§ 3226. Estimates for program baseline and analyses and targets for contract negotiation purposes

Statutory text

Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds.—

The policies, procedures, and guidance issued by the Director of Cost Assessment and Program Evaluation in accordance with the requirements of section 3221 of this title shall provide that cost estimates developed for baseline descriptions and other program purposes conducted pursuant to subsection (b)(6) of such section are not to be used for the purpose of contract negotiations or the obligation of funds.

Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds.—

The Under Secretary of Defense for Acquisition and Sustainment shall, in consultation with the Director of Cost Assessment and Program Evaluation, develop policies, procedures, and guidance to ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are based on the Government’s reasonable expectation of successful contractor performance in accordance with the contractor’s proposal and previous experience.

Program Manager and Contracting Officer.—

The program manager and contracting officer for each major defense acquisition program and major subprogram shall ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are carried out in accordance with the requirements of subsection (a) and the policies, procedures, and guidance issued by the Under Secretary of Defense for Acquisition and Sustainment under subsection (b).

Availability of Excess Funds.—

Funds that are made available for a major defense acquisition program or major subprogram in accordance with a cost estimate conducted pursuant to section 3221(b)(6) of this title, but are excess to a cost analysis or target developed pursuant to subsection (b), shall remain available for obligation in accordance with the terms of applicable authorization and appropriations Acts.

Funds described in paragraph (1) may be used—

to cover any increased program costs identified by a revised cost analysis or target developed pursuant to subsection (b);

to acquire additional end items in accordance with section 3069 of this title; or

to cover the cost of risk reduction and process improvements.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

