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[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 979 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
1st Session
S. 979
To promote defense innovation, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 12, 2025
Mr. Banks introduced the following bill; which was read twice and
referred to the Committee on Armed Services
_______________________________________________________________________
A BILL
To promote defense innovation, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Buying Faster than the Enemy Act of
2025''.
SEC. 2. MODIFICATIONS TO COMMERCIAL SOLUTIONS OPENINGS.
Section 3458 of title 10, United States Code, is amended--
(1) by amending subsection (a) to read as follows:
``(a) Authority.--The Secretary of Defense and the Secretaries of
the military departments may acquire commercial products, commercial
services, and nondevelopmental items through a competitive selection of
proposals resulting from a general solicitation and the peer review,
technical review, or operational review (as appropriate) of such
proposals, and may issue, without further justification, follow-on
contract awards or agreements, including sole source awards or
agreements, to the recipient.'';
(2) by redesignating subsection (c), (d), and (e) as
subsections (d), (e), and (h), respectively;
(3) by inserting after subsection (b) the following new
subsection:
``(c) Sole-Source Follow-On.--The Secretary of Defense and the
Secretaries of the military departments may issue, without further
justification, follow-on contract awards or agreements, including sole
source awards or agreements, to a recipient competitively selected
under subsection (a).'';
(4) in paragraph (1) of subsection (d), as redesignated by
paragraph (2) of this section, 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 (or the head of the
contracting activity's designated delegate)'';
(5) in subsection (e), as so redesignated--
(A) by striking ``(1)''; and
(B) by striking paragraph (2); and
(6) by inserting after such subsection, as so redesignated,
the following new subsection:
``(f) Nontraditional Vehicle.--(1) The Secretary of Defense shall
establish an open topic and enduring general solicitation described in
subsection (a) for each systems command, science and technology
reinvention laboratory, and portfolio acquisition executive.
``(2) The preferred model for developing and producing operational
military capabilities using general solicitations in paragraph (1)
shall be the urgent capability acquisition, middle tier of acquisition,
software acquisition, or services acquisition pathways of the
Department of Defense Adaptive Acquisition Framework described in
Department of Defense Instructions 5000.85 and 5000.2.''.
SEC. 3. LIMITATION ON REQUIRED FLOWDOWN OF CONTRACT CLAUSES TO
SUBCONTRACTORS PROVIDING COMMERCIAL PRODUCTS OR
COMMERCIAL SERVICES.
(a) Contract Clauses Required in the Federal Acquisition
Regulation.--Chapter 247 of title 10, United States Code, is amended by
adding at the end the following new section:
``Sec. 3459. Limitation on required flowdown of contract clauses to
subcontractors providing commercial products or
commercial services
``(a) 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 3452 of this title.
``(b) 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--
``(1) a single clause applicable to contracts for
commercial products and services; and
``(2) a single clause applicable to contracts for
noncommercial products and services.''.
(b) Effective Dates.--
(1) In general.--The requirements under section 3459 of
title 10, United States Code, as added by subsection (a), shall
apply with respect to solicitations issued by the Department of
Defense after the end of the 120-day period beginning on the
date of the enactment of this Act.
(2) Regulations.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Defense shall amend
the Defense Federal Acquisition Regulation Supplement to
implement section 3459 of title 10, United States Code, as
added by subsection (a).
SEC. 4. MODIFICATIONS TO RELATIONSHIP OF OTHER PROVISIONS OF LAW TO
PROCUREMENT OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES.
Section 3452 of title 10, United States Code, is amended by
striking subsections (b) through (f) and inserting the following new
subsections:
``(b) Applicability of Defense-Unique Statutes to Contracts for
Commercial Products and Commercial Services.--(1) 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 regulations, policies, 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 Defense.
``(2) A provision of law or contract clause requirement described
in subsection (e) that is enacted after October 13, 1994, shall not be
included on the list of applicable provisions of law and contract
clause requirements required by paragraph (1) 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
services.
``(c) Applicability of Defense-Unique Statutes to Subcontracts for
Commercial Products and Commercial Services.--(1) 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 regulations, policies, or executive orders
expressly required in law that are applicable to subcontracts for the
procurement of commercial products and commercial services. A provision
of law or contract clause requirement properly included on the list
pursuant to paragraph (2) must apply to purchases of commercial
products and commercial services by the Department of Defense.
