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10 U.S.C. § 2808a gives the Secretary concerned authority to enter into transactions other than contracts, cooperative agreements, or grants for certain facility repair and construction projects. It expressly covers work from planning and design through prototyping, piloting, and execution, subject to § 2853 and other statutory conditions. It is a construction-specific authority—not the DoD prototype-project authority in § 4022.
What does § 2808a authorize?
Section 2808a authorizes the Secretary concerned, subject to the requirements in 10 U.S.C. § 2853, to enter into “transactions (other than contracts, cooperative agreements, or grants)” for facility repair and construction projects. The statute identifies the covered project work as planning, design, engineering, prototyping, piloting, and execution. Read the current preliminary text of 10 U.S.C. § 2808a from the Office of the Law Revision Counsel.
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The authority is therefore about a defined kind of project and transaction. It does not, by itself, establish a general alternative to procurement rules for any defense acquisition. Whether a proposed project fits, and how it is approved and administered, depends on the statute and applicable implementation by the relevant service or department.
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Which work and funding sources are covered?
Project lifecycle
The statute expressly includes planning, design, engineering, prototyping, piloting, and project execution. Its scope is not limited to construction activity at a job site: the listed stages encompass preparatory and developmental work as well as carrying out a facility repair or construction project.
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Potential funding sources
Section 2808a identifies amounts available for military construction, operation and maintenance, or research, development, test, and evaluation (RDT&E) as possible funding sources. These are statutory possibilities, not blanket permission to charge any project to any of those accounts. Funding still has to meet the applicable statutory requirements, including the conditions relevant to the project and § 2853.
What notice does Congress receive?
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 an advance-notice requirement; it is not a statement that Congress must approve each transaction. The statute also includes additional conditions and reporting requirements, which should be reviewed in the full text for the specific project. See § 2808a, including subsection (d), in the current preliminary U.S. Code text.
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How is a construction transaction different from a prototype OTA?
Section 2808a and § 4022 are separate statutory authorities. Section 2808a addresses facility repair and construction transactions. Section 4022 addresses DoD prototype projects and, when its statutory conditions are met, can support follow-on production. The shared use of “other transaction” does not make their eligibility rules or procedures interchangeable.
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1Clear out junk files and repair common Windows errors2Fix the driver behind crashes, sound loss and screen glitches3Repair Windows errors before they cause bigger problems| Question | 10 U.S.C. § 2808a | 10 U.S.C. § 4022 |
|---|---|---|
| Purpose and project type | Facility repair and construction projects. | DoD prototype projects; the authority includes conditional follow-on production provisions. |
| Covered lifecycle | Expressly includes planning, design, engineering, prototyping, piloting, and execution. | Prototype-project authority; do not assume § 2808a’s construction lifecycle list applies. |
| Funding | Identifies military construction, operation and maintenance, and RDT&E amounts as possible sources, subject to statutory requirements. | Not stated in the cited § 4022 source as a directly comparable list of funding sources. |
| Notice and other conditions | Requires notice to congressional defense committees at least 14 days before entering a project transaction; also includes additional conditions and reporting requirements. | Has its own statutory conditions; § 2808a’s 14-day notice rule should not be attributed to § 4022. |
| Follow-on awards | The reviewed statutory text does not establish a § 4022-style follow-on production pathway for construction transactions. | Can permit follow-on production under the conditions in § 4022. |
Sources: current preliminary 10 U.S.C. § 2808a and 2023 U.S. Code, 10 U.S.C. § 4022. The comparison is limited to those cited provisions.
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Does DFARS 206.001-70 govern § 2808a projects?
Do not treat DFARS 206.001-70 as the implementation rule for construction transactions under § 2808a. That DFARS provision concerns an exception from DFARS Part 6 competition requirements for qualifying follow-on production contracts developed under § 4022. It addresses a specific contracting situation connected to the prototype authority, not the separate construction authority. See DFARS 206.001-70.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.What should a team verify before using the authority?
The statute establishes authority, but it does not alone answer every operational question for a live project. Before advising on or structuring a transaction, the responsible team should verify the applicable service or department procedures and the project-specific legal and funding requirements.
- Confirm that the work is a facility repair or construction project within § 2808a and identify which listed lifecycle activities are involved.
- Determine how § 2853 applies and what approvals or delegations the relevant service requires.
- Confirm that the proposed funding source is available for the project and complies with applicable statutory restrictions.
- Plan for the congressional defense committee notice at least 14 days before entering the transaction, along with the statute’s other conditions and reporting duties.
- Obtain current guidance on transaction structure, agreement terms, project selection records, and project-level reporting from the responsible authority.
The DoD Other Transaction Guide is listed in DFARS PGI as a resource on other transaction agreements. That listing alone does not establish that the guide covers the newer construction authority in § 2808a. See DFARS PGI Part 206 resources. The official materials cited here do not establish current implementing guidance, standard agreement terms, or completed project examples specific to § 2808a.
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