[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 906 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 234
115th CONGRESS
  1st Session
                                 S. 906

                          [Report No. 115-165]

To amend the Homeland Security Act of 2002 to provide for congressional 
  notification regarding major acquisition program breaches, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 7, 2017

 Mrs. McCaskill (for herself and Mr. Daines) introduced the following 
 bill; which was read twice and referred to the Committee on Homeland 
                   Security and Governmental Affairs

                            October 5, 2017

               Reported by Mr. Johnson, with an amendment
                  [Insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
To amend the Homeland Security Act of 2002 to provide for congressional 
  notification regarding major acquisition program breaches, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Reducing DHS Acquisition Cost Growth 
Act''.

SEC. 2. CONGRESSIONAL NOTIFICATION FOR MAJOR ACQUISITION PROGRAMS.

    (a) In General.--Subtitle D of title VIII of the Homeland Security 
Act of 2002 (6 U.S.C. 391 et seq.) is amended by adding at the end the 
following:

``SEC. 836. CONGRESSIONAL NOTIFICATION AND OTHER REQUIREMENTS FOR MAJOR 
              ACQUISITION PROGRAM BREACH.

    ``(a) Definitions.--In this section:
            ``(1) Acquisition.--The term `acquisition' has the meaning 
        given the term in section 131 of title 41, United States Code.
            ``(2) Acquisition program.--The term `acquisition program' 
        means the process by which the Department acquires, with any 
        appropriated amounts, by contract for purchase or lease, 
        property or services (including construction) that support the 
        missions and goals of the Department.
            ``(3) Acquisition program baseline.--The term `acquisition 
        program baseline', with respect to an acquisition program, 
        means a summary of the cost, schedule, and performance 
        parameters, expressed in standard, measurable, quantitative 
        terms, which shall be met in order to accomplish the goals of 
        the program.
            ``(4) Appropriate committees of congress.--The term 
        `appropriate committees of Congress' has the meaning given the 
        term in section 226(a).
            ``(5) Best practices.--The term `best practices', with 
        respect to acquisition, means a knowledge-based approach to 
        capability development that includes--
                    ``(A) identifying and validating needs;
                    ``(B) assessing alternatives to select the most 
                appropriate solution;
                    ``(C) clearly establishing well-defined 
                requirements;
                    ``(D) developing realistic cost assessments and 
                schedules;
                    ``(E) securing stable funding that matches 
                resources to requirements;
                    ``(F) demonstrating technology, design, and 
                manufacturing maturity;
                    ``(G) using milestones and exit criteria or 
                specific accomplishments that demonstrate progress;
                    ``(H) adopting and executing standardized processes 
                with known success across programs;
                    ``(I) establishing an adequate workforce that is 
                qualified and sufficient to perform necessary 
                functions; and
                    ``(J) integrating the capabilities described in 
                subparagraphs (A) through (I) into the mission and 
                business operations of the Department.
            ``(6) Breach.--The term `breach', with respect to a major 
        acquisition program, means a failure to meet any cost, 
        schedule, or performance threshold specified in the most 
        recently approved acquisition program baseline.
            ``(7) Component acquisition executive.--The term `Component 
        Acquisition Executive' means the senior acquisition official 
        within a component who is designated in writing by the Under 
        Secretary for Management, in consultation with the component 
        head, with authority and responsibility for leading a process 
        and staff to provide acquisition and program management 
        oversight, policy, and guidance to ensure that statutory, 
        regulatory, and higher level policy requirements are fulfilled, 
        including compliance with Federal law, the Federal Acquisition 
        Regulation, and Department acquisition management directives 
        established by the Under Secretary for Management.
            ``(8) Major acquisition program.--The term `major 
        acquisition program' means an acquisition program of the 
        Department that is estimated by the Secretary to require an 
        eventual total expenditure of at least $300,000,000 (based on 
        fiscal year 2017 constant dollars) over the life cycle cost of 
        the program.
    ``(b) Requirements Within Department in Event of Breach.--
            ``(1) Notifications.--
                    ``(A) Notification of breach.--If a breach occurs 
                in a major acquisition program, the program manager for 
                the program shall notify the Component Acquisition 
                Executive for the program, the head of the component 
                concerned, the Executive Director of the Program 
                Accountability and Risk Management division, the Under 
                Secretary for Management, and the Deputy Secretary not 
                later than 30 calendar days after the date on which the 
                breach is identified.
                    ``(B) Notification to secretary.--If a breach 
                occurs in a major acquisition program and the breach 
                results in a cost overrun greater than 15 percent, a 
                schedule delay greater than 180 days, or a failure to 
                meet any of the performance thresholds from the cost, 
                schedule, or performance parameters specified in the 
                most recently approved acquisition program baseline for 
                the program, the Component Acquisition Executive for 
                the program shall notify the Secretary and the 
                Inspector General of the Department not later than 5 
                business days after the date on which the Component 
                Acquisition Executive for the program, the head of the 
                component concerned, the Executive Director of the 
                Program Accountability and Risk Management Division, 
                the Under Secretary for Management, and the Deputy 
                Secretary are notified of the breach under subparagraph 
                (A).
            ``(2) Remediation plan and root cause analysis.--
                    ``(A) In general.--If a breach occurs in a major 
                acquisition program, the program manager for the 
                program shall submit in writing to the head of the 
                component concerned, the Executive Director of the 
                Program Accountability and Risk Management division, 
                and the Under Secretary for Management, at a date 
