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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle B Amendments to General Contracting Authorities, Procedures, and Limitations

P. L. 115-

House Conference Report. 115-404

SEC. 815. LIMITATION ON UNILATERAL DEFINITIZATION.

(a) Limitation.--Section 2326 of title 10, United States
Code, is amended--

(1) by redesignating subsections (c), (d), (e),
(f), (g), (h), and (i) as subsections (d), (e), (f),
(g), (h), (i), and (j) respectively; and

(2) by inserting after subsection (b) the following
new subsection (c):

``(c) Limitation on Unilateral Definitization by
Contracting Officer.--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 provided in
subsection (b)(1), the contracting officer may not unilaterally
definitize those terms, specifications, or price over the
objection of the contractor until--

``(1) the service acquisition executive for the
military department that awarded the contract, or the
Under Secretary of Defense for Acquisition and
Sustainment if the contract was awarded by a Defense
Agency or other component of the Department of Defense,
approves the definitization in writing;

``(2) the contracting officer provides a copy of
the written approval to the contractor; and

``(3) a period of 30 calendar days has elapsed
after the written approval is provided to the
contractor.''.

(b) Conforming Amendment.--Section 2326(b)(3) of such title
is amended by striking ``subsection (g)'' and inserting
``subsection (h)''.

(c) Conforming Regulations.--Not later than 120 days after
the date of the enactment of this Act, the Secretary of Defense
shall revise the Department of Defense Supplement to the
Federal Acquisition Regulation to implement section 2326 of
title 10, United States Code, as amended by this section.

Limitation on unilateral definitization (sec. 815)

The House bill contained a provision (sec. 851) that would amend section 2326 of title 10, United States Code, to require the approval of the agency head before a Department of Defense contracting officer can unilaterally definitize the specifications, terms, or price of undefinitized contractual actions (UCAs) valued greater than $1.0 billion. Currently, departmental regulations allow contracting officers to unilaterally determine reasonable prices and applicable clauses governing definitized contracts, with approval from the head of contracting activity.

The Senate amendment contained a similar provision (sec. 823) that would apply limitations and a notice and wait period to all undefinitized contractual actions of $50.0 million or greater. Such limitations would require that if an agreement is not reached on contractual terms, specifications, and price by a date certain, the contracting officer may not unilaterally definitize those terms, specifications, and price over the objection of the contractor until the head of the agency approves the definitization in writing, the contracting office provides the written approval to the contractor, and the head of the agency notifies the congressional defense committees of the approval. The contract modification unilaterally definitizing the action should not take effect until 60 calendar days after the congressional defense committees have been notified.

The Senate recedes with an amendment that would change the dollar threshold to $50.0 million and modify the approval authority to the service acquisition executive for the military department that awarded the contract or the Under Secretary of Defense for Acquisition and Sustainment if the contract was awarded by a Defense Agency or other component of the Department of Defense.

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