10 U.S.C. § 3105: Elements of the defense…

Summary

The Secretary of Defense must write detailed rules so the Department of Defense gets independent, regular reviews of parts of the defense acquisition system. The reviews must check whether those parts give good value, help senior leaders find lessons from what works and what does not, and help build an excellent acquisition workforce. Each review must at least look at whether projects meet cost, schedule, and performance goals and whether the acquisition workforce is sized, trained, and managed well, including incentives and career paths. Reviews should be tailored for different kinds of work and can also cover contractor selection (competition, small business use, market research, past performance, protests), contract negotiation (truth-in-negotiations rules, proper contract types, performance rules, rights in technical data, timely finalizing deals), and contractor management (qualified oversight staff, disputes, sustainment and energy goals, testing). The rules must require that every element is reviewed at least once every four years and must say which units are reviewed, how often, what goals and measures to use, who will do the reviews, any phase-in steps, how recommendations will be tracked, how lessons will be shared, and how results will be stored and sent to the Under Secretary of Defense for Acquisition and Sustainment and the Director of the Office of Performance Assessment and Root Cause Analysis.

Title 10, §3105

Armed Forces, Source: USLM XML via OLRC

(a)Performance Assessments Required.—

The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, the Director of Procurement and Acquisition Policy, and the Director of the Office of Performance Assessment and Root Cause Analysis, shall issue guidance, with detailed implementation instructions, for the Department of Defense to provide for periodic independent performance assessments of elements of the defense acquisition system for the purpose of— (1)

(2)assisting senior officials of the Department of Defense in identifying and developing lessons learned from best practices and shortcomings in the performance of such elements of the defense acquisition system; and

(3)assisting senior officials of the Department of Defense in developing acquisition workforce excellence under section 1701a of this title.

(b)Areas Considered in Performance Assessments.—

(1)Each performance assessment conducted pursuant to subsection (a) shall consider, at a minimum—

(A)the extent to which acquisitions conducted by the element of the defense acquisition system under review meet applicable cost, schedule, and performance objectives; and

(B)the staffing and quality of the acquisition workforce and the effectiveness of the management of the acquisition workforce, including workforce incentives and career paths.

(2)The Secretary of Defense shall ensure that the performance assessments required by this section are appropriately tailored to reflect the diverse nature of the work performed by each element of the defense acquisition system. In addition to the mandatory areas under paragraph (1), a performance assessment may consider, as appropriate, specific areas of acquisition concern, such as—

(A)the selection of contractors, including—

(i)the extent of competition and the use of exceptions to competition requirements;

(ii)compliance with Department of Defense policies regarding the participation of small business concerns and various categories of small business concerns, including the use of contract bundling and the availability of non-bundled contract vehicles;

(iii)the quality of market research;

(iv)the effective consideration of contractor past performance; and

(v)the number of bid protests, the extent to which such bid protests have been successful, and the reasons for such success;

(B)the negotiation of contracts, including—

(i)the appropriate application of sections 3701 through 3708 of this title (relating to truth in negotiations);

(ii)the appropriate use of contract types appropriate to specific procurements;

(iii)the appropriate use of performance requirements;

(iv)the appropriate acquisition of technical data and other rights and assets necessary to support long-term sustainment and follow-on procurement; and

(v)the timely definitization of any undefinitized contract actions; and

(C)the management of contractor performance, including—

(i)the assignment of appropriately qualified contracting officer representatives and other contract management personnel;

(ii)the extent of contract disputes, the reasons for such disputes, and the extent to which they have been successfully addressed;

(iii)the appropriate consideration of long-term sustainment and energy efficiency objectives; and

(iv)the appropriate use of integrated testing.

(c)Contents of Guidance.—

The guidance issued pursuant to subsection (a) shall ensure that each element of the defense acquisition system is subject to a performance assessment under this section not less often than once every four years, and shall address, at a minimum—

(1)the designation of elements of the defense acquisition system that are subject to performance assessment at an organizational level that ensures such assessments can be performed in an efficient and integrated manner;

(2)the frequency with which such performance assessments should be conducted;

(3)goals, standards, tools, and metrics for use in conducting performance assessments;

(4)the composition of the teams designated to perform performance assessments;

(5)any phase-in requirements needed to ensure that qualified staff are available to perform performance assessments;

(6)procedures for tracking the implementation of recommendations made pursuant to performance assessments;

(7)procedures for developing and disseminating lessons learned from performance assessments; and

(8)procedures for ensuring that information from performance assessments are retained electronically and are provided in a timely manner to the Under Secretary of Defense for Acquisition and Sustainment and the Director of the Office of Performance Assessment and Root Cause Analysis as needed to assist them in performing their responsibilities under this section.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2021—Pub. L. 116–283, § 1808(a)(2), (c)(2), renumbered section 2548 of this title as this section and substituted “Elements of the defense acquisition system: performance assessments” for “Performance assessments of the defense acquisition system” in section catchline. Subsec. (b)(2)(B)(i). Pub. L. 116–283, § 1808(b)(3), substituted “sections 3701 through 3708” for “section 2306a”. Subsecs. (d), (e). Pub. L. 116–283, § 1808(c)(1)(A), transferred subsecs. (d) and (e) of this section to section 3106 of this title. 2019—Subsecs. (a), (c)(8). Pub. L. 116–92 substituted “Under Secretary of Defense for Acquisition and Sustainment” for “Under Secretary of Defense for Acquisition, Technology, and Logistics”. 2017—Subsec. (e). Pub. L. 115–91 substituted “Requirement” for “Requirements” in heading, struck out introductory provisions “Beginning with fiscal year 2012—”, substituted “The annual report prepared by the Secretary” for “(1) the annual report prepared by the Secretary”, and struck out par. (2) which read as follows: “the annual report prepared by the Director of the Office of Performance Assessment and Root Cause Analysis pursuant to section 2438(f) of this title shall include information on the activities undertaken by the Department pursuant to such section, including a summary of significant findings or recommendations arising out of performance assessments.” 2013—Subsec. (a). Pub. L. 112–239, § 1076(f)(30)(A)(i), substituted “The Secretary” for “Not later than 180 days after the date of the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, the Secretary” in introductory provisions. Subsec. (a)(3). Pub. L. 112–239, § 1076(f)(30)(A)(ii), inserted period at end. Subsec. (d). Pub. L. 112–239, § 1076(f)(30)(B), inserted “and” after “Government Performance” in heading and substituted “The” for “Beginning with fiscal year 2012, the” in text. Subsec. (e)(1). Pub. L. 112–239, § 1076(f)(30)(C), struck out “, United States Code,” after “title 31”. Subsec. (e)(2). Pub. L. 112–239, § 1076(d)(5), substituted “section 2438(f) of this title” for “section 103(f) of the Weapon Systems Acquisition Reform Act of 2009 (10 U.S.C. 2430 note),”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2021 AmendmentAmendment 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.

§3105 Elements of the Defense Acquisition System: Performance Assessments