``(2) A provision of law or contract clause requirement described
in subsection (e) that is enacted after October 13, 1994, shall not be
included on the list of applicable provisions of law and contract
clause requirements required by paragraph (1) 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
services.
``(3) In this subsection, the term `subcontract'--
``(A) includes a transfer of commercial products and
commercial services between divisions, subsidiaries, or
affiliates of a contractor or subcontractor; and
``(B) 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 contract.
``(4) 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 value.
``(d) Applicability of Defense-Unique Statutes to Contracts for
Commercially Available, Off-the-Shelf Items.--(1) 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 regulations, policies, 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 Defense.
``(2) A provision of law or contract clause requirement described
in subsection (e) that is enacted after October 13, 1994, shall not be
included on the list of applicable provisions of law and contract
clause requirements required by paragraph (1) 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 items.
``(e) Covered Provision of Law or Contract Clause Requirement.--A
provision of law or contract clause requirement referred to in
subsections (b)(2), (c)(2), and (d)(2) is a provision of law or
contract clause requirement that the Under Secretary of Defense for
Acquisition and Sustainment determines sets forth policies, procedures,
requirements, or restrictions for the procurement of property or
services by the Federal Government, except for a provision of law or
contract clause requirement that--
``(1) provides for criminal or civil penalties;
``(2) requires that certain articles be bought from United
States sources pursuant to chapter 385 of this title or section
5949 of the National Defense Authorization Act for Fiscal Year
2023 (Public Law 117-263; 41 U.S.C. 4713 note); or
``(3) specifically refers to this section and provides
that, notwithstanding this section, it shall be applicable to
contracts for the procurement of commercial products and
commercial services.''.
SEC. 5. NONTRADITIONAL DEFENSE CONTRACTOR COMMERCIAL SOLUTIONS OPENING.
Section 3458 of title 10, United States Code, is amended by adding
at the end the following new subsection:
``(j) Nontraditional Vehicle.--(1) The Secretary of Defense shall
establish not fewer than 5 consortia to conduct prototype projects and
follow-on production under the authority of section 4022 of this title
for each systems command and each portfolio acquisition executive.
``(2) The preferred model for developing and producing operational
military capabilities using the consortia in paragraph (1) shall be the
urgent capability acquisition, middle tier of acquisition, software
acquisition, or services acquisition pathways of the Department of
Defense Adaptive Acquisition Framework described in Department of
Defense Instruction 5000.2.
``(3) Nothing in this subsection shall be construed to limit the
number of consortia established by the Secretary of Defense.''.
SEC. 6. ADVANCE PAYMENTS.
Section 3805(c) of title 10, United States Code, is amended by
striking ``not more than 15 percent of the contract price'' and
inserting ``not more than 30 percent of the contract price''.
SEC. 7. MODIFICATIONS TO COMMERCIAL PRODUCT AND COMMERCIAL SERVICE
DETERMINATIONS BY DEPARTMENT OF DEFENSE.
Section 3456 of title 10, United States Code, is amended by
striking subsections (a) through (c) and inserting the following new
subsections:
``(a) 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
procedures, and, to the maximum extent practicable, general
solicitation procedures under section 3458 of this title, unless
determined to be non-commercial by the Department of Defense
contracting officer.
``(b) 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 service, with
or without customization, that meets the minimum requirements of the
Department of Defense. 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 services,
a contracting officer of the Department of Defense shall submit a
written memorandum summarizing the determination for approval by the
head of contracting activity, prior to awarding the contract, and
provide it to the contractor or subcontractor offering the product or
service for which such determination is summarized in such memorandum.
The memorandum shall include--
``(1) a detailed justification why the product or
commercial service was determined to be noncommercial including
the results of market research; and
``(2) a signed determination by the program manager that
the requirement could not be reasonably changed to accommodate
a commercial product or commercial service.
``(c) Definition.--The term `defense-unique development' means a
Department of Defense-financed development, either to repurpose a
commercial product or solution or to develop a new product or solution,
to provide a defense-unique capability.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Armed Services.
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