2021
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 div. A title XVIII § 1812(a) · 134 Stat. 3388
Enacted · 10 U.S.C. § 3226
Added and amended Pub. L. 116–283, div. A, title XVIII, § 1812(a), (g), Jan. 1, 2021, 134 Stat. 4174, 4176
Source evidence
Code source credit
Added and amended Pub. L. 116–283, div. A, title XVIII, § 1812(a), (g), Jan. 1, 2021, 134 Stat. 4174, 4176
Enacted provision · exact public law section
(a) New Chapter.— Part V of subtitle A of title 10, United States Code, as added by section 801 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232), is amended by inserting after chapter 221, as added by the preceding section, the following new chapter: “CHAPTER 222— INDEPENDENT COST ESTIMATION AND COST ANALYSIS “3221. Director of Cost Assessment and Program Evaluation. “3222. Independent cost estimate required before approval. “3223. Director: review of cost estimates, cost analyses, and records of the military departments and Defense Agencies. “3224. Director: participation, concurrence, and approval in cost estimation. “3225. Discussion of risk in cost estimates. “3226. Estimates for program baseline and analyses and targets for contract negotiation purposes. “3227. Guidelines and collection method for acquisition of cost data. “§ 3221. Director of Cost Assessment and Program Evaluation “§ 3222. Independent cost estimate required before approval “§ 3223. Director: review of cost estimates, cost analyses, and records of the military departments and Defense Agencies “§ 3224. Director: participation, concurrence, and approval in cost estimation “§ 3225. Discussion of risk in cost estimates “§ 3226. Estimates for program baseline and analyses and targets for contract negotiation purposes “§ 3227. Guidelines and collection method for acquisition of cost data” .
2021
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1812(g)(1) · 134 Stat. 3388
1. Redesignated · 10 U.S.C. § 3226(a)
  Pub. L. 116–283, § 1812(g)(1), (2)(A), (B), redesignated subsec. (f) of section 2334 of this title as subsec. (a) of this section
2. Substituted · 10 U.S.C. § 3226(a)
  Pub. L. 116–283, § 1812(g)(1), (2)(A), (B), substituted “Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds” for “Estimates for Program Baseline and Analyses and Targets for Contract Negotiation Purposes” in heading
3. Struck · 10 U.S.C. § 3226(a)
  Pub. L. 116–283, § 1812(g)(1), (2)(A), (B), struck out par. (1) designation before “The policies,”
4. Redesignated · 10 U.S.C. § 3226(a)
  Pub. L. 116–283, § 1812(g)(1), (2)(A), (B), substituted “section 3221 of this title” for “subsection (a)” and “subsection (b)(6) of such section” for “subsection (a)(6)”. Pars. (2), (3), (4), and (5) of subsec. (a) redesignated subsecs. (b), (c), (d)(1), and (d)(2), respectively
Source evidence
Code amendment note
Subsec. (a). Pub. L. 116–283, § 1812(g)(1), (2)(A), (B), redesignated subsec. (f) of section 2334 of this title as subsec. (a) of this section, substituted “Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds” for “Estimates for Program Baseline and Analyses and Targets for Contract Negotiation Purposes” in heading, struck out par. (1) designation before “The policies,”, and substituted “section 3221 of this title” for “subsection (a)” and “subsection (b)(6) of such section” for “subsection (a)(6)”. Pars. (2), (3), (4), and (5) of subsec. (a) redesignated subsecs. (b), (c), (d)(1), and (d)(2), respectively.
Enacted provision · exact public law section
(1) Transfer.— Subsection (f) of section 2334 of title 10, United States Code, is transferred to section 3226 of such title, as added by subsection (a), inserted after the section heading, and redesignated as subsection (a).
2021
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1812(g)(2)(C) · 134 Stat. 3388
1. Redesignated · 10 U.S.C. § 3226(b)
  Pub. L. 116–283, § 1812(g)(2)(C), redesignated subsec. (a)(2) as (b)
2. Inserted · 10 U.S.C. § 3226(b)
  Pub. L. 116–283, § 1812(g)(2)(C), inserted heading
Source evidence
Code amendment note
Subsec. (b). Pub. L. 116–283, § 1812(g)(2)(C), redesignated subsec. (a)(2) as (b) and inserted heading.
Enacted provision · exact public law section
(C) by redesignating paragraph (2) as subsection (b) and inserting “Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds.—” before “The Under”;
2021
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1812(g)(2)(D) · 134 Stat. 3388
1. Redesignated · 10 U.S.C. § 3226(c)
  Pub. L. 116–283, § 1812(g)(2)(D), redesignated subsec. (a)(3) as (c)
2. Inserted · 10 U.S.C. § 3226(c)
  Pub. L. 116–283, § 1812(g)(2)(D), inserted heading
3. Substituted · 10 U.S.C. § 3226(c)
