
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-107 Section 1048(b)(2)]
[CITE: 10USC2399]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                PART IV--SERVICE, SUPPLY, AND PROCUREMENT
 
            CHAPTER 141--MISCELLANEOUS PROCUREMENT PROVISIONS
 
Sec. 2399. Operational test and evaluation of defense 
        acquisition programs
        
    (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.

(Added Pub. L. 101-189, div. A, title VIII, Sec. 802(a)(1), Nov. 29, 
1989, 103 Stat. 1484; amended Pub. L. 102-484, div. A, title VIII, 
Sec. 819, Oct. 23, 1992, 106 Stat. 2458; Pub. L. 103-160, div. A, title 
IX, Sec. 904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103-337, div. 
A, title X, Sec. 1070(a)(11), (f), Oct. 5, 1994, 108 Stat. 2856, 2859; 
Pub. L. 104-106, div. A, title XV, Sec. 1502(a)(19), Feb. 10, 1996, 110 
Stat. 504; Pub. L. 106-65, div. A, title IX, Sec. 911(a)(1), title X, 
Sec. 1067(1), Oct. 5, 1999, 113 Stat. 717, 774.)


                            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), July 19, 
1988, 102 Stat. 846, and was restated in section 2324(e)(1)(L) of this 
title by section 1(f)(2)(A) of Pub. L. 100-370.


                               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''.
    1992--Subsec. (e)(3). Pub. L. 102-484 designated existing provisions 
as subpar. (A) and added subpar. (B).


     Assessment of Risk in Concurrent Development of Major Defense 
                           Acquisition Systems

    Section 801 of Pub. L. 101-189 provided that:
    ``(a) Establishment of Policy.--The Secretary of Defense shall 
establish guidelines for--
        ``(1) determining the degree of concurrency that is appropriate 
    for the development of major defense acquisition systems; and
        ``(2) assessing the degree of risk associated with various 
    degrees of concurrency.
    ``(b) Report on Guidelines.--The Secretary shall submit to Congress 
a report that describes the guidelines established under subsection (a) 
and the method used for assessing risk associated with concurrency.
    ``(c) Report on Concurrency in Major Acquisition Programs.--(1) The 
Secretary shall also submit to Congress a report outlining the risk 
associated with concurrency for each major defense acquisition program 
that is in either full-scale development or low-rate initial production 
as of January 1, 1990.
    ``(2) The report shall include consideration of the following 
matters with respect to each such program:
        ``(A) The degree of confidence in the enemy threat assessment 
    for establishing the system's requirements.
        ``(B) The type of contract involved.
        ``(C) The degree of stability in program funding.
        ``(D) The level of maturity of technology involved in the 
    system.
        ``(E) The availability of adequate test assets, including 
    facilities and ranges.
        ``(F) The plans for transition from development to production.
    ``(d) Submission of Reports.--The reports under subsections (b) and 
(c) shall be submitted to Congress not later than March 1, 1990.
    ``(e) Definition.--For purposes of this section, the term 
`concurrency' means the degree of overlap between the development and 
production processes of an acquisition program.''

                  Section Referred to in Other Sections

    This section is referred to in section 2400 of this title.
