[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 454 Engrossed Amendment House (EAH)]
In the House of Representatives, U. S.,
May 13, 2009.
Resolved, That the bill from the Senate (S. 454) entitled ``An Act
to improve the organization and procedures of the Department of Defense
for the acquisition of major weapon systems, and for other purposes.'',
do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Weapons
Acquisition System Reform Through Enhancing Technical Knowledge and
Oversight Act of 2009''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--ACQUISITION ORGANIZATION
Sec. 101. Independent performance of acquisition oversight functions.
Sec. 102. Oversight of cost estimation.
Sec. 103. Oversight of systems engineering.
Sec. 104. Oversight of performance assessment.
Sec. 105. Assessment of technological maturity of critical technologies
of major defense acquisition programs by
the Director of Defense Research and
Engineering.
Sec. 106. Role of the commanders of the combatant commands in
identifying joint military requirements.
TITLE II--ACQUISITION POLICY
Sec. 201. Acquisition strategies ensuring competition throughout the
lifecycle of major defense acquisition
programs.
Sec. 202. Additional requirements for certain major defense acquisition
programs.
Sec. 203. Requirement for certification of major systems prior to
Milestone B.
Sec. 204. Critical cost growth in major defense acquisition programs.
Sec. 205. Organizational conflicts of interest in the acquisition of
major weapon systems.
Sec. 206. Awards for Department of Defense personnel for excellence in
the acquisition of products and services.
Sec. 207. Consideration of trade-offs among cost, schedule, and
performance in the acquisition of major
weapon systems.
TITLE I--ACQUISITION ORGANIZATION
SEC. 101. INDEPENDENT PERFORMANCE OF ACQUISITION OVERSIGHT FUNCTIONS.
(a) In General.--Chapter 4 of title 10, United States Code, is
amended by adding at the end the following new section:
``Sec. 145. Principal advisors for acquisition oversight functions
``(a) Assignment of Acquisition Oversight Functions.--The Secretary
of Defense shall designate an official within the Office of the
Secretary of Defense as the principal advisor to the Secretary for each
acquisition oversight function specified in subsection (c). An official
may be designated to perform one or more of such functions. The
performance of duties pursuant to a designation under this section
shall not limit or otherwise affect the performance of any other duties
assigned to such official by the Secretary or by other officers of the
Department responsible for the management and direction of such
official except as necessary to satisfy the requirements of subsection
(b).
``(b) Qualifications.--In designating an official for a function
pursuant to subsection (a), the Secretary shall ensure that the
official reports directly to the Secretary in the performance of such
function and is--
``(1) highly expert in matters relating to the function;
``(2) assigned the appropriate staff and resources
necessary to carry out the function;
``(3) independent from those engaged in the execution of
acquisition programs;
``(4) free of any undue political influence; and
``(5) free of any personal conflict of interest.
``(c) Acquisition Oversight Functions.--(1) The acquisition
oversight functions to be performed by officials designated pursuant to
subsection (a) are as follows:
``(A) Cost estimation.
``(B) Systems engineering.
``(C) Performance assessment.
``(D) Such other acquisition functions as the Secretary
considers appropriate.
``(2) Each acquisition oversight function specified in paragraph
(1) shall cover all phases of an acquisition program, including setting
of requirements, formulation and execution of budgets, and program
execution.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by adding at the end the following new item:
``145. Principal advisors for acquisition oversight functions.''.
SEC. 102. OVERSIGHT OF COST ESTIMATION.
(a) In General.--Chapter 137 of title 10, United States Code, is
amended by adding at the end the following new section:
``Sec. 2334. Acquisition oversight: oversight of cost estimation
``(a) Issuance of Policies, Procedures, Guidance, and Cost
Estimates.--The official assigned oversight of cost estimation pursuant
to section 145 of this title shall issue the following:
``(1) Policies and procedures governing the conduct of cost
estimation and cost analysis generally for the acquisition
programs of the Department of Defense.
``(2) Guidance relating to cost estimates and cost analyses
conducted in connection with major defense acquisition programs
under chapter 144 of this title or major automated information
system programs under chapter 144A of this title.
``(3) Guidance relating to the proper selection of
confidence levels for cost estimates generally, and
specifically, for the proper selection of confidence levels for
cost estimates for major defense acquisition programs under
chapter 144 of this title or major automated information system
program under chapter 144A of this title.
``(4) Guidance relating to full consideration of life-cycle
management and sustainability costs of major defense
acquisition programs under chapter 144 of this title or major
automated information system programs under chapter 144A of
this title.
``(5) Independent cost estimates and cost analyses for
major defense acquisition programs and major automated
information system programs for which the Under Secretary of
Defense for Acquisition, Technology, and Logistics is the
Milestone Decision Authority--
``(A) in advance of--
``(i) any certification under section 2366a
or 2366b of title 10, United States Code;
``(ii) any decision to enter into low-rate
initial production or full-rate production;
``(iii) any certification under section
2433(e)(2) of this title; and
``(iv) any report under section 2445c(f) of
this title; and
``(B) at any other time considered necessary by
such official or upon the request of the Under
Secretary of Defense for Acquisition, Technology, and
Logistics.
