10 U.S.C. § 4871: Contracts: consideration of national security objectives

The head of an agency shall require a firm or a subsidiary of a firm that submits a bid or proposal in response to a solicitation issued by the Department of Defense to disclose in that bid or proposal any significant interest in such firm or subsidiary (or, in the case of a subsidiary, in the firm that owns the subsidiary) that is owned or controlled (whether directly or indirectly) by a foreign government or an agent or instrumentality of a foreign government, if such foreign government is the government of a country that the Secretary of State determines under section 6(j)(1)(A) 1 of the Export Administration Act of 1979 ( 1 See References in Text note below. 50 U.S.C. 4605(j)(1)(A) ) has repeatedly provided support for acts of international terrorism. a foreign government owns or controls (whether directly or indirectly) a significant interest in such firm or subsidiary (or, in the case of a subsidiary, in the firm that owns the subsidiary); and such foreign government is the government of a country that the Secretary of State determines under section 6(j)(1)(A) 1 of the Export Administration Act of 1979 ( 50 U.S.C. 4605(j)(1)(A) ) has repeatedly provided support for acts of international terrorism. If the Secretary of Defense determines under paragraph (2) that entering into a contract with a firm or a subsidiary of a firm described in subsection (b) is not inconsistent with the national security objectives of the United States, the head of an agency may enter into a contract with such firm or subsidiary if in the best interests of the Government. The identity of the foreign government concerned. The nature of the contract. The extent of ownership or control of the firm or subsidiary concerned (or, if appropriate in the case of a subsidiary, of the firm that owns the subsidiary) by the foreign government concerned or the agency or instrumentality of such foreign government. The reasons for entering into the contract. The relationship of the United States with the foreign government concerned. The obligations of the United States under international agreements. The extent of the ownership or control of the firm or subsidiary (or, if appropriate in the case of a subsidiary, of the firm that owns the subsidiary) by the foreign government or an agent or instrumentality of the foreign government. Whether payments made, or information made available, to the firm or subsidiary under the contract could be used for purposes hostile to the interests of the United States. The Secretary of Defense shall develop and maintain a list of all firms and subsidiaries of firms that the Secretary has identified as being subject to the prohibition in subsection (b). A person may request the Secretary to include on the list maintained under paragraph (1) any firm or subsidiary of a firm that the person believes to be owned or controlled by a foreign government described in subsection (b)(2). Upon receipt of such a request, the Secretary shall determine whether the conditions in paragraphs (1) and (2) of subsection (b) exist in the case of that firm or subsidiary. If the Secretary determines that such conditions do exist, the Secretary shall include the firm or subsidiary on the list. A firm or subsidiary of a firm included on the list may request the Secretary to remove such firm or subsidiary from the list on the basis that it has been erroneously included on the list or its ownership circumstances have significantly changed. Upon receipt of such a request, the Secretary shall determine whether the conditions in paragraphs (1) and (2) of subsection (b) exist in the case of that firm or subsidiary. If the Secretary determines that such conditions do not exist, the Secretary shall remove the firm or subsidiary from the list. The Secretary shall establish procedures to carry out this paragraph. The head of an agency shall prohibit each firm or subsidiary of a firm awarded a contract by the agency from entering into a subcontract under that contract in an amount in excess of $25,000 with a firm or subsidiary included on the list maintained under paragraph (1) unless there is a compelling reason to do so. In the case of any subcontract requiring consent by the head of an agency, the head of the agency shall not consent to the award of the subcontract to a firm or subsidiary included on such list unless there is a compelling reason for such approval. The Administrator of General Services shall ensure that the list developed and maintained under subsection (d) is made available to Federal agencies and the public in the same manner and to the same extent as the list of suspended and debarred contractors compiled pursuant to subpart 9.4 of the Federal Acquisition Regulation. This section does not apply to a contract for an amount less than $100,000. This section does not apply to the Coast Guard or the National Aeronautics and Space Administration. The Secretary of Defense, after consultation with the Secretary of State, shall prescribe regulations to carry out this section. Such regulations shall include a definition of the term “significant interest”. In accordance with the phased implementation in subsection (d) and except