[Congressional Record Volume 155, Number 78 (Wednesday, May 20, 2009)]
[Senate]
[Pages S5683-S5685]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    WEAPON SYSTEMS ACQUISITION REFORM ACT OF 2009--CONFERENCE REPORT

  Mr. McCAIN. Mr. President, the majority leader requested that I begin 
the discussion on the conference report for the Weapon Systems 
Acquisition Reform Act of 2009. We await the presence of the chairman 
of the Armed Services Committee. I begin by thanking him for his 
leadership, his really nonpartisan addressing of this compelling issue.
  The last time I was on the floor, I talked a lot about the terrible 
cost overruns that were associated recently with literally every new 
weapon system we have acquired. When I tell some of my constituents and 
friends, they are staggered by the numbers--a small littoral combat 
ship that is supposed to cost $90 million ends up costing $400 million 
and has to be scrapped; airplanes costing, depending on how you look at 
it, half a billion dollars each.
  Working together on both sides of the aisle, and under the leadership 
of Chairman Levin, we have come up with legislation that has gone 
through the Congress rather rapidly.
  I would also like to say that the President of the United States 
called us, Members of the House, leaders of the Armed Services 
Committees, to the White House, where we pledged our support and our 
rapid addressing of this challenge.
  The only thing more important than the substance of this conference 
report is the demonstration of bipartisanship that went into how the 
underlying bills were created and guided through the legislative 
process.
  As I said, I know the chairman of the committee is going to be here 
shortly, and he will discuss many of the specific aspects of this bill. 
But it does emphasize starting major weapons systems off right by 
having those systems obtain reliable and independent cost estimates and 
subjecting them to rigorous developmental testing and systems 
engineering early in their acquisition cycle. It does a lot of things. 
As I say, Senator Levin will enumerate many of them.
  What we are trying to do is address a process where there is a need 
for a weapon system which takes years to develop. Technical changes are 
incorporated time after time in a desire--and a laudable one--to reach 
100 percent perfection. But then the cost overruns grow and grow.
  The Future Combat Systems, an Army innovation to address conflicts of 
the future, was supposed to cost $90 billion. It is up to $120 billion. 
Even more, we still do not have operational vehicles. So, very 
appropriately, the Secretary of Defense announced that he would be 
eliminating much of this program to try to get the costs under control.
  I would like to say a word about the Secretary of Defense, who has 
agreed to continue to serve this country under one of the most 
difficult and trying positions one can have in Government. The 
Secretary of Defense has announced, I think very appropriately, that we 
would be reducing and eliminating some programs that have maybe had a 
good reason for a beginning but certainly have had such incredible cost 
overruns that they no longer are a worthwhile expenditure of the 
taxpayers' dollars.
  Early in the first couple of weeks of the new administration, a group 
of us attended a gathering. The President of the United States and I 
had an exchange about the Presidential helicopter. Some years ago, we 
decided the Presidential helicopter, which is 30 years old, needed 
replacement. We finally reached a point where we had not built one 
completely yet, and it was more than the cost of Air Force One--you 
cannot make that up; it is hard to believe--as one technological change 
after another was piled on, to the point where neither the President 
nor the Secretary of Defense felt it was worth the cost. The President 
does need a new helicopter. We need to embark on that effort. But what 
we just went through should be an object lesson, and we should learn 
from the lessons and cost overruns.
  I note the presence of the distinguished chairman of the Armed 
Services Committee in the Chamber. I again thank him for his 
leadership.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I am pleased to join with Senator McCain in 
bringing to the floor the Weapon Systems Acquisition Reform Act. We 
introduced this bill. We did it on February 23, I believe, and we did 
it to address some of the problems in the performance of the Department 
of Defense major defense acquisition programs at a time when growth and 
cost overruns on these programs have simply reached levels which are 
unaffordable, unsustainable, and unconscionable, in some cases. Since 
that time, the bill has made rapid legislative progress.
  I thank Senator McCain for all he has done. This was a bipartisan 
effort. Our colleagues on the Armed Services Committee worked out the 
differences that existed, and we unanimously recommended it to the 
Senate. But the magnitude of this problem is such that we must move 
quickly on it. The President has asked us to get the bill to his desk 
by Memorial Day, and it is our hope we will be able to do that.
  On May 7, the bill passed the Senate unanimously. A week later, a 
companion bill passed the House. We