``(b) Review of Cost Estimates, Cost Analyses, Cost Indexes, and
Records of the Military Departments.--The Secretary of Defense shall
ensure that the official designated for oversight of cost estimation
pursuant to section 145 of this title--
``(1) promptly receives the results of all cost estimates
and cost analyses conducted by the military departments, and
all studies conducted by the military departments in connection
with such cost estimates and cost analyses, for major defense
acquisition programs and major automated information systems of
the military departments, and is authorized to comment on such
estimates, analyses, and studies; and
``(2) has timely access to any records and data in the
Department of Defense (including the records and data of each
military department and including classified and proprietary
information as appropriate) that the official considers
necessary to review in order to carry out any duties under this
section.
``(c) Participation, Concurrence, and Approval in Cost
Estimation.--The Secretary of Defense shall ensure that the official
designated for oversight of cost estimation pursuant to section 145 of
this title is involved in all discussions relating to cost estimation
and the estimation of resource levels required for major defense
acquisition programs and major automated information systems of the
Department of Defense generally at all stages of such programs and
may--
``(1) participate in the formulation of study guidance for
analyses of alternatives for major defense acquisition
programs;
``(2) participate in discussion of resources associated
with requirements;
``(3) participate in the discussion of any discrepancies
between an independent cost estimate and the cost estimate of a
military department for a major defense acquisition program or
major automated information system of the Department of
Defense;
``(4) approve or disapprove, at such official's sole
discretion, the confidence level used in establishing a
baseline description or budget estimate for a major defense
acquisition program or major automated information system of
the Department of Defense at any of the events specified in
paragraph (5) of subsection (a) of this section;
``(5) concur in the choice of a baseline description or
budget estimate for use at any of the events specified in
paragraph (5) of subsection (a) of this section; and
``(6) participate in consideration of any decision to
request authorization of a multiyear procurement contract for a
major defense acquisition program.
``(d) Disclosure of Confidence Levels for Baseline Estimates of
Major Defense Acquisition Programs.--The official designated to perform
oversight of cost estimation pursuant to section 145 of this title, in
approving a confidence level for use in a major defense acquisition
program pursuant to subsection (c)(4), shall--
``(1) disclose the confidence level used in establishing a
baseline estimate for the major defense acquisition program,
the rationale for selecting such confidence level, and, if such
confidence level is less than 80 percent, the justification for
selecting a confidence level of less than 80 percent; and
``(2) include the disclosure required by paragraph (1) in
any decision documentation approving a baseline estimate for
the major defense acquisition program, in the next Selected
Acquisition Report pursuant to section 2432 of this title for
the major defense acquisition program, and in the next annual
report submitted under subsection (f).
``(e) Relationship to Cost Analysis Improvement Group.--The
official designated to perform oversight of cost estimation pursuant to
section 145 of this title shall be assigned responsibility for the
management and oversight of the Cost Analysis Improvement Group of the
Department of Defense.
``(f) Annual Report.--Not later than March 1 of each year,
beginning on March 1, 2010, the official designated to perform
oversight of cost estimation pursuant to section 145 of this title
shall submit to the congressional defense committees a report on the
activities undertaken pursuant to this section during the preceding
year. The report shall be in an unclassified form but may include a
classified annex.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by adding at the end the following new item:
``2334. Acquisition oversight: oversight of cost estimation.''.
SEC. 103. OVERSIGHT OF SYSTEMS ENGINEERING.
(a) In General.--Chapter 137 of title 10, United States Code, as
amended by section 102, is further amended by adding at the end the
following new section:
``Sec. 2334a. Acquisition oversight: oversight of systems engineering
``(a) Issuance of Policies, Procedures, and Guidance.--The official
designated to perform oversight of systems engineering pursuant to
section 145 of this title shall--
``(1) issue policies, procedures, and guidance for all
elements of the Department of Defense concerning--
``(A) the use of systems engineering principles and
best practices, generally;
``(B) the use of systems engineering approaches to
enhance reliability, availability, and maintainability
on major defense acquisition programs;
``(C) the development of systems engineering master
plans for major defense acquisition programs, including
systems engineering considerations in support of life-
cycle management and sustainability;
``(D) the inclusion of provisions relating to
systems engineering and reliability growth in requests
for proposals;
``(E) the appropriate use of development planning
to reduce the time from system development to
deployment, to reduce development risk and cost growth,
and to provide future benchmarks against which to trade
requirements, cost, and schedule;
``(F) developmental test and evaluation generally;
``(G) in coordination with the Director of
Operational Test and Evaluation, the integration of
developmental test and evaluation with operational test
and evaluation;
``(H) in coordination with the Director of
Operational Test and Evaluation, the development of
test and evaluation master plans for major defense
acquisition programs; and
``(I) the use of developmental test and evaluation
as part of a coordinated systems engineering approach
to system development; and
``(2) provide advocacy, oversight, and direction to
elements of the acquisition workforce responsible for functions
relating to systems engineering, developmental test and
evaluation, and life-cycle management and sustainability.
