How To Use the NDAA Pages

Back to NDAA Contents

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

Legislative Proposals Not Adopted

P. L. 117-81

Joint Explanatory Statement

The House bill contained a provision (sec. 802) that would grant the Department of Defense new reimbursement authorities for contractors during a declared pandemic.

The Senate amendment contained no similar provision. The agreement does not include this provision.

We note the Coronavirus Aid, Relief, and Economic Security Act (Public Law 116-136), also known as the ‘‘CARES" Act, was enacted on March 27, 2020, in response to the COVID-19 pandemic.Subject to certain conditions, section 3610 of the CARES Act allowed agencies to reimburse paid leave, including sick leave, when a Federal contractor provides to keep their employees or subcontractors in a ready state.

We are keen to understand the extent to which the authority provided in section 3610 of the CARES Act was, and continues to be, used on Department of Defense contracts and whether providing a similar authority to the Department permanently is in the national security interest.

Accordingly, we direct the Secretary of the Defense to provide a briefing, not later than March 1, 2022, and a report not later than April 1, 2022, to the congressional defense
committees regarding the Department’s use of section 3610 of the CARES Act. Such briefing and report shall include the following elements related to section 3610 of the  CARES Act: (1) Summary of Department implementation policy; (2) Reimbursements paid by the Department listed by contractor, amount paid, appropriation used to pay such reimbursement, and justification; (3) Reimbursements pending payment or a payment decision by the Department listed by contractor, amount requested, and justification; (4) Reimbursements denied by the Department listed by contractor, amount requested, and justification; (5) Benefit to the industrial base; (6) Benefit to the Government; (7) Specific examples of negative impacts avoided or mitigated; (8) An assessment of the extent to which making permanent this authority or similar authority would be in the national security interest; (9) Specific legislative or policy recommendations; and (10) Other related matters the Secretary considers appropriate.

The House bill contained a provision (sec. 804) that would establish a minimum hourly wage for employees of Department of Defense contractors performing a covered contract.

The Senate amendment contained no similar provision.  The agreement does not include this provision.

The House bill contained a provision (sec. 805) that would require each covered contractor awarded a major contract to provide to the Secretary of Defense an annual report, for the
duration of such major contract, on diversity and inclusion. The provision would also require the Secretary of Defense to provide to the congressional defense committees an annual report summarizing the reports provided to the Secretary by contractors and for such reports to be publicly available.

The Senate amendment contained no similar provision.

The agreement does not include this provision.  We encourage defense contractors to promote diversity in leadership, in the workforce, and on corporate boards, and to establish measurable goals to achieve such diversity. We note that efforts to increase geographic, racial, and gender diversity, and to increase employment for veterans and military dependents, may result in improved outcomes to support the National Defense Strategy.

The House bill contained a provision (sec. 817) that would amend section 3905 of title 10, United States Code, to enhance competition and market research requirements for products
offered for sale by the Federal Prison Industries (FPI).

The Senate amendment contained no similar provision.

The agreement does not include this provision. 

We note that the Congress established the Federal Prison Industries to help manage, train and rehabilitate inmates through employment. The Congress established a 5 percent threshold in section 827 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181), under which the Department of Defense (DOD) was to acquire products produced by FPI, as long as the products met the needs of the Department in terms of quality, performance, and price. We are aware of concerns about the decline in FPI’s revenue generated from sales to DOD and Federal agencies. In light of improvements in the ability of Federal agencies to better mine acquisition data, increases in the simplified acquisition threshold and the advent of e-commerce portals, we direct the Comptroller General of the United States to assess: (1) How the Department identifies opportunities to acquire products from FPI; (2) The contracting approaches and vehicles used to do so; (3) What oversight is conducted to ensure compliance with applicable laws and regulations; and (4) Any other issues the Comptroller General deems relevant to help inform congressional oversight and future legislation. We further direct the Comptroller General of the United States to brief the Committees on Armed Services of the Senate and the House of Representatives on preliminary observations by December 1, 2022, and provide a complete report at a mutually agreed upon date.

The Senate amendment contained a provision (sec. 818) that would require the Secretary of Defense to require all Department of Defense contractors to disclose certain training materials for review.

