10 U.S.C. § 4212 — Risk management and mitigation in major

Page 2709 TITLE 10—ARMED FORCES § 4212 tion and risk reduction pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acqui- sition programs. (2) The term ‘‘Milestone B approval’’ has the meaning provided in section 4172(e)(7) of this title. (3) The term ‘‘milestone decision authority’’, with respect to a major defense acquisition program or major system, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program or system, including authority to approve entry of the program or system into the next phase of the acquisition process. (4) The term ‘‘management capacity’’, with respect to a major defense acquisition pro- gram or major system, means the capacity to manage the program or system through the use of highly qualified organizations and per- sonnel with appropriate experience, knowl- edge, and skills. (5) The term ‘‘significant change to the cost’’, with respect to a major defense acquisi- tion program or major system, means a sig- nificant cost growth threshold, as that term is defined in section 4371(a)(2) of this title. (6) The term ‘‘critical change to the cost’’, with respect to a major defense acquisition program or major system, means a critical cost growth threshold, as that term is defined in section 4371(a)(3) of this title. (7) The term ‘‘significant change to the schedule’’, with respect to a major defense ac- quisition program or major system, means any schedule delay greater than six months in a reported event. (Added Pub. L. 114–92, div. A, title VIII, § 821(a)(1), Nov. 25, 2015, 129 Stat. 897, § 2431a; amended Pub. L. 114–328, div. A, title VIII, § 848, Dec. 23, 2016, 130 Stat. 2292; Pub. L. 115–91, div. A, title X, § 1081(a)(39), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 116–92, div. A, title IX, § 902(70), Dec. 20, 2019, 133 Stat. 1551; renumbered § 4211 and amend- ed Pub. L. 116–283, div. A, title XVIII, § 1847(b)(1), (2), Jan. 1, 2021, 134 Stat. 4253; Pub. L. 117–81, div. A, title XVII, § 1701(s)(1), Dec. 27, 2021, 135 Stat. 2149; Pub. L. 118–159, div. A, title XVII, § 1701(a)(39), Dec. 23, 2024, 138 Stat. 2205.) Editorial Notes AMENDMENTS 2024—Subsec. (a). Pub. L. 118–159, § 1701(a)(39)(B), struck out ‘‘, each major automated information sys- tem,’’ after ‘‘defense acquisition program’’. Subsec. (c)(1). Pub. L. 118–159, § 1701(a)(39)(A), struck out ‘‘, major automated information system,’’ after ‘‘defense acquisition program’’ in introductory provi- sions. Subsec. (c)(2)(H). Pub. L. 118–159, § 1701(a)(39)(C), sub- stituted ‘‘section 3501 of this title’’ for ‘‘sections 3501 through 3511 of this title’’. Subsecs. (d), (e). Pub. L. 118–159, § 1701(a)(39)(A), struck out ‘‘, major automated information system,’’ after ‘‘defense acquisition program’’ wherever appear- ing. 2021—Pub. L. 116–283, § 1847(b)(1)(A), renumbered sec- tion 2431a of this title as this section. Subsec. (c)(2)(B). Pub. L. 116–283, § 1847(b)(2), formerly § 1847(b)(2)(B), as redesignated and amended by Pub. L. 117–81, § 1701(s)(1), substituted ‘‘section 4820 of this title’’ for ‘‘section 2440 of this title’’. Subsec. (c)(2)(D). Pub. L. 116–283, § 1847(b)(1)(B)(i)(I), substituted ‘‘section 4324’’ for ‘‘section 2337’’. Subsec. (c)(2)(F). Pub. L. 116–283, § 1847(b)(1)(B)(i)(II), substituted ‘‘sections 3771 through 3775’’ for ‘‘section 2320’’. Subsec. (c)(2)(H). Pub. L. 116–283, § 1847(b)(1)(B)(i)(III), substituted ‘‘sections 3501 through 3511’’ for ‘‘section 2306b’’. Subsec. (c)(3). Pub. L. 116–283, § 1847(b)(2)(A), which di- rected the transfer of section 2440 of this title to sub- sec. (c)(3) of this section and substitution of ‘‘section 4811’’ for ‘‘section 2501’’ in text, was repealed by Pub. L. 117–81, § 1701(s)(1)(A). Subsec. (e). Pub. L. 116–283, § 1847(b)(1)(C), which di- rected amendment of subsec. (e) by striking pars. (1) and (2) and redesignating pars. (3) to (10) as (1) to (8), respectively, was executed by striking pars. (1) and (2) and redesignating former pars. (3) to (9) as (1) to (7), re- spectively, to reflect the probable intent of Congress, as no par. (10) had been enacted. Prior to amendment, pars. (1) and (2) defined ‘‘major defense acquisition pro- gram’’ and ‘‘major system’’, respectively. Subsec. (e)(4). Pub. L. 116–283, § 1847(b)(1)(B)(ii)(I), sub- stituted ‘‘section 4172(e)(7)’’ for ‘‘section 2366(e)(7)’’. Subsec. (e)(7). Pub. L. 116–283, § 1847(b)(1)(B)(ii)(II), substituted ‘‘section 4371(a)(2)’’ for ‘‘section 2433(a)(4)’’. Subsec. (e)(8). Pub. L. 116–283, § 1847(b)(1)(B)(ii)(III), substituted ‘‘section 4371(a)(3)’’ for ‘‘section 2433(a)(5)’’. 2019—Subsec. (b). Pub. L. 116–92 substituted ‘‘Under Secretary of Defense for Acquisition and Sustainment’’ for ‘‘Under Secretary of Defense for Acquisition, Tech- nology, and Logistics’’ in introductory provisions. 2017—Subsec. (d)(1). Pub. L. 115–91 inserted ‘‘(1)’’ be- fore ‘‘The milestone’’. 2016—Subsec. (b). Pub. L. 114–328, § 848(1), in introduc- tory provisions, inserted ‘‘, or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military depart- ment that is managing the program,’’ after ‘‘the Under Secretary of Defense for Acquisition, Technology, and Logistics’’. Subsec. (c)(1). Pub. L. 114–328, § 848(2)(A), in introduc- tory provisions, inserted ‘‘, or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military depart- ment that is managing the program,’’ after ‘‘the Under Secretary’’. Subsec. (c)(2)(C). Pub. L. 114–328, § 848(2)(B), struck out ‘‘, in accordance with section 2431b of this title’’ before period at end. Subsec. (d). Pub. L. 114–328, § 848(3), substituted ‘‘The’’ for ‘‘(1) Subject to the authority, direction, and control of the Under Secretary of Defense for Acquisition, Technology, and Logistics, the’’ and, in par. (2), in- serted ‘‘because of a change described in paragraph (1)(F)’’ after ‘‘for a program or system’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below. 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. § 4212. Risk management and mitigation in major defense acquisition programs and major sys- tems (a) REQUIREMENT.—The Secretary of Defense shall ensure that the initial acquisition strategy (required under section 4211 of this title) ap- proved by the milestone decision authority and any subsequent revisions include the following: Page 2710 TITLE 10—ARMED FORCES § 4214 (1) A comprehensive approach for managing and mitigating risk (including technical, cost, and schedule risk) during each of the following periods or when determined appropriate by the milestone decision authority: (A) The period preceding engineering man- ufacturing development, or its equivalent. (B) The period preceding initial produc- tion. (C) The period preceding full-rate produc- tion. (2) An identification of the major sources of risk in each of the periods listed in paragraph (1) to improve programmatic decisionmaking and appropriately minimize and manage pro- gram concurrency. (b) APPROACH TO MANAGE AND MITIGATE RISKS.—The comprehensive approach to manage and mitigate risk included in the acquisition strategy for purposes of subsection (a)(1) shall, at a minimum, include consideration of risk mitigation techniques such as the following: (1) Prototyping (including prototyping at the system, subsystem, or component level and competitive prototyping, where appro- priate) and, if prototyping at either the sys- tem, subsystem, or component level is not used, an explanation of why it is not appro- priate. (2) Modeling and simulation, the areas that modeling and simulation will assess, and iden- tification of the need for development of any new modeling and simulation tools in order to support the comprehensive strategy. (3) Technology demonstrations and decision points for disciplined transition of planned technologies into programs or the selection of alternative technologies. (4) Multiple design approaches. (5) Alternative designs, including any de- signs that meet requirements but do so with reduced performance. (6) Phasing of program activities or related technology development efforts in order to ad- dress high-risk areas as early as feasible. (7) Manufacturability and industrial base availability. (8) Independent risk element assessments by outside subject matter experts. (9) Schedule and funding margins for identi- fied risks. (c) PREFERENCE FOR PROTOTYPING.