``(b) Participation in Requirements Discussions.--The official
designated to perform oversight of systems engineering pursuant to
section 145 of this title shall provide input on the inclusion of
systems engineering requirements in the process for consideration of
joint military requirements by the Joint Requirements Oversight Council
pursuant to section 181 of title 10, United States Code, including
specific input relating to each capabilities development document.
``(c) Access to Records of the Military Departments.--The official
designated to perform oversight of systems engineering pursuant to
section 145 of this title shall have access to any records or data of
the Department of Defense (including the records and data of each
military department and including classified and proprietary
information as appropriate) that the official considers necessary to
review in order to carry out any duties under this section.
``(d) Assessment of Military Department Capabilities for Systems
Engineering and Developmental Test and Evaluation.--The official
designated to perform oversight of systems engineering pursuant to
section 145 of this title shall--
``(1) periodically assess the capabilities of the military
departments for systems engineering (including development
planning) and developmental test and evaluation;
``(2) provide such assessment, along with such
recommendations for improvement as the official considers
necessary, to the Secretary of Defense and the Under Secretary
of Defense for Acquisition, Technology, and Logistics; and
``(3) include such assessment and recommendations in the
annual report required by subsection (g).
``(e) Review and Approval of Plans for Major Defense Acquisition
Programs.--The official designated to perform oversight of systems
engineering pursuant to section 145 of this title shall review and
approve the following plans with respect to any major defense
acquisition program:
``(1) The systems engineering master plan.
``(2) The developmental test and evaluation plan within the
test and evaluation master plan.
``(f) Reporting Through Under Secretary.--The official designated
to perform oversight of systems engineering pursuant to section 145 of
this title shall report to the Secretary of Defense through the Under
Secretary of Defense for Acquisition, Technology, and Logistics.
``(g) Annual Report.--Not later than March 1 of each year,
beginning on March 1, 2010, the official designated to perform
oversight of systems engineering pursuant to section 145 of this title
shall submit to the congressional defense committees a report on the
activities undertaken pursuant to this section during the preceding
year. The report shall be in unclassified form but may include a
classified annex.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter, as amended by section 102, is further amended by adding
at the end the following new item:
``2334a. Acquisition oversight: oversight of systems engineering.''.
SEC. 104. OVERSIGHT OF PERFORMANCE ASSESSMENT.
(a) In General.--Chapter 137 of title 10, United States Code, as
amended by section 103, is further amended by adding at the end the
following new section:
``Sec. 2334b. Acquisition oversight: oversight of performance
assessment
``(a) Issuance of Policies, Procedures, and Guidance for
Performance Assessments.--The official designated to perform oversight
of performance assessment pursuant to section 145 of this title shall
be responsible for the issuance of policies, procedures, and guidance
governing the conduct of performance assessments for the acquisition
programs of the Department of Defense, including assessment of the
extent to which acquisition programs--
``(1) deliver sufficient capability to the warfighter;
``(2) achieve timely delivery of such capability; and
``(3) deliver a level of value consistent with resources
expended.
``(b) Assessment of Baseline Quality.--The official designated to
perform oversight of performance assessment pursuant to section 145 of
this title shall periodically assess the suitability of the baseline
descriptions required by section 2435 of title 10, United States Code,
of major defense acquisition programs for providing a basis for
performance assessment and make such recommendations to the Secretary
of Defense and the Under Secretary of Defense for Acquisition,
Technology, and Logistics as the official considers necessary to
improve the suitability of baseline descriptions for such purpose.
``(c) Earned Value Management System.--The official designated to
perform oversight of performance assessment pursuant to section 145 of
this title shall be responsible for the management and oversight of the
records of the earned value management system of the Department of
Defense.
``(d) Participation in Certain Program Reviews.--The official
designated to perform oversight of performance assessment pursuant to
section 145 of this title is authorized to present an assessment of the
performance of a major defense acquisition program during--
``(1) any discussions prior to certification under section
2433(e)(2) of this title;
``(2) any discussions prior to entry into full-rate
production; and
``(3) consideration of any decision to request
authorization of a multiyear procurement contract for a major
defense acquisition program.
``(e) Annual Report.--Not later than March 1 of each year,
beginning on March 1, 2010, the official designated to perform
oversight of performance assessment pursuant to section 145 of this
title shall submit to the congressional defense committees a report on
the activities undertaken pursuant to this section during the preceding
year. The report shall be in unclassified form but may include a
classified annex.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter, as amended by section 103, is further amended by adding
at the end the following new item:
``2334b. Acquisition oversight: oversight of performance assessment.''.
