10 U.S.C. § 4864: Miscellaneous limitations on the procurement of goods other than United States goods

Multipassenger motor vehicles (buses). Gyrocompasses. Electronic navigation chart systems. Steering controls. Propulsion and machinery control systems. Totally enclosed lifeboats. Welded shipboard anchor and mooring chain. Subject to subsection (k), large medium-speed diesel engines. Auxiliary equipment, including pumps, for all shipboard services. Propulsion system components, including engines, reduction gears, and propellers. Shipboard cranes. Spreaders for shipboard cranes. A star tracker used in a satellite weighing more than 400 pounds whose principal purpose is to support the national security, defense, or intelligence needs of the United States Government. Except as provided in paragraph (2), a manufacturer meets the requirements of this subsection if the manufacturer is part of the national technology and industrial base. A manufacturer of welded shipboard anchor and mooring chain for naval vessels meets the requirements of this subsection if the manufacturer is part of the national technology and industrial base. Subsection (a) does not apply to a procurement of spare or repair parts needed to support components for naval vessels produced or manufactured outside the United States. Application of the limitation would cause unreasonable costs or delays to be incurred. United States producers of the item would not be jeopardized by competition from a foreign country, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country. Application of the limitation would impede cooperative programs entered into between the Department of Defense and a foreign country, or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items that is entered into under section 4851 of this title , and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country. Satisfactory quality items manufactured by an entity that is part of the national technology and industrial base (as defined in section 4801(1) of this title ) are not available. Application of the limitation would result in the existence of only one source for the item that is an entity that is part of the national technology and industrial base (as defined in section 4801(1) of this title ). The procurement is for an amount less than the simplified acquisition threshold and simplified purchase procedures are being used. Application of the limitation is not in the national security interests of the United States. Application of the limitation would adversely affect a United States company. The Secretary of Defense may not procure a sonobuoy manufactured in a foreign country if United States firms that manufacture sonobuoys are not permitted to compete on an equal basis with foreign manufacturing firms for the sale of sonobuoys in that foreign country. The Secretary may waive the limitation in paragraph (1) with respect to a particular procurement of sonobuoys if the Secretary determines that such procurement is in the national security interests of the United States. In this subsection, the term “United States firm” has the meaning given such term in section 4852(d)(1) of this title . specifically refers to this section; specifically states that such provision of law modifies or supersedes the provisions of this section; and specifically identifies the particular domestic source involved and states that the contract to be awarded pursuant to such provision of law is being awarded in contravention of this section. This section does not apply to a contract or subcontract for an amount that does not exceed the simplified acquisition threshold. may not use contract clauses or certifications; and shall use management and oversight techniques that achieve the objective of the subsection without imposing a significant management burden on the Government or the contractor involved. The Secretary of Defense may exercise the waiver authority described in paragraph (2) only if the waiver is made for a particular item listed in subsection (a) and for a particular foreign country. This subsection applies to the waiver authority provided by subsection (d) on the basis of the applicability of paragraph (2) or (3) of that subsection. The waiver authority described in paragraph (2) may not be delegated below the Under Secretary of Defense for Acquisition and Sustainment. At least 15 days before the effective date of any waiver made under the waiver authority described in paragraph (2), the Secretary shall publish in the Federal Register and submit to the congressional defense committees a notice of the determination to exercise the waiver authority. Any waiver made by the Secretary under the waiver authority described in paragraph (2) shall be in effect for a period not greater than one year, as determined by the Secretary. The Secretary of Defense shall administer a process to analyze and assess potential items for consideration to be required to be procured from a manufacturer that is part of the national technology and industrial base. The Secretary shall designate an official within the Office of the Secretary of Defense responsible for administration of the limitation on certain procurements application process and associated policy. Information demonstrating the applicant meets the criteria of a manufacturer in the national technology and industrial base under section 4801(1) of this title . The extent to which such item has commercial applications. The number of such items to be procured by current programs of record. The criticality of such item to a military unit’s mission accomplishment. The estimated cost and other considerations of reconstituting the manufacturing capability of such item, if not maintained in the national technology and industrial base. National security regulations or restrictions imposed on such item that may not be imposed on a non-national technology and industrial base competitor. Non-national security-related Federal, State, and local government regulations imposed on such item that may not be imposed on a non-national technology and industrial base competitor. The extent to which such item is fielded in current programs of record. The extent to which cost and pricing data for such item has been deemed fair and reasonable. The official designated pursuant to paragraph (2)(A) shall be responsible for providing complete applications submitted pursuant to this subsection to the appropriate component acquisition executive for consideration not later than 15 days after receipt of such application. Not later than 120 days after receiving a complete application, the component acquisition executive shall review such application, make a determination, and return the application to the official designated pursuant to paragraph (2)(A). recommend inclusion under this section; recommend inclusion under this section with further modifications; or not recommend inclusion under this section. The determination required under subparagraph (B) shall also include the rationale and justification for the determination. For applications recommended under subsection (3), the official designated pursuant to paragraph (2)(A) shall be responsible for preparing a legislative proposal for consideration by the Secretary. Subsection (a)(3) applies only with respect to contracts awarded by the Secretary of a military department for new construction of an auxiliary ship after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2020 using funds available for National Defense Sealift Fund programs or Shipbuilding and Conversion, Navy. with respect to a contract entered into after December 20, 2019 , does not include an icebreaker or a special mission ship; and with respect to a contract entered into on or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2025, includes an icebreaker or a special mission ship, unless the Secretary of the Navy certifies to Congress that the forecasted sales over a four-year period of large medium-speed diesel engines manufactured in the national technology and industrial base will not fall below the minimum sustaining rate for plant operations of a diminishing manufacturing source. Recommend continued inclusion of the item under this section. Recommend continued inclusion of the item under this section with modifications. Recommend discontinuing inclusion of the item under this section. The criticality of the item reviewed to a military unit’s mission accomplishment or other national security objectives. The extent to which such item is fielded in current programs of record. The number of such items to be procured by current programs of record. The extent to which cost and pricing data for such item has been deemed fair and reasonable. The written determination required under paragraph (1) shall also include the findings of the applicable review conducted under such paragraph and any key justifications for the recommendation. contracts and subcontracts entered into on or after the date of the enactment of this Act [ Nov. 18, 1997 ]; and options for the procurement of items that are exercised after such date under contracts that are entered into before such date if the option prices are adjusted for any reason other than the application of a waiver granted under subsection (d) of such section 2534 [now 10 U.S.C. 4864(d) ], on the basis of the applicability of paragraph (2) or (3) of that subsection.” Auxiliary equipment, including pumps, for all shipboard services. Propulsion system components, including engines, reduction gears, and propellers. Shipboard cranes. Spreaders for shipboard cranes.” The Secretary of Defense shall ensure that each contract described in subsection (b) awarded by the Department of Defense includes a provision requiring the photovoltaic devices provided under the contract to comply with chapter 83 of title 41, United States Code, subject to the exceptions to that chapter provided in the Trade Agreements Act of 1979 ( 19 U.S.C. 2501 et seq.) or otherwise provided by law. installed on Department of Defense property or in a facility owned by the Department of Defense; and reserved for the exclusive use of the Department of Defense for the full economic life of the device. In this section, the term ‘photovoltaic devices’ means devices that convert light directly into electricity through a solid-state, semiconductor process.”