TITLE
10 - ARMED FORCES
Subtitle A - General Military Law
PART IV - SERVICE, SUPPLY, AND PROCUREMENT
CHAPTER 141 - MISCELLANEOUS PROCUREMENT PROVISIONS
-HEAD-
Sec. 2399. Operational test and evaluation of defense acquisition
programs
-STATUTE-
(a) Condition for Proceeding Beyond Low-Rate Initial Production.
- (1) The Secretary of Defense shall provide that a major defense
acquisition program may not proceed beyond low-rate initial production until
initial operational test and evaluation of the program is completed.
(2) In this subsection, the term ''major defense acquisition program''
means -
(A) a conventional weapons system that is a major system within the
meaning of that term in section 2302(5) of this title; and
(B) is designed for use in combat.
(b) Operational Test and Evaluation. - (1) Operational testing of a
major defense acquisition program may not be conducted until the Director of
Operational Test and Evaluation of the Department of Defense approves (in
writing) the adequacy of the plans (including the projected level of funding)
for operational test and evaluation to be conducted in connection with that
program.
(2) The Director shall analyze the results of the operational test and
evaluation conducted for each major defense acquisition program.
At the conclusion of such testing, the Director shall prepare a report
stating the opinion of the Director as to -
(A) whether the test and evaluation performed were adequate;
and
(B) whether the results of such test and evaluation confirm that the
items or components actually tested are effective and suitable for combat.
(3) The Director shall submit each report under paragraph (2) to the
Secretary of Defense, the Under Secretary of Defense for Acquisition,
Technology, and Logistics, and the congressional defense committees.
Each such report shall be submitted to those committees in precisely the
same form and with precisely the same content as the report originally was
submitted to the Secretary and Under Secretary and shall be accompanied by such
comments as the Secretary may
wish to make on the report.
(4) A final decision within the Department of Defense to proceed with a
major defense acquisition program beyond low-rate initial production may not be
made until the Director has submitted to the Secretary of Defense the report
with respect to that program under paragraph (2) and the congressional defense
committees have received that report.
(5) In this subsection, the term ''major defense acquisition program''
has the meaning given that term in section 139(a)(2)(B) of this title.
(c) Determination of Quantity of Articles Required for Operational
Testing. - The quantity of articles of a new system that are to be procured for
operational testing shall be determined by -
(1) the Director of Operational Test and
Evaluation of the Department of Defense, in the case of a new system that is a
major defense acquisition program (as defined in section
139(a)(2)(B) of this title); or
(2) the operational test and evaluation agency of the military department
concerned, in the case of a new system that is not a major defense acquisition
program.
(d) Impartiality of Contractor Testing Personnel. - In the case of a
major defense acquisition program (as defined in subsection (a)(2)), no person
employed by the contractor for the system being tested may be involved in the
conduct of the operational test and evaluation required under subsection (a).
The limitation in the preceding sentence does not apply to the extent that the
Secretary of Defense plans for persons employed by that contractor to be
involved in the operation, maintenance, and support of the system being
tested when the system is deployed in combat.
(e) Impartial Contracted Advisory and Assistance Services. - (1)
The Director may not contract with any person for advisory and assistance
services with regard to the test and evaluation of a system if that person
participated in (or is participating in) the development, production, or testing
of such system for a military department
or Defense Agency (or for another contractor of the Department of Defense).
(2) The
Director may waive the limitation under paragraph (1) in any case if the
Director determines in writing that sufficient steps have been taken to ensure
the impartiality of the contractor in providing the services.
The Inspector General of the Department of Defense shall review each such
waiver and shall include in the Inspector General's semi-annual report an
assessment of those waivers made since the last such report.
(3)(A) A contractor that has participated in (or is participating in) the
development, production, or testing of a system for a military department or
Defense Agency (or for another contractor of the Department of Defense) may not
be involved (in any way) in the establishment
of criteria for data collection, performance assessment, or evaluation
activities for the operational test and evaluation.
(B) The limitation in subparagraph (A) does not apply to a contractor
that has participated in such development, production, or testing solely in
testing for the Federal Government.
(f) Source
of Funds for Testing. - The costs for all tests required under subsection (a)
shall be paid from funds available for the system being tested.
(g) Director's Annual Report. - As part of the annual report of the
Director under section 139 of this title, the Director shall describe for each
program covered in the report the status of test and evaluation activities in
comparison with the test and evaluation master plan for that program, as
approved by the Director. The Director shall include in such annual report a
description of each waiver granted under subsection (e)(2) since the last such
report.
(h) Definitions. - In this section:
(1) The term ''operational test and evaluation'' has the meaning given
that term in section 139(a)(2)(A) of this title.
For purposes of
subsection (a), that term does not include an operational assessment based
exclusively on -
(A) computer modeling;
(B) simulation; or
(C) an analysis of system requirements, engineering proposals, design
specifications, or any other information contained in program documents.
(2) The term ''congressional defense committees'' means -
(A) the Committee on Armed Services and the Committee on Appropriations
of the Senate; and
(B) the Committee on Armed Services and the Committee on Appropriations
of the House of Representatives.
-SOURCE-
(Added Pub. L. 101-189, div. A,
title VIII, Sec. 802(a)(1),
-MISC1-
PRIOR PROVISIONS
A prior section 2399, added Pub. L. 97-295, Sec. 1(29)(A), Oct. 12, 1982,
96 Stat. 1293, which related to limitation on availability of appropriations to
reimburse a contractor for the cost
of commercial insurance, was repealed by Pub. L. 100-370, Sec.1(f)(2)(B),
AMENDMENTS
1999 - Subsec. (b)(3). Pub. L. 106-65, Sec. 911(a)(1), substituted
''Under Secretary of Defense for Acquisition, Technology, and Logistics'' for
''Under Secretary of Defense for Acquisition
and Technology''.
Subsec. (h)(2)(B). Pub. L. 106-65, Sec. 1067(1),
substituted ''Committee on Armed Services'' for ''Committee on National
Security''.
1996 - Subsec. (h)(2). Pub. L. 104-106 substituted ''means - '' and
subpars. (A) and (B) for ''means the Committees on Armed Services and the
Committees on Appropriations of the Senate and House of Representatives.''
1994 - Subsecs. (b)(5), (c)(1). Pub. L. 103-337, Sec.1070(a)(11)(A),
substituted ''139(a)(2)(B)'' for ''138(a)(2)(B)''.
Subsec. (e)(3)(B). Pub. L. 103-337, Sec. 1070(f), substituted ''solely in
testing for'' for ''solely as a representative of''.
Subsec. (g). Pub. L. 103-337, Sec. 1070(a)(11)(B), substituted ''139''
for ''138''.
Subsec. (h)(1). Pub. L. 103-337, Sec. 1070(a)(11)(C), substituted
''139(a)(2)(A)'' for ''138(a)(2)(A)''.
1993 - Subsec. (b)(3). Pub. L. 103-160 substituted ''Under Secretary of
Defense for Acquisition and Technology'' for ''Under Secretary of Defense for
Acquisition''.