[Congressional Record Volume 163, Number 183 (Thursday, November 9, 2017)]
[Senate]
[Pages S7162-S7163]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1583. Mr. McCONNELL (for Mrs. McCaskill) proposed an amendment to
the bill S. 906, to amend the Homeland Security Act of 2002 to provide
for congressional notification regarding major acquisition program
breaches, and for other purposes; as follows:
Strike all after the enacting clause and insert the
following:
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' means--
``(A) the Committee on Homeland Security and the Committee
on Appropriations of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs and
the Committee on Appropriations of the Senate; and
``(B) in the case of notice or a report relating to the
Coast Guard or the Transportation Security Administration,
the committees described in subparagraph (A) and the
Committee on Transportation and Infrastructure of the House
of Representatives and the Committee on Commerce, Science,
and Transportation of the Senate.
``(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
[[Page S7163]]
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) Definitions.--In this section--
(1) the term ``appropriate committees of Congress'' has the
meaning given the term in section 836(a) of the Homeland
Security Act of 2002, as added by section 2(a); and
(2) 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, in consultation with the
Government Accountability Office when necessary, and submit
to the appropriate committees of Congress 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 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
Department took unilateral corrective action, including the
average time for remedial action to be completed;
(H) the time it takes the Department 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; and
(J) an assessment of the overall time spent on preventing
and responding to bid protests as it relates to the
procurement process; and
(2) any recommendations by the Inspector General of the
Department relating to the study conducted under this
section.
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