[House Report 113-359]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-359
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FEDERAL INFORMATION TECHNOLOGY ACQUISITION REFORM ACT
_______
February 25, 2014.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 1232]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 1232) to amend titles 40, 41, and
44, United States Code, to eliminate duplication and waste in
information technology acquisition and management, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 27
Explanation of Amendments........................................ 33
Committee Consideration.......................................... 33
Application of Law to the Legislative Branch..................... 33
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 33
Statement of General Performance Goals and Objectives............ 33
Duplication of Federal Programs.................................. 33
Disclosure of Directed Rule Makings.............................. 34
Federal Advisory Committee Act................................... 34
Unfunded Mandate Statement....................................... 34
Earmark Identification........................................... 34
Committee Estimate............................................... 34
Budget Authority and Congressional Budget Office Cost Estimate... 34
Changes in Existing Law Made by the Bill as Reported............. 37
Committee Statement and Views
PURPOSE AND SUMMARY
Information technology (IT) plays a pivotal role in the
efficient operation of government. Without modern IT systems,
government is incapable of providing basic services, curtailing
waste, fraud and abuse, or managing internal operations.
Starting in the 112th Congress, the House Oversight and
Government Reform Committee (``Committee'') began a detailed
examination of the basic framework by which the government
acquires and deploys IT assets. Our oversight hearings\1\
confirmed that despite spending more than $600 billion over the
past decade, federal IT investments, too often, run over
budget, behind schedule, or never deliver on the promised
solution or functionality.\2\ Indeed, industry experts have
estimated that as much as 25 percent of the annual $80 billion
spent on IT is attributable to mismanaged or duplicative IT
investments.\3\
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\1\See Transparency and Federal Management IT Systems: Hearing
Before the Subcomm. on Technology, Information Policy,
Intergovernmental Relations and Procurement Reform of the H. Comm. on
Oversight and Government Reform, 112 Cong. (2011); On Frontlines in
Acquisition Workforce's Battle Against Taxpayer Waste: Hearing Before
the Subcomm. on Technology, Information Policy, Intergovernmental
Relations and Procurement Reform of the H. Comm. on Oversight and
Government Reform, 112 Cong. (2011); How Much is Too Much? Examining
Duplicative IT Investments at DOE and DOD: Hearing Before the Subcomm.
on Technology, Information Policy, Intergovernmental Relations and
Procurement Reform of the H. Comm. on Oversight and Government Reform,
112 Cong. (2012); Government 2.0: GAO Unveils New Duplicative Program
Report: Hearing Before H. Comm. on Oversight and Government Reform, 112
Cong. (2012); Wasting Information Technology Dollars: How Can the
Federal Government Reform its IT Investment Strategy?: Hearing Before
the H. Comm. on Oversight and Government Reform, 113 Cong. (2013); Time
to Reform Information Technology Acquisition: The Federal IT
Acquisition Reform Act: Hearing Before the H. Comm. on Oversight and
Government Reform, 113 Cong. (2013).
See below ``Oversight by the House Oversight and Government Reform
Committee'' under the ``Background and Need for Legislation'' section
for further details.
\2\See Vivek Kundra, Department of Homeland Security, 25 Point
Implementation Plan to Reform Federal Information Technology
Management, at 1 (2010), available at http://www.dhs.gov/sites/default/
files/publications/digital-strategy/25-point-implementation-plan-to-
reform-federal-it.pdf.
\3\The Technology CEO Council, One Trillion Reasons, at 4 (2010)
(estimating that at least 20-30% of IT spending could be eliminated by
reducing IT overhead, consolidating data centers, eliminating redundant
networks, and standardizing applications), available at http://
www.techceocouncil.org/clientuploads/reports/
TCC_One_Trillion_Reasons_FINAL.pdf.
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These failures directly impact progress towards improving
citizen services and conducting effective oversight. As such,
they impact the entire $3.5 trillion of annual federal
outlays.\4\ For example, without state-of-the-art IT and the
oversight capability it brings, the government cannot tackle
the $108 billion lost to improper payments in fiscal year 2012
alone.\5\ Furthermore, in terms of potential cost savings, some
in the industry have estimated that more than one trillion
dollars could be saved over the next ten years if the
government adopted the ``proven'' IT best practices currently
in use by the private sector.\6\
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\4\Time to Reform Information Technology Acquisition: The Federal
IT Acquisition Reform Act, Hearing Before H. Comm. on Oversight and
Government Reform, 113 Cong. (2013) (Statement of Rep. Darrell Issa,
Chairman, H. Comm. on Oversight and Government Reform).
\5\Payment Accuracy, About Improper Payments, http://
www.paymentaccuracy.gov/about- improper-payments (last visited May 22,
2013) (explaining that in fiscal year 2012, federal agencies reported
government-wide improper payment rate of 4.35%).
\6\The Technology Council, supra note 3, at 3.
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The existing legal framework for IT acquisition and
deployment is now 17 years old,\7\ a virtual eternity in terms
of the evolution of technology. While government stands by,
industry is experiencing tectonic shifts in IT, such as the
transition to cloud computing; the shared services model of IT
delivery; and the need for data center optimization. Although
modest revisions have been made to the procedures used to
acquire and deploy modern IT, increasingly, the management
structure and acquisition procedures currently in place are
causing the government to fall further behind.
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\7\See Clinger-Cohen Act of 1996, Pub. L. No. 104-106, 110 Stat.
679 (1996).
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The Federal Information Technology Acquisition Reform Act
(FITARA) addresses this rapidly changing landscape by
addressing key underlying issues.
First, it creates a clear line of responsibility,
authority, and accountability over IT investment and management
decisions within each agency. Perpetuation of collective
failure and obscure accountability must stop and be replaced by
a culture of transformative leadership and a recognition of
success or failure.
Second, it creates an operational framework to drastically
enhance government's ability to procure commonly-used IT
faster, cheaper, and smarter. The majority of IT needs, such as
infrastructure or back office systems and applications, are
common throughout the government and could be met by
commercially-available solutions. Any meaningful IT
transformation must first target such common and expensive
problems.
Third, it strengthens the IT acquisition workforce. No
matter how many laws we pass, the effectiveness of our federal
acquisition system ultimately depends on a vital human
component--the acquisition workforce. Each failed IT
procurement that a better-trained acquisition professional
prevents will save the taxpayers tens of millions of dollars.
If IT contract overspending is reduced just one percent, the
taxpayers will save more than $800 million each year.
Title I of FITARA increases the responsibility, authority,
and accountability of the Chief Information Officers (CIOs) for
each of the major civilian federal agencies by providing them
with budget and personnel-related authority over IT investments
within the entire agency. Currently, CIOs in most agencies lack
the necessary authority or even visibility over how the
agency's IT budget is allocated and executed. Many large
federated agencies, such as Department of Homeland Security
(DHS) and Department of Commerce, have numerous CIOs at their
component organizations with little or no accountability to the
central agency CIO.\8\
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\8\E-mail from Patty Figliola, Specialist, Internet and Telecom
Policy, Cong. Research Serv, to Eric Cho, H. Comm. on Oversight and
Government Reform (Oct. 17, 2012, 11:39 EST) (on file with recipient).
According to the research conducted by the Congressional Research
Service (CRS), there are currently more than 240 CIOs in 24 major
departments and agencies that are subject to the Chief Financial
Officers Act. The Department of Transportation alone has 35 CIOs.
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As a result, the primary role of agency CIOs has been
typically limited to policymaking and infrastructure
maintenance. The Committee believes an agency CIO should play a
central role in all aspects of IT within the entire agency.
CIOs must be able to design and deliver transformational
enterprise-wide IT solutions that support the mission and
business function while overcoming bureaucratic impediments and
parochialism. The Committee also expects, along with increased
stature and authority, for each CIO to be accountable for the
success or failure of the agency's overall IT management. As an
extension of this intra-agency leadership, FITARA expands the
role of the CIO Council to encompass a more active role in
cross-agency shared services and collaboration.
Title II of FITARA is designed to optimize the usage and
efficiency of federal data centers. As of the most recent data
reported in May 2013, the 24 CFO Act agencies have a combined
total of 3,133 data centers.\9\ Operating such a large number
of centers is a significant cost to the Federal Government;
including costs related to hardware, software, real estate, and
cooling. According to the Environmental Protection Agency
(EPA), the electricity cost alone is about $450 million
annually.\10\ The Committee recognizes that there is an on-
going Administration initiative to consolidate data
centers.\11\ FITARA requires greater emphasis on performance
and savings, rather than merely focusing on the number of data
centers closed or consolidated.
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\9\U.S. Gov't Accountability Office, GAO-13-627T, Data Center
Consolidation: Strengthened Oversight Needed to Achieve Billions of
Dollars in Savings (2013), available at http://www.gao.gov/assets/660/
654604.txt.
\10\Id. at 2.
\11\See Memorandum from Vivek Kundra, Federal Chief Information
Officer on Federal Data Center Consolidation Initiative, Office of
Management and Budget (Feb. 26, 2010), available
at http://www.whitehouse.gov/sites/default/files/omb/assets/egov_docs/
federal_data_center_
consolidation_initiative_02-26-2010.pdf.
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FITARA's use of the term ``optimization,'' rather than
``consolidation'' is to make this important distinction. As
required in the bill, there should be appropriate consideration
of utilizing commercially owned data centers where appropriate.
The government IT managers must evolve from the mindset of IT
hardware ownership to outcome-based citizen service delivery.
Title III of FITARA aims to eliminate wasteful duplication
in IT assets, processes, and contracts. Unnecessary
duplications and unaccounted or underutilized IT assets cost
the government money and administrative effort. This not only
redirects resources away from other needed investments; it
hampers the adoption of new and innovative solutions. The bill
requires an inventory of IT assets with particular focus on
software licenses. It directs the Office of Management and
Budget (OMB) to reshape government web strategy to facilitate
the creative use of government data by the public. The
Committee recognizes that commercial cloud computing services
may offer a critical part of such consideration. The
flexibility offered by cloud technology necessitates
appropriate re-consideration of how government should consume
and pay for needed software and services while keeping pace
with technology upgrades.
Title IV of FITARA focuses on acquisition operations.
Recognizing that there currently is and will continue to be a
shortage of skilled IT acquisition personnel in the foreseeable
future,\12\ the government must better leverage its current IT
acquisition capabilities while strengthening the IT acquisition
workforce. Experts from both government and industry have
pointed out that particular weakness exists in IT program
management.\13\
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\12\See Time to Reform Information Technology Acquisition: The
Federal IT Acquisition Reform Act: Hearing Before the H. Comm. on
Oversight and Government Reform, 113 Cong. (2013) (Testimony of Daniel
I. Gordon, Associate Dean for Government Procurement Law Studies,
George Washington University Law School); id. (Testimony of Stan
Soloway, President and CEO, Professional Services Council).
\13\See id. (Testimony of Richard A. Spires, CIO, Department of
Homeland Security).
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Almost all major IT acquisition failures stem from poorly
drafted requirements\14\ and federal agencies often pursue
individualized approaches for common problems, without building
upon collective knowledge and experiences. Mandatory
centralized acquisition, however, may hamper a specific
agency's need to support its mission and may inappropriately
dilute its ownership of its own acquisition decisions.
Therefore, the bill takes a balanced approach by creating
central acquisition resources and capabilities for common IT
requirements that give individual agencies the choice to
utilize.
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\14\U.S. Gov't Accountability Office, GAO-12-7, Information
Technology: Critical Factors Underlying Successful Major Acquisitions
(2011).
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The most notable IT waste and duplication exists in the
area of infrastructure and common IT systems and business
applications.\15\ For example, in the fiscal year 2011 budget
submissions, agencies reported 622 separate investments or $2.4
billion in human resource management systems, and 580
investments or $2.7 billion in financial management
systems.\16\ Considering most of these back office systems
perform similar functions, there are opportunities to
consolidate them into smaller, more manageable numbers within
each major agency, and even share services across multiple
agencies.\17\
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\15\See Memorandum from Jeffrey D. Zients and Steven VanRockel on
Fiscal Year 2013 PortfolioStat Guidance: Strengthening Federal IT
Portfolio Management, Office of Management and Budget (Mar. 27, 2013)
(on file at http://www.whitehouse.gov/sites/default/files/omb/
memoranda/2013/m-13-09.pdf). The memo defined commodity IT as services
such as: ``IT infrastructure ([meaning] data centers, networks, desktop
computer and mobile devices), enterprise IT systems ([meaning] email,
collaboration tools, identity and access management, security and web
infrastructure), and business systems ([meaning] finance, human
resources, and other administrative functions.).'' Id. at 1 n. 2.
\16\Wasting Information Technology Dollars: How Can the Federal
Government Reform its IT Investment Strategy: Hearing Before the H.
Comm. on Oversight and Government Reform, 113 Cong. (2013) (Testimony
of David A. Powner, Director of Information Technology Management
Issues, Gov't Accountability Office).
\17\Id.
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FITARA aims to eliminate unnecessary duplication and
streamline IT acquisitions by first targeting numerous,
commonly-used IT commodity-like investments such as these.
FITARA requires establishment of a Federal Infrastructure and
Common Application Collaboration Center (Collaboration Center)
to serve as a focal point for the program and to provide
technical expertise necessary for coordinated IT acquisition
best practices. In developing such common requirements, it is
imperative that the Collaboration Center keep its focus on
``common''--the so-called 80 percent solution required by all
agencies--and not non-standard or non-commercial features
desired by each individual agency. This Collaboration Center
will be funded by existing interagency acquisition fees,
without the need for any additional appropriation or agency
expense.
With respect to the formation of specific contracts for
commonly-needed IT, the Committee recognizes that individual
agency contracting personnel often lack the relevant experience
and knowledge of market conditions to get the best value for
taxpayer dollars. FITARA, therefore, provides for OMB to
designate fee-for-service Assisted Acquisition Centers of
Excellence (AACEs) to promote expedient, best value procurement
practices. By engaging in repeated acquisitions of the same IT
requirement, the contracting personnel in the AACEs will
develop a keen acquisition expertise and market awareness that
can benefit multiple agencies while promoting demand
aggregation where possible and appropriate.
The Committee expects that AACEs will ultimately be able to
expedite the acquisition cycle for common IT requirements to a
matter of months rather than years. When used properly, an
individual agency should be able to obtain a well-constructed
IT requirement ``template'' from the Collaboration Center,
customize it to meet its specific needs, and then avail itself
of expert contracting support from an AACE. This would enable
the agency to fulfill its procurement needs by leveraging
acquisition expertise and resources it does not alone possess.
Between fiscal years 2002 and 2012, acquisition spending by
the Federal Government expanded by 95 percent, from $264
billion to nearly $514 billion.\18\ While contract spending has
risen dramatically, the number of acquisition professionals did
not keep pace. Moreover, a significant portion of the current
acquisition workforce will be eligible to retire over the next
decade. Statistics from the Office of Personnel Management show
that there are seven times as many IT workers in government
over 50 as under 30--the diametric opposite of the commercial
world.\19\ While many have pointed out dire statistics and
expressed serious concerns over the past decade concerning the
acquisition workforce, a question remains as to whether any
meaningful government-wide strategy or leadership currently
exists.
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\18\See USA Spending, USASpending.gov (Last visited May 23, 2013);
Time to Reform IT Acquisition: the Federal IT Acquisition Reform Act:
Hearing Before the H. Comm. on Oversight and Government Reform, 113
Cong. (2013) (Testimony of Rep. John L. Mica, Member, H. Comm. on
Oversight and Government Reform).
\19\Id. (Testimony of Stan Soloway, President and CEO, Professional
Services Council).
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The complexities and challenges in rebuilding the
acquisition workforce under the current budget-constrained
environment make an acquisition workforce plan essential.
FITARA directs OMB to prepare and implement a five-year
strategic plan, to be accompanied by annual implementation
reports to Congress and GAO verification and to ensure utmost
and consistent attention to this critical subject.
Title V of FITARA makes additional reforms to improve
acquisition practices and transparency. The Committee reaffirms
that government IT managers must maintain technology neutrality
and should fairly consider open source solutions, alongside
proprietary ones, when making procurement decisions. There are
many instances where the use of open source software and its
attendant business model would greatly benefit the government
while promoting transparency and engagement with and by the
public.
The Department of Defense (DoD) is an enormous user of the
government-wide acquisition resources that are at the heart of
the FITARA legislation. The Committee believes the bill would
therefore significantly enhance DoD's acquisition capabilities.
