[House Report 113-436]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-436
======================================================================
DHS ACQUISITION ACCOUNTABILITY AND EFFICIENCY ACT
_______
May 6, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. McCaul, from the Committee on Homeland Security, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 4228]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 4228) to require the Department of Homeland
Security to improve discipline, accountability, and
transparency in acquisition program management, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 16
Background and Need for Legislation.............................. 16
Hearings......................................................... 18
Committee Consideration.......................................... 19
Committee Votes.................................................. 22
Committee Oversight Findings..................................... 22
New Budget Authority, Entitlement Authority, and Tax Expenditures 22
Congressional Budget Office Estimate............................. 22
Statement of General Performance Goals and Objectives............ 22
Duplicative Federal Programs..................................... 23
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 23
Federal Mandates Statement....................................... 23
Preemption Clarification......................................... 23
Disclosure of Directed Rule Makings.............................. 23
Advisory Committee Statement..................................... 23
Applicability to Legislative Branch.............................. 23
Section-by-Section Analysis of the Legislation................... 23
Changes in Existing Law Made by the Bill, as Reported............ 36
Additional Views................................................. 55
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``DHS Acquisition Accountability and
Efficiency Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Findings.
Sec. 4. Definitions.
TITLE I--ACQUISITION AUTHORITIES
Sec. 101. Acquisition authorities for Under Secretary for Management.
Sec. 102. Acquisition authorities for Chief Financial Officer.
Sec. 103. Acquisition authorities for Chief Information Officer.
Sec. 104. Chief Procurement Officer.
Sec. 105. Requirements to ensure greater accountability for acquisition
programs.
TITLE II--ACQUISITION PROGRAM MANAGEMENT DISCIPLINE
Sec. 201. Acquisition Review Board.
Sec. 202. Requirements to reduce duplication in acquisition programs.
Sec. 203. Government Accountability Office review of Board and of
requirements to reduce duplication in acquisition programs.
Sec. 204. Excluded Party List System waivers.
Sec. 205. Inspector General oversight of suspension and debarment.
TITLE III--ACQUISITION PROGRAM MANAGEMENT ACCOUNTABILITY AND
TRANSPARENCY
Sec. 301. Congressional notification and other requirements for major
acquisition program breach.
Sec. 302. Multiyear acquisition strategy.
Sec. 303. Acquisition reports.
Sec. 304. Government Accountability Office review of multiyear
acquisition strategy.
Sec. 305. Office of Inspector General report.
SEC. 3. FINDINGS.
Congress finds the following:
(1) The Department of Homeland Security does not consistently
implement its policies and Government and private sector best
practices for acquisitions and procurement.
(2) It is difficult to determine the cost of the Department's
major acquisition programs because the Department has not
provided consistent, comparable updates on an annual basis. As
of January 2014, the Department identified over 80 major
acquisition programs costing over $300,000,000, and, based on
2011, estimates it plans to spend about $170,000,000,000 in the
future on major acquisition programs.
(3) Since 2005, the Government Accountability Office has
placed Department acquisition management activities on its
``High-Risk List'', which identifies Government operations that
have greater susceptibility to fraud, waste, abuse, and
mismanagement or greater need for transformation to address
economy, efficiency, or effectiveness challenges.
(4) While the Department has taken actions to address some
high-risk acquisition program management issues, many programs
continue to experience challenges with funding instability,
workforce shortfalls, reliable cost estimates, realistic
schedules, agreed-upon baseline objectives, and consistent and
reliable data needed to accurately measure program performance.
(5) Of the 77 Department major acquisition programs in 2011,
the Government Accountability Office identified 42 programs
that experienced cost growth, schedule slips, or both. The
Department reported that the magnitude of the cost growth for
16 of the 42 programs, which increased from almost
$20,000,000,000 to over $50,000,000,000 in 2011, had an
aggregate increase of 166 percent.
(6) In 2012, the Government Accountability Office found that
only 20 of 63 programs had Department-approved acquisition
program baselines. The Government Accountability Office also
reported that the Department planned to spend more than $105
billion on programs lacking acquisition program baselines.
SEC. 4. DEFINITIONS.
(a) In General.--In this Act:
(1) Secretary.--The term ``Secretary'' means the Secretary of
Homeland Security.
(2) Department.--The term ``Department'' means the Department
of Homeland Security.
(3) Congressional homeland security committees.--The term
``congressional homeland security committees'' means--
(A) the Committee on Homeland Security of the House
of Representatives and the Committee on Homeland
Security and Governmental Affairs of the Senate; and
(B) the Committee on Appropriations of the House of
Representatives and of the Senate.
(b) Additional Definitions.--In this Act:
(1) Acquisition.--The term ``acquisition'' has the meaning
provided in section 131 of title 41, United States Code.
(2) Best practices.--The term ``best practices'', with
respect to acquisition, means a knowledge-based approach to
capability development that includes identifying and validating
needs; assessing alternatives to select the most appropriate
solution; clearly establishing well-defined requirements;
developing realistic cost assessments and schedules; securing
stable funding that matches resources to requirements;
demonstrating technology, design, and manufacturing maturity;
using milestones and exit criteria or specific accomplishments
that demonstrate progress; adopting and executing standardized
processes with known success across programs; establishing an
adequate workforce that is qualified and sufficient to perform
necessary functions; and integrating these capabilities into
the Department's mission and business operations.
(c) Amendments to Definitions in Homeland Security Act of 2002.--
Section 2 of the Homeland Security Act of 2002 is amended--
(1) by striking ``In this Act,'' and inserting ``(a) In
General.--In this Act,'';
(2) in paragraph (2)--
(A) by inserting ``(A)'' after ``(2)''; and
(B) by adding at the end the following new
subparagraph:
``(B) The term `congressional homeland security committees'
means--
``(i) the Committee on Homeland Security of the House
of Representatives and the Committee on Homeland
Security and Governmental Affairs of the Senate; and
``(ii) the Committee on Appropriations of the House
of Representatives and of the Senate, where
appropriate.''; and
(3) by adding at the end the following new subsection:
``(b) Acquisition-Related Definitions.--In this Act, the following
definitions apply:
``(1) Acquisition.--The term `acquisition' has the meaning
provided in section 131 of title 41, United States Code.
