DoDI 5000.02 Table 6 Exceptions, Waivers, and Alternative Management and Reporting Requirements

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Table 6. Exceptions, Waivers, and Alternative Management and Reporting Requirements
INFORMATION REQUIREMENT FOR WAIVER OR EXCEPTION PROGRAM TYPE WHEN REQUIRED SOURCE REPORTING PROCEDURE
MDAP MAIS ACAT
II <= III
ALTERNATE LFT&E PLAN A DoD Component-approved final draft plan is due 45 calendar days prior to the Development RFP Release decision. The final plan is required at Milestone B or as soon as practicable after program initiation. 10 U.S.C. 2366 (Ref. (h)) Program Manager to DOT&E
STATUTORY. Only required for programs on the DOT&E oversight list for LFT&E, with or requesting a waiver from full-up, system-level testing.
CONGRESSIONAL NOTIFICATION OF CONDUCTING DT&E WITHOUT AN APPROVED TEMP Notification is required not later than 30 days after any decision is made for a lead DT&E Organization to conduct any developmental T&E activities for the MDAP without an approved TEMP. SEC. 904, P.L. 112-239 (Ref. (l)) Program Manager to USD(AT&L) to Congress
STATUTORY. The Program Manager will prepare the notification and submit to USD(AT&L). The notification must include a written explanation of the basis for the decision and a timeline for getting an approved plan in place. A copy of the notification will be provided to DOT&E.
CONGRESSIONAL NOTIFICATION OF CORE LOGISTICS COMMERCIAL ITEM EXCEPTION Due upon determination that the system or equipment is a commercial item. 10 U.S.C. 2464 (Ref. (h)) DAE to Congress
STATUTORY. The commercial item exception notice must include the justification for the determination.
CONGRESSIONAL NOTIFICATION OF CRITICAL COST BREACH STATUTORY. Due within 45 calendar days of a Program Deviation Report 10 U.S.C. 2433 (Ref. (h)) 10 U.S.C. 2433a (Ref. (h)) Service Secretary to Congress
CONGRESSIONAL NOTIFICATION OF MAIS CANCELLATION OR SIGNIFICANT REDUCTION IN SCOPE Due 60 calendar days prior to an MDA cancellation decision. SEC. 806, P.L. 109-163 (Ref. (aq)) USD(AT&L) to Congress
STATUTORY. Provides congressional notification of an MDA decision to cancel or significantly reduce the scope of a fielded or post-Milestone C MAIS program.
CONGRESSIONAL NOTIFICATION OF MDA REVISION OF THE ACQUISITION STRATEGY STATUTORY. Notification reports an MDA-directed change to the program or system to the congressional defense committees. 10 U.S.C. 2431a (Ref. (h)) MDA to DAE to Congress
CONGRESSIONAL NOTIFICATION OF MDA WAIVER OF 10 U.S.C. 2366b REQUIREMENTS Due no later than 30 calendar days after the waiver is authorized. 10 U.S.C. 2366b (Ref. (g)) Program Manager to MDA to Congress
STATUTORY. The MDA may waive any of the 10 U.S.C. 2366b, Milestone B certification and determination requirements before Milestone B (except that the cost benefit analysis for some satellite systems described in subsection (a)(4) in 10 U.S.C. 2366b MAY NOT be waived) if the MDA determines that, but for such a waiver, the DoD would be unable to meet critical national security objectives. If the MDA authorizes a waiver: (1) The waiver, the determination, and the reasons for the determination will be submitted in writing to the congressional defense committees within 30 calendar days after the waiver is authorized. (2) The MDA will review the program not less often than annually to determine the extent to which the program otherwise satisfies the 10 U.S.C. 2366b Milestone B certification and determination components, until such time as the MDA determines that the program satisfies all of the certification components. (3) Any budget request, budget justification material, budget display, reprogramming request, SAR, or other budget documentation or performance report submitted by the Secretary of Defense to the President regarding an MDAP receiving a waiver to 2366b certification will prominently and clearly indicate that such program has not fully satisfied the certification and determination requirements for Milestone B, until such time that the MDA makes a determination that the program has satisfied all such certification and determination requirements.
CONGRESSIONAL NOTIFICATION OF MDAP SUBPROGRAM DESIGNATION(S) Due not less than 30 calendar days before approval of a subprogram APB. 10 U.S.C. 2430a (Ref. (h)) DAE to Congress
STATUTORY. Reports the DAE’s determination that (1) different categories of end items in an MDAP, or (2) delivery increments or blocks of a satellite program warrant separate acquisition reporting and will be designated Major Subprograms. Table 3 in this enclosure provides additional policy regarding subprograms.