                established by the Under Secretary for Management, a 
                remediation plan and root cause analysis relating to 
                the breach and program.
                    ``(B) Remediation plan.--The remediation plan 
                required under subparagraph (A) shall--
                            ``(i) explain the circumstances of the 
                        breach at issue;
                            ``(ii) provide prior cost estimating 
                        information;
                            ``(iii) include a root cause analysis that 
                        determines the underlying cause or causes of 
                        shortcomings in cost, schedule, or performance 
                        of the major acquisition program with respect 
                        to which the breach has occurred, including the 
                        role, if any, of--
                                    ``(I) unrealistic performance 
                                expectations;
                                    ``(II) unrealistic baseline 
                                estimates for cost or schedule or 
                                changes in program requirements;
                                    ``(III) immature technologies or 
                                excessive manufacturing or integration 
                                risk;
                                    ``(IV) unanticipated design, 
                                engineering, manufacturing, or 
                                technology integration issues arising 
                                during program performance;
                                    ``(V) changes to the scope of the 
                                program;
                                    ``(VI) inadequate program funding 
                                or changes in planned out-year funding 
                                from one 5-year funding plan to the 
                                next 5-year funding plan as outlined in 
                                the Future Years Homeland Security 
                                Program required under section 874;
                                    ``(VII) legislative, legal, or 
                                regulatory changes; or
                                    ``(VIII) inadequate program 
                                management personnel, including lack of 
                                sufficient number of staff, training, 
                                credentials, certifications, or use of 
                                best practices;
                            ``(iv) propose corrective action to address 
                        cost growth, schedule delays, or performance 
                        issues;
                            ``(v) explain the rationale for why a 
                        proposed corrective action is recommended; and
                            ``(vi) in coordination with the Component 
                        Acquisition Executive for the program, discuss 
                        all options considered, including--
                                    ``(I) the estimated impact on cost, 
                                schedule, or performance of the program 
                                if no changes are made to current 
                                requirements;
                                    ``(II) the estimated cost of the 
                                program if requirements are modified; 
                                and
                                    ``(III) the extent to which funding 
                                from other programs will need to be 
                                reduced to cover the cost growth of the 
                                program.
            ``(3) Review of corrective actions.--
                    ``(A) In general.--The Under Secretary for 
                Management--
                            ``(i) shall review each remediation plan 
                        required under paragraph (2); and
                            ``(ii) not later than 30 days after 
                        submission of a remediation plan under 
                        paragraph (2), may approve the plan or provide 
                        an alternative proposed corrective action.
                    ``(B) Submission to congress.--Not later than 30 
                days after the date on which the Under Secretary for 
                Management completes a review of a remediation plan 
                under subparagraph (A), the Under Secretary for 
                Management shall submit to the appropriate committees 
                of Congress--
                            ``(i) a copy of the remediation plan; and
                            ``(ii) a statement describing the 
                        corrective action or actions that have occurred 
                        pursuant to paragraph (2)(B)(iv) for the major 
                        acquisition program at issue, with a 
                        justification for each action.
    ``(c) Requirements Relating to Congressional Notification if Breach 
Occurs.--
            ``(1) Notification to congress.--If a notification to the 
        Secretary is made under subsection (b)(1)(B) relating to a 
        breach in a major acquisition program, the Under Secretary for 
        Management shall notify the appropriate committees of Congress 
        of the breach in the next quarterly Comprehensive Acquisition 
        Status Report, as required in the matter under the heading 
        `Office of the Under Secretary for Management' in title I of 
        division F of the Consolidated Appropriations Act of 2016 
        (Public Law 114-113; 129 Stat. 2493), after receipt by the 
        Under Secretary for Management of notification under that 
        subsection.
            ``(2) Significant variances in costs or schedule.--If a 
        likely cost overrun is greater than 20 percent or a likely 
        delay is greater than 12 months from the costs and schedule 
        specified in the acquisition program baseline for a major 
        acquisition program, the Under Secretary for Management shall 
        include in the notification required in paragraph (1) a written 
        certification, with supporting explanation, that--
                    ``(A) the program is essential to the 
                accomplishment of the mission of the Department;
                    ``(B) there are no alternatives to the capability 
                or asset provided by the program that will provide 
                equal or greater capability in a more cost-effective 
                and timely manner;
                    ``(C) the new acquisition schedule and estimates 
                for total acquisition cost are reasonable; and
                    ``(D) the management structure for the program is 
                adequate to manage and control cost, schedule, and 
                performance.''.
    (b) Clerical Amendment.--The table of contents in section 1(b) of 
the Homeland Security Act of 2002 (Public Law 107-296; 116 Stat. 2135) 
is amended by inserting after the item relating to section 835 the 
following:

``Sec. 836. Congressional notification and other requirements for major 
                            acquisition program breach.''.