``(2) Acquisition decision authority.--The term `acquisition
decision authority' means the authority, held by the Secretary
acting through the Deputy Secretary or Under Secretary for
Management--
``(A) to ensure compliance with Federal law, the
Federal Acquisition Regulation, and Department
acquisition management directives;
``(B) to review (including approving, halting,
modifying, or cancelling) an acquisition program
through the life cycle of the program;
``(C) to ensure that program managers have the
resources necessary to successfully execute an approved
acquisition program; and
``(D) to ensure good program management of cost,
schedule, risk, and system performance of the
acquisition, including assessing acquisition program
baseline breaches and directing any corrective action
for such breaches.
``(3) Acquisition decision event.--The term `acquisition
decision event', with respect to an investment or acquisition
program, means a predetermined point within the acquisition
phases of the investment or acquisition program at which the
investment or acquisition program will undergo a review prior
to commencement of the next phase.
``(4) Acquisition decision memorandum.--The term `acquisition
decision memorandum', with respect to an acquisition, means the
official acquisition decision event record that includes a
documented record of decisions, exit criteria, and assigned
actions for the acquisition as determined by the person
exercising acquisition decision authority for the acquisition.
``(5) Acquisition program baseline.--The term `acquisition
program baseline', with respect to an acquisition program,
means a summary of the cost, schedule, and performance
parameters, expressed in standard, measurable, quantitative
terms, which must be met in order to accomplish the goals of
the program.
``(6) Capability development plan.--The term `capability
development plan', with respect to a proposed acquisition,
means the document that the Acquisition Review Board approves
for the first acquisition decision event related to validating
the need of a proposed acquisition.
``(7) Component acquisition executive.--The term `Component
Acquisition Executive' means the senior acquisition official
within a Component who is designated in writing by the Under
Secretary for Management, in consultation with the Component
head, with authority and responsibility for leading a process
and staff to provide acquisition and program management
oversight, policy, and guidance to ensure that statutory,
regulatory, and higher level policy requirements are fulfilled,
including compliance with Federal law, the Federal Acquisition
Regulation, and Department acquisition management directives
established by the Under Secretary for Management.
``(8) Life cycle cost.--The term `life cycle cost', with
respect to an acquisition program, means all costs associated
with research, development, procurement, operation, integrated
logistics support, and disposal under the program, including
supporting infrastructure that plans, manages, and executes the
program over its full life, and costs of common support items
incurred as a result of the program.
``(9) Major acquisition program.--The term `major acquisition
program' means a Department acquisition program that is
estimated by the Secretary to require an eventual total
expenditure of at least $300,000,000 (based on fiscal year 2014
constant dollars) over its life cycle cost.''.
TITLE I--ACQUISITION AUTHORITIES
SEC. 101. ACQUISITION AUTHORITIES FOR UNDER SECRETARY FOR MANAGEMENT.
Section 701 of the Homeland Security Act of 2002 (6 U.S.C. 341) is
amended--
(1) in subsection (a)(2), by striking ``Procurement'' and
inserting ``Acquisition and procurement''; and
(2) by adding at the end the following:
``(d) Acquisition and Related Responsibilities.--
``(1) In general.--Notwithstanding section 1702(b) of title
41, United States Code, the Under Secretary for Management is
the Chief Acquisition Officer of the Department. As Chief
Acquisition Officer, the Under Secretary shall have the
authority and perform the functions as specified in section
1702(b) of such title, and perform all other functions and
responsibilities delegated by the Secretary or described in
this subsection.
``(2) Duties and responsibilities.--In addition to the
authority and functions specified in section 1702(b) of title
41, United States Code, the duties and responsibilities of the
Under Secretary for Management related to acquisition include
the following:
``(A) Advising the Secretary regarding acquisition
management activities, taking into account risks of
failure to achieve cost, schedule, or performance
parameters, to ensure that the Department achieves its
mission through the adoption of widely accepted program
management best practices and standards.
``(B) Exercising the acquisition decision authority
to approve, halt, modify (including the rescission of
approvals of program milestones), or cancel major
acquisition programs, unless the Under Secretary
delegates the authority to a Component Acquisition
Executive pursuant to paragraph (3).
``(C) Establishing policies for acquisition that
implement an approach that takes into account risks of
failure to achieve cost, schedule, or performance
parameters that all Components of the Department shall
comply with, including outlining relevant authorities
for program managers to effectively manage acquisition
programs.
``(D) Ensuring that each major acquisition program
has a Department-approved acquisition program baseline.
``(E) Ensuring that the heads of Components and
Component Acquisition Executives comply with Federal
law, the Federal Acquisition Regulation, and Department
acquisition management directives.
``(F) Ensuring that grants and financial assistance
are provided only to individuals and organizations that
are not suspended or debarred.
``(G) Distributing guidance throughout the Department
to ensure that contractors involved in acquisitions,
particularly companies that access the Department's
information systems and technologies, adhere to
internal cybersecurity policies established by the
Department of Homeland Security.
``(3) Delegation of acquisition decision authority.--
``(A) Level 3 acquisitions.--The Under Secretary for
Management may delegate acquisition decision authority
in writing to the relevant Component Acquisition
Executive for an acquisition program that has a life
cycle cost estimate of less than $300,000,000.
``(B) Level 2 acquisitions.--The Under Secretary for
Management may delegate acquisition decision authority
in writing to the relevant Component Acquisition
Executive for a major acquisition program that has a
life cycle cost estimate of at least $300,000,000 but
not more than $1,000,000,000 if all of the following
requirements are met:
``(i) The Component concerned possesses
working policies, processes, and procedures
that are consistent with Department-level
acquisition policy.