as provided by subsection (e), the Secretary of Defense may not acquire any computer or printer if the manufacturer, bidder, or offeror is a covered Chinese entity. The Secretary of Defense shall ensure that the prohibition under subsection (a) applies to indirect sales of computers and printers through subsidiaries of a covered Chinese entity. This section shall apply only with respect to contracts and other agreements entered into, renewed, or extended after the date of the enactment of this Act [ Dec. 18, 2025 ]. in fiscal year 2026, not less than 10 percent of the total number of computers acquired by the Department of Defense and not less than 10 percent of the total number printers acquired by the Department comply with such prohibition; in fiscal year 2027, not less than 25 percent of the total number of computers acquired by the Department and not less than 25 percent of the total number printers acquired by the Department comply with such prohibition; in fiscal year 2028, not less than 50 percent of the total number of computers acquired by the Department and not less than 50 percent of the total number printers acquired by the Department comply with such prohibition; and in fiscal year 2029 and each fiscal year thereafter, not less than 100 percent of the total number of computers acquired by the Department and not less than 100 percent of the printers acquired by the Department comply with such prohibition. Notwithstanding subsections (a) and (b), the Secretary of Defense may acquire a computer or printer described in subsection (a) to conduct testing, evaluation, exfiltration, or reverse engineering missions on products or capabilities of adversaries of the United States if such computer or printer is not for operational use. an end user electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, such as laptops, desktops, and any physical computing equipment; and includes any data storage facility or communications facility directly related to or operating in conjunction with such device; and an automated typewriter or typesetter, a portable handheld calculator, or other similar device; or cloud-based services, including virtual desktops and cellular telephones. identified by the Secretary of Defense under section 1260H(a) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [ Pub. L. 116–283 ] ( 10 U.S.C. 113 note) as a Chinese military company; included in the Non-SDN Chinese Military-Industrial Complex Companies List published by the Department of the Treasury; or the Entity List set forth in Supplement No. 4 to part 744 of the Export Administration Regulations; the Denied Persons List as described in section 764.3(a)(2) of the Export Administration Regulations; or the Military End User List set forth in Supplement No. 7 to part 744 of the Export Administration Regulations; and an agency or instrumentality of the People’s Republic of China; an entity headquartered in the People’s Republic of China; or directly or indirectly owned or controlled by an agency, instrumentality, or entity described in subparagraph (i) or (ii); or an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, determines to be an entity owned, controlled, directed, or subcontracted by, affiliated with, or otherwise connected to, the Government of the People’s Republic of China. means desktop printers, multifunction printer copiers, and printer/fax combinations taken out of service that may or may not be designed to reside on a work surface, and include various print technologies, including laser and light-emitting diode (electrographic), ink jet, dot matrix, thermal, and digital sublimation, and ‘multi-function’ or ‘all-in-one’ devices that perform different tasks, including copying, scanning, faxing, and printing; includes floor-standing printers, printers with optional floor stand, or household printers; and does not include point of sale receipt printers, calculators with printing capabilities, label makers, or non-standalone printers that are embedded into products not described in subparagraph (A) or (B).” to identify risks in the supply chain for small unmanned aerial systems (referred to in this section as ‘sUAS’); and to increase the resiliency of such sUAS supply chain using parts supplied by domestic sources and from allies and partners of the United States. create a taxonomy for each component that categorizes the component by function, level of risk, and such other criteria as the Secretary determines appropriate; and help assess the risk of such components for the purposes of supply chain monitoring and visibility. assess the risk of each sUAS component to Department of Defense networks or operations; for components that present a risk as determined under subparagraph (A), identify any manufacturers of such components are based in covered foreign countries and evaluate whether measures to mitigate the risk posed by such foreign-produced components are feasible or practical; and determine if any of the foreign companies in the sUAS supply chain should be included on the list maintained by the Department of Defense in accordance with section 1260H of the National Defense Authorization Act for Fiscal Year 2021 ( Public Law 116–283 ; 10 U.S.C. 113 note). identification of sources of