(d) HOW TO DETERMINE WHEN TO NOTIFY CONGRESS

(1) Congressional Notification.

(i) The determination on whether Congress needs to be notified of an impending multi-year award has evolved over the years. The requirement to notify Congress is now in 10 USC 2306b(g), and updated in Section 814 of the National Defense Authorization Act of FY2005, which requires that the Secretary notify and provide supporting rationale to the Armed Services and Appropriations Committees of the Senate and the National Security and Appropriations Committees of the House, 30 days before awarding a multiyear contract containing a cancellation ceiling in excess of $100,000,000 that is not fully funded.

(ii)Additionally, Section 8008 of the Defense Appropriations Act of FY2005 places the following conditions on the award of a multiyear contract using FY2005 funds.

(A) DoD must have submitted a budget request to Congress for full funding of the units to be procured;

(B) Contract cancellation provisions must not include consideration of recurring costs associated with the production of unfunded units;

(C) Payments under the contact must not be made in advance of incurred costs on funded units; and,

(D) The contract must not provide for a price adjustment based on a failure to award a follow-on contract."

(2) DFARS 217.1 specifies that DoD must receive authorization from, or provide notification to, Congress before entering into a multi-year contract for certain procurements.

(3) Section 8008(b) of PL 105-56 discusses the budget submission. Please refer to Section 8008(b) of PL 105-56 for current legislative language on formal budget requests.

(4) Agencies should establish reporting procedures to meet the congressional notification requirements of paragraph D.1 of this section. The head of the agency should submit a copy of each notice to the Director of Defense Procurement, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics) (OUSD (AT&L) DP), and to the Deputy Under Secretary of Defense (Comptroller) (Program/Budget) (OUSD(C)(P/B)).

(5) If notification is required, this notification requirement cannot be satisfied by any routine input to Congress (pursuant to FAR 5.3). The information being conveyed is unique and the timing is based on when you will be ready to award the multi-year contract.