``(ii) The Component Acquisition Executive
has adequate, experienced, dedicated program
management professional staff commensurate with
the size of the delegated portfolio.
``(iii) Each major acquisition program
concerned has written documentation showing
that it has a Department-approved acquisition
program baseline and it is meeting agreed-upon
cost, schedule, and performance thresholds.
``(4) Excluded parties list system consultation.--The Under
Secretary for Management shall require that all Department
contracting and procurement officials consult the Excluded
Parties List System (or successor system) as maintained by the
General Services Administration prior to awarding a contract or
grant or entering into other transactions to ascertain whether
the selected contractor is excluded from receiving Federal
contracts, certain subcontracts, and certain types of Federal
financial and non-financial assistance and benefits.
``(5) Relationship to under secretary for science and
technology.--Nothing in this subsection shall diminish the
authority granted to the Under Secretary for Science and
Technology under this Act. The Under Secretary for Management
and the Under Secretary for Science and Technology shall
cooperate in matters related to the coordination of
acquisitions across the Department so that investments of the
Directorate of Science and Technology can support current and
future requirements of the Components.''.
SEC. 102. ACQUISITION AUTHORITIES FOR CHIEF FINANCIAL OFFICER.
Section 702 of the Homeland Security Act of 2002 (6 U.S.C. 342) is
amended by adding at the end of subsection (b)(2) the following new
subparagraph:
``(J) Notwithstanding section 902 of title 31, United
States Code, provide leadership over financial
management policy and programs for the Department as
they relate to the Department's acquisitions programs,
in consultation with the Under Secretary for
Management.''.
SEC. 103. ACQUISITION AUTHORITIES FOR CHIEF INFORMATION OFFICER.
Section 703 of the Homeland Security Act of 2002 (6 U.S.C. 343) is
amended by adding at the end the following new subsection:
``(c) Acquisition Responsibilities.--Notwithstanding section 11315 of
title 40, United States Code, the acquisition responsibilities of the
Chief Information Officer, in consultation with the Under Secretary for
Management, shall include the following:
``(1) Serve as the lead technical authority for information
technology programs and establish departmental information
technology priorities, policies, processes, standards,
guidelines, and procedures.
``(2) Oversee the management of the Homeland Security
Enterprise Architecture and ensure that, before each
acquisition decision event, approved information technology
acquisitions comply with departmental information technology
management processes, technical requirements, and the Homeland
Security Enterprise Architecture, and in any case in which
information technology acquisitions do not comply with
Departmental management directives, make recommendations to the
Acquisition Review Board regarding such noncompliance.
``(3) Be responsible for providing recommendations to the
Acquisition Review Board established in section 836 of this Act
on information technology programs, and be responsible for
developing information technology acquisition strategic
guidance.''.
SEC. 104. CHIEF PROCUREMENT OFFICER.
(a) In General.--Title VII of the Homeland Security Act of 2002 (6
U.S.C. 341 et seq.) is amended by adding at the end the following new
section:
``SEC. 708. CHIEF PROCUREMENT OFFICER.
``(a) In General.--There is a Chief Procurement Officer of the
Department, who shall report directly to the Under Secretary for
Management. The Chief Procurement Officer is the senior procurement
executive for purposes of section 1702(c) of title 41, United States
Code, and shall perform procurement functions as specified in such
section. The Chief Procurement Officer also shall perform other
functions and responsibilities set forth in this section and as may be
assigned by the Under Secretary for Management.
``(b) Responsibilities.--The Chief Procurement Officer shall--
``(1) exercise leadership and authority to the extent
delegated by the Under Secretary for Management over the
Department procurement function;
``(2) issue acquisition regulations and policies;
``(3) account for the integrity, performance, and oversight
of Department procurement and contracting functions and be
responsible for ensuring that a procurement's contracting
strategy and plans are consistent with the intent and direction
of the Acquisition Review Board established in section 836 of
this Act;
``(4) serve as the Department's business advisor and main
liaison to industry on procurement-related issues by providing
advice on industry engagement, acquisition policy, oversight of
the procurement function, and development of the acquisition
workforce;
``(5) oversee a centralized certification and training
program, in consultation with the Under Secretary for
Management, for the entire Department acquisition workforce
while using, to the greatest extent practicable, best practices
and acquisitions training opportunities already in existence
within the Federal Government, the private sector, or
universities and colleges, as appropriate, and including
training on how best to identify actions that warrant referrals
for suspension or debarment;
``(6) delegate or retain contracting authority, as
appropriate, except as provided in section 701(d)(3) of this
Act;
``(7) participate in the selection, and periodic performance
review, of the head of each contracting activity within the
Department;
``(8) collect baseline data and establish performance
measures on the impact of strategic sourcing initiatives on the
private sector, including, in particular, small businesses; and
``(9) ensure that a fair proportion (as defined pursuant to
the Small Business Act (15 U.S.C. 631 et seq.)) of Federal
contract and subcontract dollars are awarded to small
businesses, maximize opportunities for small business
participation, and ensure, to the extent practicable, small
businesses that achieve qualified vendor status for security-
related technologies are provided an opportunity to compete for
contracts for such technology.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of the
Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by
adding after the item relating to section 707 the following new item:
``Sec. 708. Chief Procurement Officer.''.
SEC. 105. REQUIREMENTS TO ENSURE GREATER ACCOUNTABILITY FOR ACQUISITION
PROGRAMS.
(a) In General.--Title VII of the Homeland Security Act of 2002 (6
U.S.C. 341 et seq.) is further amended by adding at the end the
following new section:
``SEC. 709. REQUIREMENTS TO ENSURE GREATER ACCOUNTABILITY FOR
ACQUISITION PROGRAMS.
``(a) Requirement To Establish Mechanism.--Within the Management
Directorate, the Under Secretary for Management shall establish a
mechanism to prioritize improving the accountability, standardization,
and transparency of major acquisition programs of the Department in
order to increase opportunities for effectiveness and efficiencies and
to serve as the central oversight function of all Department
acquisition programs.