BACKGROUND AND NEED FOR LEGISLATION
Government's wasteful practices with IT
Federal Government IT procurements have been a perennial
source of problems for the Federal Government for many
years.\20\ As noted by OMB, ``IT has transformed how the
private sector operates and has revolutionized the way in which
it serves its customer. The Federal Government has largely
missed out on these transformations, due in part to its poor
management of large [IT] investments.''\21\ The FY 2014 budget
request indicates that the Federal Government plans to invest
over $82 billion in IT during fiscal year 2014.\22\ The
practices by which IT is acquired have been heavily criticized
by GAO for their lack of efficiency and size of redundancies
and overlap.\23\ GAO has repeatedly identified broad waste and
unnecessary duplication in the government's IT investments,
both within and across the agencies.\24\
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\20\U.S. Gov't Accountability Office, GAO-12-7, IT: Critical
Factors Underlying Successful Major Acquisitions 1 (2011), available at
http://www.gao.gov/new.items/d127.pdf. ``As we have previously
reported, federal IT projects too frequently incur cost overruns and
schedule slippages while contributing little to mission-related
outcomes.'' Id. at 1; see also Senator William Cohen, Subcomm. on
Oversight of Gov't Mgmt., Computer Chaos: Billions Wasted Buying
Federal Computer Systems (1994), available at https://acc.dau.mil/adl/
en-US/22163/file/2121/Cohen %20Computer%20Chaos%201994.pdf. (The
seminal report describing the broken federal IT acquisition system
based on hearings and research of the House Oversight Comm. and Senate
Governmental Affairs Comm., Subcomm. on Oversight of Gov't Mgmt.).
\21\Memorandum from Vivek Kundra, supra note 2, at 11.
\22\Office of Mgmt. and Budget, Analytical Perspectives, Budget of
the U.S. Government, Fiscal Year 2014, at 349 (2013), available at
http://www.whitehouse.gov/sites/default/files/omb/budget/fy2014/assets/
spec.pdf.
\23\U.S. Gov't Accountability Office, GAO-12-241, IT: Department of
Defense and Energy Need to Address Potentially Duplicative Investments,
at 1 (2012).
\24\See U.S. Gov't Accountability Office, GAO-13-297T, Information
Technology: OMB and Agencies Need to Fully Implement Major Initiatives
to Save Billions of Dollars, at 11 (2013); U.S. Gov't Accountability
Office, GAO-13-627T, Data Center Consolidation: Strengthened Oversight
Needed to Achieve Billons of Dollars in Savings (2013).
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A noticeable example of IT waste and duplication is the
staggering number of common back office support systems or
business applications in the Federal Government. In the fiscal
year 2011 budget submissions, agencies reported 777 separate
investments or $3.3 billion in supply chain management IT; 622
investments or $2.4 billion in human resource management IT;
580 investments or $2.7 billion in financial management IT; 444
investments or $5 billion in health IT; 372 investments or $1.6
billion in general science and innovation IT; 358 investments
or $9.3 billion in defense and national security IT; 301
investments or $800 million in administrative management IT;
and the list continues.\25\ Considering most of these back
office systems perform similar functions, there are
opportunities to consolidate them into smaller, more manageable
numbers within each major agency and perhaps even share
services across multiple agencies.
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\25\Wasting Information Technology Dollars: How Can the Federal
Government Reform its IT Investment Strategy: Hearing Before the H.
Comm. on Oversight and Government Reform, 113 Cong. (2013) (Testimony
of David A. Powner, Director, Information Technology Management Issues,
Gov't Accountability Office).
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In addition to the waste and duplication of IT systems
throughout the government, the government's priorities in terms
of IT spending often perpetuate the use of obsolete and
outdated IT systems. Of the approximately $80 billion federal
agencies spend in IT each year, about 69 percent or $54 billion
is spent on the operations and maintenance of existing systems
(so-called ``legacy IT systems,'' commonly referred to as
``steady state investment'').\26\ GAO has determined that
several major agencies, namely Department of Treasury,
Agriculture, Energy, and State, spend well over 80 percent of
their IT budget on operations and maintenance of potentially
obsolete legacy systems.\27\ Maintaining outdated IT systems
may be necessary and the risks of a technology transition can
be very high. However, agencies are supposed to be undertaking
operational analysis to stay ahead of the technology curve, and
many are not. This indicates that potentially up to two thirds
of the annual $80 billion IT investment is being spent without
sufficient transparency and at a sub-optimal efficiency.\28\
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\26\U.S. Gov't Accountability Office, GAO-13-87, Agencies Need to
Strengthen Oversight of Billions of Dollars in Operations and
Maintenance Investments, at 1 (2012).
\27\Id. Given the size and significance of these steady state
investments, it is essential that agencies, in accordance with the OMB
guidance, perform annual operational analysis to verify performance
indicators such as cost, schedule, and performance are being met. If
such reviews reveal deficiencies, investments should be reevaluated or
terminated to allow for better use of the funds.
\28\Id. GAO has found that several major agencies, such as DoD,
Treasury, and VA neither had developed a policy nor had performed
required operational analyses, resulting in billions of dollars of
questionable spending each year. To address this problem, GAO
recommended that the OMB require agencies to report on the IT Dashboard
the results from the operational analyses of their steady state
investment.
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Data center optimization
Over the past few decades, the Federal Government's
increasing demand for IT has led to a dramatic increase in the
number of federal data centers\29\ and a corresponding increase
in operational costs. According to OMB, the Federal Government
had 432 data centers in 1998, more than 1,100 in 2009, and
3,133 by the latest count.\30\ According to the Department of
Energy, data center spaces can consume 100 to 200 times more
electricity than a standard office space.\31\ The EPA estimates
that the cost of electricity alone to operate federal data
centers is $450 million annually.\32\ Information collected by
OMB also shows relatively low utilization rates of current
infrastructure and limited reuse of data centers within or
across agencies.\33\
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\29\Memorandum from Steven VanRoekel on Implementation Guidance for
the Federal Data Center Consolidation Initiative, Office of Management
and Budget, at 2 (2012) (stating that under the FDCCI a data center is
defined ``as a closet, room, floor or building for the storage,
management, and dissemination of data and information. Such a
repository houses computer systems and associated components, such as
database, application, and storage systems and data stores. A data
center generally includes redundant or backup power supplies, redundant
data communications connections, environmental controls (air
conditioning, fire suppression, etc.) and special security devices
housed in leased (including by cloud providers), owned, collocated, or
stand-alone facilities. Under this revised definition, neither square
footage nor Uptime Institute tier classifications are required to
define a facility as a data center.'').
\30\U.S. Gov't. Accountability Office, GAO-13-378, Data Center
Consolidation: Strengthening Oversight Needed to Achieve Cost Savings
Goal, at 2, 5 (2013). Under the latest OMB definition, the 24 CFO Act
agencies have identified 3,133 data centers. Id. at 5.
\31\Id. at 3.
\32\Id.
\33\Id.
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In February 2010, OMB announced the Federal Data Center
Consolidation Initiative (FDCCI) with a goal to reduce costs,
increase overall IT security posture, and shift IT investments
to more efficient computing platforms and technologies. 24
agencies established plans to close 40 percent of their data
centers (1,253) by 2015, resulting in an estimated $3 billion
in cost savings.\34\ As of December 2012, participating
agencies reported having closed 420 data centers and are
planning to close an additional 548 centers by the end of
2015.\35\
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\34\Id. at 5.
\35\Id. at 11.
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However, after more than three years into the FDCCI,
agencies' consolidation and savings goals continue to be built
on incomplete inventories and plans. According to GAO, only
three of the twenty-four agencies have submitted complete
inventories and only one submitted a complete plan.\36\ More
significantly, OMB has neither measured agencies' progress
against its cost savings goal nor provided agencies with a
consistent and repeatable method for tracking cost savings.\37\
In light of the challenges and slow progress, GAO has stressed
that it is important for OMB to establish a mechanism to ensure
that the established responsibilities of designated data center
consolidation oversight organizations are fully executed and
extend the time frame for achieving cost savings related to
data center consolidation beyond the current 2015 horizon. This
will allow time to meet the initiative's planned cost savings
goal.\38\
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\36\Id. at 8. For example, 13 agencies do not provide a full master
program schedule and 21 agencies do not fully report their expected
cost savings.
\37\Id. (highlights).
\38\Id. at 15.
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Recent attempts to provide greater oversight of IT investments by OMB
In June 2009, OMB deployed an IT Dashboard, a transparency
tool designed to provide near real-time information on the
cost, schedule and performance of all major federal IT
investments.\39\ In January 2010, OMB began using this
Dashboard as one of several tools to identify troubled
investments. Problems with the IT Dashboard quickly appeared.
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\39\Federal IT Dashboard, http://www.itdashboard.gov/ (last
accessed May 23, 2013). The Dashboard website displays data for over
700 major federal IT investments at 27 federal agencies that represent
about $40 billion or half of the $80 billion budgeted for IT. The
Dashboard visually presents color-coded (Green/Yellow/Red) performance
ratings for agencies overall and for individual investments using
metrics. It also identifies the name of the responsible agency CIO and
his/her picture for added accountability. Unfortunately, the dashboard
is often out-of-date and missing key data elements.
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The Committee was surprised, for example, that not one
single major IT investment in the DoD dashboard was identified
as being ``high'' or ``moderately high'' risk when GAO reviewed
them in October 2012.\40\ Thus, according to DoD, none of their
IT development projects were significantly behind schedule,
over cost, or late in delivery. Yet at the same time, multiple
occurrences of fundamental program failures were being reported
in the press, such as the Air Force's cancellation of the
Expeditionary Combat Support System, with a waste of over $1
billion in lost taxpayer funding.\41\
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\40\U.S. Gov't Accountability Office, GAO-13-98, Information
Technology Dashboard: Opportunities Exist to Improve Transparency and
Oversight of Investment Risk at Select Agencies, at 15 (2012).
\41\Sean Riley, Air Force's $1 billion IT system has `negligible'
capability, comptroller says, Federal Times, Apr. 19, 2012, available
at http://www.federaltimes.com/article/2012
0419/DEPARTMENTS01/204190302/Air-Force-s-1-billion-system-has-8216-
negligible-capability-comptroller-says.
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These troubled investments have become the focus of joint
OMB-agency TechStat Accountability Sessions (TechStats)--
evidence-based reviews intended to improve investment
performance through concrete action plans. In December 2010,
OMB claimed that these sessions resulted in $3 billion in
reduced life-cycle costs and subsequently incorporated the
TechStat model into its 25-point plan for reforming federal IT
management.\42\ According to GAO, some agencies have already
experienced collateral benefits and management results from
their risk evaluations in the IT Dashboard.\43\
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\42\U.S. Gov't Accountability Office, GAO-13-98, Information
Technology Dashboard: Opportunities Exist to Improve Transparency and
Oversight of Investment Risk at Select Agencies, at 1-2 (2012).
\43\Id. at 28.
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Yet the TechStat process appears to have lost momentum and
focus. OMB held approximately fifty-nine TechStat meetings in
2010, five in 2011, and six as of September 2012,\44\
indicating considerable slow-down of the pace and increasing
reliance on TechStat sessions at the department level. It is
the Committee's understanding that TechStat was created, in
part, because agencies did not appropriately manage their IT
investments, and yet, less than two years later OMB seems to be
returning back to relying upon individual agencies. The
Committee believes continuing focus from OMB and agencies on
how to accurately portray and derive value from the ratings and
the associated TechStat processes could maximize the benefits.
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\44\See David Perera, Fierce Government, IT FOIAs OMB TechStat
meeting info for 2011 and 2012, FierceGovernmentIT (Dec. 2, 2012),
available at http://www.fiercegovernmentit.com/story/
fiercegovernmentit-foias-omb-techstat-meeting-info-2011-and-2012/2012-
12-02.
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Oversight by the House Oversight and Government Reform Committee
FITARA is the outgrowth of oversight by the Committee
concerning the means and methods by which the Federal
Government acquires critical resources--IT systems essential to
its operation. Starting in the 112th Congress, the Committee
and its subcommittees, began a detailed inquiry into the
organizational structures and processes that continue to impede
the implementation of this critical infrastructure.
On July 14, 2011, the Subcommittee on Technology,
Information Policy, Intergovernmental Relations and Procurement
Reform examined the issue of the duplicative and wasteful
procedures currently in effect for the acquisition of IT by the
Federal Government. In a hearing entitled ``Transparency and
Federal Management IT Systems,'' the Subcommittee examined how
federal agencies used their financial management IT systems,
highlighted best practices, and explored ways to improve
efficiency.
On November 16, 2011, the Subcommittee held a hearing
entitled ``On the Frontlines in the Acquisition Workforce's
Battle against Taxpayer Waste.'' This hearing examined the
critical role of federal government acquisition professionals,
who are charged with ensuring that government procurements are
competitive and effectively overseen so as to avoid waste,
fraud, abuse, and mismanagement. This hearing highlighted the
obligations and challenges of the acquisition workforce in the
face of the evolving complexities of the current acquisition
system.
On February 17, 2012, the Subcommittee focused on
duplication and waste in Department of Energy (DOE); DoD, and
Department of Homeland Security (DHS). The hearing entitled
``How Much Is Too Much? Examining Duplicative IT Investments at
DOE and DOD'' showcased a contemporaneous report from the
GAO.\45\ The GAO report examined 810 IT investments made by
DoD, DOE, and DHS. Based on the description of the IT
investment, GAO determined that 31 IT investments of DoD were
potentially duplicative while six IT investments at DOE were
duplicative.\46\ For example, GAO found five similar contract
management IT systems at the Air Force, four similar
acquisition management systems at the Navy, and four personnel
assignment IT systems at the Navy.\47\ At DOE, GAO found three
overlapping back-end infrastructure investments, as well as
three similar electronic records and document management
systems.\48\ GAO did not identify any potentially duplicative
investments at DHS and noted that DHS has consolidated or
otherwise eliminated several duplicative investments in recent
years.\49\
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\45\U.S. Gov't Accountability Office, GAO-12-241, IT: Department of
Defense and Energy Need to Address Potentially Duplicative Investments
(2012).
\46\Id. at 2.
\47\Id. at 18.
\48\Id.
\49\Id.
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While these IT duplication numbers may seem relatively
small, these assessments were made by outside analysts not
intimately familiar with the programs' mission or the specific
IT systems. Moreover, these three agencies made more than 3,000
investments; thus, more than two thirds of IT spending of these
agencies was not reviewed. The report suggests that the CIOs
are not effectively managing these portfolios.\50\
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\50\Id.
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In addition, GAO found a lack of precision in the IT
investment classification taxonomy--the vocabulary that is
designed to describe business function and sub-function areas,
as well as related services that are performed within and
between federal agencies. GAO identified 22 investments as
incorrectly categorized. GAO stated that until agencies
correctly categorize their investments, they cannot be
confident that their investments are not duplicative.\51\
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\51\Id. at 19.
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Following this subcommittee hearing, a full committee
hearing on waste and duplication occurred on February 28, 2012.
This hearing was entitled, ``Government 2.0: GAO Unveils New
Duplicative Program Report.'' The full committee hearing
examined duplication and overlapping programs in government,
and evaluated ways to save money and increase efficiency in
federal programs.
The full Committee continued its oversight of IT
acquisition and investment practices in the 113th Congress by
holding two additional hearings entitled ``Wasting Information
Technology Dollars: How Can the Federal Government Reform its
IT Investment Strategy?'' on January 22, 2013, and ``Time to
Reform Information Technology Acquisition: The Federal IT
Acquisition Reform Act'' on February 27, 2013.
These hearings established the need for significant IT
acquisition reform. They reinforced that at a time of fiscal
austerity, it has never been more important for the Federal
Government to drive efficiencies and cost-savings through its
acquisition and deployment of IT. In order to achieve cost
savings, government IT must be acquired in such a way as to
maximize return on investment, reduce operational risk, and
provide responsive services to citizens.
LEGISLATIVE AND POLICY HISTORY
Increased authority of Chief Information Officers over IT--Agency-level
CIOs
The Clinger-Cohen Act of 1996 (Pub. L. 104-106) requires
the 24 major agencies specified in 31 U.S.C. Sec. 901 to have a
Chief Information Officer (CIO).\52\ Pursuant to the Act, CIOs
are to provide information management and policy advice to
their agency heads; develop, maintain, and facilitate
information systems; and evaluate, assess, and report to their
respective agency heads on the progress made developing agency
information technology systems.
