March 12, 2025
Mr. Banks introduced the following bill; which was read twice and referred to the Committee on Armed Services
To promote defense innovation, and for other purposes.
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:
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.