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Conference Report 107-772 - National Defense Authorization Act for Fiscal Year 2003

Conference Report Section

Legislative History

SEC. 801. BUY-TO-BUDGET ACQUISITION OF END ITEMS.

    (a) AUTHORITY- (1) Chapter 137 of title 10, United States Code, is amended by inserting after section 2307 the following new section:

Sec. 2308. Buy-to-budget acquisition: end items

    (a) AUTHORITY TO ACQUIRE ADDITIONAL END ITEMS- Using funds available to the Department of Defense for the acquisition of an end item, the head of an agency making the acquisition may acquire a higher quantity of the end item than the quantity specified for the end item in a law providing for the funding of that acquisition if that head of an agency makes each of the following findings:

      (1) The agency has an established requirement for the end item that is expected to remain substantially unchanged throughout the period of the acquisition.

      (2) It is possible to acquire the higher quantity of the end item without additional funding because of production efficiencies or other cost reductions.

      (3) The amount of the funds used for the acquisition of the higher quantity of the end item will not exceed the amount provided under that law for the acquisition of the end item.

      (4) The amount so provided is sufficient to ensure that each unit of the end item acquired within the higher quantity is fully funded as a complete end item.

    (b) REGULATIONS- The Secretary of Defense shall prescribe regulations for the administration of this section. The regulations shall include, at a minimum, the following:

      (1) The level of approval within the Department of Defense that is required for a decision to acquire a higher quantity of an end item under subsection (a).

      (2) Authority (subject to subsection (a)) to acquire up to 10 percent more than the quantity of an end item approved in a justification and approval of the use of procedures other than competitive procedures for the acquisition of the end item under section 2304 of this title.

    (c) NOTIFICATION OF CONGRESS- The head of an agency is not required to notify Congress in advance regarding a decision under the authority of this section to acquire a higher quantity of an end item than is specified in a law described in subsection (a), but shall notify the congressional defense committees of the decision not later than 30 days after the date of the decision.

    (d) WAIVER BY OTHER LAW- A provision of law may not be construed as prohibiting the acquisition of a higher quantity of an end item under this section unless that provision of law--

      (1) specifically refers to this section; and

      (2) specifically states that the acquisition of the higher quantity of the end item is prohibited notwithstanding the authority provided in this section.

    (e) DEFINITIONS- (1) For the purposes of this section, a quantity of an end item shall be considered specified in a law if the quantity is specified either in a provision of that law or in any related representation that is set forth separately in a table, chart, or explanatory text included in a joint explanatory statement or governing committee report accompanying the law.

    (2) In this section:

        (A) The term `congressional defense committees' means--

          (i) the Committee on Armed Services and the Committee on Appropriations of the Senate; and

          (ii) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.

        (B) The term `end item' means a production product assembled, completed, and ready for issue or deployment.

        (C) The term `head of an agency' means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force.'.

    (2) The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 2307 the following new item:

2308. Buy-to-budget acquisition: end items.'.

    (b) TIME FOR ISSUANCE OF FINAL REGULATIONS- The Secretary of Defense shall issue the final regulations under section 2308(b) of title 10, United States Code (as added by subsection (a)), not later than 120 days after the date of the enactment of this Act.

Conference Report 107-772

The Senate amendment contained a provision (sec. 801) that would authorize the Department of Defense to make the best use of limited resources by acquiring a higher quantity of an end item than the number specified in an authorization or appropriations law or the accompanying report language. (See Senate Amendment and Senate Report 107-151 below

The House bill contained no similar provision. 

The House recedes with an amendment that would add a definition of the term "end item" and make certain technical changes to the provision.

Senate Amendment

SEC. 801. BUY-TO-BUDGET ACQUISITION OF END ITEMS.

    (a) AUTHORITY- (1) Chapter 131 of title 10, United States Code, is amended by adding at the end the following new section:

Sec. 2228. Buy-to-budget acquisition: end items

    (a) AUTHORITY TO ACQUIRE ADDITIONAL END ITEMS- Using funds available to the Department of Defense for the acquisition of an end item, the head of agency making the acquisition may acquire a higher quantity of the end item than the quantity specified for the end item in a law providing for the funding of that acquisition if that head of an agency makes each of the following findings:

      (1) The agency has an established requirement for the end item that is expected to remain substantially unchanged throughout the period of the acquisition.

      (2) It is possible to acquire the higher quantity of the end item without additional funding because of production efficiencies or other cost reductions.

      (3) The amount of the funds used for the acquisition of the higher quantity of the end item will not exceed the amount provided under that law for the acquisition of the end item.

      (4) The amount so provided is sufficient to ensure that each unit of the end item acquired within the higher quantity is fully funded as a complete end item.

    (b) REGULATIONS- The Secretary of Defense shall prescribe regulations for the administration of this section. The regulations shall include, at a minimum, the following:

      (1) The level of approval within the Department of Defense that is required for a decision to acquire a higher quantity of an end item under subsection (a).

      (2) Authority to exceed by up to 10 percent the quantity of an end item approved in a justification and approval of the use of procedures other than competitive procedures for the acquisition of the end item under section 2304 of this title, but only to the extent necessary to acquire a quantity of the end item permitted in the exercise of authority under subsection (a).

    (c) NOTIFICATION OF CONGRESS- The head of an agency is not required to notify Congress in advance regarding a decision under the authority of this section to acquire a higher quantity of an end item than is specified in a law described in subsection (a), but shall notify the congressional defense committees of the decision not later than 30 days after the date of the decision.

    (d) WAIVER BY OTHER LAW- A provision of law may not be construed as prohibiting the acquisition of a higher quantity of an end item under this section unless that provision of law--

      (1) specifically refers to this section; and

      (2) specifically states that the acquisition of the higher quantity of the end item is prohibited notwithstanding the authority provided in this section.

    (e) DEFINITIONS- (1) For the purposes of this section, a quantity of an end item shall be considered specified in a law if the quantity is specified either in a provision of that law or in any related representation that is set forth separately in a table, chart, or explanatory text included in a joint explanatory statement or governing committee report accompanying the law.

    (2) In this section:

        (A) The term `congressional defense committees' means--

          (i) the Committee on Armed Services and the Committee on Appropriations of the Senate; and

          (ii) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.

        (B) The term `head of an agency' means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force.'.

    (2) The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

      2228. Buy-to-budget acquisition: end items.'.

    (b) TIME FOR ISSUANCE OF FINAL REGULATIONS- The Secretary of Defense shall issue the final regulations under section 2228(b) of title 10, United States Code (as added by subsection (a)), not later than 120 days after the date of the enactment of this Act.

Senate Report 107-151

Buy-to-budget acquisition of end items (sec. 801)

The committee recommends a provision that would authorize the Department of Defense to make the best use of limited resources by conducting `buy-to-budget' acquisition. Under buy-to-budget acquisition, the Department would be permitted to acquire a higher quantity of an end item than the number specified in an authorization or appropriations law. The Department would be required to notify Congress of a decision to exercise this authority within 30 days of its exercise but would not be required to seek reprogramming authority. The purpose of the increased flexibility provided by this section is to enable the Department to take advantage of production efficiencies and other cost reductions.

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