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\52\The Clinger-Cohen Act of 1996 was originally enacted as the
Information Technology Management Reform Act of 1996 (Divisions D and E
of P.L. 104-106). The law was renamed the Clinger-Cohen Act by Pub. L.
104-208,110 Stat. 3009-393 (1996).
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Additionally, Clinger-Cohen requires that the CIO and Chief
Financial Officer (CFO; or a comparable official) of each
agency develop an accounting, financial, and asset management
system which is reliable, consistent and timely. The Clinger-
Cohen Act also designated CIO pay at Executive Level IV, or the
same rate of pay provided to many agencies' assistant
directors, CFOs, or general counsels.\53\ Pursuant to the
legislation, agency CIOs are required to report directly to
agency heads.\54\
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\53\5 U.S.C. Sec. 5315 (2012).
\54\Clinger Cohen Act Sec. 5125(c)(3)(D).
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Since the statutory establishment of CIO positions within
federal agencies in 1996, Congress and the executive branch
have debated the proper extent of CIOs' authority and
jurisdiction. In private sector organizations with CIOs, this
person may often serve as a senior decision maker, providing
leadership and direction for information resource development,
procurement, and management, with a focus on improving
efficiency and the quality of services delivered. In federal
agencies, however, the missions, responsibilities, and powers
bestowed on CIOs both by law and in practice may be less clear.
For example, although the CIO responsibilities delineated in 44
U.S.C. Sec. 3506 suggest that federal CIOs are the primary
officials in charge of planning and maintaining IT resources in
their respective agencies, the act does not explicitly identify
federal CIOs as having any budgetary control or authority over
IT resources.
On August 8, 2011, Jacob J. Lew, then-Office of Management
and Budget (OMB) Director, released a memorandum stating the
Administration's position on the authorities of agency-level
CIOs. The memorandum construed the authorities so as to change
the role of CIOs from ``just policymaking and infrastructure
maintenance, to encompass true portfolio management for all
IT.''\55\ The memorandum laid out responsibilities in four
primary areas:
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\55\Memorandum from Jacob J. Lew, U.S. Office of Management and
Budget, Chief Information Officer Authorities, at 1 (Aug. 8, 2011),
available at http://www.whitehouse.gov/sites/default/files/omb/
memoranda/2011/m11-29.pdf.
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Governance--CIOs are to ``have responsibility
over the entire IT portfolio for an Agency'' and work to
``ensure IT portfolio analysis is an integral part of the
yearly budget process of an agency.'' This component of CIO
responsibilities was to be measured by a ``goal of terminating
or turning around one-third of all underperforming IT
Investments by June 2012.''\56\
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\56\Id.
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Commodity IT--CIOs are to ``focus on eliminating
duplication and rationalize . . . IT investments.'' Among the
services to examine are: data centers, networks, desktop
computers, mobile devices, e-mail, collaboration tools, web
infrastructure, human resources systems, and finance systems.
CIOs are directed to ``pool their agency's purchasing power
across the entire organization to drive down costs and improve
service.'' The CIOs will be required to ``show a preference for
using shared services . . . instead of standing up separate
independent services.''\57\
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\57\Id. at 2. The Obama Administration's interest in shared
services in this context appears to be in contrast with another Obama
Administration initiative that explicitly removed a Bush Administration
requirement that agencies use shared services for core financial
operations. See Memorandum from Peter R. Orszag, Director, U.S. Office
of Management and Budget, Immediate Review of Financial Systems IT
Projects (June 28, 2010), available at http://www.whitehouse.gov/sites/
default/files/omb/assets/memoranda_2010/m-10-26.pdf.
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Program Management--CIOs are charged with
``identifying, recruiting, and hiring top IT program management
talent.''\58\ The CIOs are also required to ``train and provide
annual performance reviews'' for employees in charge of major
programs as well as lower-level CIOs. According to the
memorandum, CIOs ``will be held accountable for the performance
of IT program managers based on their governance process and
the IT Dashboard.''\59\ The memorandum does not indicate how
those accountability standards are to be applied.\60\
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\58\Memorandum from Jacob J. Lew, supra note 55, at 2. For
additional information regarding pay for the IT workforce, see ``Report
on Strengthening Program and Project Management Performance (Section
312).''
\59\Memorandum from Jacob J. Lew, supra note 55, at 2. The IT
Dashboard is ``a website enabling federal agencies, industry, the
general public and other stakeholders to view details of federal
information technology investments.'' See ``IT Dashboard FY2014
Edition,'' http://www.itdashboard.gov/ (last accessed Jan. 14, 2014).
\60\See Memorandum from Jacob J. Lew, supra note 55, at 2.
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Information Security--CIOs, or other designated
agency officials who report to the CIO, are required ``to
implement an agency-wide information security program and to
provide information security for both the information collected
and maintained by the agency, or on behalf of the agency, and
for the information systems that support the operations,
assets, and mission of the agency.'' The Department of Homeland
Security is directed to examine security implementation.
Continuous monitoring and oversight of security is intended to
``allow for the development of immediate remediation plans to
address any vulnerabilities.''\61\
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\61\Id.
---------------------------------------------------------------------------
Pursuant to the memorandum, the requirements outlined in
the four areas above would allow OMB to hold agency CIOs
``accountable for lowering operational costs, terminating and
turning around troubled projects, and delivering meaningful
functionality at a faster rate while enhancing the security of
information systems.'' In addition, CIOs are expected to
``reduce the number of wasteful duplicative systems, simplify
services for the American people, and deliver more effective IT
to support their agency's mission.'' CIOs ``are required to
play a cross-agency portfolio management role through the
Federal CIO Council.''\62\
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\62\Id.
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Appointment of agency-level CIOs
Under the current law,\63\ nearly all federal agencies CIOs
are required to be appointed by the head of that individual
agency.\64\ Currently the only statutorily mandated
exception\65\ is the CIO of DHS. The DHS CIO must be appointed
by the President with advice and consent of the Senate
(PAS).\66\ In addition, several agency CIOs are concurrently
serving in positions designated as PAS appointed.\67\ These
individuals include the Department of Labor Assistant Secretary
for Administration, the Veterans Affairs Assistant Secretary
for Information and Technology, the Environmental Protection
Agency Assistant Administrator, and the Nuclear Regulatory
Commission Deputy Executive Director for Corporate
Management.\68\
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\63\See Paperwork Reduction Act of 1995, Pub. L. No. 104-13, 109
Stat. 163 (codified as amended at 44 U.S.C. Sec. 3506 (2012)).
\64\Memorandum from Wendy Ginsberg, Analyst, and Michael Greene,
Information Research Specialist, on Designation Authorities for Fed.
Dept. and Agency Chief Information Officers, Cong. Research Service, to
Eric Cho, H. Comm. on Oversight and Gov't Reform (May 31, 2013) (on
file with recipient) (noting of the 24 CIOs covered in 31 U.S.C.
Sec. 901(b) only 1 is statutorily not appointed by the agency head).
\65\See Homeland Security Act of 2002, Pub. L. No. 107-296,
Sec. 103, 116 Stat. 2035 (2002).
\66\Memorandum from Wendy Ginsberg, supra note 64, at 2.
\67\Id.
\68\Id. (in addition, the memorandum notes that the Office of
Personnel Management, in job listing for the CIO position, classified
it as a position within the Senior Executive Service, which would make
it an agency head appointment).
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The Federal CIO
Among its provisions, the E-Government Act of 2002 (P.L.
107-347; 116 Stat. 2902) established the Office of Electronic
Government within OMB, headed by an administrator, who is
appointed by the President without Senate confirmation. The
law, besides a brief reference in the preamble, does not
provide the title of Federal Chief Information Officer to the
Administrator of the Office of E-Government.\69\ The position,
however, is assigned a range of information technology
management and advisory responsibilities that many would
associate with such a title. In announcing Vivek Kundra as his
selection to serve in this position, President Barack Obama
referred to Mr. Kundra as the Federal Chief Information
Officer. According to the press release, the position:
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\69\U.S. Office of Management and Budget, Mark Forman Named
Associate Director for Information Technology and E-Government (June
14, 2001), available at http://georgewbush-whitehouse.archives.gov/omb/
pubpress/2001-13.html. To help lead and carry out President George W.
Bush's information technology efforts, OMB announced, on June 14, 2001,
the appointment of Mark Forman to a newly created position: the
Associate Director for Information Technology and E-Government. As
``the leading federal e-government executive,'' the new Associate
Director was to be responsible for the eGovernment fund, to direct the
activities of the CIO Council, and to advise on the appointments of
agency CIOs. The Associate Director also would ``lead the development
and implementation of federal information technology policy.'' Where's
the CIO? The Role, Responsibility and Challenge for Federal Chief
Information Officers in IT Investment Oversight and Information
Management: Subcomm. on Technology, Information Policy,
Intergovernmental Relations and the Census H. Comm. on Gov't Reform,
108th Cong. (2004) (testimony of Karen Evans, Administrator, Electronic
Government and Information Technology). Ms. Evans described the role of
a CIO as ``a strategic thinker and coordinator, not a technical
implementer,'' and added that a CIO is ``a service provider working
across the agency to use IT to resolve business problems.'' Id. at 15.
establishes and oversees enterprise architecture to ensure
system interoperability and information sharing and ensure
information security and privacy across the Federal Government.
The CIO will also work closely with the Chief Technology
Officer to advance the President's technology agenda.\70\
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\70\Press Release, White House, President Obama Names Vivek Kundra
Chief Information Officer (Mar. 5, 2009), available at http://
www.whitehouse.gov/the-press-office/president-obama-names-vivek-kundra-
chief-information-officer.
On August 4, 2011, President Obama announced his intent to
appoint Steven L. VanRoekel as Mr. Kundra's replacement as
Federal CIO.\71\
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\71\Press Release, Office of the Press Sec'y, White House,
President Obama Announces More Key Administration Posts (Aug. 4, 2011),
available at http://www.whitehouse.gov/the-press- office/2011/08/04/
president-obama-announces-more-key-administration-posts.
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Lead coordination role of Chief Information Officers Council
On July 19, 1996, President Bill Clinton issued Executive
Order 13011 which, among other actions, established a Federal
Chief Information Officer Council (CIO Council) chaired by
OMB's Deputy Director for Management.\72\ On December 17, 2002,
President George W. Bush signed into law the E-Government Act
of 2002.\73\ The legislation enacted into law the CIO Council
originally established by Executive Order 13011. The CIO
Council is composed largely of agency CIOs and carries out both
coordination and advisory roles for the agency-level CIOs.
According to the law, the council serves as:
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\72\Federal Information Technology, 61 Fed. Reg. 37, 657 (July 19,
1996).
\73\E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899
(2002).
the principal interagency forum for improving agency practices
related to the design, acquisition, development, modernization,
use, operation, sharing, and performance of Federal Government
information resources.\74\
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\74\Id. Sec. 3603 [what does this refer to--the E-gov act??]; U.S.
Chief Information Officer, About, https://cio.gov/about/ (last accessed
Jan. 14, 2014). According to the CIO Council's website, the council
``keeps the public informed about how our Government is working to
close the technology gap between the private and public sectors'' by
``showcasing examples of innovation, identifying best practices, and
providing a forum for Federal IT leaders.'' Id. According to a
September 2012 GAO report, the responsibilities of the CIO Council are:
developing recommendations for information and IT management policies,
procedures, and standards; sharing management best practices; and
working with the Office of Personnel Management to assess and address
the needs of the federal government's IT workforce. See U.S. Gov't
Accountability Office, GAO-12-782, Electronic Government Act: Agencies
Have Implemented Most Provisions, But Key Areas of Attention Remain, at
9 (2012), available at http://gao.gov/assets/650/648180.pdf. In
addition, the act requires the CIOs of each of the 24 agencies to
participate in the functions of the council and monitor the
implementation of information technology standards for the federal
government developed by the National Institute of Standards and
Technology and promulgated by the Secretary of Commerce, including
common standards for interconnectivity and interoperability,
categorization of federal government electronic information, and
computer system efficiency and security. Id.
Inventory of information technology assets
On October 24, 2012, Jeffrey Zients, Deputy Director for
Management, OMB, wrote on the White House blog about
PortfolioStat--a coordinated effort by agencies to ``scour
their IT budgets to find unnecessary IT spending and develop a
plan to root out waste.''\75\ Mr. Zients wrote that the
initiative will save $2.5 billion over three years ``through
consolidating duplicative systems, buying in bulk, and ending
or streamlining off-track proposals.''\76\ According to the
blog post, since May 2012, agencies have ``collected and
analyzed baseline data on 13 specific types of commodity IT
investments'' to find the ``most significant opportunities for
reducing waste.''\77\ Agencies found ``98 opportunities to
consolidate or eliminate commodity IT areas.''\78\
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\75\Jeffrey Zients, PortfolioStat: Saving Billions on IT Spending,
U.S. Office of Management and Budget, (Oct. 24, 2012), available at
http://www.whitehouse.gov/blog/2012/10/24/portfoliostat-saving-
billions-it-spending.
\76\Id.
\77\Id.
\78\Id.
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Finding ways to eliminate waste and duplication using an
inventory of existing technology assets is not a new idea. In
2004, Congress included provisions in the Ronald W. Reagan
National Defense Authorization Act (NDAA) for Fiscal Year
2005\79\ that required DoD to, among other things, identify
business systems information in its annual budget submission. A
GAO study of DoD's compliance with the NDAA's information
systems survey found that ``[b]udget submissions included some,
but omitted other, key information about business system
investments, in part because of the lack of a reliable,
comprehensive inventory of all defense business systems.''\80\
Moreover, according to the GAO report, DoD ``has not included
all business system investments in its fiscal year 2013 budget
submission, due in part to an unreliable inventory of all
defense business systems.''\81\ GAO determined that the
inventory was incomplete by comparing two different DoD
databases: one used to generate DoD's budget and the other to
develop an IT portfolio repository. DoD told GAO that it sought
to integrate the two databases and make each databases'
information more robust and reliable, but a shortage of
resources and time has inhibited such actions.\82\
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\79\Ronald W. Reagan National Defense Authorization Act for Fiscal
Year 2005, Pub. L. No. 108-375, 332, 118 Stat. 1811 (2004).
\80\U.S. Gov't Accountability Office, GAO-12-685, DoD Business
Systems Modernization: Governance Mechanisms for Implementing
Management Controls Need to Be Improved, at 15 (2012), available at
http://www.gao.gov/assets/600/591330.pdf.
\81\Id. at 17.
\82\Id. at 24-25.
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United Kingdom model for software licensing and use by the Government
The UK government is substantially revamping its software
use policy. It is moving away from issuing individual software
licenses provided to each department by commercial off-the-
shelf software (COTS) publishers to establishing one software
license that is assigned to the Crown and reusable across the
public sector. This approach adopts a ``pay as you go'' model;
that is, paying only for consumption or use of services.\83\
While difficulties negotiating agreements with software
companies have arisen, this ``[s]oftware licensing optimization
has delivered over 7m (approximately US$11 million)
of savings to date through license transfer and renegotiation
of terms.''\84\
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\83\HM Gov't, Gov't ICT Strategy: Smarter, Cheaper, Greener 10
(2009) (U.K.), available at http://ctpr.org/wp-content/uploads/2011/03/
ict_strategy4.pdf.
\84\Gov't Procurement Service, ICT, http://
gps.cabinetoffice.gov.uk/i-am-buyer/categories/ict (last visited April
3, 2013) (U.K.).
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The UK government is in the process of developing the
``Government Cloud'' (G-Cloud), a collection of virtual data
centers linked to the public sector by secure connections
provided through a single point.\85\ These data centers
eventually aim to include all software used across the public
sector to eliminate the purchase of multiple versions of the
same commercial software that require separate support plans
across the public sector. The UK government is anticipating
that consolidating software in these datacenters and bringing
the G-Cloud into full operation will result in a savings of
3.2 billion per year ($5.4 billion at $1.51 to
1 conversion rate).\86\
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\85\HM Gov't, Gov't Cloud Strategy, at 3-4 (2011), available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/266214/government-cloud-strategy_0.pdf (U.K.).
\86\HM Gov't, supra note 83, at 13.