The House bill contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 822) that would extend and revise the “Never Contract with the Enemy” program initially authorized under the National Defense Authorization  Act for Fiscal Year 2015 (Public Law 113-291).

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We note that the Secretary of Defense has indicated interest in extending and expanding this authority. We believe that the Secretary of Defense needs to provide more justification for this legislative request, including an analysis of the impacts to defense missions that the lack of this authority has had, analyses of other acquisition authorities or practices which may provide the equivalent legal authorities to the Secretary, and an analysis of the interaction of the proposed authorities with existing acquisition policies and practices. We look forward to reviewing future requests for authority in this area and any supporting justification and analyses.

The Senate amendment contained a provision (sec. 833) that would amend section 2533c of title 10, United States Code, to add covered companies to the existing prohibition of sensitive materials from non-allied foreign nations.

The House bill contained no similar provision.

The agreement does not include this provision.

We are concerned that sensitive materials might be acquired from covered nations (as defined in section 2533c of title 10, United States Code) despite current prohibitions. Accordingly, we direct the Secretary of Defense to provide a briefing to the Committees on Armed Services of the Senate and the House of Representatives, not later than March 1, 2022, on known efforts by covered nations to bypass current prohibitions, as found in section 2533c. The briefing shall include concerns the Department of Defense may have, ideas for mitigating these efforts, and any other information the Secretary finds relevant.

The House bill contained a provision (sec. 834) that would require the Secretary of Defense to provide to the congressional defense committees a report assessing the domestic source content of any procurement and would increase over a period of several years the domestic content requirements for the purposes of chapter 83 of title 41, United States Code.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 837) that would require the Secretary of Defense, in coordination with the Secretary of Energy and the Secretary of Commerce, to conduct an assessment of the effect on national security that would result from uranium ceasing to be designated as a critical mineral by the Secretary of the Interior under section 7002(c) of the Energy Act of 2020, Division Z, Title VII of the Consolidated Appropriations Act, 2021 (Public Law 116-260). The provision would require the Secretary of Defense to submit a report on the findings of the assessment to the congressional defense committees and would restrict the alteration or elimination of the designation of uranium as a critical mineral until such report is submitted.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We note our outstanding questions and concerns that would result from uranium ceasing to be designated as a critical mineral under section 7002(c) of the Energy Act of 2020, Division Z, Title VII of the Consolidated Appropriations Act, 2021. We will continue to pursue this matter through normal oversight processes and urge the administration to engage with the Committees on Armed Services of the Senate and the House of Representatives in advance of changes to the current designation.

The House bill contained a provision (sec. 838) that would require the Secretary of Defense to commence a process to make a determination whether procurement of covered optical
transmission equipment poses an unacceptable risk to national security under section 2 of the Secure and Trusted Communications Networks Act of 2019 (47 U.S.C. 1601).

The Senate amendment contained a similar provision (sec. 853) that would require a review and determination with respect to optical fiber transmission equipment for Department of
Defense purposes.

The agreement does not include either provision.

The House bill contained a provision (sec. 839) that would require the Secretary of Defense to deem synthetic graphite material to be a strategic and critical material for defense,
industrial, and civilian needs and, to the maximum extent practicable, acquire synthetic graphite material.

The Senate amendment contained no similar provision.

The agreement does not include this provision. We note that section 849 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116-283) directed the Department of Defense to analyze sourcing and industrial capacity for synthetic graphite and other strategic materials. In addition, section 848 instructed the Department to acquire strategic and critical materials from sources within the United States prior to purchasing from key allies. We believe that creating domestic demand for synthetic graphite will bolster the existing industry to ensure it can provide the Department, industry, and civilian needs with a secure supply of synthetic graphite.

We urge the Secretary of Defense, to the maximum extent practicable, to acquire synthetic graphite material, which is a strategic and critical material for defense, industrial, and civilian needs, in the following order of preference: (1) From sources domestically owned and produced; (2) From sources located within the United States or the national technology and industrial base; (3) Suppliers in other allied nations; or (4) From other sources, as appropriate.

The Senate amendment contained a provision (sec. 841) that would clarify that the duties of the Department of Defense's Director of Small Business Programs include strengthening the small businesses in the national technology and industrial base.