``(b) Responsibilities of Executive Director.--The Under Secretary
for Management shall designate an Executive Director to oversee the
requirement under subsection (a). The Executive Director shall report
directly to the Under Secretary and shall carry out the following
responsibilities:
``(1) Monitor the performance of Department acquisition
programs regularly between acquisition decision events to
identify problems with cost, performance, or schedule that
Components may need to address to prevent cost overruns,
performance issues, or schedule delays.
``(2) Assist the Chief Acquisition Officer in managing the
Department's acquisition portfolio.
``(3) Conduct oversight of individual acquisition programs to
implement Department acquisition program policy, procedures,
and guidance with a priority on ensuring the data it collects
and maintains from its Components is accurate and reliable.
``(4) Serve as the focal point within the Department for
policy, process, and procedure regarding life cycle cost
estimating and analysis.
``(5) Serve as the focal point and coordinator for the
acquisition life cycle review process and as the executive
secretariat for the Acquisition Review Board established under
section 836 of this Act.
``(6) Advise the persons having acquisition decision
authority in making acquisition decisions consistent with all
applicable laws and in establishing clear lines of authority,
accountability, and responsibility for acquisition
decisionmaking within the Department.
``(7) Engage in the strategic planning and performance
evaluation process required under section 306 of title 5,
United States Code, and sections 1105(a)(28), 1115, 1116, and
9703 of title 31, United States Code, by supporting the Chief
Procurement Officer in developing strategies and specific plans
for hiring, training, and professional development in order to
rectify any deficiency within the Department's acquisition
workforce.
``(8) Oversee the Component Acquisition Executive structure
to ensure it has sufficient capabilities and complies with
Department policies.
``(9) Develop standardized certification standards in
consultation with the Component Acquisition Executives for all
acquisition program managers.
``(10) In the event that a program manager's certification or
actions need review for purposes of promotion or removal,
provide input, in consultation with the relevant Component
Acquisition Executive, into the relevant program manager's
performance evaluation, and report positive or negative
experiences to the relevant certifying authority.
``(11) Provide technical support and assistance to Department
acquisitions and acquisition personnel in conjunction with the
Chief Procurement Officer.
``(12) Prepare the Department's Comprehensive Acquisition
Status Report, as required by the Department of Homeland
Security Appropriations Act, 2013 (division D of Public Law
113-6; 127 Stat. 343) and section 840 of this Act, and make
such report available to congressional homeland security
committees.
``(13) Prepare the Department's Quarterly Program
Accountability Report as required by section 840 of this Act,
and make such report available to the congressional homeland
security committees.
``(c) Responsibilities of Components.--Each head of a Component shall
comply with Federal law, the Federal Acquisition Regulation, and
Department acquisition management directives established by the Under
Secretary for Management. For each major acquisition program, each head
of a Component shall--
``(1) establish a complete life cycle cost estimate with
supporting documentation, including an acquisition program
baseline;
``(2) verify each life cycle cost estimate against
independent cost estimates, and reconcile any differences;
``(3) complete a cost-benefit analysis with supporting
documentation;
``(4) develop and maintain a schedule that is consistent with
scheduling best practices as identified by the Comptroller
General of the United States, including, in appropriate cases,
an integrated master schedule; and
``(5) ensure that all acquisition program information
provided by the Component is complete, accurate, timely, and
valid.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of the
Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is further amended
by adding after the item relating to section 708 the following new
item:
``Sec. 709. Requirements to ensure greater accountability for
acquisition programs.''.
TITLE II--ACQUISITION PROGRAM MANAGEMENT DISCIPLINE
SEC. 201. ACQUISITION REVIEW BOARD.
(a) In General.--Subtitle D of title VIII of the Homeland Security
Act of 2002 (6 U.S.C. 391 et seq.) is amended by adding at the end the
following new section:
``SEC. 836. ACQUISITION REVIEW BOARD.
``(a) In General.--The Secretary shall establish an Acquisition
Review Board (in this section referred to as the `Board') to strengthen
accountability and uniformity within the Department acquisition review
process, review major acquisition programs, and review the use of best
practices.
``(b) Composition.--The Deputy Secretary or Under Secretary for
Management shall serve as chair of the Board. The Secretary shall also
ensure participation by other relevant Department officials, including
at least two Component heads or their designees, as permanent members
of the Board.
``(c) Meetings.--The Board shall meet every time a major acquisition
program needs authorization to proceed from acquisition decision events
through the acquisition life cycle and to consider any major
acquisition program in breach as necessary. The Board may also be
convened for non-major acquisitions that are deemed high-risk by the
Executive Director referred to in section 709(b) of this Act. The Board
shall also meet regularly for purposes of ensuring all acquisitions
processes proceed in a timely fashion to achieve mission readiness.
``(d) Responsibilities.--The responsibilities of the Board are as
follows:
``(1) Determine whether a proposed acquisition has met the
requirements of key phases of the acquisition life cycle
framework and is able to proceed to the next phase and eventual
full production and deployment.
``(2) Oversee executable business strategy, resources,
management, accountability, and alignment to strategic
initiatives.
``(3) Support the person with acquisition decision authority
for an acquisition in determining the appropriate direction for
the acquisition at key acquisition decision events.
``(4) Conduct systematic reviews of acquisitions to ensure
that they are progressing in compliance with the approved
documents for their current acquisition phase.
``(5) Validate the acquisition documents of each major
acquisition program, including the acquisition program
baseline, to ensure the reliability of underlying data.
``(6) Ensure that practices are adopted and implemented to
require consideration of trade-offs among cost, schedule, and
performance objectives as part of the process for developing
requirements for major acquisition programs prior to the
initiation of the capability development plan, second
acquisition decision event, including, at a minimum, the
following practices:
``(A) Department officials responsible for
acquisition, budget, and cost estimating functions are
provided with the appropriate opportunity to develop
estimates and raise cost and schedule matters before
performance objectives are established for capabilities
when feasible.