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Website consolidation and transparency
On June 13, 2011, Mr. Zients, the Deputy Director for
Management of OMB, released a memorandum to agency heads that,
among other requirements, froze the creation of new federal
executive branch domains, required an update of .gov domain
guidelines, and required the elimination of outdated or
duplicative domain sites.\87\ In his memorandum, Mr. Zients
wrote that the Federal Government had nearly ``2,000 top-level
Federal .gov domains. . . .''
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\87\Memorandum from Jeffrey Zients, Office of Management and
Budget, on Implementing Executive Order 13571 on Streamlining Service
Delivery and Improving Customer Service (June 13, 2011), available at
http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-
24.pdf (released in response to Executive Order 13571, Streamlining
Service Delivery and Improving Customer Service).
[W]ithin these top-level domains, there are thousands
of websites, subsites, and microsites, resulting in an
estimated 24,000 websites of varying purpose, design,
navigation, usability, and accessibility. This
duplication not only can cause confusion, but also
wastes taxpayer dollars.\88\
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\88\Id. at 3.
Federal CIO Steven VanRoekel said he is observing a similar
website consolidation initiative in the United Kingdom (UK),
which took six years to complete and culminated in the creation
of a single UK government-wide web portal.\89\
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\89\Press Release, U.K. Cabinet Office, Clamp Down on Government
Websites to Save Millions (June 24, 2012) (U.K.), available at http://
www.cabinetoffice.gov.uk/news/clampdown-on-government-websites; Joseph
Marks, British Government's Massive Website Reduction Took Years,
NextGov, (June 30, 2011), available at http://www.nextgov.com/health/
2011/06/british-governmentsmassive-website-reduction-took-years/49331/.
Molly Bernhart Walker, United Kingdom Commits to 1 Government
Website, FierceGovernmentIT, (Oct. 25, 2012), available at http://
www.fiercegovernmentit.com/story/united-kingdom-commits-1-
governmentwebsite/2012-10-25.
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In July 2011, Mr. Kundra, then-Federal CIO, announced the
creation of a task force to assist in reducing the number of
federal .gov domains in the executive branch and to update
policies on creating new websites and domains.\90\ The task
force has not publicly released a report or guidance.
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\90\Joseph Marks, Kundra Names Task Force to Consolidate Federal
Websites, NextGov (July 12, 2011), available at http://www.nextgov.com/
technology-news/2011/07/kundra-names-task-force-to-consolidate-federal-
websites/49388/; .gov Reform Task Force, State of the Federal Web
Report (2011), available at http://www.usa.gov/webreform/state-of-the-
web.pdf.
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On December 16, 2011, the .gov Reform Task Force released
its State of the Federal Web Report.\91\ After surveying 34
agencies, the task force found that, in many agencies,
decisions to create or eliminate domains and websites were
decentralized across agency units. Some agencies had ``clearly
set web policies, while many agencies [were] still working to
develop more formal web guidance and governance policies.''\92\
The task force also reported that agencies acknowledged that
consolidating web domains could be beneficial, but ``that
integration may come at a cost.''\93\ In short, some agencies
noted that the costs of migrating information to fewer websites
would exceed short-term or even medium-term savings.
---------------------------------------------------------------------------
\91\.gov Reform Task Force, supra note 91.
\92\Id. at 22.
\93\Id.
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The process of reducing domains was further clarified in
the Obama Administration's ``Digital Government Strategy,''
released May 23, 2012.\94\ According to the directive:
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\94\Exec. Office of the President, Digital Government: Building a
21st Century Platform to Better Serve the American People, (2012)
([hereinafter Digital Government]), available at http://
www.whitehouse.gov/sites/default/files/omb/egov/digital-government/
digital-government.html.
Under the principle of ``no new domains,'' criteria
for approving new second-level domains will be
strengthened and new domains will only be granted on an
exception basis. For example, an agency may be granted
a new single domain to host consolidated content
previously spread across multiple domains, thus
streamlining the customer experience and reducing
redundant infrastructure. Domains will be approved or
renewed only if they to [sic] comply with web-related
federal standards, guidance, and regulations[.]\95\
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\95\Id.
In addition to restricting the creation of new federal
domains, the ``Digital Government Strategy'' also listed as one
of three primary objectives a goal to ``[e]nable the American
people and an increasingly mobile workforce to access high-
quality digital government information and services anywhere,
anytime, on any device.''\96\
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\96\Id. Sec. Strategy Objectives.
Putting the customer first means quality information
is accessible, current and accurate at any time whether
the customer is in the battlefield, the lab, or the
classroom. It means coordinating across agencies to
ensure when citizens and employees interact with
government information and services, they can find what
they need and complete transactions with a level of
efficiency that rivals their experiences when engaging
with the private-sector.\97\
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\97\Id. Sec. Strategy Principles: Customer Centric.
As of January 11, 2013, the Federal Government reported it
had 1,354 executive branch domains.\98\
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\98\See Data.gov, https://explore.data.gov/Federal-Government-
Finances-and-Employment/Federal-Executive-Agency-Internet-Domains-as-
of-11/ku4m-7ynp? (last accessed May 23, 2013). The database generates
domain counts and states it contains federal executive agency domains.
The database, however, also includes domain counts for Amtrak (a
corporation not expressly defined as an executive agency), the
Smithsonian Institution (created by congressional charter, and not
expressly defined by statute as an executive agency), and the U.S.
Capitol Police (a legislative branch entity). Without those three
domains included in the count, the executive branch reported 1,351
executive branch domains as of January 11, 2013. Federal .gov domain
counts can be generated at data.gov.
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Transition to the cloud
Cloud computing is a new name for an old concept: the
delivery of computing services from a remote location, similar
to the way electricity and other utilities are provided to most
customers. In some ways, cloud computing is reminiscent of
mainframe computing; allowing users to share the resources of a
central computer, the way most users acquired computing
services before the advent of the personal computer. What is
new, however, is that cloud computing is far more powerful and
useful than previous generations of remote computing due to the
advance in ubiquitous network connectivity.\99\
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\99\Eric A. Fischer and Patricia Moloney Figliola, Cong. Research
Serv., R42887, Overview and Issues for Implementation of the Federal
Cloud Computing Initiative: Implications for Federal Information
Technology Reform Management, at 1 (2013).
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The Federal Government, through the Federal CIO, is
responsible for achieving the potential significant cost,
agility, and innovation benefits of cloud computing as quickly
as possible. In February 2011, then- Federal CIO Vivek Kundra
released the Federal Cloud Computing Strategy (FCCS).\100\ This
document stated that ``the Federal Government's current
Information Technology (IT) environment is characterized by low
asset utilization, a fragmented demand for resources,
duplicative systems, environments which are difficult to
manage, and long procurement lead times.''\101\ To help address
these challenges, the strategy is designed to:
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\100\Vivek Kundra, Office of the U.S. Chief Information Officer,
U.S. Federal Cloud Computing Strategy (2011), available at https://
cio.gov/wpcontent/uploads/downloads/2012/09/Federal-Cloud-Computing-
Strategy.pdf.
\101\Id. at 1.
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``Articulate the benefits, considerations,
and trade-offs of cloud computing;
Provide a decision framework and case
examples to support agencies in migrating towards cloud
computing;
Highlight cloud computing implementation
resources; and
Identify Federal Government activities and
roles and responsibilities for catalyzing cloud
adoption.''\102\
---------------------------------------------------------------------------
\102\Id. at 2.
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According to the FCCS, ``[c]loud computing has the
potential to play a major part in addressing . . .
inefficiencies and improving government service delivery. The
cloud computing model can significantly help agencies grappling
with the need to provide highly reliable, innovative services
quickly despite resource constraints.''\103\ For the Federal
Government, ``cloud computing holds tremendous potential to
deliver public value by increasing operational efficiency and
responding faster to constituent needs.''\104\
---------------------------------------------------------------------------
\103\Id. at 1.
\104\Id.
---------------------------------------------------------------------------
About half of all federal agencies have adopted cloud
computing in some way--21 percent are already moving forward
with cloud adoption and 29 percent are in the early
stages.\105\ Adoption, however, is not occurring more rapidly
for a number of reasons. The Government Accountability Office
and InformationWeek Government conducted assessments in July
and October 2012, respectively, of the status of Federal
Government cloud computing adoption.\106\ Both identified a
number of considerations, mostly challenges, to moving services
to the cloud.
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\105\Stephen Delahunty, 2013 Federal Government Cloud Computing
Survey, InformationWeek Reports, at 8 (2012), available at http://
reports.informationweek.com/abstract/104/9047/Government/research-
federal-cloudcomputingsurvey.html?cid=pub_analyt_iwk_20121008.
\106\U.S. Gov't Accountability Office, GAO-12-756, Information
Technology Reform: Progress Made but Future Cloud Computing Efforts
Should be Better Planned (2012), available at
http://www.gao.gov/assets/600/592249.pdf; InformationWeek, supra note
105.
---------------------------------------------------------------------------
Both assessments found that security is the top concern of
those responsible for implementing cloud computing at the
agency level. The Federal Risk and Authorization Management
Program (FedRAMP), which began in June 2012, is intended to
increase confidence in the cloud by standardizing the security
assessment of vendor facilities and services. According to the
results of an InformationWeek Government survey of federal
government IT professionals, only about 1 in 10 have begun
using FedRAMP, so it is difficult to say what, if any, impact
the program has had thus far.\107\
---------------------------------------------------------------------------
\107\InformationWeek, supra note 105.
---------------------------------------------------------------------------
Other challenges faced by those responsible for cloud
adoption at the agency level include:
ensuring compatibility (e.g., data
portability and interoperability) with legacy systems
and processes;
increasing the level of expertise and
experience;
stabilizing the standards process; and
obtaining additional guidance/governance to
avoid cloud services ``sprawl.''
In the face of these challenges, however, there are two
strong drivers of cloud adoption: ``lowering the cost of
ongoing IT operations [and] reducing capital investment in
servers and data center equipment.''\108\ It appears that in
spite of existing challenges budget pressures may play a
significant role in driving cloud adoption.
---------------------------------------------------------------------------
\108\Id. at 15.
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Strengthening program and project management performance
As part of his 25-Point Plan, Mr. Kundra, then-federal CIO,
directed the Department of the Treasury and the Department of
Agriculture to pilot the creation of new ``federal career
paths'' in IT program management.\109\ These career paths,
presumably if effective, would then be expanded across the
Federal Government. According to media reports, OMB and the
Office of Personnel Management (OPM), which creates and manages
career paths, or ``job series'', held a January 2011 meeting
with about 30 IT industry executives and former CIOs, to
determine the expertise and skills that would be needed to
create a ``new GS-series,'' or career path.\110\ Those who
attended the meeting reportedly said the consensus was that IT
program managers would need ``technical skills and
experience.''\111\ Creating a new job series allows OPM to work
with agencies to craft job postings that target potential
employees with specific, IT-project management skills--as
opposed to general project management skills.
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\109\Kundra, supra note 2, at 13.
\110\Jason Miller, OMB, OPM Turn to Former CIOs for Help, Federal
News Radio (Jan. 28, 2011), available at http://
www.federalnewsradio.com/697/2252313/OMB-OPM-turn-to-former-CIOs-for-
help.
\111\Id.
---------------------------------------------------------------------------
Personnel awards for acquisition of information systems and information
technology
Federal law establishes many authorities that govern
employee awards. In this context, the term award refers to an
agency payment that is used to reward an individual employee or
a group of employees for the quality of past performance.\112\
In general, Congress established these statutory authorities to
give agencies tools to help them manage their workforces,
thereby, better accomplishing agency missions and policy goals
that cut across agency boundaries.\113\ Award authorities that
reside in Title 5 of the U.S. Code, in particular, have wide
coverage across federal agencies and workforces. Congress
granted extensive flexibility and discretion to agencies under
these provisions to customize award practices to fit agency
missions, environments, and resource levels.
---------------------------------------------------------------------------
\112\5 U.S.C. Sec. Sec. 4501-4523 (2012). See also Clinton T.
Brass, Cong. Research Serv., R40031, Federal Employee Awards and
Incentives: Title 5 Authorities and Potential Issues For Congress
(2008); Maeve P. Carey, Cong. Research Serv., R41801, The Senior
Executive Service: Background and Options for Reform (2012). Award
authorities differ in their coverage and requirements among three
general types of employees: federal employees generally; career Senior
Executive Service employees; and political appointees. Payment of
awards may be subject to statutory limitations on aggregate
compensation for an individual employee. By contrast, the term
incentive refers to a payment that is designed to provide a monetary
inducement for an individual (or group) to accept a new position or to
remain employed in a current position.
\113\5 U.S.C. Sec. Sec. 4501-4523; Brass, supra note 112; Carey,
supra note 112. Some of these statutory award authorities are contained
within Title 5 of the U.S. Code and cover most agencies in the
executive branch along with some agencies in the legislative branch.
Other authorities in Title 5 and elsewhere in the U.S. Code may be
unique in their coverage to a single agency, occupation type, or
workforce.
---------------------------------------------------------------------------
Requiring business case analysis to address duplicative contracts
A legislative provision involving business case analysis
was enacted during the 110th Congress.\114\ Section 865 of P.L.
110-417 addressed interagency contracts, agency-specific
contracts, and agency-specific blanket purchase agreements
(BPAs).\115\ Section 865 required, among other things, that the
Federal Acquisition Regulation (FAR) be revised ``to require
any multi-agency contract entered into by any executive agency
after the effective date of such regulations to be supported by
a business case analysis, including an analysis of all direct
and indirect costs'' related to awarding and administering the
contract. Section 865 also required OMB to provide guidelines
to federal agencies regarding the management of interagency
contracts. The resulting revision to the FAR may be found at
FAR 17.502-1(c),\116\ and OMB issued its guidance, through the
Office of Federal Procurement Policy (OFPP), on September 29,
2011.\117\
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\114\Ralph C. Nash, Jr. et al., The Government Contracts Reference
Book 75 (Wash., DC: CCH, 2007) (defining business case as an ``analysis
of the factors affecting and affected by a capital investment or other
acquisition decision. Such factors could include cost/benefit, cash
flow, and cost and schedule risk.'').
\115\Memorandum from Daniel I. Gordon, Administrator, Office of
Federal Procurement Policy, Development, Review and Approval of
Business Cases for Certain Interagency and Agency- Specific
Acquisitions, at 1 (Sept. 29, 2011), available at http://
www.whitehouse.gov/sites/default/files/omb/procurement/memo/
development-review-and-approval-of-business-cases-for-certain-
interagency-and-agency-specific-acquisitions-memo.pdf. For the purpose
of the OFPP memorandum, an agency-specific contract ``is an indefinite-
delivery, indefinite quantity contract intended for the sole use of the
establishing agency.'' Id. at 1, n. 1. Agency-specific contracts may be
agency-wide (sometimes referred to as `enterprise-wide') or limited to
one or more specific component organizations within the agency.'' See
also Nash, Jr. et al., supra note 114. The same description probably
applies to agency-specific BPAs. A blanket purchase agreement is a
``simplified method of filling the government's anticipated repetitive
needs for supplies or services by establishing charge accounts with
qualified sources of supply,'' including GSA's schedules.
\116\Acquisition Central, FAR, https://www.acquisition.gov/far/
current/pdf/FAR.pdf (site contains the complete FAR).
\117\Memorandum from Daniel I. Gordon, supra note 115.
---------------------------------------------------------------------------
Assisted Acquisition Centers of Excellence
In response to a statutory requirement, OFPP, in
partnership with the Federal Acquisition Institute, the Defense
Acquisition University, federal agencies, and private sector
stakeholders, established the Acquisition Center of Excellence
(ACE) for Services.\118\ The center is to ``assist the
acquisition community by identifying, and serving as a
clearinghouse for, best practices in contracting for services
in the public and private sectors.''\119\ The Acquisition
Center of Excellence for Services website, https://acc.dau.mil/
ace, includes links to regulations, policy and guidance,
successful practices, a training center, e-tools, news sources,
the Automated Requirements Roadmap Training (ARRT) Tool, and
information regarding the acquisition of specific types of
services (e.g., research and development services, construction
services, and medical services).
---------------------------------------------------------------------------
\118\Services Acquisition Reform Act (SARA), Pub. L. No. 108-136
Sec. 1431(b), 117 Stat. 1392 (2003).
\119\41 U.S.C. Sec. 1129 (2012).