CONGRESSIONAL NOTIFICATION OF PRESERVATION AND STORAGE OF UNIQUE PRODUCTION TOOLING WAIVER Due before Milestone C or at any time before the end of the item’s service life if the Secretary determines the waiver is in the best interest of the DoD. SEC. 815 of P.L. 110-417 (Ref. (g)) DAE to Congress
STATUTORY. Based on the Secretary’s written determination that such a waiver is in the best interest of the Department of Defense.
CONGRESSIONAL NOTIFICATION OF SECRETARY OF DEFENSE WAIVER OF ACQUISITION LAWS TO ACQUIRE VITAL NATIONAL SECURITY CAPABILITIES STATUTORY. The Secretary of Defense waiver authority discussed in paragraph 5a(2)(c) of this instruction is available upon a determination that: − The acquisition of the capability is in the vital national security interest of the United States. − The application of the law or regulation to be waived would impede the acquisition of the capability in a manner that would undermine the national security of the United States. − The underlying purpose of the law or regulation to be waived can be addressed in a different manner or at a different time. Waiver authority is limited to the statutory and regulatory provisions addressing the establishment of the requirement or specification; research, development, test, and evaluation; production, fielding, and sustainment; or solicitation, selection of sources, and award of contracts for the capability to be acquired. Statutory limitations prevent the waiver of the requirements of Section 806 of P.L. 114-92, or any provision of law either imposing civil or criminal penalties or governing the proper expenditures of appropriated funds. Congressional notification is due at least 30 days before exercising waiver authority. Notification includes: − An explanation of why the acquisition is vital to U.S. national security interests; and − Identification of each provision of law or regulation to be waived; and for each provision: − An explanation of how the provision would impede the acquisition and undermine U.S. national security interests; and − How and when the underlying purpose of the provision will be addressed. SEC. 806, P.L. 114-92 (Ref. (e)) Secretary of Defense to Congressional Defense Committees
The Secretary, in exercising this authority, will designate a senior official to be personally responsible and accountable for the rapid and effective acquisition and deployment of the needed capability. The Secretary will provide the designated official such authority as the Secretary determines necessary to achieve this objective, and may use the waiver authority described above for this purpose.
CONGRESSIONAL NOTIFICATION OF SIGNIFICANT COST BREACH STATUTORY. Due within 45 calendar days of a Program Deviation Report 10 U.S.C. 2433 (Ref. (h)) Service Secretary to Congress
COST-TYPE DEVELOPMENT CONTRACT DETERMINATION Due at the Development RFP Release Decision Point upon MDA conditional approval of a cost type contract selected for a development program. SEC. 818, P.L. 109-364 (Ref. (k)) MDA Written Determination
STATUTORY. The MDA may authorize the use of a cost-type contract for a development program only upon a written determination that: (1) the program is so complex and technically challenging that it would not be practicable to reduce program risk to a level that would permit the use of a fixed-price contract; and (2) the complexity and technical challenge of the program are not the result of a failure to meet the requirements of 10 U.S.C. 2366b (Reference (h)). The MDA’s written determination will include an explanation of the level of program risk, and, if the MDA determines that the program risk is high, the steps that have been taken to reduce program risk and the reasons for proceeding with Milestone B approval despite the high level of program risk. In considering program risk to determine whether a cost or fixed price engineering and manufacturing development contract meets the statutory requirement, the MDA will consider the following: the firmness of the capability requirements and maturity of the technology required; the experience level of potential offerors; and the capacity of industry to absorb potential overruns and the business case for industry to do so.
COST-TYPE PRODUCTION CONTRACT CERTIFICATION Applicable to contracts for the production of MDAPs: Entered into, on, or after October 1, 2014, and for which The USD(AT&L) has granted an exception to the prohibition against using a cost-type contract for MDAP production. SEC. 811, P.L. 112-239 (Ref. (l)) USD(AT&L) to Congress
STATUTORY. The USD(AT&L) may only grant the exception: (1) in the case of a particular cost-type contract; (2) if the USD(AT&L) provides written certification to the congressional defense committees that a cost-type contract is needed to provide a required capability in a timely and cost-effective manner; (3) the USD(AT&L) takes affirmative steps to make sure that the use of cost-type pricing is limited to only those line items or portions of the contract where such pricing is needed to achieve the purposes of the exception; and, (4) an explanation of the steps identified under clause (3), accompanies the written certification under clause (2).