``(B) Full consideration of possible trade-offs among
cost, schedule, and performance objectives for each
alternative is considered.
``(e) Acquisition Program Baseline Report Requirement.--If the person
exercising acquisition decision authority over a major acquisition
program approves the program to proceed beyond the acquisition decision
event requiring a capability development plan before it has a
Department-approved acquisition program baseline, then the Under
Secretary for Management shall create and approve an acquisition
program baseline report on the decision, and the Secretary shall--
``(1) within seven days after an acquisition decision
memorandum is signed, notify in writing the congressional
homeland security committees of such decision; and
``(2) within 60 days after the acquisition decision
memorandum is signed, submit a report to such committees
stating the rationale for the decision and a plan of action to
require an acquisition program baseline for the program.
``(f) Best Practices Defined.--In this section, the term `best
practices' has the meaning provided in section 4(b) of the DHS
Acquisition Accountability and Efficiency Act.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of the
Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is further amended
by adding after the item relating to section 835 the following new
item:
``Sec. 836. Acquisition Review Board.''.
SEC. 202. REQUIREMENTS TO REDUCE DUPLICATION IN ACQUISITION PROGRAMS.
(a) In General.--Subtitle D of title VIII of the Homeland Security
Act of 2002 (6 U.S.C. 391 et seq.) is further amended by adding at the
end the following new section:
``SEC. 837. REQUIREMENTS TO REDUCE DUPLICATION IN ACQUISITION PROGRAMS.
``(a) Requirement To Establish Policies.--In an effort to reduce
duplication and inefficiency for all Department investments, including
major acquisition programs, the Deputy Secretary, in consultation with
the Under Secretary for Management, shall establish Department-wide
policies to integrate all phases of the investment life cycle and help
the Department identify, validate, and prioritize standards for common
Component requirements for major acquisition program requirements in
order to increase opportunities for effectiveness and efficiencies. The
policies shall also include strategic alternatives for developing and
facilitating a Department Component-driven requirements process that
includes oversight of a development test and evaluation capability;
identification of priority gaps and overlaps in Department capability
needs; and provision of feasible technical alternatives, including
innovative commercially available alternatives, to meet capability
needs.
``(b) Mechanisms To Carry Out Requirement.--The Deputy Secretary, in
consultation with the Under Secretary for Management, shall coordinate
the actions necessary to carry out subsection (a), using such
mechanisms as considered necessary by the Secretary to help the
Department reduce duplication and inefficiency for all Department
investments, including major acquisition programs.
``(c) Coordination.--In coordinating the actions necessary to carry
out subsection (a), the Deputy Secretary shall consult with the Under
Secretary for Management, Component Acquisition Executives, and any
other Department officials, including the Under Secretary for Science
and Technology or his designee, with specific knowledge of Department
or Component acquisition capabilities to prevent unnecessary
duplication of requirements.
``(d) Advisors.--The Deputy Secretary, in consultation with the Under
Secretary for Management, shall seek and consider input within legal
and ethical boundaries from members of Federal, State, local, and
tribal governments, nonprofit organizations, and the private sector, as
appropriate, on matters within their authority and expertise in
carrying out the Department's mission.
``(e) Meetings.--The Deputy Secretary, in consultation with the Under
Secretary for Management, shall meet at least quarterly and communicate
with Components often to ensure that Components do not overlap or
duplicate spending or priorities on major investments and acquisition
programs within their areas of responsibility.
``(f) Responsibilities.--In carrying out this section, the
responsibilities of the Deputy Secretary are as follows:
``(1) To review and validate the requirements documents of
major investments and acquisition programs prior to acquisition
decision events of the investments or programs.
``(2) To ensure the requirements and scope of a major
investment or acquisition program are stable, measurable,
achievable, at an acceptable risk level, and match the
resources planned to be available.
``(3) Before any entity of the Department issues a
solicitation for a new contract, coordinate with other
Department entities as appropriate to prevent duplication and
inefficiency and--
``(A) to implement portfolio reviews to identify
common mission requirements and crosscutting
opportunities among Components to harmonize investments
and requirements and prevent overlap and duplication
among Components; and
``(B) to the extent practicable, to standardize
equipment purchases, streamline the acquisition
process, improve efficiencies, and conduct best
practices for strategic sourcing.
``(4) To ensure program managers of major investments and
acquisition programs conduct analyses, giving particular
attention to factors such as cost, schedule, risk, performance,
and operational efficiency in order to determine that programs
work as intended within cost and budget expectations.
``(5) To propose schedules for delivery of the operational
capability needed to meet each Department investment and major
acquisition program.
``(g) Best Practices Defined.--In this section, the term `best
practices' has the meaning provided in section 4(b) of the DHS
Acquisition Accountability and Efficiency Act.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of the
Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is further amended
by adding after the item relating to section 836 the following new
item:
``Sec. 837. Requirements to reduce duplication in acquisition
programs.''.
SEC. 203. GOVERNMENT ACCOUNTABILITY OFFICE REVIEW OF BOARD AND OF
REQUIREMENTS TO REDUCE DUPLICATION IN ACQUISITION
PROGRAMS.
(a) Review Required.--The Comptroller General of the United States
shall conduct a review of the effectiveness of the Acquisition Review
Board established under section 836 of the Homeland Security Act of
2002 (as added by section 201) and the requirements to reduce
duplication in acquisition programs established under section 837 of
such Act (as added by section 202) in improving the Department's
acquisition management process.
(b) Scope of Report.--The review shall include the following:
(1) An assessment of the effectiveness of the Department in
increasing program management oversight, best practices and
standards, and discipline among the Components of the
Department, including in working together and in preventing
overlap and duplication.
(2) An assessment of the effectiveness of the Department in
instilling program management discipline.
(3) A statement of how regularly each major acquisition
program is reviewed by the Board, how often the Board stops
major acquisition programs from moving forward in the phases of
the acquisition life cycle process, and the number of major
acquisition programs that have been halted because of problems
with operational effectiveness, schedule delays, or cost
overruns.