supply for sUAS components outside of a covered foreign country assessed to present a risk under paragraph (2)(A) and the total manufacturing capacity of such suppliers; an assessment of the total requirement for sUASs of the Department of Defense; a plan to increase the manufacturing capacity of alternative sources of supply that can meet the requirement specified in subparagraph (B), including estimated funding needs; and using authorities available to the Department of Defense, such as Defense Production Act authorities, the Industrial Base Analysis and Sustainment program, loan guarantees, or other programs; and incentivizing private sector investment to grow or foster domestic or allied sourcing for components for sUASs. a list of each component identified under subsection (b)(1), including a description of any security vulnerabilities associated with such component; a description of the supply chain risk framework developed under subsection (b)(2); any recommendations for the inclusion of companies on the list described in subsection (b)(2)(C); and the full strategy developed under subsection (b)(3). The report required under subsection (c) shall be submitted in unclassified form, but may include a classified annex. In this section, the term ‘covered foreign country’ has the meaning given that term in section 848(e) of the National Defense Authorization Act for Fiscal Year 2020 ( Public Law 116–92 ; 10 U.S.C. 4871 note).” is manufactured in a covered foreign country or by an entity domiciled in a covered foreign country; uses flight controllers, radios, data transmission devices, cameras, or gimbals manufactured in a covered foreign country or by an entity domiciled in a covered foreign country; uses a ground control system or operating software developed in a covered foreign country or by an entity domiciled in a covered foreign country; or uses network connectivity or data storage located in or administered by an entity domiciled in a covered foreign country; or a system manufactured in a covered foreign country or by an entity domiciled in a covered foreign country for the detection or identification of covered unmanned aircraft systems. The Secretary of Defense may not enter into a contract (or extend or renew a contract) on or after October 1, 2024 , with an entity that operates (as determined by the Secretary or the Secretary’s designee) equipment from a covered unmanned aircraft system company in the performance of a Department of Defense contract. Counter-UAS surrogate testing and training; or intelligence, electronic warfare, and information warfare operations, testing, analysis, and training. The Secretary of Defense (or the Secretary’s designee) may waive any restrictions under subsections (a) or (b) by certifying in writing to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that the operation, procurement, or contracting action is required in the national interest of the United States. the People’s Republic of China. The Russian Federation. The Islamic Republic of Iran. The Democratic People’s Republic of Korea. The term ‘covered unmanned aircraft system’ means an unmanned aircraft system and any related services and equipment. Da-Jiang Innovations (or any subsidiary or affiliate of Da-Jiang Innovations). Any entity that produces or provides unmanned aircraft systems and is included on Consolidated Screening List maintained by the International Trade Administration of the Department of Commerce. is domiciled in a covered foreign country; or is subject to unmitigated foreign ownership, control or influence by a covered foreign country, as determined by the Secretary of Defense unmitigated foreign ownership, control or influence in accordance with the National Industrial Security Program (or any successor to such program).” The Secretary of Defense, in coordination with the Secretary of State, shall identify and list foreign countries that restrict the provision or sale of military goods or services to the United States because of United States counterterrorism or military operations after the date of the enactment of this Act [ Nov. 24, 2003 ]. The Secretary shall review and update the list as appropriate. The Secretary may remove a country from the list, if the Secretary determines that doing so would be in the interest of national defense. The Secretary of Defense may not procure any items or components contained in military systems if the items or components, or the systems, are manufactured in any foreign country identified under subsection (a). The Secretary of Defense may waive the limitation in subsection (b) if the Secretary determines in writing and notifies Congress that the Department of Defense’s need for the item is of such an unusual and compelling urgency that the Department would be unable to meet national security objectives. Subject to paragraph (2), subsection (b) applies to contracts in existence on the date of the enactment of this Act [ Nov. 24, 2003 ] or entered into after such date. With respect to contracts in existence on the date of the enactment of this Act, the Secretary of Defense shall take such action as is necessary to ensure that such contracts are in compliance with subsection (b) not later than 24 months after such date.”