SEC. 105. ASSESSMENT OF TECHNOLOGICAL MATURITY OF CRITICAL TECHNOLOGIES
OF MAJOR DEFENSE ACQUISITION PROGRAMS BY THE DIRECTOR OF
DEFENSE RESEARCH AND ENGINEERING.
(a) Assessment by Director of Defense Research and Engineering.--
(1) In general.--Section 139a of title 10, United States
Code, is amended by adding at the end the following new
subsection:
``(c)(1) The Director of Defense Research and Engineering shall
periodically review and assess the technological maturity and
integration risk of critical technologies of the major defense
acquisition programs of the Department of Defense and report on the
findings of such reviews and assessments to the Under Secretary of
Defense for Acquisition, Technology, and Logistics.
``(2) The Director shall submit to the Secretary of Defense and to
the congressional defense committees by January 1 of each year a report
on the technological maturity and integration risk of critical
technologies of the major defense acquisition programs of the
Department of Defense.''.
(2) First annual report.--The first annual report under
subsection (c)(2) of section 139a of title 10, United States
Code (as added by paragraph (1)), shall be submitted to the
congressional defense committees not later than March 1, 2011,
and shall address the results of reviews and assessments
conducted by the Director of Defense Research and Engineering
pursuant to subsection (c)(1) of such section (as so added)
during the preceding calendar year.
(b) Report on Resources for Implementation.--Not later than 120
days after the date of the enactment of this Act, the Director of
Defense Research and Engineering shall submit to the congressional
defense committees a report describing any additional resources that
may be required by the Director, and by other research and engineering
elements of the Department of Defense, to carry out the following:
(1) The requirements under the amendment made by subsection
(a)(1).
(2) The technological maturity assessments required by
section 2366b(a) of title 10, United States Code.
(3) The requirements of Department of Defense Instruction
5000, as revised.
SEC. 106. ROLE OF THE COMMANDERS OF THE COMBATANT COMMANDS IN
IDENTIFYING JOINT MILITARY REQUIREMENTS.
(a) In General.--Section 181(d) of title 10, United States Code, is
amended--
(1) by inserting ``(1)'' before ``The Under Secretary'';
and
(2) by adding at the end the following new paragraph:
``(2) The Council shall seek and consider input from the commanders
of the combatant commands in carrying out its mission under paragraphs
(1) and (2) of subsection (b) and in conducting periodic reviews in
accordance with the requirements of subsection (e). Such input may
include, but is not limited to, an assessment of the following:
``(A) Any current or projected missions or threats in the
theater of operations of the commander of a combatant command
that would inform the assessment of a new joint military
requirement.
``(B) The necessity and sufficiency of a proposed joint
military requirement in terms of current and projected missions
or threats.
``(C) The relative priority of a proposed joint military
requirement in comparison with other joint military
requirements within the theater of operations of a commander of
a combatant command.
``(D) The ability of partner nations in the theater of
operations of the commander of a combatant command to assist in
meeting the joint military requirement or the benefit, if any,
of a partner nation assisting in development or use of
technologies developed to meet the joint military
requirement.''.
(b) Comptroller General of the United States Review of
Implementation.--Not later than two years after the date of the
enactment of this Act, the Comptroller General of the United States
shall submit to the Committees on Armed Services of the Senate and the
House of Representatives a report on the implementation of the
requirements of (1) subsection (d)(2) of section 181 of title 10,
United States Code (as amended by subsection (a)), for the Joint
Requirements Oversight Council to solicit and consider input from the
commanders of the combatant commands, and (2) subsection (b) of section
181 of title 10, United States Code (as amended by section 942 of the
National Defense Authorization Act for Fiscal Year 2008 (Public Law
110-181; 122 Stat. 287)). The report shall include, at a minimum, an
assessment of the extent to which the Council has effectively sought,
and the commanders of the combatant commands have provided, meaningful
input on proposed joint military requirements.
TITLE II--ACQUISITION POLICY
SEC. 201. ACQUISITION STRATEGIES ENSURING COMPETITION THROUGHOUT THE
LIFECYCLE OF MAJOR DEFENSE ACQUISITION PROGRAMS.
(a) Acquisition Strategy Ensuring Competition.--The Secretary of
Defense shall ensure that the acquisition strategy for each major
defense acquisition program includes--
(1) measures to ensure competition, or the option of
competition, at both the prime contract level and the
subcontract level (at such tier or tiers as are appropriate) of
such program throughout the life-cycle of such program as a
means to improve contractor performance; and
(2) adequate documentation of the rationale for the
selection of the subcontract tier or tiers under paragraph (1).
(b) Measures To Ensure Competition.--The measures to ensure
competition, or the option of competition, for purposes of subsection
(a) may include measures to achieve the following, in appropriate cases
if such measures are cost-effective:
(1) Competitive prototyping.