(c) Report Required.--The Comptroller General shall submit to the
congressional homeland security committees a report on the review
required by this section not later than one year after the date of the
enactment of this Act. The report shall be submitted in unclassified
form but may include a classified annex.
SEC. 204. EXCLUDED PARTY LIST SYSTEM WAIVERS.
The Secretary of Homeland Security shall provide notification to the
congressional homeland security committees within five days after the
issuance of a waiver by the Secretary of Federal requirements that an
agency not engage in business with a contractor in the Excluded Party
List System (or successor system) as maintained by the General Services
Administration and an explanation for a finding by the Secretary that a
compelling reason exists for this action.
SEC. 205. INSPECTOR GENERAL OVERSIGHT OF SUSPENSION AND DEBARMENT.
The Inspector General of the Department of Homeland Security--
(1) may audit decisions about grant and procurement awards to
identify instances where a contract or grant was improperly
awarded to a suspended or debarred entity and whether
corrective actions were taken to prevent recurrence; and
(2) shall review the suspension and debarment program
throughout the Department of Homeland Security to assess
whether suspension and debarment criteria are consistently
applied throughout the Department and whether disparities exist
in the application of such criteria, particularly with respect
to business size and categories.
TITLE III--ACQUISITION PROGRAM MANAGEMENT ACCOUNTABILITY AND
TRANSPARENCY
SEC. 301. CONGRESSIONAL NOTIFICATION AND OTHER REQUIREMENTS FOR MAJOR
ACQUISITION PROGRAM BREACH.
(a) In General.--Subtitle D of title VIII of the Homeland Security
Act of 2002 (6 U.S.C. 391 et seq.) is further amended by adding at the
end the following new section:
``SEC. 838. CONGRESSIONAL NOTIFICATION AND OTHER REQUIREMENTS FOR MAJOR
ACQUISITION PROGRAM BREACH.
``(a) Breach Defined.--The term `breach', with respect to a major
acquisition program, means a failure to meet any cost, schedule, or
performance parameter specified in the acquisition program baseline.
``(b) Requirements Within Department if Breach Occurs.--
``(1) Notifications.--
``(A) Notification of potential breach.--If a major
acquisition program has a potential for a future
breach, as determined by the program manager for that
program, the program manager shall notify the person
exercising acquisition decision authority for the
program.
``(B) Notification of actual breach.--If an actual
breach occurs in a major acquisition program, the
program manager for that program shall notify the head
of the Component concerned, the Component Acquisition
Executive for the program, the Executive Director
referred to in section 709(b) of this Act, the Under
Secretary for Management, and the Deputy Secretary.
``(C) Notification to secretary.--If a major
acquisition program has an actual breach with a cost
overrun greater than 20 percent or a schedule delay
greater than 12 months from the costs or schedule set
forth in the acquisition program baseline for the
program, the Secretary and the Inspector General of the
Department shall be notified not later than five
business days after the actual breach is identified.
``(2) Remediation plan and root cause analysis.--
``(A) In general.--In the case of an actual breach
with a cost overrun greater than 15 percent or a
schedule delay greater than 180 days from the costs or
schedule set forth in the acquisition program baseline,
a remediation plan and root cause analysis is required,
and the Under Secretary for Management or his designee
shall establish a date for submission within the
Department of a breach remediation plan and root cause
analysis in accordance with this subsection.
``(B) Remediation plan.--The remediation plan
required under this subsection shall be submitted in
writing to the head of the Component concerned, the
Executive Director referred to in section 709(b) of
this Act, and the Under Secretary for Management. The
plan shall--
``(i) explain the circumstances of the
breach;
``(ii) provide prior cost estimating
information;
``(iii) propose corrective action to control
cost growth, schedule delays, or performance
issues;
``(iv) in coordination with Component
Acquisition Executive, discuss all options
considered, including the estimated impact on
cost, schedule, or performance of the program
if no changes are made to current requirements,
the estimated cost of the program if
requirements are modified, and the extent to
which funding from other programs will need to
be reduced to cover the cost growth of the
program; and
``(v) explain the rationale for why the
proposed corrective action is recommended.
``(C) Root cause analysis.--The root cause analysis
required under this subsection shall determine the
underlying cause or causes of shortcomings in cost,
schedule, or performance of the program, including the
role, if any, of the following:
``(i) Unrealistic performance expectations.
``(ii) Unrealistic baseline estimates for
cost or schedule or changes in program
requirements.
``(iii) Immature technologies or excessive
manufacturing or integration risk.
``(iv) Unanticipated design, engineering,
manufacturing, or technology integration issues
arising during program performance.
``(v) Changes in procurement quantities.
``(vi) Inadequate program funding or changes
in planned out-year funding from one five-year
funding plan to the next five-year funding plan
as outlined in the Future Years Homeland
Security Program required under section 874 of
this Act.
``(vii) Legislative, legal, or regulatory
changes.
``(viii) Inadequate program management
personnel, including lack of training,
credentials, certifications, or use of best
practices.
``(3) Correction of breach.--The Under Secretary for
Management or his designee shall establish a date for
submission within the Department of a program of corrective
action that ensures that one of the following actions has
occurred:
``(A) The breach has been corrected and the program
is again in compliance with the original acquisition
program baseline parameters.
``(B) A revised acquisition program baseline has been
approved.
``(C) The program has been halted or cancelled.
``(c) Requirements Relating to Congressional Notification if Breach
Occurs.--
``(1) Notification to congress.--If a notification is made
under subsection (b)(1)(B) for a breach in a major acquisition
program with a cost overrun greater than 15 percent or a
schedule delay greater than 180 days from the costs or schedule
set forth in the acquisition program baseline, or with an
anticipated failure for any key performance threshold or
parameter specified in the acquisition program baseline, the
Under Secretary for Management shall notify the congressional
homeland security committees of the breach in the next
quarterly Comprehensive Acquisition Status Report after the
Under Secretary for Management receives the notification from
the program manager under subsection (b)(1)(B).
