10 U.S.C. § 2808a gives the Secretary concerned authority to enter into transactions other than contracts, cooperative agreements, or grants for facility repair and construction projects. It covers work from planning and design through engineering, prototyping, piloting, and execution. The authority has its own funding, congressional notice, and reporting conditions; it is not the same as the Department of Defense’s prototype-project authority in § 4022.
What § 2808a authorizes
Section 2808a is a construction-specific authority. Subject to the requirements in 10 U.S.C. § 2853, it allows the Secretary concerned to enter into “transactions (other than contracts, cooperative agreements, or grants)” for facility repair and construction projects. The statutory text expressly includes planning, design, engineering, prototyping, piloting, and execution within the covered project lifecycle. Read 10 U.S.C. § 2808a.
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The authority is scoped to facility repair and construction. It should not be read as a general permission to use an other transaction agreement for any defense acquisition, or as a blanket exemption from acquisition requirements. The statute establishes an available instrument and conditions; applying it to a particular project requires checking the statutory requirements and the responsible service’s procedures.
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Funding, notice, and reporting conditions
Potential funding sources
Section 2808a identifies amounts available for military construction, operation and maintenance, or research, development, test, and evaluation (RDT&E) as potential funding sources. Their availability is subject to the statute’s requirements; identifying a source does not, by itself, establish that a particular appropriation may fund a particular project.
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Advance notice to Congress
At least 14 days before entering into a transaction for a project under § 2808a, the Secretary concerned must provide notice to the congressional defense committees. This is a statutory advance-notice requirement, not a general estimate or a post-award reporting interval. The section also contains additional conditions and reporting requirements, which should be reviewed in the current statutory text before a project is structured. 10 U.S.C. § 2808a(d).
How § 2808a differs from the § 4022 prototype authority
Both provisions concern other transactions, but they address different statutory purposes. Section 2808a concerns facility repair and construction. Section 4022 authorizes prototype-project transactions under its own conditions and can permit follow-on production when those conditions are met. The prototype authority’s eligibility rules or follow-on provisions do not automatically govern a construction transaction under § 2808a.
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| Issue | 10 U.S.C. § 2808a | 10 U.S.C. § 4022 |
|---|---|---|
| Statutory purpose | Facility repair and construction projects. | Prototype projects, under § 4022’s statutory conditions. |
| Project stages | Expressly includes planning, design, engineering, prototyping, piloting, and execution. | Prototype-project authority; it is not the construction authority. |
| Funding | Identifies military construction, operation and maintenance, and RDT&E amounts as possible funding sources, subject to statutory requirements. | Funding conditions are governed by § 4022; do not import § 2808a’s funding language. |
| Notice and reporting | Requires notice to congressional defense committees at least 14 days before entering a project transaction and includes other conditions and reporting requirements. | Governed by § 4022’s own statutory requirements; § 2808a’s notice rule should not be substituted for them. |
| Follow-on production | The reviewed statutory text does not establish § 4022 follow-on production rules as applicable to § 2808a transactions. | Can permit follow-on production when the statute’s conditions are satisfied. |
Section 4022 appears in the 2023 U.S. Code. Separately, DFARS 206.001-70 addresses an exception from DFARS Part 6 competition requirements for qualifying follow-on production contracts developed under § 4022. That provision concerns qualifying § 4022 follow-on production contracts; it is not an implementation rule for § 2808a construction transactions. DFARS 206.001-70.
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What contracting teams should verify for a live project
The statutory authority does not settle every implementation question for an individual project. Before advising on or structuring a transaction, confirm the applicable approval chain and delegation, how the project meets § 2853 and § 2808a’s other conditions, the funding’s availability, and the required notice and reporting process.
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- Confirm the project is a facility repair or construction project within § 2808a’s scope.
- Identify the proposed appropriation and confirm its availability for the project.
- Verify the responsible official’s authority and the service’s approval and documentation procedures.
- Plan the congressional notice early enough to satisfy the 14-day advance requirement.
- Review current project-level reporting requirements and the applicable terms for the transaction.
Acquisition.gov’s PGI lists the DoD Other Transaction Guide and 2018 memoranda as resources on other transaction agreements. That listing alone does not establish that the guide addresses the newer construction authority or resolves § 2808a-specific procedures. PGI 206.001-70. The official material cited here does not establish current DoD implementation guidance, standard § 2808a agreement terms, or completed project examples. For operational decisions, consult the current statute and applicable service guidance rather than assuming prototype-OTA practices transfer.
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