[[Page S5684]]

worked out the differences between the Senate and the House in record 
speed. The ability to do this was based on the working relationship 
which has been built up here. We work on a bipartisan basis in the 
Armed Services Committee. We work on a bicameral basis with the House 
and the Senate. When it comes to issues of national security, 
particularly, we are able to act so quickly.
  I publicly thank not only Senator McCain, as I have, and colleagues 
of ours on the Armed Services Committee, but also Chairman Ike Skelton 
and John McHugh of the House Armed Services Committee.
  This is a tremendously important bill. It has major reforms. It is 
going to address some of the most persistent underlying problems we 
have had that led to the failure of defense acquisition programs. What 
are those problems? The Department relies too often on unreasonable 
cost and schedule estimates. Second, too often the Department insists 
on unrealistic performance expectations. Third, the Department too 
often uses immature technologies. Fourth, too often the Department 
adopts these very costly changes to program requirements, to production 
quantities, and to funding levels right in the middle of the ongoing 
program.
  The conference report I hope we will be able to consider in the next 
few minutes is going to address these problems in the following ways:
  First, we provide for a strong new Senate-confirmed Director of Cost 
Assessment and Program Evaluation. That person is going to report 
directly to the Secretary of Defense to ensure that defense acquisition 
programs are based on sound cost estimates. The independence of that 
office is new, and it is essential. That person goes directly to the 
Office of the Secretary of Defense, not as the situation is now where 
there is a level of bureaucracy between the cost estimator and assessor 
and the Secretary of Defense.
  Second, we require the Department to rebuild systems engineering and 
developmental testing organizations and capabilities which have been 
almost dismantled or reduced significantly. We want to ensure that 
design problems are understood and addressed early in the process.
  Third, we establish mechanisms to ensure early tradeoffs are made 
between cost, schedule, and performance objectives so that we do not 
overcommit to what the Secretary of Defense has called ``exquisite'' 
program requirements.
  Fourth, we require the increased use of competitive prototyping so 
that we select the best systems and prove they can work before we start 
building them.
  Fifth, we establish new requirements for continuing competition.
  Sixth, we address the problem of organizational conflicts of interest 
to ensure we get the best possible results out of the defense industry.
  Seventh, we require regular program reviews and root cause analyses 
to address developing programs in acquisition programs.
  Finally, we establish tough new Nunn-McCurdy requirements, so-called. 
We put teeth in the Nunn-McCurdy approach. We establish a presumption 
of program termination and the requirement that continuing programs be 
justified from the ground up to ensure we do not throw good money after 
bad on failing programs. If a program is failing, now it is too easy to 
get by the Nunn-McCurdy test of continuing a program. It is going to be 
a lot harder to jump that hurdle should programs be failing in the 
middle or costing a lot more or taking a lot longer.
  So we have a strong bill. It is going to help change the acquisition 
culture of the Department of Defense, and it is going to point our 
acquisition system in the direction it needs to go. We hope Members of 
the Senate will join us in supporting this effort and send the bill to 
the President for his signature.
  Our staff has done extraordinary work, particularly Peter Levine and 
Creighton Greene on my staff, and Chris Paul and Pablo Corrillo on 
Senator McCain's staff. And, again, I thank all Members and the 
leadership for bringing this bill, pushing it along, and giving us the 
encouragement and support that is so essential to get a bill of this 
magnitude to the floor of the Senate in record time.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the Senate 
now proceed to the conference report to accompany S. 454 and vote 
immediately on adoption of the conference report; that upon adoption of 
the conference report, the Senate then resume consideration of H.R. 
2346 and the McConnell amendment No. 1136, as modified by the Levin 
language to the McConnell amendment, with the time equally divided and 
controlled between Senators McConnell and Durbin or their designees; 
that upon disposition of the McConnell amendment, the Senate then 
proceed to vote in relation to the Brownback amendment No. 1140, as 
modified; that prior to the first and third vote, there be 2 minutes of 
debate equally divided and controlled in the usual form; that after the 
first vote in this sequence, the succeeding votes be 10 minutes in 
duration, with no amendments in order to the amendments in this 
agreement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the Senate will proceed to the 
consideration of the conference report to accompany S. 454. The report 
will be stated.
  The bill clerk read as follows:

       The committee of conference on the disagreeing votes of the 
     two Houses on the amendment of the House to the bill (S. 454) 
     to improve the organization and procedures of the Department 
     of Defense for the acquisition of major weapon systems, and 
     for other purposes, having met, after full and free 
     conference, have agreed to recommend and do recommend to 
     their respective Houses this report, signed by a majority of 
     the conferees.

  The PRESIDING OFFICER. The Senate will proceed to the consideration 
of the conference report.
  (The conference report is printed in the House proceedings of the 
Record of today, May 20, 2009.)
  Ms. COLLINS. Mr. President, the Weapon Systems Acquisition Reform Act 
of 2009 would strengthen and reform the Department of Defense 
acquisition processes by bringing increased accountability and 
transparency to major defense acquisition programs. Simply put, the 
bill would build discipline into the planning and requirements process, 
keep projects focused, help prevent cost overruns and schedule delays, 
and ultimately save taxpayer dollars.
  I would like to thank Senators Carl Levin and John McCain, and 
Representatives Ike Skelton and John McHugh for their work on this 
important issue and their continued efforts to improve procurement at 
the Department of Defense. I was proud to join Senators Levin and 
McCain in co-sponsoring this bill in the Senate.
  This legislation would improve DOD's planning and program oversight 
in many ways. First, the bill would create a new Senate-confirmed 
Director of Independent Cost Assessment and Program Evaluation to be 
the ``principal cost estimation official'' at the Department.
  The bill also mandates that the Department carefully balance cost, 
schedule, and performance as part of the requirements development 
process, building discipline into the procurement process long before a 
request for proposals is issued or a contract is awarded.
  I applaud the ``bright lines'' this legislation would establish 
regarding organizational conflicts of interest by DOD contractors. 
These reforms would strengthen the wall between government employees 
and contractors, helping to ensure that ethical boundaries are 
respected. While contractors are important partners with military and 
civilian employees at DOD, their roles and responsibilities must be 
well defined and free of conflicts of interest as they undertake their 
critical work supporting our Nation's military.
  I appreciate the conferees including an amendment that I offered on 
the floor with Senator Claire McCaskill regarding earned value 
management, EVM. EVM provides important visibility into the scope, 
schedule, and cost of a program in a single integrated system, and when 
properly applied, EVM