---------------------------------------------------------------------------
IT acquisition workforce
In 2010, the Administration proposed the design and
development of specialized IT acquisition cadres as part of its
25-point plan for reforming IT management.\120\ The following
year, and as noted in the 25-point plan, OFPP issued guidance
that addressed how agencies could establish cadres of
acquisition professionals and strengthen their capabilities,
but it did not require agencies to establish cadres.\121\
Specifically, OFPP's guidance advised agencies on how they
could
design and organize a cadre of contracting professionals,
Program Managers (PMs), and Contracting Officer's
Representatives (CORs) to ensure these functions work closely
throughout the process to achieve program goals, and strengthen
the skills and capabilities of this specialized acquisition
cadre to improve outcomes.\122\
---------------------------------------------------------------------------
\120\Kundra, supra note 2 ( the plan can be found at http://
cio.gov/wp-content/uploads/downloads/2012/09/25-Point-Implementation-
Plan-to-Reform-Federal-IT.pdf)
\121\Memorandum from Daniel I. Gordon, Administrator, Office of Fed
Procurement Policy, Guidance for Specialized Information Technology
Acquisition Cadres 1 (July 13, 2011), available at http://
www.whitehouse.gov/sites/default/files/omb/procurement/memo/guidance-
for-specialized-acquisition-cadres.pdf.
\122\Id.
OFPP did, however, require agencies to update their
acquisition human capital plans, which was to include an
analysis of their ``current IT acquisition staffing
challenges,'' an assessment regarding whether ``developing or
expanding the use of cadres would improve IT program results,''
and an outline for a ``plan to pilot or expand cadres for an
especially high-risk IT area if the agency determine[d] this
effort would improve performance.''\123\ This supplemental
information was due to OMB by August 31, 2011.
---------------------------------------------------------------------------
\123\Id. at 2.
---------------------------------------------------------------------------
Federal IT Acquisition Management Improvement Fund
Several years ago, an acquisition fund was established to
support the training of the DoD acquisition workforce.\124\
Section 852 of National Defense Authorization Act for FY2008
required the Secretary of Defense to establish the Defense
Acquisition Workforce Development Fund. Credits to the fund are
provided, at least in part, by ``an amount equal to the
applicable percentage for a fiscal year of all amounts expended
by the Department of Defense in such fiscal year for contract
services from amounts available for contract services for
operation and maintenance.''\125\ No parallel provision was
made for the civilian acquisition workforce.
---------------------------------------------------------------------------
\124\See National Defense Authorization Act for FY2008, Pub. L. No.
110-181 Sec. 852, 122 Stat. 3 (2008) (required the Secretary of Defense
to establish the Defense Acquisition Workforce Development Fund
(DAWDF)); 10 U.S.C. Sec. 1705(d)(2)(A) (2012). Credits to the fund are
provided, at least in part, by ``an amount equal to the applicable
percentage for a fiscal year of all amounts expended by the Department
of Defense in such fiscal year for contract services from amounts
available for contract services for operation and maintenance.'' 10
U.S.C. Sec. 1705(d)(2)(A).
\125\National Defense Authorization Act for FY2008 Sec. 852; 10
U.S.C. Sec. 1705(d)(2)(A).
---------------------------------------------------------------------------
Section 1412 of the Services Acquisition Reform Act (SARA;
Title XIV of P.L. 108-136), requires the Administrator of
General Services to establish the Acquisition Workforce
Training Fund (AWTF). The Administrator manages the fund
through the Federal Acquisition Institute (FAI) and consults
with the head of OFPP in managing the fund.\126\ Credits to the
fund are provided in the following manner:
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\126\National Defense Authorization Act for FY2004, Pub. L. No.
108-136 Sec. 1412(b), 117 Stat. 1392 (2003).
Five percent of the fees collected by executive
agencies (other than the Department of Defense) under
the following contracts shall be credited to the fund:
(A) Government-wide task and delivery order contracts
entered into under sections 4103 and 4105 of this title
[41 USCS Sec. Sec. 4103 and 4105]. (B) Government-wide
contracts for the acquisition of information technology
as defined in section 11101 of title 40 and multi-
agency acquisition contracts for that technology
authorized by section 11314 of title 40. (C)
[M]ultiple-award schedule contracts entered into by the
Administrator of General Services.\127\
---------------------------------------------------------------------------
\127\41 U.S.C. Sec. 1703(i)(3).
---------------------------------------------------------------------------
Strategic sourcing
Strategic sourcing, as defined by OMB, is ``the
collaborative and structured process of critically analyzing an
organization's spending and using this information to make
business decisions about acquiring commodities and services
more effectively and efficiently.''\128\ According to the GAO,
---------------------------------------------------------------------------
\128\Memorandum from Clay Johnson III, Deputy Director for
Management, Office of Management and Budget, Implementing Strategic
Sourcing 1 (May 20, 2005), available at http://www.whitehouse.gov/
sites/default/files/omb/procurement/comp_src/implementing_strategic_
sourcing.pdf.
[a] strategic sourcing effort begins with an
opportunity assessment--an analysis of spending and the
identification of products and services for which
strategic sourcing should be implemented. Spend
analysis provides knowledge about how much is being
spent for which products and services, who the buyers
are, who the suppliers are, and where the opportunities
are for leveraged buying and other tactics to save
money and improve performance. Data on spending are
analyzed on a continual basis to support decisions on
strategic sourcing and procurement management in areas
such as cost cutting, streamlining operations, and
reducing the number of suppliers. Based on this
analysis, organizations evaluate and prioritize
commodities to create a list of top products or
services to target for strategic sourcing. This list
typically includes the products or services on which
most of the organization's spending is focused. In
addition to spending, criteria such as potential
savings and relative ease of implementation are
considered.\129\
---------------------------------------------------------------------------
\129\U.S. Gov't Accountability Office, GAO-12-919, Strategic
Sourcing: Improved and Expanded Use Could Save Billions in Annual
Procurement Costs, at 5 (2012), available at http://www.gao.gov/assets/
650/648644.pdf.
OMB issued a memorandum dated May 20, 2005, that made
agency Chief Acquisition Officers (CAOs), Chief Financial
Officers (CFOs), and Chief Information Officers (CIOs)
responsible for developing and implementing their agencies'
strategic sourcing efforts and directed CAOs to head their
respective agencies' teams.\130\ Later that same year, the
General Services Administration (GSA), in partnership with the
Office of Federal Procurement Policy, launched the Federal
Strategic Sourcing Initiative (FSSI).\131\ FSSI has established
or plans to offer strategic sourcing programs for office
supplies, print management, domestic delivery services,
wireless telecommunications expense management services, and
software (which is known as SmartBUY).\132\
---------------------------------------------------------------------------
\130\Memorandum from Clay Johnson III, supra note 128.
\131\U.S. General Services Administration, Fact Sheet, Federal
Strategic Sourcing Initiative, Office Supplies, Blanket Purchase
Agreements, available at http://www.gsa.gov/graphics/fas/
FSSIOfficeSupplyBPAsFactSheetOct2011.pdf.
\132\Federal Strategic Sourcing Initiative, U.S. General Services
Administration, www.gsa.gov/portal/content/112561.
---------------------------------------------------------------------------
In December 2012, OMB issued strategic sourcing guidance.
The memorandum directs each of the 24 Chief Financial Officer
(CFO) Act agencies to designate a Strategic Sourcing
Accountable Official; establishes the Strategic Sourcing
Leadership Council (SSLC), which will be chaired by the OFPP
Administrator and include representatives from several selected
agencies;\133\ requires the SSLC to provide ``recommendations
for management strategies for specific goods and services'' to
OMB by March 2013 and the SSLC members to promote strategic
sourcing within their respective agencies; requires GSA, among
other things, to implement a minimum of five strategic sourcing
solutions in each fiscal year (FY2013 and FY2014); and states
that, ``[t]o the maximum extent practicable, all strategic
sourcing opportunities shall seek to increase participation by
small businesses.''\134\ Notably, the SSLC's recommendations to
OMB for management strategies is to include ``several IT
commodities identified through the PortfolioStat
process.''\135\
---------------------------------------------------------------------------
\133\See Memorandum from Jeffrey D. Zients, Deputy Director for
Management, U.S. Office of Management and Budget, Improving Acquisition
Through Strategic Sourcing, at 2 (Dec. 5, 2012), available at http://
www.whitehouse.gov/sites/default/files/omb/memoranda/2013/m-13-02-
0.pdf.
\134\Id. at 2-5.
\135\Id. at 3. ``PortfolioStat [is] a new toll that agencies use to
assess the current maturity of their IT portfolio management process,
make decisions on eliminating duplications, augment current CIO-led
capital planning and investment control processes, and move to shared
solutions in order to maximize the return on IT investments across the
portfolio.''
---------------------------------------------------------------------------
Open source software
Open source software refers to a computer program whose
source code\136\ is made available to the general public to be
improved or modified as the user wishes. Changes to such a
computer program may be available freely through websites and
user groups dedicated to that particular program. Some examples
of open source software include the Linux operating system\137\
and Apache web server software.\138\ In contrast, closed
source, or proprietary, programs have source code that is not
made publicly available and can be altered only by the software
manufacturer. In the case of closed source software, updates to
a program are usually distributed in the form of a patch\139\
or as a new version of the program that the user can install
but not alter. Some examples of closed source software include
Microsoft Word and Adobe Flash Player. The majority of software
products most commonly used, such as operating systems, word
processing programs, and databases, are closed source programs.
---------------------------------------------------------------------------
\136\Source code is the set of programming instructions written by
the software developer that allows a program to execute its functions.
Source code is written at the keyboard and appears as a set of commands
in the form of words, symbols, and numbers. After a programmer has
finished writing the source code, it is compiled into a machine
language that is recognized only by computers and is represented
entirely as numbers. Proprietary software includes only the machine
language code, which allows the computer to function but cannot be
altered by the user. Open source software includes the source code (and
sometimes the machine language code) so that the user can make changes
to how the software program functions.
\137\Linux, http://www.linux.org (additional information on Linux).
\138\Id.
\139\A software patch is a small piece of software that integrates
itself into the larger program and is created to fix a specific
problem, such as a particular security weakness or some other error or
defect in the product.
---------------------------------------------------------------------------
Open source software often is developed and supported by a
loosely organized community of volunteer developers and users
of the product. Sometimes, however, companies, universities, or
other organizations with an interest in the product will have
their paid staff contribute toward the development and support
of open source products. Collaborating via the Internet,
interested individuals share new contributions, develop fixes,
and hold discussions regarding the development of the software.
The software itself is developed as a collection of modules, or
subcomponents, that are connected together to form the whole
program or application. This modular approach allows for
multiple development efforts to occur in parallel, and for
changes and additions to be tested and implemented
incrementally.
Although the origins of open source software date back to
the development of ARPANET\140\ in the late 1960s, the debate
over federal government use of open source software has at
times intersected with several other issues, including, but not
limited to, information security, protecting intellectual
property rights, costs, and product quality. A lack of
familiarity with open source software, and the rapidly evolving
nature of application development overall, has prompted
concerns about whether information on these platforms is secure
or whether Federal Government purchase of open source software
is permissible by law or regulation.\141\
---------------------------------------------------------------------------
\140\The Advanced Research Projects Agency Network (ARPANET). The
network was initially funded by the Advanced Research Projects Agency
(ARPA, later DARPA) within the U.S. Department of Defense for use by
its projects at universities and research laboratories in the U.S.
\141\See, e.g., Brian Robinson, Kundra Advocates Open Source, FCW
(June 15, 2009), available at http://fcw.com/articles/2009/06/08/
feature-open-source.aspx; Alex Howard, Government IT's Quiet Open
Source Evolution, O'Reilly Radar (Sept. 1, 2011), available at http://
radar.oreilly.com/2011/09/open-source-government-it-goscon.html.
---------------------------------------------------------------------------
On July 1, 2004, however, Karen S. Evans, then-OMB's
Administrator for IT and E-Gov, released a memorandum to senior
procurement executives and chief information officers in the
executive branch, saying that open source software should
receive the same consideration as proprietary software in the
acquisition process. The memorandum further clarified that
``Open Source Software's source code is widely available so it
may be used, copied, modified, and redistributed.''\142\ It
further stated:
---------------------------------------------------------------------------
\142\Memorandum from Karen S. Evans, Administrator, Office of E-
Government and Information Technology, U.S. Office of Mmgt. and Budget,
Software Acquisition (July 1, 2004), available at http://
www.whitehouse.gov/omb/memoranda_fy04_m04-16.
It is licensed with certain common restrictions,
which generally differ from proprietary software.
Frequently, the licenses require users who distribute
Open Source Software, whether in its original form or
as modified, to make the source code widely available.
Subsequent licenses usually include the terms of the
original license, thereby requiring wide availability.
These differences in licensing may affect the use, the
security, and the total cost of ownership of the
software and must be considered when an agency is
planning a software acquisition.\143\
---------------------------------------------------------------------------
\143\Id.
The House Armed Services Committee, in its Report\144\
accompanying the Defense Authorization Act for Fiscal Year 2009
stated the following:
---------------------------------------------------------------------------
\144\H.R. Rep. No. 110-652, at 275 (2008).
---------------------------------------------------------------------------
Open source software systems
The committee is concerned by the rising costs and
decreasing security associated with software
development for information technology (IT) systems.
These rising costs are linked to the increasing
complexity of software, which has also resulted in
increasing numbers of system vulnerabilities that might
be exploited by malicious hackers and potential
adversaries. While the Administration has put forth a
plan to increase cybersecurity within the larger
enterprise of federal IT systems, a focus and
assessment of fundamental software engineering
practices is not apparent.
Open source software (OSS) is a set of practices on
how to write software, based on the open availability
and right to use software code. This process provides
greater rigor in the software development process by
making it available to a diverse community of
programmers for review, testing, and improvement. The
Linux operation system and Internet Protocol internet
addressing system are examples of high quality products
developed within the business sector using the OSS
standard.
The committee encourages the Department to rely more
broadly on OSS and establish it as a standard for
intra-Department software development. The committee
acknowledges the availability of proprietary software
and encourages its development and acquisition as
necessary and appropriate. The committee believes,
however, the wide-spread implementation of an OSS
standard will not only lead to more secure software,
but will also foster broader competition by minimizing
traditional constraints imposed by an over-reliance on
proprietary software systems.
In January 2011, then-Federal CIO Vivek Kundra released a
memorandum to CIOs and senior procurement executives reminding
them to remain technology neutral while they select and acquire
``information technology that best fits the needs of the
Federal Government.''\145\ The January 2011 memorandum
continued:
---------------------------------------------------------------------------
\145\Memorandum from Vivek Kundra, Federal Chief Information
Officer, Office of Management and Budget, Technology Neutrality (Jan.
7, 2011), available at http://www.whitehouse.gov/sites/default/files/
omb/assets/egov_docs/memotociostechnologyneutrality.pdf.
This long-standing policy helps ensure that federal
investments in IT are merit-based, improve the
performance of our government and create value for the
American people . . . Accordingly, as program, IT,
acquisition, and other officials work together to
develop requirements and plan acquisitions, they should
follow technology neutral principles and practices.
This means selecting suitable IT on a case-by- case
basis to meet the particular operational needs of the
agency by considering factors such as performance,
cost, security, interoperability, ability to share or
re-use, and availability of quality support.\146\
---------------------------------------------------------------------------
\146\Id.
The Obama Administration's ``Digital Government Strategy,''
released May 23, 2012, indicated that the Federal Government
had received considerable feedback encouraging it to ``use open
source technology to enable more sharing of data and make
content more accessible.''\147\
---------------------------------------------------------------------------
\147\Digital Government, supra note 94. See also National Dialogue
for Improving Federal Websites, http://web-reform-
dialogue.ideascale.com/ (providing more information on the feedback
dialogue).
---------------------------------------------------------------------------
Section-by-Section
Section 1. Short title
The short title of the bill is the ``Federal Information
Technology Acquisition Reform Act.''
Section 2. Table of contents
Provides the table of contents.
Section 3. Definitions
Provides the definitions for the purpose of this bill.
