,,ii #aaith ,,congress #ast ,session ,s4 #igi ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,march #ab1 #bjbe,mr4 ,banks introduced the following bill2 which was read twice and referred to the ,committee on ,armed ,services ,a ,,bill ,to promote defense innovation1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,buying ,faster than the ,enemy ,act of #bjbe4 #b4 ,modifications to commercial solutions openings ,section #cdeh of title #aj1 ,united ,states ,code1 is amended-- 7#a7 by amending subsection 7a7 to read as follows3 7a7 ,authority ,the ,secretary of ,defense and the ,secretaries of the military departments may acquire commercial products1 commercial services1 and nondevelopmental items through a competitive selection of proposals resulting from a general solicitation and the peer review1 technical review1 or operational review 7as appropriate7 of such proposals1 and may issue1 without further justification1 follow-on contract awards or agreements1 including sole source awards or agreements1 to the recipient4 2 7#b7 by redesignating subsection 7c71 7d71 and 7e7 as subsections 7d71 7e71 and 7h71 respectively2 7#c7 by inserting after subsection 7b7 the following new subsection3 7c7 ,sole-,source follow-,on ,the ,secretary of ,defense and the ,secretaries of the military departments may issue1 without further justification1 follow-on contract awards or agreements1 including sole source awards or agreements1 to a recipient competitively selected under subsection 7a74 2 7#d7 in paragraph 7#a7 of subsection 7d71 as redesignated by paragraph 7#b7 of this section1 by striking the ,under ,secretary of ,defense for ,acquisition and ,sustainment or the relevant service acquisition executive and inserting the head of the contracting activity 7or the head of the contracting activity's designated delegate72 7#e7 in subsection 7e71 as so redesignated-- 7,a7 by striking 7#a72 and 7,b7 by striking paragraph 7#b72 and 7#f7 by inserting after such subsection1 as so redesignated1 the following new subsection3 7f7 ,nontraditional vehicle 7#a7 ,the ,secretary of ,defense shall establish an open topic and enduring general solicitation described in subsection 7a7 for each systems command1 science and technology reinvention laboratory1 and portfolio acquisition executive4 7#b7 ,the preferred model for developing and producing operational military capabilities using general solicitations in paragraph 7#a7 shall be the urgent capability acquisition1 middle tier of acquisition1 software acquisition1 or services acquisition pathways of the ,department of ,defense ,adaptive ,acquisition ,framework described in ,department of ,defense ,instructions #ejjj4he and #ejjj4b4 4 #c4 ,limitation on required flowdown of contract clauses to subcontractors providing commercial products or commercial services 7a7 ,contract clauses required in the ,federal ,acquisition ,regulation ,chapter #bdg of title #aj1 ,united ,states ,code1 is amended by adding at the end the following new section3 #cdei4 ,limitation on required flowdown of contract clauses to subcontractors providing commercial products or commercial services 7a7 ,in general ,the ,secretary of ,defense may not require that a clause be included in a subcontract for commercial products and services other than a clause required by a provision of law that is on the list required by section #cdeb of this title4 7b7 ,single clause requirement ,the ,secretary of ,defense shall provide for implementation of all provisions of law applicable to subcontracts for commercial products and services through-- 7#a7 a single clause applicable to contracts for commercial products and services2 and 7#b7 a single clause applicable to contracts for noncommercial products and services4 4 7b7 ,effective dates 7#a7 ,in general ,the requirements under section #cdei of title #aj1 ,united ,states ,code1 as added by subsection 7a71 shall apply with respect to solicitations issued by the ,department of ,defense after the end of the #abj-;day period beginning on the date of the enactment of this ,act4 7#b7 ,regulations ,not later than #ahj days after the date of the enactment of this ,act1 the ,secretary of ,defense shall amend the ,defense ,federal ,acquisition ,regulation ,supplement to implement section #cdei of title #aj1 ,united ,states ,code1 as added by subsection 7a74 #d4 ,modifications to relationship of other provisions of law to procurement of commercial products and commercial services ,section #cdeb of title #aj1 ,united ,states ,code1 is amended by striking subsections 7b7 through 7f7 and inserting the following new subsections3 7b7 ,applicability of defense-,unique statutes to contracts for commercial products and commercial services 7#a7 ,the ,defense ,federal ,acquisition ,regulation ,supplement shall include a list of defense-unique provisions of law and of contract clause requirements based on government-wide acquisition regulations1 policies1 or executive orders expressly required in law that are applicable to contracts for the procurement of commercial products and commercial services by the ,department of ,defense4 7#b7 ,a provision of law or contract clause requirement described in subsection 7e7 that is enacted after ,october #ac1 #aiid1 shall not be included on the list of applicable provisions of law and contract clause requirements required by paragraph 7#a7 unless the ,under ,secretary of ,defense for ,acquisition and ,sustainment makes a written determination that it would be in the best interest of the ,department of ,defense to apply the provision or contract clause requirement to the contract for the procurement of commercial products and commercial services4 7c7 ,applicability of defense-,unique statutes to subcontracts for commercial products and commercial services 7#a7 ,the ,defense ,federal ,acquisition ,regulation ,supplement shall include a list of defense-unique provisions of law and of contract clause requirements based on government-wide acquisition regulations1 policies1 or executive orders expressly required in law that are applicable to subcontracts for the procurement of commercial products and commercial services4 ,a provision of law or contract clause requirement properly included on the list pursuant to paragraph 7#b7 must apply to purchases of commercial products and commercial services by the ,department of ,defense4 7#b7 ,a provision of law or contract clause requirement described in subsection 7e7 that is enacted