DT&E EXCEPTION REPORTING Case 1: When an MDAP proceeds with implementing a TEMP that includes a developmental test plan disapproved by DASD(DT&E). Case 2: When an MDAP proceeds to IOT&E following an assessment by DASD(DT&E) that the program is not ready for operational testing. SEC. 904, P.L. 112-239 (Ref. (l)) Program Manager to USD(AT&L) to Congress
STATUTORY The report due for Case 1 must include a description of the specific aspects of the DT&E plan determined to be inadequate; an explanation of why the program disregarded the DASD(DT&E)’s recommendations; and identification of the steps taken to address the concerns of the DASD(DT&E). The report due for Case 2 must include an explanation of why the program proceeded to IOT&E despite the DASD(DT&E) findings; a description of the aspects of the TEMP that had to be set aside to enable the program to proceed to IOT&E; a description of how the program addressed the specific areas of concern raised in the assessment of operational test readiness; and a statement of whether IOT&E identified any significant shortcomings in the program. The USD(AT&L) will compile all such exception reports and annually, not later than 60 days after the end of each fiscal year through 2018, submit a report on each case to the congressional defense committees.
LEAD SYSTEM INTEGRATOR EXCEPTION CERTIFICATION Due if the MDA grants an exception. 10 U.S.C. 2410p (Ref. (h)) DAE to Congress
STATUTORY. Satisfies the statutory restrictions applicable to exceptional use of a lead systems integrator (see paragraph 5d(9)(g)1 of this instruction for additional discussion).
LFT&E WAIVER FROM FULL-UP, SYSTEM-LEVEL TESTING Due at Milestone B or as soon as practicable after program initiation. 10 U.S.C. 2366 (Ref. (h)) DAE to Congress
STATUTORY. Only required for programs on the DOT&E Oversight List for LFT&E that are requesting a waiver from full-up, system-level testing.
MAIS CRITICAL CHANGE REPORT AND CERTIFICATION Not later than 60 calendar days after a MAIS Quarterly Report indicating a critical change is due to the Senior Official. 10 U.S.C. 2445c (Ref. (h)) Senior Official through OSD to Congress
STATUTORY. When the Senior Official is not an individual within OSD, the Critical Change Report will be signed by the Senior Official and provided to the cognizant OSD official for transmittal to Congress. The signed Critical Change Report should be provided to the appropriate OSD official with draft transmittal letters addressed to the congressional defense committees no later than 5 working days before expiration of the 60-day period.
MAIS SIGNIFICANT CHANGE NOTIFICATION Not later than 45 calendar days after a MAIS Quarterly Report indicating a significant change is due to the Senior Official. 10 U.S.C. 2445c (Ref. (h)) Senior Official to Congress
STATUTORY. The notification must be coordinated with the USD(AT&L), the Deputy Chief Management Officer, or the DoD CIO, as appropriate, before sending to Congress.
Management of Joint DoD and Director of National Intelligence (DNI) Programs When the DoD participates in a National Intelligence Program acquisition that is wholly or in the majority funded by the DNI. MoA, Ref. (ar) None
Joint DoD and DNI oversight of wholly and majority National Intelligence Program-funded acquisition programs will be conducted in accordance with Intelligence Community Policy Guidance 801.1 (Reference (as)) and the Memorandum of Agreement (MoA) between the DNI and the Secretary of Defense (Reference (ar)).
NUNN-MCCURDY ASSESSMENT AND CERTIFICATION When a Service Secretary has reported an increase in cost that equals or exceeds the critical cost growth threshold. 10 U.S.C. 2433a (Ref. (h)) USD(AT&L)
STATUTORY. The remedial actions required when a program or subprogram experiences critical cost growth.
Program Deviation Report Regulatory. • Due within 30 business days of occurrence of the deviation. • Initial MDA notification is due immediately upon becoming aware of an impending deviation. Para. 4a of this enclosure Program Manager to MDA
SURVIVABILITY AND LIVE FIRE TESTING STATUS REPORT Due as soon as practicable after a decision to proceed to operational use or to make procurement funds available for a covered system is made prior to Milestone C approval. 10 U.S.C. 2366 (Ref. (h)) DOT&E to Congress
STATUTORY. DOT&E LFT&E Oversight programs only, including those that respond to urgent needs. Program also requires the LFT&E Report (see LFT&E Report row on page 59 of this enclosure).
Note: A dot (●) in a cell indicates the specific applicability of the requirement to program type.

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