(2) Dual-sourcing.
(3) Unbundling of contracts.
(4) Funding of a second source for interchangeable, next-
generation prototype systems or subsystems.
(5) Use of modular, open architectures to enable
competition for upgrades.
(6) Use of build-to-print approaches to enable production
through multiple sources.
(7) Acquisition of complete technical data packages.
(8) Periodic competitions for subsystem upgrades.
(9) Licensing of additional suppliers.
(10) Periodic system or program reviews to address long-
term competitive effects of program decisions.
(c) Consideration of Competition Throughout Operation and
Sustainment of Major Defense Acquisition Programs.--In carrying out
this section, the Secretary of Defense shall ensure that, with respect
to maintenance of a major defense acquisition program, consideration is
given to capabilities within the Department of Defense to perform
maintenance functions.
SEC. 202. ADDITIONAL REQUIREMENTS FOR CERTAIN MAJOR DEFENSE ACQUISITION
PROGRAMS.
(a) Additional Requirements Relating to Milestone B Approval.--
Section 2366b of title 10, United States Code, is amended--
(1) in subsection (d)--
(A) by inserting ``(1)'' before ``The milestone
decision authority may''; and
(B) by striking the second sentence and inserting
the following:
``(2) Whenever the milestone decision authority makes such a
determination and authorizes such a waiver--
``(A) the waiver, the determination, and the reasons for
the determination shall be submitted in writing to the
congressional defense committees within 30 days after the
waiver is authorized; and
``(B) the milestone decision authority shall review the
program not less often than annually to determine the extent to
which such program currently satisfies the certification
components specified in paragraphs (1) and (2) of subsection
(a) until such time as the milestone decision authority
determines that the program satisfies all such certification
components.'';
(2) by redesignating subsections (e) and (f) as subsections
(f) and (g), respectively, and inserting after subsection (d)
the following new subsection (e):
``(e) Designation of Certification Status in Budget
Documentation.--Any budget request, budget justification material,
budget display, reprogramming request, Selected Acquisition Report, or
other budget documentation or performance report submitted by the
Secretary of Defense to the President regarding a major defense
acquisition program receiving a waiver pursuant to subsection (d) shall
prominently and clearly indicate that such program has not fully
satisfied the certification requirements of this section until such
time as the milestone decision authority makes the determination that
such program has satisfied all certification components pursuant to
subsection (d)(2)(B).'';
(3) in subsection (a)--
(A) in paragraph (1), by striking ``and'' at the
end;
(B) by redesignating paragraph (2) as paragraph
(3);
(C) by inserting after paragraph (1) the following
new paragraph (2):
``(2) has received a preliminary design review and
conducted a formal post-preliminary design review assessment,
and certifies on the basis of such assessment that the program
demonstrates a high likelihood of accomplishing its intended
mission or that no preliminary design review is necessary for
such program to demonstrate a high likelihood of accomplishing
its intended mission; and''; and
(D) in paragraph (3), as redesignated by
subparagraph (B) of this paragraph--
(i) in subparagraph (D), by striking the
semicolon and inserting ``, as determined by
the Milestone Decision Authority on the basis
of an independent review and assessment by the
Director of Defense Research and Engineering;
and'';
(ii) by striking subparagraph (E); and
(iii) by redesignating subparagraph (F) as
subparagraph (E).
(b) Certification and Review of Programs Entering Development Prior
to Enactment of Section 2366b of Title 10.--
(1) Determination.--(A) Except as provided in subparagraph
(B), beginning not later than 270 days after the date of the
enactment of this Act, for each major defense acquisition
program that has not received a Milestone C approval, or Key
Decision Point C approval in the case of a space program, the
Milestone Decision Authority shall determine whether or not the
program satisfies the certification components specified in
paragraphs (1) and (2) of subsection (a) of section 2366b of
title 10, United States Code.
(B) Subparagraph (A) shall not apply to a major defense
acquisition program that has been reviewed pursuant to section
2366b of title 10, United States Code, prior to the date that
is 270 days after the date of the enactment of this Act, or a
major defense acquisition program that has not yet received
Milestone B approval.
(2) Annual review.--The Milestone Decision Authority shall
review any program determined pursuant to paragraph (1) not to
satisfy the certification components of subsection (a) of
section 2366b of title 10, United States Code, not less often
than annually thereafter to determine the extent to which such
program currently satisfies the certification components
specified in paragraphs (1) and (2) of subsection (a) of such
section until such time as the Milestone Decision Authority
determines that the program satisfies all such certification
components.