SEC. 3. REPORT ON BID PROTESTS.

    (a) Definition.--In this section, the term ``Department'' means the 
Department of Homeland Security.
    (b) Study and Report.--Not later than 1 year after the date of 
enactment of this Act, the Inspector General of the Department shall 
conduct a study and submit to the Committee on Homeland Security and 
Governmental Affairs of the Senate and the Committee on Homeland 
Security of the House of Representatives a report on the prevalence and 
impact of bid protests on the acquisition process of the Department, in 
particular bid protests filed with the Government Accountability Office 
and the United States Court of Federal Claims.
    (c) Contents.--The report required under subsection (b) shall 
include--
            (1) with respect to contracts with the Department--
                    (A) trends in the number of bid protests filed with 
                Federal agencies, the Government Accountability Office, 
                and Federal courts, the effectiveness of each forum for 
                contracts and task or delivery orders, and the rate of 
                those bid protests compared to contract obligations and 
                the number of contracts;
                    (B) an analysis of bid protests filed by incumbent 
                contractors, including the rate at which those 
                contractors are awarded bridge contracts or contract 
                extensions over the period during which the bid protest 
                remains unresolved;
                    (C) a comparison of the number of bid protests and 
                the outcome of bid protests for--
                            (i) awards of contracts compared to awards 
                        of task or delivery orders;
                            (ii) contracts or orders primarily for 
                        products compared to contracts or orders 
                        primarily for services;
                            (iii) protests filed pre-award to challenge 
                        the solicitation compared to those filed post-
                        award;
                            (iv) contracts or awards with single 
                        protestors compared to multiple protestors; and
                            (v) contracts with single awards compared 
                        to multiple award contracts;
                    (D) a description of trends in the number of bid 
                protests filed as a percentage of contracts and as a 
                percentage of task or delivery orders by the value of 
                the contract or order with respect to--
                            (i) contracts valued at more than 
                        $300,000,000;
                            (ii) contracts valued at not less than 
                        $50,000,000 and not more than $300,000,000;
                            (iii) contracts valued at not less than 
                        $10,000,000 and not more than $50,000,000; and
                            (iv) contracts valued at less than 
                        $10,000,000;
                    (E) an assessment of the cost and schedule impact 
                of successful and unsuccessful bid protests, as well as 
                delineation of litigation costs, filed on major 
                acquisitions with more than $100,000,000 in annual 
                expenditures or $300,000,000 in lifecycle costs;
                    (F) an analysis of how often bid protestors are 
                awarded the contract that was the subject of the bid 
                protest;
                    (G) a summary of the results of bid protests in 
                which the contracting Federal agencies took unilateral 
                corrective action, including the average time for 
                remedial action to be completed;
                    (H) the time it takes Federal agencies to implement 
                corrective actions after a ruling or decision with 
                respect to a bid protest, and the percentage of those 
                corrective actions that are subsequently protested, 
                including the outcome of any subsequent bid protest;
                    (I) an analysis of those contracts with respect to 
                which a company files a bid protest and later files a 
                subsequent bid protest;
                    (J) an analysis of the time spent at each phase of 
                the procurement process attempting to prevent a bid 
                protest, addressing a bid protest, or taking corrective 
                action in response to a bid protest, including the 
                efficacy of any actions attempted to prevent the 
                occurrence of a protest; and
                    (K) with respect to a company bidding on contracts 
                or task or delivery orders, the extent to and manner in 
                which the bid protest process affects or may affect the 
                decision to offer a bid or proposal on single award or 
                multiple award contracts when the company is the 
                incumbent or non-incumbent contractor; and
            (2) any recommendations by the Inspector General of the 
        Department relating to the study conducted under this section.
                                                       Calendar No. 234

115th CONGRESS

  1st Session

                                 S. 906

                          [Report No. 115-165]

_______________________________________________________________________

                                 A BILL

To amend the Homeland Security Act of 2002 to provide for congressional 
  notification regarding major acquisition program breaches, and for 
                            other purposes.

_______________________________________________________________________

                            October 5, 2017

                       Reported with an amendment