The House bill contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 846) that would require the Small Business Administration to establish a program under which grants would be awarded to eligible small businesses to support their participation in meetings and proceedings of standards development organizations in the development of voluntary technical standards.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We support the intent of the provision, but note that implementation of the proposed grant program is better suited for agencies that: (1) Have jurisdiction and expertise over the subject matter; (2) Would be in a better position to determine which meetings and proceedings should be the object of these grants as well as which small businesses are the most
appropriate candidates; and (3) Can more effectively develop the selection processes to ensure potential recipients meet small business eligibility criteria.

The House bill contained a provision (sec. 847) that wouldrequire the Secretary of Defense to establish a defenseinnovation open topic activities pilot program using the SmallBusiness Innovation Research Program (SBIR).

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We commend the Air Force for looking at new and innovative ways to solve problems by using open topics for their SBIR program. Open topics provide increased flexibility for small businesses and the military services to innovate and modernize in unexpected ways. We encourage all of the military services to use open topics for their SBIR programs. Additionally, we direct the Secretaries of the military departments to provide a briefing to the Committees on Armed Services of the Senate and the House of Representatives, not later than March 1, 2022, on the breakdown of open topic and traditional announcements in the SBIR program of each military service and to include any pertinent transition data.

The House bill contained a provision (sec. 856) that would require the Secretary of Defense, in coordination with the Under Secretary of Defense for Acquisition and Sustainment and not later than March 1, 2022, to provide to the congressional defense committees a report on the implementation of certain recommendations made by the Government Accountability Office to improve procurement technical assistance programs.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We direct the Secretary of Defense, in consultation with the Under Secretary of Defense for Acquisition and Sustainment, to submit to the congressional defense committees, not later than March 1, 2022, a report on the status of the implementation, including a schedule for implementation, of the three recommendations set forth in the report of the Government Accountability Office (GAO), published March 31, 2021, titled "Procurement Technical Assistance Program: Opportunities Exist for DOD to Enhance Training and Collaboration" (GAO-21-287), to improve procurement technical assistance programs established under chapter 142 of title 10, United States Code.

The House bill contained a provision (sec. 857) that would require the Under Secretary of Defense for Acquisition and Sustainment to, not later than 180 days after the date of the enactment of this Act, provide to the congressional defense committees a report on commercial item determinations and would further require the Under Secretary to make public such report on an appropriate, publicly available website.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We direct the Under Secretary of Defense for Acquisition and Sustainment to submit a report on commercial item determinations to the congressional defense committees, not later than January 1, 2023. The report shall contain an accounting of the training available for the acquisition workforce related to commercial item determinations and price reasonableness determinations under Federal Acquisition Regulations Part 12, including a description of the training, duration, periodicity, whether the training is optional or mandatory, and the date on which the training materials were last substantially revised. The report shall also contain an assessment of the extent to which the current acquisition workforce has completed the aforementioned trainings. We further direct the Under Secretary of Defense for Acquisition and Sustainment to deliver to the congressional defense committees the report in unclassified and publicly releasable formats, as appropriate.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We direct the Under Secretary of Defense for Research and Engineering to develop a plan to ensure the transition, as appropriate, of manufacturing technologies funded by the Department of Defense and developed by manufacturing innovation institutes to defense contractors that support: (1) Enhancing and securing the supply chain for manufacturing of weapon systems; and (2) Ensuring increased quality and decreased costs of such cybersecurity capabilities in manufacturing technologies. We further direct the Under Secretary to provide to the Committees on Armed Services of the Senate and the House of Representatives, not later than September 30, 2022, a briefing on such plan.

The House bill contained a provision (sec. 859) that would require the Secretary of Defense to, not later than January 30, 2022, provide a briefing to the Committee on Armed Services of the House of Representatives on the evaluation of the Department of Defense of commercially available small unmanned aircraft systems (sUAS) with capabilities that align with Department of Defense sUAS priorities, to include the Defense Innovation Unit’s (DIU) Blue sUAS 2.0 list.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We agree that the Department of Defense (DOD) should continue to prioritize vetting and approving commercially available sUAS that meet the requirements of section 848 of the
National Defense Authorization Act for Fiscal Year 2020 (Public Law 116-92). Policy-compliant, cybersecure sUAS will support modernization efforts across DOD, especially in the Army, Marine Corps, and U.S. Special Operations Command. Accordingly, we direct the Secretary of Defense to provide a briefing, not later than April 1, 2022, to the congressional defense committees on the evaluation of commercially available sUAS with capabilities that align with Department of Defense sUAS priorities, the status of DIU’s Blue sUAS effort, and the feasibility of adding end-to-end integrated collection and analysis sUAS solutions to Blue sUAS.