(3) Designation of certification status in budget
documentation.--Any budget request, budget justification
material, budget display, reprogramming request, Selected
Acquisition Report, or other budget documentation or
performance report submitted by the Secretary of Defense to the
President regarding a major defense acquisition program which
the Milestone Decision Authority determines under paragraph (1)
does not satisfy the certification components specified in
paragraphs (1) and (2) of subsection (a) of section 2366b of
title 10, United States Code, shall prominently and clearly
indicate that such program has not fully satisfied such
certification components until such time as the Milestone
Decision Authority makes the determination that such program
has satisfied all certification components pursuant to
paragraph (2).
(c) Reviews of Programs Restructured After Experiencing Critical
Cost Growth.--The official designated to perform oversight of
performance assessment pursuant to section 145 of title 10, United
States Code, as added by this Act, shall annually review each major
defense acquisition program that has been considered pursuant to
paragraph (2) of section 2433(e) of title 10, United States Code, and
which has been certified as necessary to continue pursuant to such
paragraph, to assess the success of the program in achieving adequate
program performance after the completion of such consideration. The
results of reviews performed pursuant to this subsection shall be
included in the next annual report of such official.
SEC. 203. REQUIREMENT FOR CERTIFICATION OF MAJOR SYSTEMS PRIOR TO
MILESTONE B.
(a) Certification.--Except as provided in subsection (b), beginning
not later than 270 days after the date of the enactment of this Act,
for each major defense acquisition program that has not received
Milestone B approval, or Key Decision Point B approval in the case of a
space program, the Milestone Decision Authority shall certify, after
consultation with the Joint Requirements Oversight Council on matters
relating to program requirements and military needs--
(1) that the program fulfills an approved initial
capabilities document;
(2) that the program is being executed by an entity with a
relevant core competency as identified by the Secretary of
Defense under section 118b of title 10, United States Code;
(3) if the program duplicates a capability already provided
by an existing program, the duplication provided by such
program is necessary and appropriate;
(4) that a cost estimate for such program has been
submitted to the Milestone Decision Authority and that the
concurrence of the official designated to perform oversight of
cost estimation pursuant to section 145 of title 10, United
States Code, has been obtained regarding the choice of a cost
estimate; and
(5) that a schedule identifying the time and major
activities required to reach Milestone B approval, or Key
Decision Point B approval in the case of a space program, has
been submitted to the Milestone Decision Authority.
(b) Exception.--Subsection (a) shall not apply to a major defense
acquisition program that has received a certification as required by
section 2366a, title 10, United States Code.
(c) Reports.--
(1) Relating to cost growth or schedule delay of programs
certified under subsection (a).--With respect to a major
defense acquisition program certified by the Milestone Decision
Authority under subsection (a), the Milestone Decision
Authority shall submit to the congressional defense committees
a report in accordance with this subsection if, prior to
Milestone B approval--
(A) the projected cost of the program exceeds the
cost estimate for the program submitted to the
Milestone Decision Authority in accordance with
subsection (a)(4) by more than 25 percent; or
(B) the schedule submitted to the Milestone
Decision Authority in accordance with subsection (a)(5)
is delayed by more than 25 percent.
(2) Relating to cost growth of programs certified under
section 2366a.--With respect to a major defense acquisition
program certified by the Milestone Decision Authority under
section 2366a of title 10, United States Code, the Milestone
Decision Authority shall submit to the congressional defense
committees a report in accordance with this subsection if the
program manager submits a notification to the Milestone
Decision Authority pursuant to section 2366a(b).
(3) Matters covered.--Any report submitted pursuant to
paragraph (1) or (2) shall--
(A) identify the root causes of the cost or
schedule growth;
(B) identify appropriate acquisition performance
measures for the remainder of the program; and
(C) include one of the following:
(i) A written certification (with a
supporting explanation) stating that--
(I) such program is essential to
national security;
(II) there are no alternatives to
such program that will provide
acceptable military capability at less
cost;
(III) new estimates of the cost or
schedule, as appropriate, are
reasonable; and
(IV) the management structure for
the program is adequate to manage and
control program cost and schedule.
(ii) A plan for terminating the development
of the program or withdrawal of Milestone A
approval (or Key Decision Point A approval in
the case of a space program) if the Milestone
Decision Authority determines that such action
is in the interest of national defense.
(4) Time of submission.--A report required by this
subsection shall be submitted--
(A) in the case of a report required by paragraph
(1), not later than 30 days after the Milestone
Decision Authority determines the cost growth or
schedule delay described in that paragraph; and
(B) in the case of a report required by paragraph
(2), not later than 30 days after the Milestone
Decision Authority receives the notification from the
program manager described in that paragraph.
(d) Definitions.--In this section:
(1) Major defense acquisition program.--The term ``major
defense acquisition program'' means the following:
(A) A major defense acquisition program as that
term is defined in section 2430 of title 10, United
States Code.
(B) An acquisition program of the Department of
Defense that the Secretary of Defense expects to become
a major defense acquisition program (as defined in such
section 2430) upon Milestone B approval, on the basis
of the cost estimate submitted in accordance with
subsection (a)(4) of this section or subsection (a)(4)
of section 2366a of title 10, United States Code.