  Pub. L. 116–283, § 1812(g)(2)(D), substituted “The program manager” for “The Program Manager”
4. Substituted · 10 U.S.C. § 3226(c)
  Pub. L. 116–283, § 1812(g)(2)(D), substituted “subsection (a)” for “paragraph (1)”
5. Substituted · 10 U.S.C. § 3226(c)
  Pub. L. 116–283, § 1812(g)(2)(D), substituted “subsection (b)” for “paragraph (2)”
Source evidence
Code amendment note
Subsec. (c). Pub. L. 116–283, § 1812(g)(2)(D), redesignated subsec. (a)(3) as (c), inserted heading, and substituted “The program manager” for “The Program Manager”, “subsection (a)” for “paragraph (1)”, and “subsection (b)” for “paragraph (2)”.
Enacted provision · exact public law section
(D) by redesignating paragraph (3) as subsection (c) and in that subsection— (i) by striking the first three words and inserting “Program Manager and Contracting Officer.—The program manager”; and (ii) by striking “paragraph (1)” and “paragraph (2)” and inserting “subsection (a)” and “subsection (b)”, respectively; and
2021
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1812(g)(2)(E)(i) · 134 Stat. 3388
1. Redesignated · 10 U.S.C. § 3226(d)
  Pub. L. 116–283, § 1812(g)(2)(E)(i), (iii), redesignated subsec. (a)(4) and (5) as (d)(1) and (2), respectively
2. Inserted · 10 U.S.C. § 3226(d)
  Pub. L. 116–283, § 1812(g)(2)(E)(i), (iii), inserted subsec. heading, and realigned margin of par. (2)
Source evidence
Code amendment note
Subsec. (d). Pub. L. 116–283, § 1812(g)(2)(E)(i), (iii), redesignated subsec. (a)(4) and (5) as (d)(1) and (2), respectively, inserted subsec. heading, and realigned margin of par. (2).
Enacted provision · exact public law section
(i) by striking “Funds that are” and inserting “Availability of Excess Funds.—” “(1) Funds that are” ;
2021
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1812(g)(2)(E)(ii) · 134 Stat. 3388
1. Substituted · 10 U.S.C. § 3226(d)(1)
  Pub. L. 116–283, § 1812(g)(2)(E)(ii), substituted “section 3221(b)(6) of this title” for “subsection (a)(6)”
2. Substituted · 10 U.S.C. § 3226(d)(1)
  Pub. L. 116–283, § 1812(g)(2)(E)(ii), substituted “subsection (b)” for “paragraph (2)”
Source evidence
Code amendment note
Subsec. (d)(1). Pub. L. 116–283, § 1812(g)(2)(E)(ii), substituted “section 3221(b)(6) of this title” for “subsection (a)(6)” and “subsection (b)” for “paragraph (2)”.
Enacted provision · exact public law section
(ii) in paragraph (1), as designated by clause (i), by striking “subsection (a)(6)” and “paragraph (2)” and inserting “section 3221(b)(6) of this title” and “subsection (b)”, respectively;
2021
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1812(g)(2)(E)(iv) · 134 Stat. 3388
1. Substituted · 10 U.S.C. § 3226(d)(2)
  Pub. L. 116–283, § 1812(g)(2)(E)(iv), substituted “paragraph (1)” for “paragraph (4)” in subpar. (A)(ii)
2. Substituted · 10 U.S.C. § 3226(d)(2)
  Pub. L. 116–283, § 1812(g)(2)(E)(iv), substituted “subsection (b)” for “paragraph (2)” in subpar. (A)(ii)
3. Substituted · 10 U.S.C. § 3226(d)(2)
  Pub. L. 116–283, § 1812(g)(2)(E)(iv), substituted “section 3069” for “section 2308” in subpar. (A)(ii)
Source evidence
Code amendment note
Subsec. (d)(2). Pub. L. 116–283, § 1812(g)(2)(E)(iv), substituted “paragraph (1)” for “paragraph (4)” in introductory provisions, “subsection (b)” for “paragraph (2)” in subpar. (A)(i), and “section 3069” for “section 2308” in subpar. (A)(ii).
Enacted provision · exact public law section
(iv) in paragraph (2), as so redesignated— (I) in the matter preceding subparagraph (A), by striking “paragraph (4)” and inserting “paragraph (1)”; (II) in subparagraph (A)(i), by striking “paragraph (2)” and inserting “subsection (b)”; and (III) in subparagraph (A)(ii), by striking “section 2308” and inserting “section 3069”.
2025
Pub. L. 119–60 div. A title VIII § 812(a)(5) · 139 Stat. 951
Amended · 10 U.S.C. § 3226(d)(2)
Pub. L. 119–60 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Funds described in paragraph (1)—
Unresolved: Pub. L. 119–60 was not found in the local Statutes at Large index.
Source evidence
Code amendment note
Subsec. (d)(2). Pub. L. 119–60 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Funds described in paragraph (1)—
“(A) may be used— “(i) to cover any increased program costs identified by a revised cost analysis or target developed pursuant to subsection (b); “(ii) to acquire additional end items in accordance with the requirements of section 3069 of this title; or “(iii) to cover the cost of risk reduction and process improvements; and “(B) may be reprogrammed, in accordance with established procedures, only if determined to be excess to program needs on the basis of a cost estimate developed with the concurrence of the Director of Cost Assessment and Program Evaluation.”