The House bill contained a provision (sec. 860) that would make certain modifications to increase flexibilities in the waiver process under section 637 of title 15, United States Code.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 861) that would make certain modifications to United States Code to increase government-wide goals for the level of participation of certain
categories of small businesses in Federal contracting.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 862) that would require the Administrator of the Small Business Administration to establish a cyber counseling certification program or approve a similar existing program in order to certify the employees of lead small business development centers to provide cyber planning assistance to small business concerns.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 863) that would require the Comptroller General of the United States, not later than March 1, 2022, to provide to Congress a report on the
impact of mergers and acquisitions of defense industrial base contractors on the procurement processes of the Department of Defense.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We direct the Comptroller General of the United States to submit to the congressional defense committees, not later than September 30, 2023, an assessment of Department of Defense actions to monitor and assess the effects of potential mergers and acquisitions on its defense industrial base.

The House bill contained a provision (sec. 864) that would exempt certain contracts awarded to small business concerns from category management or successor strategies for contract consolidation.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 865) that would prohibit the head of a Federal department or agency from contracting with individuals who have willfully or repeatedly violated the Fair Labor Standards Act of 1938 (Public Law 75-718).

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We note that the conference report (H. Rept. 116-617) accompanying the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 directed the Department of Defense to enter into an agreement with the Acquisition Innovation Research Center (AIRC), established by section 835 of the National Defense Authorization Act of Fiscal Year 2020 (Public Law 116-92), to report on the extent to which existing statutory and discretionary debarment procedures address the Department’s interests and to identify any gaps in the current requirements for statutory debarment as a result of labor law violations. The report will include recommendations on statutory and regulatory changes needed to improve the transparency, efficiency, and effectiveness of the current debarment system as it relates to labor law violations. We note that the AIRC study is ongoing and encourage the academic researchers to refine the focus of their efforts to study and make recommendations related to: (1) The impact of labor violations on the supply chain, balanced with the need to consider participation by small businesses, which tend to be more adversely impacted by debarment; (2) The availability of Fair Labor Standards Act (FLSA) records to Department of Defense contracting officers and the need for increased transparency and workforce training on labor laws and FLSA enforcement; and (3) The extent to which the current discretionary model of debarment best serves the Government’s interest, or whether an adjudicatory model should be considered. We direct the Secretary of Defense to support the execution of AIRC study with appropriate resources, and access to data, information, and personnel. We anticipate the results of this study will bring to
light new information that is not widely available or understood, therefore, not later than 60 days after the conclusion of this AIRC study, we direct the Secretary to provide a briefing to the congressional defense committees on the study’s findings and what legislative changes the Department would propose, if any, in response to AIRC recommendations.
We support rigorous oversight of labor laws and the need to protect the Department from doing business with individuals and companies who pose a business risk to the Government. We further reemphasize that contractors cited for violations such as failing to pay minimum wage and overtime and keep accurate records could be replaced with more responsible contractors to improve the integrity of the defense industrial base.

The House bill contained a provision (sec. 867) that would require the Secretary of Defense to submit a report on efforts within the Department of Defense to reduce duplicative information technology contracts.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We direct the Secretary of Defense to submit a report to the congressional defense committees, not later than May 31, 2022, on the efforts within the Department of Defense to reduce duplicative information technology contracts.