TITLE I--MANAGEMENT OF INFORMATION TECHNOLOGY WITHIN FEDERAL GOVERNMENT
Section 101. Increased authority of agency Chief Information Officers
over information technology
Increases the accountability and authority of the agency
Chief Information Officers (CIO) over each agency's information
technology (IT) investment practices. Subsection (a) makes CIOs
of the 16 major civilian agencies (i) presidential appointees
or designees; (ii) maintain a direct reporting link with the
head of the agency. Listed below are the 16 agencies:
The Department of Agriculture, the Department of
Commerce, the Department of Education, the Department
of Energy, the Department of Health and Human Services,
the Department of Homeland Security, the Department of
Housing and Urban Development, the Department of the
Interior, the Department of Justice, the Department of
Labor, the Department of State, the Department of
Transportation, the Department of the Treasury, the
Department of Veterans Affairs, the Environmental
Protection Agency, the National Aeronautics and Space
Administration.
FITARA intends such appointee or designee to be a fully-
dedicated CIO without any concurrent non-IT duties. The
Committee also expects there be a deputy CIO who is a full-time
career executive with the same requisite qualifications to
provide needed continuity.
Subsection (b) provides additional budget and personnel-
related authority to 23 major civilian agencies. Listed below
are the additional seven agencies that are covered by this
subsection:
The Agency for International Development, the General
Services Administration, the National Science
Foundation, the Nuclear Regulatory Commission, the
Office of Personnel Management, the Small Business
Administration, the Social Security Administration.
Subsection (c) eliminates redundant CIO positions within
each agency covered by the Clinger-Cohen Act by requiring there
be only one CIO for the entire agency. For the purpose of this
subsection, DoD and its three military departments are each
treated as a single ``agency'' (see definitions in 44 U.S.C.
Sec. 3502(1)).
The Department of Defense was generally excluded from
subsections (a) and (b) due to the differing procedures
currently in place in Title 10 for DoD and its three military
departments regarding the appointment, budget, and investment
review process utilized by CIOs. However, as the biggest user
of interagency acquisitions, both in direct and assisted
acquisition settings, the Committee expects DoD to be a major
participant and beneficiary of FITARA.
Section 102. Lead coordination role of Chief Information Officers
Council
Expands the role of the CIO Council to encompass a more
active role in portfolio-based oversight and establishment of
cross-agency IT standards and practices. The word
``acquisition'' in the current statutory language is removed to
clarify the potential conflict of authority between CIOs and
CAOs. Requires additional reporting obligations to allow
further transparency into the activities and roles of the CIO
Council.
Section 103. Reports by Government Accountability Office
Requires GAO review of CIO Council effectiveness.
TITLE II--DATA CENTER OPTIMIZATION
Section 201. Purpose
The purpose of this title is to optimize Federal data
center usage and efficiency.
Section 202. Definitions
Provides the definitions for the purpose of this title.
Section 203. Federal Data Center Optimization Initiative
Requires the Federal CIO to develop and implement the
Federal Data Center Optimization Initiative to optimize the
usage and efficiency of federal data centers.
Section 204. Performance requirements related to data center
consolidation
Requires greater emphasis and clarity on performance with
respect to the server utilization and energy efficiency related
to federal data centers.
Section 205. Cost savings related to data center optimization
Requires tracking and reporting of cost savings realized
from Data Center Optimization. Authorizes the savings to be
used to offset implementation costs of the initiative, or be
invested in IT enhancement that improve capabilities and
services. Requires GAO to examine and verify the accuracy of
the methods to calculate savings.
Section 206. Reporting requirements to Congress and the Federal Chief
Information Officer
Requires each agency to annually report to the Federal CIO
on the implementation of the Federal Data Center Optimization
Initiative. The Federal CIO, in turn, is required to assess
agency progress and report to Congress.
TITLE III--ELIMINATION OF DUPLICATION AND WASTE IN INFORMATION
TECHNOLOGY ACQUISITION
Section 301. Inventory of information technology assets
Requires the Director of Office of Management and Budget
(OMB) to develop and then implement a plan for conducting a
Governmentwide inventory of IT assets with particular focus on
software licenses.
Elimination of wasteful IT management practices must begin
from an adequate awareness of the current IT assets. The
Committee recognizes past attempts for comprehensive inventory
of IT assets have had limited success. The Committee is also
aware that there are various innovative tools and evolving
technology to aid software and hardware asset management. For
example, DHS-led continuous diagnostics and mitigation (also
known as continuous monitoring) program or cloud-based
solutions may offer alternate ways to discover and manage IT
assets or even transform the way software rights are purchased
and deployed. As such, this section is not intended to require
any particular IT inventory methodology or perpetuate existing
software asset management practices.
Section 302. Website consolidation and transparency
Requires the Director of OMB to eliminate or consolidate
duplicative or overlapping public Federal Government websites.
Requires the Director to issue guidance to ensure that the data
on such websites are open and accessible to the public.
Section 303. Transition to the cloud
Expresses the intent of Congress that transitioning to
cloud computing offers significant potential benefits for
federal IT projects. Requires the CIO Council to provide
guidelines for the establishment of government-wide standards
for security assessments pertaining to cloud offerings. Grants
broader budget flexibility to the CIOs in the 24 Chief
Financial Officer Act (CFO Act) agencies to establish cloud
service Working Capital Funds.
The Committee continued to believe that a standardized
approach to cloud security certification offered by the FedRAMP
can save the government and the industry money, time, and staff
by eliminating redundant individual agency security
assessments. The Committee urges OMB and GSA to make timely
progress while maintaining the integrity of this important
program.
Section 304. Elimination of unnecessary duplication of contracts by
requiring business case analysis
Eliminates unnecessary duplication of IT contracts across
the federal enterprise by requiring that the agencies obtain
the Office of Federal Procurement Policy (OFPP) approval of
business case analysis when creating a new government-wide
contract vehicle.
This provision, as drafted, does not address single agency
contracts such as DHS Enterprise Acquisition Gateway for
Leading Edge Solutions (EAGLE) or Navy's SeaPort-e (also
referred to as ``enterprise-wide'' contracts). The term
``government-wide contract vehicle'' is defined to treat DoD or
DHS as a single ``executive agency'' (as defined in 5 U.S.C.
Sec. 105). The Administrator of the Office of Federal
Procurement Policy (OFPP) is allowed to exercise administrative
discretion to add other contracts as necessary.
TITLE IV--STRENGTHENING AND STREAMLINING INFORMATION TECHNOLOGY
ACQUISITION MANAGEMENT PRACTICES
Subtitle A--Strengthening and streamlining IT program management
practices
Section 401. Establishment of Federal Infrastructure and Common
Application Collaboration Center
Establishes the Federal Infrastructure and Common
Application Collaboration Center (Collaboration Center) to
promote coordinated program management practices for the
acquisition of IT infrastructure and business applications
commonly used by various federal agencies. It is funded without
appropriations utilizing the existing fees already collected
for certain interagency contracts.
Section 402. Designation of assisted acquisition centers of excellence
Requires designation of specialized Assisted Acquisition
Centers of Excellence (AACE) to promote government-wide
leverage of IT procurement special expertise that exists within
government. AACEs are provided with enhanced budget
flexibilities to enable long term IT acquisition planning.
FITARA's intent is to develop and share pockets of IT
procurement special expertise that currently exists within
government. AACEs are provided with enhanced budget
flexibilities unavailable to other contracting options. This
flexibility is akin to the existing case law found in GAO
Principles of Federal Appropriations Law (Red Book), B-302760
(May 17, 2004). The Committee is aware that some agencies, such
as DoD, have existing policies strictly prohibiting any use of
the appropriated funds beyond their original duration even in a
legitimate assisted acquisition context. FITARA is intended to
overcome such restrictions. FITARA establishes a statutory
exception to the constraints of the so-called bona fide needs
rule to provide funding flexibility to an agency utilizing
AACEs.
Subtitle B--Strengthening IT acquisition workforce
Section 411. Expansion of training and use of information technology
acquisition cadres
Requires OMB to prepare and implement a 5-year strategic
plan to enhance IT acquisition workforce capabilities. Requires
annual progress report and GAO verification to ensure effective
implementation.
Section 412. Plan on strengthening program and project management
performance
Requires the Director of OMB, in consultation with the
Director of the Office of Personnel Management (OPM), to
provide a plan for improving management of IT programs and
projects by creating a specialized career path for IT program
managers.
Section 413. Personnel awards for excellence in the acquisition of
information systems and information technology
Requires the Director of the OPM to develop policies to
recognize excellent performance in the acquisition of IT,
including monetary incentives.
TITLE V--ADDITIONAL REFORMS
Section 501. Maximizing the benefit of the Federal Strategic Sourcing
Initiative
Requires the Federal Acquisition Regulation (FAR) to be
amended to ensure proper consideration of the Federal Strategic
Sourcing Initiative (FSSI) by contracting personnel.
Section 502. Promoting transparency of blanket purchase agreements
Requires the Administrator of General Services
Administration to publish a list of all blanket purchase
agreements (BPAs) entered into by federal agencies under its
Federal Supply Schedules contract and the associated prices
with those BPAs.
The Committee considers that the final negotiated price
offered by an awardee is public information and should be
available to other government buyers. This provision does not
promote the creation of duplicative BPAs. In contrary, by
availing the list of existing BPAs, agency buyers will be able
to utilize them rather than creating a new one.
Section 503. Additional source selection technique in solicitations
Provides an additional, non-mandatory source selection
technique called ``fixed price technical competition'' to
enhance best value acquisition practices.
The Committee recognizes and shares the concern that the
use of Lowest Price Technically Acceptable (LPTA) evaluation
techniques in IT acquisition is often contrary to the best
interest of the government and that the use of LPTA is on the
rise in recent years.
Currently under the Federal Acquisition Regulation (FAR),
there are two main types of source selection evaluation
techniques for competitive, negotiated procurements: ``trade-
offs'' and LPTA. While both are designed to obtain best value,
the relative importance of cost/price varies depending on the
technique.
Under ``trade-offs,'' the difference in cost/price is
weighed against the additional benefits in non-price factors
such as quality, experience, or technical specifications. This
allows the government to accept options other than the lowest-
priced proposal. Effectively judging the relative merits of the
competing proposals involves a complicated analysis on the part
of the government acquisition workforce to appropriately and
fairly evaluate and quantify the differences in price and
technical factors.
Under the ``lowest price technically acceptable''
technique, an award will be selected on the basis of the lowest
evaluated price of proposals meeting or exceeding the
acceptability standards for non-price factors. This is a
simpler evaluation process reserved generally for requirements
that are based on well-established technology where varied
qualification levels above industry standards will not result
in significant performance risks.
There is another source selection technique often used by
the government and private sector characterized as ``fixed
price technical competition'' or ``bid to price.'' Under this
technique, the solicitation, based on independent cost
estimates or a request for information (RFI), would set a pre-
determined award price and invite offerors to compete on non-
price factors only (e.g., quality, past performance, and
technical factors). Because the price is pre-set, the
evaluation of proposals is much simpler and strictly based on
technical evaluations. This technique is appropriate when the
buyer has a good understanding of the requirements and the
technologies involved and can therefore rely on the validity of
its independent cost estimate, as further refined by the RFI.
While this type of evaluation technique is not prohibited
by the FAR and has been used successfully by some agencies, the
FAR lacks clear guidance on when a ``fixed price technical
competition'' approach would be appropriate. This source-
selection technique, if used properly, could help both the
government and industry acquisition workforce by lowering bid
and proposal costs and simplifying the evaluation process,
thereby alleviating acquisition workforce challenges.
Additionally, this new ``fixed price technical
competition'' technique would:
Force government buyers to fully develop
requirement documents necessary to determine realistic and
complete total cost estimates.
Promote transparency and competition by
maximizing government-industry exchange of ideas prior to
formal solicitation.
Encourage clear and fair criteria for technical
evaluation by eliminating the danger of inconsistent valuation
of minor quality or technical variations vis-a-vis price.
Often, in a trade-off evalution, inexperienced contracting
officers have a hard time eliminating ``low-ball'' offers by
under-qualified offerors. Emphasis must be given to ensure
selection of the best-qualified offeror that can get the job
done at a fair and reasonable price.
Significantly reduce the gamesmanship involved in
the bid and proposal process. Often, companies will offer
multiple proposals at various price ranges in response to one
solicitation because they do not know whether the government is
looking for an ``economical'' solution or a ``luxury''
solution.
Help reduce program cost overruns by maximizing
firm-fixed price arrangements.
Be one of several optional source-selection
techniques that may be used when appropriate.
Section 504. Enhanced transparency in information technology
investments
Increases the transparency of IT investments by requiring
80 percent of the governmentwide IT spending, and 60 percent of
each of the 24 CFO Act agency IT spending be covered by the IT
Dashboard. Requires OMB to ensure that the information posted
is current, accurate, and reflects the risks associated with
each covered IT investment.
The Committee appreciates the transparency IT Dashboard
brings and urges OMB to fully utilize its potential. The
Committee also notes that OMB in recent years has considerably
slowed down the pace of its TechStat reviews of agency IT
programs. The Committee urges the OMB to continue to hold a
sufficient number of OMB-led TechStat sessions to maintain
sufficient independent oversight in assessing and improving the
performance of agency IT investments.
Section 505. Enhanced communication between Government and industry
Requires strengthening of the government-industry exchange
of information to enhance acquisition planning.
Section 506. Clarification of current law with respect to open source
software
Clarifies that open source software should be viewed on a
level playing field with other forms of software acquisitions.
Explanation of Amendments
No amendments were offered.
Committee Consideration
On March 20, 2013, the Committee met in open session and
ordered reported favorably the bill, H.R. 1232, by voice vote,
a quorum being present.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill increases the accountability and authority of the
agency CIOs over each agency's IT investment practices. As such
this bill does not relate to employment or access to public
services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Duplication of Federal Programs
No provision of H.R. 1232 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
H.R. 1232 requires the Director of the Office of Management
and Budget to develop policies, guidelines, and plans on
various information technology acquisition management-related
matters. The bill also requires the Administrator for Federal
Procurement Policy to make necessary amendments to the Federal
Acquisition Regulation to implement the bill. Further, H.R.
1232 requires the heads of certain agencies to establish
internal guidelines to provide the Chief Information Officers
additional authorities related to budget and personnel.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 1232 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of Rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 1232. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 1232 from the Director of
Congressional Budget Office:
November 12, 2013.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1232, the Federal
Information Technology Acquisition Reform Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1232--Federal Information Technology Acquisition Reform Act
Summary: H.R. 1232 would amend the laws governing the
procurement and management of information technology (IT)
throughout the federal government. Specifically, the
legislation would increase the authority of Chief Information
Officers (CIOs) and the CIO Council, establish a collaboration
center to coordinate the acquisition of IT products, and
require a number of additional reports and analysis by
government agencies.
CBO estimates that implementing H.R. 1232 would cost $145
million over the 2014-2018 period, assuming appropriation of
the necessary amounts. Enacting the bill could affect direct
spending by agencies not funded through annual appropriations;
therefore, pay-as-you-go procedures apply. CBO estimates,
however, that any net increase in spending by those agencies
would not be significant. Enacting the bill would not affect
revenues.
H.R. 1232 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the federal government: The estimated
budgetary impact of H.R. 1232 is shown in the following table.
The costs of this legislation fall within all budget functions
that include funding to purchase information technology.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------
2014 2015 2016 2017 2018 2014-2018
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Federal IT Acquisition Management Improvement Fund:
Estimated Authorization Level................................. 8 18 18 18 18 80
Estimated Outlays............................................. 8 18 18 18 18 80
Administrative Provisions:
Estimated Authorization Level................................. 12 10 10 10 10 52
Estimated Outlays............................................. 10 10 10 10 10 50
Regulations and Reports:
Estimated Authorization Level................................. 5 3 3 3 3 17
Estimated Outlays............................................. 3 3 3 3 3 15
Total Proposed Changes:
Estimated Authorization Level................................. 25 31 31 31 31 149
Estimated Outlays............................................. 21 31 31 31 31 145
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that H.R.
1232 will be enacted early in fiscal year 2014.
Federal IT Acquisition Management Improvement Fund
The bill would establish and authorize funding for the
Federal Infrastructure and Common Application Collaboration
Center. The Center would advise agencies on IT procurement.
Under the bill, 5 percent of the amounts currently set aside
from funds appropriated to procure goods and services through
governmentwide and multiple award contracts would be deposited
in the proposed Federal IT Acquisition Management Improvement
Fund. Amounts in the fund would be spent by the collaboration
center to improve IT purchasing as well as recruitment and
training of IT personnel.