19 of 20 references resolved to an enrolled provision · 1 unresolved

Editorial Notes

Codification

The text of subsec. (f) of section 2334 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1812(g), was based on Pub. L. 111–383, div. A, title VIII, § 811(3), Jan. 7, 2011, 124 Stat. 4263; Pub. L. 112–81, div. A, title VIII, § 833, Dec. 31, 2011, 125 Stat. 1506; Pub. L. 114–328, div. A, title VIII, § 842(a)(3), (b)(3), (6), Dec. 23, 2016, 130 Stat. 2288–2290; Pub. L. 116–92, div. A, title IX, § 902(53), Dec. 20, 2019, 133 Stat. 1549.

Amendments2021–2025 · 2 rounds

2025

Subsec. (d)(2). Pub. L. 119–60 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Funds described in paragraph (1)—

“(A) may be used—

“(i) to cover any increased program costs identified by a revised cost analysis or target developed pursuant to subsection (b);

“(ii) to acquire additional end items in accordance with the requirements of section 3069 of this title; or

“(iii) to cover the cost of risk reduction and process improvements; and

“(B) may be reprogrammed, in accordance with established procedures, only if determined to be excess to program needs on the basis of a cost estimate developed with the concurrence of the Director of Cost Assessment and Program Evaluation.”

2021

Subsec. (a). Pub. L. 116–283, § 1812(g)(1), (2)(A), (B), redesignated subsec. (f) of section 2334 of this title as subsec. (a) of this section, substituted “Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds” for “Estimates for Program Baseline and Analyses and Targets for Contract Negotiation Purposes” in heading, struck out par. (1) designation before “The policies,”, and substituted “section 3221 of this title” for “subsection (a)” and “subsection (b)(6) of such section” for “subsection (a)(6)”. Pars. (2), (3), (4), and (5) of subsec. (a) redesignated subsecs. (b), (c), (d)(1), and (d)(2), respectively.

Subsec. (b). Pub. L. 116–283, § 1812(g)(2)(C), redesignated subsec. (a)(2) as (b) and inserted heading.

Subsec. (c). Pub. L. 116–283, § 1812(g)(2)(D), redesignated subsec. (a)(3) as (c), inserted heading, and substituted “The program manager” for “The Program Manager”, “subsection (a)” for “paragraph (1)”, and “subsection (b)” for “paragraph (2)”.

Subsec. (d). Pub. L. 116–283, § 1812(g)(2)(E)(i), (iii), redesignated subsec. (a)(4) and (5) as (d)(1) and (2), respectively, inserted subsec. heading, and realigned margin of par. (2).

Subsec. (d)(1). Pub. L. 116–283, § 1812(g)(2)(E)(ii), substituted “section 3221(b)(6) of this title” for “subsection (a)(6)” and “subsection (b)” for “paragraph (2)”.

Subsec. (d)(2). Pub. L. 116–283, § 1812(g)(2)(E)(iv), substituted “paragraph (1)” for “paragraph (4)” in introductory provisions, “subsection (b)” for “paragraph (2)” in subpar. (A)(i), and “section 3069” for “section 2308” in subpar. (A)(ii).

Statutory Notes and Related Subsidiaries

Effective Date

Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.

Credits

2021–2025 · 2 acts

2021Added and amended Pub. L. 116–283, div. A, title XVIII, § 1812(a), (g), Jan. 1, 2021, 134 Stat. 4174, 4176
2025Pub. L. 119–60, div. A, title VIII, § 812(a)(5), Dec. 18, 2025, 139 Stat. 951.

Show as published

(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1812(a), (g), Jan. 1, 2021, 134 Stat. 4174, 4176; Pub. L. 119–60, div. A, title VIII, § 812(a)(5), Dec. 18, 2025, 139 Stat. 951.)