after ,october #ac1 #aiid1 shall not be included on the list of applicable provisions of law and contract clause requirements required by paragraph 7#a7 unless the ,under ,secretary of ,defense for ,acquisition and ,sustainment makes a written determination that it would be in the best interest of the ,department of ,defense to apply the provision or contract clause requirement to the subcontract for the procurement of commercial products and commercial services4 7#c7 ,in this subsection1 the term subcontract-- 7,a7 includes a transfer of commercial products and commercial services between divisions1 subsidiaries1 or affiliates of a contractor or subcontractor2 and 7,b7 does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the ,department of ,defense and other parties and are not identifiable to any particular contract4 7#d7 ,this subsection does not authorize the waiver of the applicability of any provision of law or contract clause requirement with respect to any first-tier subcontract under a contract with a prime contractor reselling or distributing commercial products and commercial services of another contractor without adding value4 7d7 ,applicability of defense-,unique statutes to contracts for commercially available1 off-the-,shelf items 7#a7 ,the ,defense ,federal ,acquisition ,regulation ,supplement shall include a list of defense-unique provisions of law and of contract clause requirements based on government-wide acquisition regulations1 policies1 or executive orders expressly required in law that are applicable to subcontracts for the procurement of commercially available off-the-shelf items by the ,department of ,defense4 7#b7 ,a provision of law or contract clause requirement described in subsection 7e7 that is enacted after ,october #ac1 #aiid1 shall not be included on the list of applicable provisions of law and contract clause requirements required by paragraph 7#a7 unless the ,under ,secretary of ,defense for ,acquisition and ,sustainment makes a written determination that it would be in the best interest of the ,department of ,defense to apply the provision or contract clause requirement to the procurement of commercially available off-the-shelf items4 7e7 ,covered provision of law or contract clause requirement ,a provision of law or contract clause requirement referred to in subsections 7b77#b71 7c77#b71 and 7d77#b7 is a provision of law or contract clause requirement that the ,under ,secretary of ,defense for ,acquisition and ,sustainment determines sets forth policies1 procedures1 requirements1 or restrictions for the procurement of property or services by the ,federal ,government1 except for a provision of law or contract clause requirement that-- 7#a7 provides for criminal or civil penalties2 7#b7 requires that certain articles be bought from ,united ,states sources pursuant to chapter #che of this title or section #eidi of the ,national ,defense ,authorization ,act for ,fiscal ,year #bjbc 7,public ,law #aag-bfc2 #da ,u4,s4,c4 #dgac note72 or 7#c7 specifically refers to this section and provides that1 notwithstanding this section1 it shall be applicable to contracts for the procurement of commercial products and commercial services4 4 #e4 ,nontraditional defense contractor commercial solutions opening ,section #cdeh of title #aj1 ,united ,states ,code1 is amended by adding at the end the following new subsection3 7j7 ,nontraditional vehicle 7#a7 ,the ,secretary of ,defense shall establish not fewer than #e consortia to conduct prototype projects and follow-on production under the authority of section #djbb of this title for each systems command and each portfolio acquisition executive4 7#b7 ,the preferred model for developing and producing operational military capabilities using the consortia in paragraph 7#a7 shall be the urgent capability acquisition1 middle tier of acquisition1 software acquisition1 or services acquisition pathways of the ,department of ,defense ,adaptive ,acquisition ,framework described in ,department of ,defense ,instruction #ejjj4b4 7#c7 ,nothing in this subsection shall be construed to limit the number of consortia established by the ,secretary of ,defense4 4 #f4 ,advance payments ,section #chje7;c7 of title #aj1 ,united ,states ,code1 is amended by striking not more than #ae percent of the contract price and inserting not more than #cj percent of the contract price4 #g4 ,modifications to commercial product and commercial service determinations by ,department of ,defense ,section #cdef of title #aj1 ,united ,states ,code1 is amended by striking subsections 7a7 through 7c7 and inserting the following new subsections3 7a7 ,in general ,the ,secretary of ,defense shall create a default determination that products and services acquired by the ,department of ,defense are commercial and shall be acquired using commercial procedures1 and1 to the maximum extent practicable1 general solicitation procedures under section #cdeh of this title1 unless determined to be non-commercial by the ,department of ,defense contracting officer4 7b7 ,determinations regarding the non-,commercial nature of products or services ,a defense-unique development product or service may not be procured if there is a commercial product or service1 with or without customization1 that meets the minimum requirements of the ,department of ,defense4 ,in making a determination whether a particular product or service offered by a contractor is non-commercial and does not meet any definition for commercial products or commercial services1 a contracting officer of the ,department of ,defense shall submit a written memorandum summarizing the determination for approval by the head of contracting activity1 prior to awarding the contract1 and provide it to the contractor or subcontractor offering the product or service for which such determination is summarized in such memorandum4 ,the memorandum shall include-- 7#a7 a detailed justification why the product or commercial service was determined to be noncommercial including the results of market research2 and 7#b7 a signed determination by the program manager that the requirement could not be reasonably changed to accommodate a commercial product or commercial service4 7c7 ,definition ,the term defense-unique development means a ,department of ,defense-financed development1 either to repurpose a commercial product or solution or to develop a new product or solution1 to provide a defense-unique capability4 4