``(2) Substantial variances in costs or schedule.--If a
likely cost overrun is greater than 20 percent or a likely
delay is greater than 12 months from the costs and schedule set
forth in the acquisition program baseline for a major
acquisition program, the Under Secretary for Management shall
include in the notification required in (c)(1) a written
certification, with supporting explanation, that--
``(A) the acquisition is essential to the
accomplishment of the Department's mission;
``(B) there are no alternatives to such capability or
asset that will provide equal or greater capability in
both a more cost-effective and timely manner;
``(C) the new acquisition schedule and estimates for
total acquisition cost are reasonable; and
``(D) the management structure for the acquisition
program is adequate to manage and control performance,
cost, and schedule.
``(3) Submissions to congress.--Not later than 30 calendar
days after submission to such committees of a breach
notification under paragraph (1) of this section for a major
acquisition program, the Under Secretary for Management shall
submit to such committees the following:
``(A) A copy of the remediation plan and the root
cause analysis prepared under subsection (b)(2) for the
program.
``(B) A statement describing the corrective action or
actions that have occurred pursuant to subsection
(b)(3) for the program, with a justification for the
action or actions.
``(d) Additional Actions if Breach Occurs.--
``(1) Prohibition on obligation of funds.--During the 90-day
period following submission under subsection (c)(3) of a
remediation plan, root cause analysis, and statement of
corrective actions with respect to a major acquisition program,
the Under Secretary for Management shall submit a certification
described in paragraph (2) of this subsection to the
congressional homeland security committees. If the Under
Secretary for Management does not submit such certification by
the end of such 90-day period, then funds appropriated to the
major acquisition program shall not be obligated until the
Under Secretary for Management submits such certification.
``(2) Certification.--For purposes of paragraph (1), the
certification described in this paragraph is a certification
that--
``(A) the Department has adjusted or restructured the
program in a manner that addresses the root cause or
causes of the cost growth in the program; and
``(B) the Department has conducted a thorough review
of the breached program's acquisition decision event
approvals and the current acquisition decision event
approval for the breached program has been adjusted as
necessary to account for the restructured program.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of the
Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is further amended
by adding after the item relating to section 837 the following new
item:
``Sec. 838. Congressional notification and other requirements for major
acquisition program breach.''.
SEC. 302. MULTIYEAR ACQUISITION STRATEGY.
(a) In General.--
(1) Amendment.--Subtitle D of title VIII of the Homeland
Security Act of 2002 (6 U.S.C. 391 et seq.) is further amended
by adding at the end the following new section:
``SEC. 839. MULTIYEAR ACQUISITION STRATEGY.
``(a) Multiyear Acquisition Strategy Required.--Not later than one
year after the date of the enactment of this section, the Secretary
shall submit to the appropriate homeland security committees a
multiyear acquisition strategy to guide the overall direction of the
acquisitions of the Department while allowing flexibility to deal with
ever-changing threats and risks and to help industry better understand,
plan, and align resources to meet the future acquisition needs of the
Department. The strategy shall be updated and included in each Future
Years Homeland Security Program required under section 874 of this Act.
``(b) Consultation.--In developing the strategy, the Secretary shall
consult with others as the Secretary deems appropriate, including
headquarters, Components, employees in the field, and when appropriate,
individuals from industry and the academic community.
``(c) Form of Strategy.--The report shall be submitted in
unclassified form but may include a classified annex for any sensitive
or classified information if necessary. The Department also shall
publish the plan in an unclassified format that is publicly available.
``(d) Contents of Strategy.--The strategy shall include the
following:
``(1) Prioritized list.--A systematic and integrated
prioritized list developed by the Under Secretary for
Management or his designee in coordination with all of the
Component Acquisition Executives of Department major
acquisition programs that Department and Component acquisition
investments seek to address, that includes the expected
security and economic benefit of the program or system and an
analysis of how the security and economic benefit derived from
the program or system will be measured.
``(2) Inventory.--A plan to develop a reliable Department-
wide inventory of investments and real property assets to help
the Department plan, budget, schedule, and acquire upgrades of
its systems and equipment and plan for the acquisition and
management of future systems and equipment.
``(3) Funding gaps.--A plan to address funding gaps between
funding requirements for major acquisition programs and known
available resources including, to the maximum extent
practicable, ways of leveraging best practices to identify and
eliminate overpayment for items to prevent wasteful purchasing,
achieve the greatest level of efficiency and cost savings by
rationalizing purchases, aligning pricing for similar items,
and utilizing purchase timing and economies of scale.
``(4) Identification of capabilities.--An identification of
test, evaluation, modeling, and simulation capabilities that
will be required to support the acquisition of the technologies
to meet the needs of the plan and ways to leverage to the
greatest extent possible the emerging technology trends and
research and development trends within the public and private
sectors and an identification of ways to ensure that the
appropriate technology is acquired and integrated into the
Department's operating doctrine and procured in ways that
improve mission performance.
``(5) Focus on flexible solutions.--An assessment of ways the
Department can improve its ability to test and acquire
innovative solutions to allow needed incentives and protections
for appropriate risk-taking in order to meet its acquisition
needs with resiliency, agility, and responsiveness to assure
the Nation's homeland security and facilitate trade.
``(6) Focus on incentives to save taxpayer dollars.--An
assessment of ways the Department can develop incentives for
program managers and senior Department acquisition officials to
prevent cost overruns, avoid schedule delays, and achieve cost
savings in major acquisition programs.
``(7) Focus on addressing delays and bid protests.--An
assessment of ways the Department can improve the acquisition
process to minimize cost overruns in requirements development,
procurement announcements, requests for proposals, evaluation
of proposals, protests of decisions and awards and through the
use of best practices as defined in section 4(b) of the DHS
Acquisition Accountability and Efficiency Act and lessons
learned by the Department and other Federal agencies.