[[Page S5685]]

can provide an early warning of performance problems.
  GAO has observed that contractor reporting on EVM often lacks 
consistency, leading to inaccurate data and faulty application of the 
EVM metric. In other words, garbage in, garbage out.
  The conference report would require that the Department of Defense 
issue an implementation plan for applying EVM consistently and reliably 
to all projects that use this project management tool.
  The implementation plan would also provide enforcement mechanisms to 
ensure that contractors establish and use approved EVM systems and 
require DOD to consider the quality of the contractor's EVM systems and 
reporting in the past performance evaluation for a contract. With 
improved EVM data quality, both the government and the contractor will 
be able to improve program oversight, leading to better acquisition 
outcomes.
  The conference report would strengthen the Department's acquisition 
planning, increase and improve program oversight, and help prevent 
contracting waste, fraud, and mismanagement. Ultimately, it will help 
ensure that our military personnel have the equipment they need, when 
they need it, and that tax dollars are not wasted on programs that were 
doomed to fail.
  Mr. DURBIN. Mr. President, the Weapons Systems Acquisition Reform Act 
of 2009 takes steps in the right direction to reform the way the 
Department of Defense buys major weapons systems.
  When it comes to these multi-billion-dollar systems, the challenges 
of managing acquisitions are tremendous.
  Officials at the Department of Defense manage 96 major defense 
acquisition programs--the Department's most expensive programs.
  Each program costs hundreds of millions of dollars to research and 
develop and billions of dollars more to purchase. Together, these 
programs account for $1.6 trillion in defense spending.
  These major defense acquisition programs have seen a shocking growth 
in cost. Over the last 20 years, the costs of these programs have 
ballooned by $296 billion.
  Costs especially exploded during the previous administration. Since 
2003, the cost of major defense acquisition programs rose by $113 
billion.
  The Weapons Systems Acquisition Reform Act of 2009 takes important 
steps to bring this spending under control, without compromising on the 
quality of the systems purchased.
  This is not the first time Congress has tried to reform the defense 
acquisition process. Nor will it likely be the last. But it is an 
important step at a critical time.
  The legislation would create an independent director of cost 
assessment who would verify the estimated cost of a program before 
allowing it to go forward.
  It builds in additional checkpoints to help make sure that programs 
are ready on time.
  It enhances the R&D capabilities at the Department of Defense. 
Numerous studies have found that the R&D capabilities of the Army, 
Navy, and Air Force are in desperate need of strengthening.
  It requires defense contractors to build a strong wall between their 
R&D and construction offices when both offices work on the same defense 
project.
  Finally, it gives combatant commanders more authority to procure 
products that meet the immediate needs of troops in theater.
  Secretary Gates has been rightly frustrated with the inability of the 
regular procurement process to field equipment, like MRAPs, that are 
needed immediately by troops on the ground. This legislation will help 
change that.
  I commend Senators Levin and McCain for their leadership in 
developing this thoughtful and needed legislation. I look forward to 
its being signed into law by President Obama.
  The PRESIDING OFFICER. There is now 2 minutes of debate equally 
divided prior to a vote on the adoption of the conference report.
  Mr. LEVIN. Mr. President, both Senator McCain and I spoke on this 
matter. I ask unanimous consent to yield back all remaining time. I 
think I can do this with the consent of Senator McCain.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to the conference report.
  Mr. LEVIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), the Senator from Massachusetts (Mr. Kennedy), and the Senator 
from West Virginia (Mr. Rockefeller) are necessarily absent.
  I further announce that if present and voting, the Senator from West 
Virginia (Mr. Rockefeller), would vote ``yea.''
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Utah (Mr. Hatch).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 95, nays 0, as follows:

                      [Rollcall Vote No. 197 Leg.]

                                YEAS--95

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Harkin
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--4

     Byrd
     Hatch
     Kennedy
     Rockefeller
  The conference report was agreed to.
  Mr. DURBIN. I move to reconsider the vote by which the conference 
report was adopted.
  Mr. MENENDEZ. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________