(2) Initial capabilities document.--The term ``initial
capabilities document'' has the meaning provided by section
2366a (c)(2) of such title.
(3) Entity.--The term ``entity'' has the meaning provided
by section 2366a(c)(4) of such title.
(4) Milestone b approval.--The term ``Milestone B
approval'' has the meaning provided by section 2366(e)(7) of
such title.
SEC. 204. CRITICAL COST GROWTH IN MAJOR DEFENSE ACQUISITION PROGRAMS.
(a) Authorized Actions in Event of Critical Cost Growth.--Paragraph
(2) of section 2433(e) of title 10, United States Code, is amended to
read as follows:
``(2)(A) If the program acquisition unit cost or procurement unit
cost of a major defense acquisition program or designated major
subprogram (as determined by the Secretary under subsection (d))
increases by a percentage equal to or greater than the critical cost
growth threshold for the program or subprogram, the Secretary of
Defense, after consultation with the Joint Requirements Oversight
Council regarding program requirements, shall--
``(i) determine the root cause or causes of the critical
cost growth including the role, if any, of--
``(I) changes or growth in requirements;
``(II) unrealistic baseline estimates;
``(III) any design, engineering, manufacturing, or
technology integration issues;
``(IV) changes in procurement quantities;
``(V) inadequate program funding or funding
instability;
``(VI) poor performance by government or contractor
personnel responsible for program management; or
``(VII) other causes as identified by the
Secretary;
``(ii) subject to subparagraph (B), determine whether to
terminate such program or to restructure such program after
assessing--
``(I) the root causes of cost growth identified
pursuant to subparagraph (A);
``(II) the validity and urgency of the joint
military requirement;
``(III) the viability of the acquisition strategy;
``(IV) the quality of program management;
``(V) a broad range of potential material and non-
material alternatives to such program; and
``(VI) the need to reduce funding for other
programs due to the cost growth on such program;
``(iii) submit the determination made under clause (ii) to
Congress, before the end of the 60-day period beginning on the
day the Selected Acquisition Report containing the information
described in subsection (g) is required to be submitted under
section 2432(f) of this title; and
``(iv) if a report under paragraph (1) has been previously
submitted to Congress with respect to such program or
subprogram for the current fiscal year but was based upon a
different unit cost report from the program manager to the
service acquisition executive designated by the Secretary
concerned, submit a further report containing the information
described in subsection (g), determined from the time of the
previous report to the time of the current report.
``(B) A program may be restructured pursuant to a determination
under subparagraph (A)(ii) only if--
``(i) a written certification (with a supporting
explanation) is submitted along with the determination stating
that--
``(I) such program is essential to national
security;
``(II) there are no alternatives to such program
which will provide acceptable military capability at
less cost;
``(III) new estimates of the program acquisition
unit cost or procurement unit cost are reasonable;
``(IV) the program is a higher priority than
programs whose funding must be reduced to accommodate
cost growth on such program; and
``(V) the management structure for the program is
adequate to manage and control program acquisition unit
cost or procurement unit cost; and
``(ii) the most recent milestone decision is revisited and
results in the approval of such restructured program.''.
(b) Total Expenditure for Procurement Resulting in Treatment as
Major Defense Acquisition Program.--Section 2430(a)(2) of such title is
amended by inserting ``, including all planned increments or spirals,''
after ``an eventual total expenditure for procurement''.
(c) Requirement To Include Cost Growth Funding Changes in Report.--
When a program is restructured under paragraph (2) of section 2433(e)
of title 10, United States Code, the next Selected Acquisition Report
for such program submitted pursuant to section 2432 of such title
occurring after the submission of the budget for the fiscal year
following the fiscal year in which the program was restructured shall
contain a description of all funding changes included in the budget for
that fiscal year as a result of the cost growth on such program,
including reductions made in the budgets of other programs to
accommodate such cost growth.
(d) Conforming Amendments.--Section 2433(e)(3) of such title is
amended--
(1) in subparagraph (A), by striking ``or (2)(B)'' and
inserting ``or (2)(A)(iii)''; and
(2) in subparagraph (B)--
(A) by striking ``or (2)(B)'' and inserting ``or
(2)(A)(iii)''; and
(B) by striking ``paragraph (2)(A)'' and inserting
``paragraph (2)(B)''.
SEC. 205. ORGANIZATIONAL CONFLICTS OF INTEREST IN THE ACQUISITION OF
MAJOR WEAPON SYSTEMS.
(a) Requirement for Panel To Present Recommendations.--Not later
than one year after the date of the enactment of this Act, the Panel on
Contracting Integrity established pursuant to section 813 of the John
Warner National Defense Authorization Act for Fiscal Year 2007 (Public
Law 109-364; 120 Stat. 2320) shall present recommendations to the
Secretary of Defense on measures to eliminate or mitigate
organizational conflicts of interest in the acquisition of major
weapons systems.