The House bill contained a provision (sec. 868) that would reestablish the Commission on Wartime Contracting and modify the duties of that organization.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We acknowledge the valuable work of the Commission on Wartime Contracting and the 30 recommendations made in 2011 to improve contingency contracting in Iraq and Afghanistan. The Department of Defense (DOD) issued an action plan in 2013 to implement 16 of those recommendations. We are concerned that in a report published by the Government Accountability Office (GAO) on September 30, 2021, titled “Contingency Contracting: DOD Has  Taken Steps to Address Commission Recommendations, but Should Better Document Progress and Improve Contract Data” (GAO-21-344), the Comptroller General found the information system used by the Department of Defense to track and report information
about contracts and contractor personnel supporting contingency operations is not able to track and report information by the type of applicable contingency operations that DOD contracts and contractors have supported. The GAO report also observed that DOD’s Operational Contract Support Functional Capabilities Integration Board has not continued to update and document the status of the Commission’s recommendations. Without the ability to identify data on operations, exercises and other activities that are considered contingency operations within the information system, we are concerned that DOD is unable to fulfill the Commission's vision for reform of oversight and management of contingency contracting operations. We note it is also more difficult for DOD planners to identify and make decisions on contractor personnel or the capabilities needed to support them. Therefore, to provide additional oversight through better monitoring and reporting on the Department's contractor personnel, we direct the Secretary of Defense to implement the recommendations of the GAO report and provide a progress briefing to the congressional defense committees not later than July 1, 2022.

The House bill contained a provision (sec. 869) that would modify United States Code to ensure that HUBZone price evaluation preference applies to certain contracts and would require the Administrator of the Small Business Administration, not later than 90 days after the date of the enactment of this Act, to revise any rule or guidance to implement the requirements of this section.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 870) that would express the sense of Congress that the Government of the United States should have a zero tolerance policy for human trafficking and that Government contractors that engage in such practices must be held accountable. The provision would further require the Secretary of Defense to review the Government Accountability Office (GAO) report, published August 4, 2021, titled, "Human Trafficking: DOD Should Address Weaknesses in Oversight of Contractors and Reporting of Investigations Related to Contracts" (GAO-21-546) and develop policies and mechanisms to address issues raised in the report and other issues detailed in the provision. The provision would further require the Secretary to provide to certain congressional committees an interim briefing on the analysis conducted, not later than 60 days after the date of the enactment of this Act, and a final report on the same, not later than 120 days after the date of the enactment of this Act.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

We believe that the U.S. Government should have a zero tolerance policy for human trafficking, and it is of vital importance that Government contractors who engage in human trafficking be held accountable. We direct the Secretary of Defense to review the recommendations contained in the Government Accountability Office (GAO) report, published August 4, 2021, titled, "Human Trafficking: DOD Should Address Weaknesses in Oversight of Contractors and Reporting of Investigations Related to Contracts" (GAO-21-546) and to provide a briefing to the congressional defense committees, not later than July 1, 2022, on the status of implementing such recommendations and a description of policies and processes to: (1) Ensure contracting officers are informed of their responsibilities relating to combating trafficking in persons and to ensure that such contracting officers are accurately and completely reporting trafficking in persons investigations; (2) Specify the roles and responsibilities of Department of Defense organizations and individuals with respect to reporting on trafficking in persons incidents involving contractors; (3) Describe requirements relating to reporting such incidents in the Federal Awardee Performance and Integrity Information System (or any other contractor performance rating system); (4) Review and monitor contractor compliance plans relating to combating trafficking in persons; (5) Ensure tracking of information about compliance with acquisition-specific training requirements relating to combating trafficking in persons by contractors, in an appropriate time period; and (6) Assess the resources and staff required to support oversight of combating trafficking in persons, including resources and staff to validate annual combating trafficking in persons self-assessments by elements of the Department.

The House bill contained a provision (sec. 872) that would include the Northern Mariana Islands in the microloan program of  the Small Business Administration.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 873) that would raise the sole-source contract thresholds for certain small business concerns.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained a provision (sec. 878) that would require the Administrator of the Small Business Administration, not later than 1 year after the date of the enactment of this
Act and not less frequently than every 5 years thereafter, to publish or update a resource guide for small business concerns operating as child care providers.

The Senate amendment contained no similar provision.

The agreement does not include this provision.

The House bill contained two provisions (secs. 875 and 879) that would codify the existing Boots to Business program that provides entrepreneurial training for servicemembers transitioning to civilian life.

The Senate amendment contained no similar provision.

The agreement does not include these provisions.