—To the maximum extent practicable and consistent with the economical use of available financial resources, the milestone decision authority for each major defense acquisition program shall ensure that the acquisition strategy for the pro- gram provides for— (1) the production of competitive prototypes at the system or subsystem level before Mile- stone B approval; or (2) if the production of competitive proto- types is not practicable, the production of sin- gle prototypes at the system or subsystem level. (d) CONCURRENCY DEFINED.—In this section, the term ‘‘concurrency’’ means, with respect to an acquisition strategy, the combination or overlap of program phases or activities. (Added Pub. L. 114–92, div. A, title VIII, § 822(a)(1), Nov. 25, 2015, 129 Stat. 900, § 2431b; amended Pub. L. 114–328, div. A, title X, § 1081(a)(7), Dec. 23, 2016, 130 Stat. 2417; renum- bered § 4212 and amended Pub. L. 116–283, div. A, title XVIII, § 1847(b)(3), Jan. 1, 2021, 134 Stat. 4254.) Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1847(b)(3), renumbered section 2431b of this title as this section. Subsec. (a). Pub. L. 116–283, § 1847(b)(3)(A), substituted ‘‘section 4211’’ for ‘‘section 2431a’’. Subsec. (d). Pub. L. 116–283, § 1847(b)(3)(B), substituted ‘‘Concurrency Defined’’ for ‘‘Definitions’’ in subsec. heading, struck out par. (1) designation and heading, substituted ‘‘In this section, the term’’ for ‘‘The term’’, and struck out par. (2) which defined ‘‘major defense acquisition program’’ and ‘‘major system’’. 2016—Subsec. (d). Pub. L. 114–328 amended subsec. (d) generally. Prior to amendment, subsec. (d) defined terms ‘‘major defense acquisition program’’ and ‘‘major system’’. 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. § 4214. Baseline description (a) BASELINE DESCRIPTION REQUIREMENT.—(1) The Secretary of a military department shall es- tablish a baseline description for each major de- fense acquisition program and for each des- ignated major subprogram under the program under the jurisdiction of such Secretary. (2) The baseline shall include sufficient param- eters to describe the cost estimate (referred to as the ‘‘Baseline Estimate’’ in sections 4371 through 4375 of this title), schedule, perform- ance, supportability, and any other factor of such major defense acquisition program or des- ignated major subprogram. (b) FUNDING LIMIT.—No amount appropriated or otherwise made available to the Department of Defense for carrying out a major defense ac- quisition program or any designated major sub- program under the program may be obligated after the program or subprogram enters system development and demonstration without an ap- proved baseline description unless such obliga- tion is specifically approved by the Under Sec- retary of Defense for Acquisition and Sustainment. (c) SCHEDULE.—A baseline description for a major defense acquisition program or any des- ignated major subprogram under the program shall be prepared under this section— (1) before the program or subprogram enters system development and demonstration; (2) before the program or subprogram enters production and deployment; and (3) before the program or subprogram enters full rate production. (d) ORIGINAL BASELINE ESTIMATE.—(1) In this subpart, the term ‘‘original Baseline Estimate’’,