ‘‘nondevelopmental item’’ has the meaning given in section 110 of title 41. (Added Pub. L. 118–159, div. A, title VIII, § 805(a), Dec. 23, 2024, 138 Stat. 1969.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in Pub. L. 116–92, div. A, title VIII, § 800, Dec. 20, 2019, 133 Stat. 1478, which was set out in a note under section 4571 of this title, prior to repeal by Pub. L. 118–159, div. A, title VIII, § 805(c)(1), Dec. 23, 2024, 138 Stat. 1972. Statutory Notes and Related Subsidiaries GUIDANCE REQUIRED Pub. L. 118–159, div. A, title VIII, § 805(b), Dec. 23, 2024, 138 Stat. 1972, provided that: ‘‘Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2024], the Secretary of Defense shall issue or modify guidance to implement the requirements of this sec- tion.’’ § 3604. Program to accelerate the procurement and fielding of innovative technologies (a) PROGRAM.—Subject to availability of ap- propriations, the Secretary of Defense shall es- tablish a competitive, merit-based program to accelerate the procurement and fielding of inno- vative technologies by, with respect to such technologies— (1) reducing acquisition or life-cycle costs; (2) addressing technical risks; (3) improving the timeliness and thorough- ness of test and evaluation outcomes; and (4) rapidly implementing such technologies to directly support defense missions. (b) GUIDELINES.— (1) IN GENERAL.—The Secretary shall issue guidelines for the operation of the program es- tablished under this section. (2) CONTENTS.—At a minimum, the guide- lines for the operation of the program estab- lished under this section required under para- graph (1) shall provide for the following: (A) The issuance of one or more solicita- tions for proposals by the Department of De- fense in support of the program, with a pri- ority established for technologies developed by small business concerns (as defined under