(b) Revised Regulations Required.--Not later than 180 days after
receiving recommendations pursuant to subsection (a), the Secretary of
Defense shall revise the Defense Supplement to the Federal Acquisition
Regulation to address organizational conflicts of interest by
contractors in the acquisition of major weapon systems.
(c) Potential Organizational Conflicts of Interest.--The
organizational conflicts of interest considered during the preparation
of the recommendations required pursuant to subsection (a) shall
include conflicts that could arise as a result of any of the following:
(1) Lead system integrator contracts on major defense
acquisition programs and contracts that follow lead system
integrator contracts on such programs, particularly contracts
for production.
(2) The ownership of business units performing systems
engineering and technical assistance functions, professional
services, or management support services in relation to major
defense acquisition programs by contractors who simultaneously
own business units competing to perform as either the prime
contractor or the supplier of a major subsystem or component
for such programs.
(3) The award of major subsystem contracts by a prime
contractor for a major defense acquisition program to business
units or other affiliates of the same parent corporate entity,
and particularly the award of subcontracts for software
integration or the development of a proprietary software system
architecture.
(4) The performance by, or assistance of, contractors in
technical evaluations on major defense acquisition programs.
(d) Extension of Panel on Contracting Integrity.--Subsection (e) of
section 813 of the John Warner National Defense Authorization Act for
Fiscal Year 2007 (Public Law 109-364; 120 Stat. 2321) is amended to
read as follows:
``(e) Termination.--(1) Subject to the restriction in paragraph
(2), the panel shall continue to serve until the date that is 18 months
after the date on which the Secretary of Defense notifies the
congressional defense committees of an intention to terminate the panel
based on a determination that the activities of the panel no longer
justify its continuation and that concerns about contracting integrity
have been fully mitigated.
``(2) The panel shall continue to serve at least until December 31,
2011.''.
SEC. 206. AWARDS FOR DEPARTMENT OF DEFENSE PERSONNEL FOR EXCELLENCE IN
THE ACQUISITION OF PRODUCTS AND SERVICES.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of Defense shall commence carrying
out a program to recognize excellent performance by individuals and
teams of members of the Armed Forces and civilian personnel of the
Department of Defense in the acquisition of products and services for
the Department of Defense.
(b) Elements.--The program required by subsection (a) shall include
the following:
(1) Procedures for the nomination by the personnel of the
military departments and the Defense Agencies of individuals
and teams of members of the Armed Forces and civilian personnel
of the Department of Defense for eligibility for recognition
under the program.
(2) Procedures for the evaluation of nominations for
recognition under the program by one or more panels of
individuals from the Government, academia, and the private
sector who have such expertise, and are appointed in such
manner, as the Secretary shall establish for purposes of the
program.
(c) Award of Cash Bonuses.--As part of the program required by
subsection (a), the Secretary may award to any individual recognized
pursuant to the program a cash bonus authorized by any other provision
of law to the extent that the performance of such individual so
recognized warrants the award of such bonus under such provision of
law.
SEC. 207. CONSIDERATION OF TRADE-OFFS AMONG COST, SCHEDULE, AND
PERFORMANCE IN THE ACQUISITION OF MAJOR WEAPON SYSTEMS.
(a) Review of Mechanisms for Considering Trade-Offs.--The
Comptroller General shall review the use by the Department of Defense
of certain mechanisms for considering trade-offs among cost, schedule,
and performance in the acquisition of major weapon systems.
(b) Mechanisms Included.--The mechanisms reviewed pursuant to
subsection (a) shall include--
(1) the Tri-Chair Committee, as defined in section 817 of
the National Defense Authorization Act for Fiscal Year 2008
(Public Law 110-181; 122 Stat. 225);
(2) Configuration Steering Boards as established pursuant
to section 814 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009 (Public Law 110-417; 122
Stat. 4528);
(3) any mechanism that is used or that may potentially be
used by the Office of the Under Secretary of Defense
(Comptroller) for considering trade-offs among cost, schedule,
and performance in the acquisition of major weapon systems; and
(4) any other mechanisms identified as allowing for the
consideration of trade-offs in the report on investment
strategies for major defense acquisition programs required by
section 817 of the National Defense Authorization Act for
Fiscal Year 2008 (Public Law 110-181).
(c) Assessment of Mechanisms.--The review shall describe and
evaluate the effectiveness of the mechanisms identified in subsection
(b).
(d) Report.--Not later than one year after the date of the
enactment of this Act, the Comptroller General shall submit to the
congressional defense committees a report on the review and assessment
performed pursuant to this section. The report shall include such
recommendations as the Comptroller General considers appropriate on the
matters reviewed, including recommendations to improve the
effectiveness of the mechanisms included in the report.
Attest:
Clerk.
111th CONGRESS
1st Session
S. 454
_______________________________________________________________________
AMENDMENT