The federal government spends about $50 billion annually
under current law to procure goods and services through
interagency contracts. Such contracts lower prices by
leveraging the government's buying power. The General Services
Administration (GSA) recovers the costs of administering that
contracting program (about $360 million annually), by charging
federal agencies that participate in such contracts a fee of
less than 1 percent. Under H.R. 1232, 5 percent of that annual
fee (about $18 million annually) would be deposited in the
Federal IT Acquisition Management Improvement Fund and spent on
improvements to federal IT infrastructure. Based on information
from GSA regarding the current contracts and the experience of
similar programs, such as the Acquisition Workforce Training
Fund, CBO expects that GSA would continue to spend the same
amount on general administrative expenses under H.R. 1232 as
under current law. Therefore, H.R. 1232 would result in an
increase in overall spending of about $18 million annually.
Administrative provisions
H.R. 1232 would authorize agency CIOs to hire additional
staff, expand the role and responsibilities of the Chief
Information Officers Council, and expand the analysis needed to
justify governmentwide IT procurements. Based on information
from GSA and the Government Accountability Office (GAO), CBO
estimates that implementing those provisions would cost $50
million over the 2014-2018 period.
Regulations and reports
The legislation would require agencies to prepare
additional regulations for purchasing IT equipment. Under the
bill, GAO, the Office of Federal Procurement Policy, and GSA
would be required to prepare reports to the Congress concerning
the inventory of the federal government's information
technology, the use of open-source technology by the
government, and the need for federal data centers. Based on the
cost of similar activities, CBO estimates that implementing
those provisions would cost $15 million over the 2014-2018
period.
Other provisions
The federal government spends about $80 billion annually on
information technology investments. Many provisions of H.R.
1232 would codify and expand upon the government's current
practices concerning IT procurement. OMB memoranda,
Presidential directives, initiatives, and plans have directed
federal agencies to consolidate data centers, make improvements
to websites, increase the use of cloud computing, and generally
improve IT procurement practices. Consequently, CBO expects
that enacting those provisions of H.R. 1232 would not
significantly increase administrative costs to federal
agencies.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 40, UNITED STATES CODE
* * * * * * *
SUBTITLE III--INFORMATION TECHNOLOGY MANAGEMENT
Chapter. Sec.
GENERAL......................................................11101
* * * * * * *
INFORMATION TECHNOLOGY ACQUISITION PILOT PROGRAM............11501]
11501nformation Technology Acquisition Management Practices...........
* * * * * * *
CHAPTER 113--RESPONSIBILITY FOR ACQUISITIONS OF INFORMATION TECHNOLOGY
* * * * * * *
SUBCHAPTER I--DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET
* * * * * * *
Sec. 11302. Capital planning and investment control
(a) * * *
* * * * * * *
(c) Use of Budget Process.--
(1) * * *
(2) Public availability.--
(A) In general.--The Director shall make
available to the public the cost, schedule, and
performance data for at least 80 percent (by
dollar value) of all information technology
investments Governmentwide, and 60 percent (by
dollar value) of all information technology
investments in each Federal agency listed in
section 901(b) of title 31. The Director shall
ensure that the information is current,
accurate, and reflects the risks associated
with each covered information technology
investment.
(B) Waiver or limitation authority.--The
applicability of subparagraph (A) may be waived
or the extent of the information may be
limited--
(i) by the Director, with respect to
IT investments Governmentwide; and
(ii) by the Chief Information Officer
of a Federal agency, with respect to IT
investments in that agency;
if the Director or the Chief Information
Officer, as the case may be, determines that
such a waiver or limitation is in the national
security interests of the United States.
[(2)] (3) Report to congress.--At the same time that
the President submits the budget for a fiscal year to
Congress under section 1105(a) of title 31, the
Director shall submit to Congress a report on the net
program performance benefits achieved as a result of
major capital investments made by executive agencies
for information systems and how the benefits relate to
the accomplishment of the goals of the executive
agencies. The report shall include an analysis of
agency trends reflected in the performance risk
information required in paragraph (2).
(d) Information Technology Standards.--The Director shall
oversee the development and implementation of standards and
guidelines pertaining to federal computer systems by the
Secretary of Commerce through the National Institute of
Standards and Technology under section 11331 of this title and
section 20 of the National Institute of Standards and
Technology Act (15 U.S.C. 278g-3). The standards and guidelines
shall include those necessary to enable effective adoption of
open source software.
* * * * * * *
SUBCHAPTER II--EXECUTIVE AGENCIES
* * * * * * *
Sec. 11315. Agency Chief Information Officer
(a) Presidential Appointment or Designation of Certain Chief
Information Officers.--
(1) In general.--There shall be within each agency
listed in section 901(b)(1) of title 31, other than the
Department of Defense, an agency Chief Information
Officer. Each agency Chief Information Officer shall--
(A)(i) be appointed by the President; or
(ii) be designated by the President, in
consultation with the head of the agency; and
(B) be appointed or designated, as
applicable, from among individuals who possess
demonstrated ability in general management of,
and knowledge of and extensive practical
experience in, information technology
management practices in large governmental or
business entities.
(2) Responsibilities.--An agency Chief Information
Officer appointed or designated under this section
shall report directly to the head of the agency and
carry out responsibilities as set forth in this section
and in section 3506(a) of title 44 for Chief
Information Officers designated under paragraph (2) of
such section.
* * * * * * *
(d) Additional Authorities for Certain CIOs.--
(1) Budget-related authority.--
(A) Planning.--The head of each agency listed
in section 901(b)(1) or 901(b)(2) of title 31,
other than the Department of Defense, shall
ensure that the Chief Information Officer of
the agency has the authority to participate and
provide input in the budget planning process
related to information technology or programs
that include significant information technology
components.
(B) Allocation.--Amounts appropriated for any
agency listed in section 901(b)(1) or 901(b)(2)
of title 31, other than the Department of
Defense, for any fiscal year that are available
for information technology shall be allocated
within the agency, consistent with the
provisions of appropriations Acts and budget
guidelines and recommendations from the
Director of the Office of Management and
Budget, in such manner as may be specified by,
or approved by, the Chief Information Officer
of the agency.
(2) Personnel-related authority.--The head of each
agency listed in section 901(b)(1) or 901(b)(2) of
title 31, other than the Department of Defense, shall
ensure that the Chief Information Officer of the agency
has the authority necessary to approve the hiring of
personnel who will have information technology
responsibilities within the agency and to require that
such personnel have the obligation to report to the
Chief Information Officer in a manner considered
sufficient by the Chief Information Officer.
[(a)] (e) Definition.--In this section, the term
``information technology architecture'', with respect to an
executive agency, means an integrated framework for evolving or
maintaining existing information technology and acquiring new
information technology to achieve the agency's strategic goals
and information resources management goals.
* * * * * * *
[CHAPTER 115--INFORMATION TECHNOLOGY ACQUISITION PILOT PROGRAM
[SUBCHAPTER I--CONDUCT OF PILOT PROGRAM
[Sec.
[11501. Authority to conduct pilot program.
[11502. Evaluation criteria and plans.
[11503. Report.
[11504. Recommended legislation.
[11505. Rule of construction.
[SUBCHAPTER II--SPECIFIC PILOT PROGRAM]
[SUBCHAPTER I--CONDUCT OF PILOT PROGRAM
[Sec. 11501. Authority to conduct pilot program
[(a) In General.--
[(1) Purpose.--In consultation with the Administrator
for the Office of Information and Regulatory Affairs,
the Administrator for Federal Procurement Policy may
conduct a pilot program pursuant to the requirements of
section 11521 of this title to test alternative
approaches for the acquisition of information
technology by executive agencies.
[(2) Multiagency, multi-activity conduct of each
program.--Except as otherwise provided in this chapter,
the pilot program conducted under this chapter shall be
carried out in not more than two procuring activities
in each of the executive agencies that are designated
by the Administrator for Federal Procurement Policy in
accordance with this chapter to carry out the pilot
program. With the approval of the Administrator for
Federal Procurement Policy, the head of each designated
executive agency shall select the procuring activities
of the executive agency that are to participate in the
test and shall designate a procurement testing official
who shall be responsible for the conduct and evaluation
of the pilot program within the executive agency.
[(b) Limitation on Amount.--The total amount obligated for
contracts entered into under the pilot program conducted under
this chapter may not exceed $750,000,000. The Administrator for
Federal Procurement Policy shall monitor those contracts and
ensure that contracts are not entered into in violation of this
subsection.
[(c) Period of Programs.--
[(1) In general.--Subject to paragraph (2), the pilot
program may be carried out under this chapter for the
period, not in excess of five years, the Administrator
for Federal Procurement Policy determines is sufficient
to establish reliable results.
[(2) Continuing validity of contracts.--A contract
entered into under the pilot program before the
expiration of that program remains in effect according
to the terms of the contract after the expiration of
the program.
[Sec. 11502. Evaluation criteria and plans
[(a) Measurable Test Criteria.--To the maximum extent
practicable, the head of each executive agency conducting the
pilot program under section 11501 of this title shall establish
measurable criteria for evaluating the effects of the
procedures or techniques to be tested under the program.
[(b) Test Plan.--Before the pilot program may be conducted
under section 11501 of this title, the Administrator for
Federal Procurement Policy shall submit to Congress a detailed
test plan for the program, including a detailed description of
the procedures to be used and a list of regulations that are to
be waived.
[Sec. 11503. Report
[(a) Requirement.--Not later than 180 days after the
completion of the pilot program under this chapter, the
Administrator for Federal Procurement Policy shall--
[(1) submit to the Director of the Office of
Management and Budget a report on the results and
findings under the program; and
[(2) provide a copy of the report to Congress.
[(b) Content.--The report shall include--
[(1) a detailed description of the results of the
program, as measured by the criteria established for
the program; and
[(2) a discussion of legislation that the
Administrator recommends, or changes in regulations
that the Administrator considers necessary, to improve
overall information resources management in the Federal
Government.
[Sec. 11504. Recommended legislation
[If the Director of the Office of Management and Budget
determines that the results and findings under the pilot
program under this chapter indicate that legislation is
necessary or desirable to improve the process for acquisition
of information technology, the Director shall transmit the
Director's recommendations for that legislation to Congress.
[Sec. 11505. Rule of construction
[This chapter does not authorize the appropriation or
obligation of amounts for the pilot program authorized under
this chapter.
[SUBCHAPTER II--SPECIFIC PILOT PROGRAM]
CHAPTER 115--INFORMATION TECHNOLOGY ACQUISITION MANAGEMENT PRACTICES
Sec.
11501. Federal Infrastructure and Common Application Collaboration
Center.
11502. Assisted Acquisition Centers of Excellence.
Sec. 11501. Federal Infrastructure and Common Application Collaboration
Center
(a) Establishment and Purposes.--The Director of the Office
of Management and Budget shall establish a Federal
Infrastructure and Common Application Collaboration Center
(hereafter in this section referred to as the ``Collaboration
Center'') within the Office of Management and Budget in
accordance with this section. The purposes of the Collaboration
Center are to serve as a focal point for coordinated program
management practices and to develop and maintain requirements
for the acquisition of IT infrastructure and common
applications commonly used by various Federal agencies.
(b) Organization of Center.--
(1) Membership.--The Center shall consist of the
following members:
(A) An appropriate number, as determined by
the CIO Council, but not less than 12, full-
time program managers or cost specialists, all
of whom have appropriate experience in the
private or Government sector in managing or
overseeing acquisitions of IT infrastructure
and common applications.
(B) At least 1 full-time detailee from each
of the Federal agencies listed in section
901(b) of title 31, nominated by the respective
agency chief information officer for a detail
period of not less than 2 years.
(2) Working groups.--The Collaboration Center shall
have working groups that specialize in IT
infrastructure and common applications identified by
the CIO Council. Each working group shall be headed by
a separate dedicated program manager appointed by the
CIO Council.
(c) Capabilities and Functions of the Collaboration Center.--
For each of the IT infrastructure and common application areas
identified by the CIO Council, the Collaboration Center shall
perform the following roles, and any other functions as
directed by the CIO Council:
(1) Develop, maintain, and disseminate requirements
suitable to establish contracts that will meet the
common and general needs of various Federal agencies as
determined by the Center. In doing so, the Center shall
give maximum consideration to the adoption of
commercial standards and industry acquisition best
practices, including opportunities for shared services,
consideration of total cost of ownership, preference
for industry-neutral functional specifications
leveraging open industry standards and competition, use
of open source software, and use of long-term
contracts, as appropriate.
(2) Develop, maintain, and disseminate reliable cost
estimates that are accurate, comprehensive, well-
documented, and credible.
(3) Lead the review of significant or troubled IT
investments or acquisitions as identified by the CIO
Council.
(4) Provide expert aid to troubled IT investments or
acquisitions.
(d) Guidance.--The Director, in consultation with the Chief
Information Officers Council, shall issue guidance addressing
the scope and operation of the Collaboration Center. The
guidance shall require that the Collaboration Center report to
the Federal Chief Information Officer or his delegate.
(e) Report to Congress.--The Director shall annually submit
to the relevant congressional committees a report detailing the
organization, staff, and activities of the Collaboration
Center, including a list of IT infrastructure and common
applications the Center assisted and an assessment of the
Center's achievement in promoting efficiency, shared services,
and elimination of unnecessary Government requirements that are
contrary to commercial best practices.
(f) Improvement of the DOD Enterprise Software Initiative and
GSA Smartbuy Program.--
(1) In general.--The Collaboration Center, in
collaboration with the Office of Federal Procurement
Policy, the Department of Defense, and the General
Services Administration, shall identify and develop a
strategic sourcing initiative to enhance Governmentwide
acquisition, shared use, and dissemination of software,
as well as compliance with end user license agreements.
(2) Examination of methods.--In developing the
strategic sourcing initiative, the Collaboration Center
shall examine the use of realistic and effective demand
aggregation models supported by actual agency
commitment to use the models, and supplier relationship
management practices, to more effectively govern the
Government's acquisition of information technology.
(3) Governmentwide user license agreement.--The
Collaboration Center, in coordination with the
Department of Defense and the General Services
Administration, shall issue guidelines for establishing
a Governmentwide contract vehicle that allows for the
purchase of a license agreement that is available for
use by all executive agencies as one user. To the
maximum extent practicable, in establishing the
Governmentwide contract vehicle, the Collaboration
Center shall pursue direct negotiation and contracting
with major software publishers as prime contractors.
(g) Guidelines for Acquisition of IT Infrastructure and
Common Applications.--
(1) Guidelines.--The Collaboration Center shall
establish guidelines that, to the maximum extent
possible, eliminate inconsistent practices among
executive agencies and ensure uniformity and
consistency in acquisition processes for IT
infrastructure and common applications across the
Federal Government.
(2) Central website.--In preparing the guidelines,
the Collaboration Center, in consultation with the
Chief Acquisition Officers Council, shall offer
executive agencies the option of accessing a central
website for best practices, templates, and other
relevant information.
(h) Pricing Transparency.--The Collaboration Center, in
collaboration with the Office of Federal Procurement Policy,
the Chief Acquisition Officers Council, the General Services
Administration, and the Assisted Acquisition Centers of
Excellence, shall compile a price list and catalogue containing
current pricing information by vendor for each of its IT
infrastructure and common applications categories. The price
catalogue shall contain any price provided by a vendor for the
same or similar good or service to any executive agency. The
catalogue shall be developed in a fashion ensuring that it may
be used for pricing comparisons and pricing analysis using
standard data formats. The price catalogue shall not be made
public, but shall be accessible to executive agencies.
(i) Federal IT Acquisition Management Improvement Fund.--
(1) Establishment and management of fund.--There is a
Federal IT Acquisition Management Improvement Fund (in
this subsection referred to as the ``Fund''). The
Administrator of General Services shall manage the Fund
through the Collaboration Center to support the
activities of the Collaboration Center carried out
pursuant to this section. The Administrator of General
Services shall consult with the Director in managing
the Fund.
(2) Credits to Fund.--Five percent of the fees
collected by executive agencies under the following
contracts shall be credited to the Fund:
(A) Governmentwide task and delivery order
contracts entered into under sections 4103 and
4105 of title 41.
(B) Governmentwide contracts for the
acquisition of information technology and
multiagency acquisition contracts for that
technology authorized by section 11314 of this
title.
(C) Multiple-award schedule contracts entered
into by the Administrator of General Services.
(3) Remittance by head of executive agency.--The head
of an executive agency that administers a contract
described in paragraph (2) shall remit to the General
Services Administration the amount required to be
credited to the Fund with respect to the contract at
the end of each quarter of the fiscal year.
(4) Amounts not to be used for other purposes.--The
Administrator of General Services, through the Office
of Management and Budget, shall ensure that amounts
collected under this subsection are not used for a
purpose other than the activities of the Collaboration
Center carried out pursuant to this section.
(5) Availability of amounts.--Amounts credited to the
Fund remain available to be expended only in the fiscal
year for which they are credited and the 4 succeeding
fiscal years.
(j) Definitions.--In this section:
(1) Executive agency.--The term ``executive agency''
has the meaning provided that term by section 105 of
title 5.
(2) Governmentwide contract vehicle.--The term
``Governmentwide contract vehicle'' means any contract,
blanket purchase agreement, or other contractual
instrument that allows for an indefinite number of
orders to be placed within the contract, agreement, or
instrument, and that is established by one executive
agency for use by multiple executive agencies to obtain
supplies and services.
(3) Relevant congressional committees.--The term
``relevant congressional committees'' means each of the
following:
(A) The Committee on Oversight and Government
Reform and the Committee on Armed Services of
the House of Representatives.
(B) The Committee on Homeland Security and
Governmental Affairs and the Committee on Armed
Services of the Senate.
(k) Revision of FAR.--The Federal Acquisition Regulation
shall be amended to implement this section.
Sec. 11502. Assisted Acquisition Centers of Excellence
(a) Purpose.--The purpose of this section is to develop
specialized assisted acquisition centers of excellence within
the Federal Government to promote--
(1) the effective use of best acquisition practices;
(2) the development of specialized expertise in the
acquisition of information technology; and
(3) Governmentwide sharing of acquisition capability
to augment any shortage in the information technology
acquisition workforce.
(b) Designation of AACEs.--Not later than 1 year after the
date of the enactment of this section, and every 3 years
thereafter, the Director of the Office of Management and
Budget, in consultation with the Chief Acquisition Officers
Council and the Chief Information Officers Council, shall
designate, redesignate, or withdraw the designation of
acquisition centers of excellence within various executive
agencies to carry out the functions set forth in subsection (c)
in an area of specialized acquisition expertise as determined
by the Director. Each such center of excellence shall be known
as an ``Assisted Acquisition Center of Excellence'' or an
``AACE''.
(c) Functions.--The functions of each AACE are as follows:
(1) Best practices.--To promote, develop, and
implement the use of best acquisition practices in the
area of specialized acquisition expertise that the AACE
is designated to carry out by the Director under
subsection (b).
(2) Assisted acquisitions.--To assist all Government
agencies in the expedient and low-cost acquisition of
the information technology goods or services covered by
such area of specialized acquisition expertise by
engaging in repeated and frequent acquisition of
similar information technology requirements.
(3) Development and training of IT acquisition
workforce.--To assist in recruiting and training IT
acquisition cadres (referred to in section 1704(j) of
title 41).
(d) Criteria.--In designating, redesignating, or withdrawing
the designation of an AACE, the Director shall consider, at a
minimum, the following matters:
(1) The subject matter expertise of the host agency
in a specific area of information technology
acquisition.
(2) For acquisitions of IT infrastructure and common
applications covered by the Federal Infrastructure and
Common Application Collaboration Center established
under section 11501 of this title, the ability and
willingness to collaborate with the Collaboration
Center and adhere to the requirements standards
established by the Collaboration Center.
(3) The ability of an AACE to develop customized
requirements documents that meet the needs of executive
agencies as well as the current industry standards and
commercial best practices.
(4) The ability of an AACE to consistently award and
manage various contracts, task or delivery orders, and
other acquisition arrangements in a timely, cost-
effective, and compliant manner.
(5) The ability of an AACE to aggregate demands from
multiple executive agencies for similar information
technology goods or services and fulfill those demands
in one acquisition.
(6) The ability of an AACE to acquire innovative or
emerging commercial and noncommercial technologies
using various contracting methods, including ways to
lower the entry barriers for small businesses with
limited Government contracting experiences.
(7) The ability of an AACE to maximize commercial
item acquisition, effectively manage high-risk contract
types, increase competition, promote small business
participation, and maximize use of available
Governmentwide contract vehicles.
(8) The existence of an in-house cost estimating
group with expertise to consistently develop reliable
cost estimates that are accurate, comprehensive, well-
documented, and credible.
(9) The ability of an AACE to employ best practices
and educate requesting agencies, to the maximum extent
practicable, regarding critical factors underlying
successful major IT acquisitions, including the
following factors:
(A) Active engagement by program officials
with stakeholders.
(B) Possession by program staff of the
necessary knowledge and skills.
(C) Support of the programs by senior
department and agency executives.
(D) Involvement by end users and stakeholders
in the development of requirements.
(E) Participation by end users in testing of
system functionality prior to formal end user
acceptance testing.
(F) Stability and consistency of Government
and contractor staff.
(G) Prioritization of requirements by program
staff.
(H) Maintenance of regular communication with
the prime contractor by program officials.
(I) Receipt of sufficient funding by
programs.
(10) The ability of an AACE to run an effective
acquisition intern program in collaboration with the
Federal Acquisition Institute or the Defense
Acquisition University.
(11) The ability of an AACE to effectively and
properly manage fees received for assisted acquisitions
pursuant to this section.
(e) Funds Received by AACEs.--
(1) Availability.--Notwithstanding any other
provision of law or regulation, funds obligated and
transferred from an executive agency in a fiscal year
to an AACE for the acquisition of goods or services
covered by an area of specialized acquisition expertise
of an AACE, regardless of whether the requirements are
severable or non-severable, shall remain available for
awards of contracts by the AACE for the same general
requirements for the next 5 fiscal years following the
fiscal year in which the funds were transferred.
(2) Additional transfer authority.--If the AACE to
which the funds are transferred under paragraph (1)
becomes unable to fulfill the requirements of the
executive agency from which the funds were transferred,
the funds may be transferred to a different AACE to
fulfill such requirements. The funds so transferred
shall be used for the same purpose and remain available
for the same period of time as applied when transferred
to the original AACE.
(3) Relationship to existing authorities.--This
subsection does not limit any existing authorities an
AACE may have under its revolving or working capital
funds authorities.
(f) Government Accountability Office Review of AACE.--
(1) Review.--The Comptroller General of the United
States shall review and assess the use and management
of fees received by the AACEs pursuant to this section
to ensure that an appropriate fee structure is
established and enforced to cover activities addressed
in this section and that no excess fees are charged or
retained.
(2) Reports.--Not later than 1 year after the
designation or redesignation of AACES under subsection
(b), the Comptroller General shall submit to the
relevant congressional committees a report containing
the findings and assessment under paragraph (1).
(g) Definitions.--In this section:
(1) Assisted acquisition.--The term ``assisted
acquisition'' means a type of interagency acquisition
in which the parties enter into an interagency
agreement pursuant to which--
(A) the servicing agency performs acquisition
activities on the requesting agency's behalf,
such as awarding, administering, or closing out
a contract, task order, delivery order, or
blanket purchase agreement; and
(B) funding is provided through a franchise
fund, the Acquisition Services Fund in section
321 of this title, sections 1535 and 1536 of
title 31, or other available methods.
(2) Executive agency.--The term ``executive agency''
has the meaning provided that term by section 133 of
title 41.
(3) Relevant congressional committees.--The term
``relevant congressional committees'' has the meaning
provided that term by section 11501 of this title.
(h) Revision of FAR.--The Federal Acquisition Regulation
shall be amended to implement this section.
* * * * * * *
----------
TITLE 44, UNITED STATES CODE
* * * * * * *
CHAPTER 35--COORDINATION OF FEDERAL INFORMATION POLICY
* * * * * * *
SUBCHAPTER I--FEDERAL INFORMATION POLICY
* * * * * * *
Sec. 3506. Federal agency responsibilities
(a)(1) * * *
(2)(A) Except as provided under subparagraph (B), the head of
each agency, other than an agency with a Presidentially
appointed or designated Chief Information Officer as provided
in section 11315(a)(1) of title 40, shall designate a Chief
Information Officer who shall report directly to such agency
head to carry out the responsibilities of the agency under this
subchapter.
* * * * * * *
(3)(A) The Chief Information Officer designated under
paragraph (2) shall head an office responsible for ensuring
agency compliance with and prompt, efficient, and effective
implementation of the information policies and information
resources management responsibilities established under this
subchapter, including the reduction of information collection
burdens on the public. The Chief Information Officer and
employees of such office shall be selected with special
attention to the professional qualifications required to
administer the functions described under this subchapter.
(B) Each agency shall have only one individual with
the title and designation of ``Chief Information
Officer''. Any bureau, office, or subordinate
organization within the agency may designate one
individual with the title ``Deputy Chief Information
Officer'', ``Associate Chief Information Officer'', or
``Assistant Chief Information Officer''. The head of
the agency shall seek the advice of the Chief
Information Officer of the agency in designating or
appointing any deputy, associate, or assistant chief
information officer within the agency.
* * * * * * *
CHAPTER 36--MANAGEMENT AND PROMOTION OF ELECTRONIC GOVERNMENT SERVICES
* * * * * * *
Sec. 3603. Chief Information Officers Council
(a) * * *
* * * * * * *
[(d) The Council is designated the principal interagency
forum for improving agency practices related to the design,
acquisition, development, modernization, use, operation,
sharing, and performance of Federal Government information
resources.]
(d) Lead Interagency Forum.--
(1) In general.--The Council is designated the lead
interagency forum for improving agency coordination of
practices related to the design, development,
modernization, use, operation, sharing, performance,
and review of Federal Government information resources
investment. As the lead interagency forum, the Council
shall develop cross-agency portfolio management
practices to allow and encourage the development of
cross-agency shared services and shared platforms. The
Council shall also issue standards and practices for
infrastructure and common information technology
applications, including expansion of the Federal
Enterprise Architecture process if appropriate. The
standards and practices may address broader
transparency, common inputs, common outputs, and
outcomes achieved. The standards and practices shall be
used as a basis for comparing performance across
diverse missions and operations in various agencies.
(2) Report.--Not later than December 1 in each of the
6 years following the date of the enactment of this
paragraph, the Council shall submit to the relevant
congressional committees a report (to be known as the
``CIO Council Report'') summarizing the Council's
activities in the preceding fiscal year and containing
such recommendations for further congressional action
to fulfill its mission as the Council considers
appropriate.
(3) Relevant congressional committees.--For purposes
of the report required by paragraph (2), the relevant
congressional committees are each of the following:
(A) The Committee on Oversight and Government
Reform and the Committee on Armed Services of
the House of Representatives.
(B) The Committee on Homeland Security and
Governmental Affairs and the Committee on Armed
Services of the Senate.
* * * * * * *
(f) The Council shall perform functions that include the
following:
(1) * * *
* * * * * * *
(8) Direct the Federal Infrastructure and Common
Application Collaboration Center established under
section 11501 of title 40.
* * * * * * *
----------
TITLE 41, UNITED STATES CODE
* * * * * * *
SUBTITLE I--FEDERAL PROCUREMENT POLICY
* * * * * * *
Division B--Office of Federal Procurement Policy
* * * * * * *
CHAPTER 17--AGENCY RESPONSIBILITIES AND PROCEDURES
* * * * * * *
Sec. 1704. Planning and policy-making for acquisition workforce
(a) * * *
* * * * * * *
(j) Strategic Plan on Information Technology Acquisition
Cadres.--
(1) Five-year strategic plan to congress.--Not later
than June 1 following the date of the enactment of this
subsection, the Director shall submit to the relevant
congressional committees a 5-year strategic plan (to be
known as the ``IT Acquisition Cadres Strategic Plan'')
to develop, strengthen, and solidify information
technology acquisition cadres. The plan shall include a
timeline for implementation of the plan and
identification of individuals responsible for specific
elements of the plan during the 5-year period covered
by the plan.
(2) Matters covered.--The plan shall address, at a
minimum, the following matters:
(A) Current information technology
acquisition staffing challenges in Federal
agencies, by previous year's information
technology acquisition value, and by the
Federal Government as a whole.
(B) The variety and complexity of information
technology acquisitions conducted by each
Federal agency covered by the plan, and the
specialized information technology acquisition
workforce needed to effectively carry out such
acquisitions.
(C) The development of a sustainable funding
model to support efforts to hire, retain, and
train an information technology acquisition
cadre of appropriate size and skill to
effectively carry out the acquisition programs
of the Federal agencies covered by the plan,
including an examination of interagency funding
methods and a discussion of how the model of
the Defense Acquisition Workforce Development
Fund could be applied to civilian agencies.
(D) Any strategic human capital planning
necessary to hire, retain, and train an
information acquisition cadre of appropriate
size and skill at each Federal agency covered
by the plan.
(E) Governmentwide training standards and
certification requirements necessary to enhance
the mobility and career opportunities of the
Federal information technology acquisition
cadre within the Federal agencies covered by
the plan.
(F) New and innovative approaches to
workforce development and training, including
cross-functional training, rotational
development, and assignments both within and
outside the Government.
(G) Appropriate consideration and alignment
with the needs and priorities of the
Infrastructure and Common Application
Collaboration Center, Assisted Acquisition
Centers of Excellence, and acquisition intern
programs.
(H) Assessment of the current workforce
competency and usage trends in evaluation
technique to obtain best value, including
proper handling of tradeoffs between price and
nonprice factors.
(I) Assessment of the current workforce
competency in designing and aligning
performance goals, life cycle costs, and
contract incentives.
(J) Assessment of the current workforce
competency in avoiding brand-name preference
and using industry-neutral functional
specifications to leverage open industry
standards and competition.
(K) Use of integrated program teams,
including fully dedicated program managers, for
each complex information technology investment.
(L) Proper assignment of recognition or
accountability to the members of an integrated
program team for both individual functional
goals and overall program success or failure.
(M) The development of a technology fellows
program that includes provisions for
recruiting, for rotation of assignments, and
for partnering directly with universities with
well-recognized information technology
programs.
(N) The capability to properly manage other
transaction authority (where such authority is
granted), including ensuring that the use of
the authority is warranted due to unique
technical challenges, rapid adoption of
innovative or emerging commercial or
noncommercial technologies, or other
circumstances that cannot readily be satisfied
using a contract, grant, or cooperative
agreement in accordance with applicable law and
the Federal Acquisition Regulation.
(O) Any other matters the Director considers
appropriate.
(3) Annual report.--Not later than June 1 in each of
the 5 years following the year of submission of the
plan required by paragraph (1), the Director shall
submit to the relevant congressional committees an
annual report outlining the progress made pursuant to
the plan.
(4) Government accountability office review of the
plan and annual report.--
(A) Not later than 1 year after the
submission of the plan required by paragraph
(1), the Comptroller General of the United
States shall review the plan and submit to the
relevant congressional committees a report on
the review.
(B) Not later than 6 months after the
submission of the first, third, and fifth
annual report required under paragraph (3), the
Comptroller General shall independently assess
the findings of the annual report and brief the
relevant congressional committees on the
Comptroller General's findings and
recommendations to ensure the objectives of the
plan are accomplished.
(5) Definitions.--In this subsection:
(A) The term ``Federal agency'' means each
agency listed in section 901(b) of title 31.
(B) The term ``relevant congressional
committees'' means each of the following:
(i) The Committee on Oversight and
Government Reform and the Committee on
Armed Services of the House of
Representatives.
(ii) The Committee on Homeland
Security and Governmental Affairs and
the Committee on Armed Services of the
Senate.
* * * * * * *
CHAPTER 33--PLANNING AND SOLICITATION
* * * * * * *
Sec. 3306. Planning and solicitation requirements
(a) * * *
* * * * * * *
(d) Additional Information in Solicitation.--This section
does not prohibit an executive agency from--
(1) providing additional information in a
solicitation, including numeric weights for all
evaluation factors and subfactors on a case-by-case
basis; [or]
(2) stating in a solicitation that award will be made
to the offeror that meets the solicitation's mandatory
requirements at the lowest cost or price[.]; or
(3) stating in the solicitation that the award will
be made using a fixed price technical competition,
under which all offerors compete solely on nonprice
factors and the fixed award price is pre-announced in
the solicitation.
* * * * * * *