``(8) Focus on improving outreach.--An identification and
assessment of ways to increase opportunities for communication
and collaboration with industry, small and disadvantaged
businesses, intra-government entities, university centers of
excellence, accredited certification and standards development
organizations, and national laboratories to ensure that the
Department understands the market for technologies, products,
and innovation that is available to meet its mission needs to
inform the requirements-setting process and before engaging in
an acquisition, including--
``(A) methods designed especially to engage small and
disadvantaged businesses and a cost-benefit analysis of
the tradeoffs that small and disadvantaged businesses
provide, barriers to entry for small and disadvantaged
businesses, and unique requirements for small and
disadvantaged businesses; and
``(B) within the Department Vendor Communication Plan
and Market Research Guide, instructions for interaction
by program managers with such entities to prevent
misinterpretation of acquisition regulations and to
permit freedom within legal and ethical boundaries for
program managers to interact with such businesses with
transparency.
``(9) Competition.--A plan regarding competition as described
in subsection (e).
``(10) Acquisition workforce.--A plan regarding the
Department acquisition workforce as described in subsection
(f).
``(11) Feasibility of workforce development fund pilot
program.--An assessment of the feasibility of conducting a
pilot program to establish an acquisition workforce development
fund as described in subsection (g).
``(e) Competition Plan.--The strategy shall also include a plan
(referred to in subsection (d)(9)) that shall address actions to ensure
competition, or the option of competition, for major acquisition
programs. The plan may include assessments of the following measures in
appropriate cases if such measures are cost effective:
``(1) Competitive prototyping.
``(2) Dual-sourcing.
``(3) Unbundling of contracts.
``(4) Funding of next-generation prototype systems or
subsystems.
``(5) Use of modular, open architectures to enable
competition for upgrades.
``(6) Acquisition of complete technical data packages.
``(7) Periodic competitions for subsystem upgrades.
``(8) Licensing of additional suppliers, including small
businesses.
``(9) Periodic system or program reviews to address long-term
competitive effects of program decisions.
``(f) Acquisition Workforce Plan.--
``(1) Acquisition workforce.--The strategy shall also include
a plan (referred to in subsection (d)(10)) to address
Department acquisition workforce accountability and talent
management that identifies the acquisition workforce needs of
each Component performing acquisition functions and develops
options for filling those needs with qualified individuals,
including a cost-benefit analysis of contracting for
acquisition assistance.
``(2) Additional matters covered.--The acquisition workforce
plan shall address ways to--
``(A) improve the recruitment, hiring, training, and
retention of Department acquisition workforce
personnel, including contracting officer's
representatives, in order to retain highly qualified
individuals that have experience in the acquisition
life cycle, complex procurements, and management of
large programs;
``(B) empower program managers to have the authority
to manage their programs in an accountable and
transparent manner as they work with the acquisition
workforce;
``(C) prevent duplication within Department
acquisition workforce training and certification
requirements through leveraging already-existing
training within the Federal Government, academic
community, or private industry;
``(D) achieve integration and consistency with
Government-wide training and accreditation standards,
acquisition training tools, and training facilities;
``(E) designate the acquisition positions that will
be necessary to support the Department acquisition
requirements, including in the fields of--
``(i) program management;
``(ii) systems engineering;
``(iii) procurement, including contracting;
``(iv) test and evaluation;
``(v) life cycle logistics;
``(vi) cost estimating and program financial
management; and
``(vii) additional disciplines appropriate to
Department mission needs;
``(F) strengthen the performance of contracting
officer's representatives (as defined in Subpart 1.602-
2 and Subpart 2.101 of the Federal Acquisition
Regulation), including by--
``(i) assessing the extent to which
contracting officer's representatives are
certified and receive training that is
appropriate;
``(ii) determining what training is most
effective with respect to the type and
complexity of assignment; and
``(iii) implementing actions to improve
training based on such assessment; and
``(G) identify ways to increase training for relevant
investigators and auditors to examine fraud in major
acquisition programs, including identifying
opportunities to leverage existing Government and
private sector resources in coordination with the
Inspector General of the Department.
``(g) Feasibility of Workforce Development Fund Pilot Program.--The
strategy shall also include an assessment (referred to in subsection
(d)(11)) of the feasibility of conducting a pilot program to establish
a Homeland Security Acquisition Workforce Development Fund (in this
subsection referred to as the `Fund') to ensure the Department
acquisition workforce has the capacity, in both personnel and skills,
needed to properly perform its mission and ensure that the Department
receives the best value for the expenditure of public resources. The
assessment shall address the following:
``(1) Ways to fund the Fund, including the use of direct
appropriations, or the credit, transfer, or deposit of
unobligated or unused funds from Department Components into the
Fund to remain available for obligation in the fiscal year for
which credited, transferred, or deposited and to remain
available for successive fiscal years.
``(2) Ways to reward the Department acquisition workforce and
program managers for good program management in controlling
cost growth, limiting schedule delays, and ensuring operational
effectiveness through providing a percentage of the savings or
general acquisition bonuses.
``(3) Guidance for the administration of the Fund that
includes provisions to do the following:
``(A) Describe the costs and benefits associated with
the use of direct appropriations or credit, transfer,
or deposit of unobligated or unused funds to finance
the Fund.
``(B) Describe the manner and timing for applications
for amounts in the Fund to be submitted.
``(C) Explain the evaluation criteria to be used for
approving or prioritizing applications for amounts in
the Fund in any fiscal year.
``(D) Explain the mechanism to report to Congress on
the implementation of the Fund on an ongoing basis.
``(E) Detail measurable performance metrics to
determine if the Fund is meeting the objective to
improve the acquisition workforce and to achieve cost
savings in acquisition management.''.
(2) Clerical amendment.--The table of contents in section
1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 et
seq.) is further amended by adding after the item relating to
section 838 the following new item:
``Sec. 839. Multiyear acquisition strategy.''.
(b) Conforming Amendment to Future Years Homeland Security Program.--
Section 874(b) of the Homeland Security Act of 2002 (6 U.S.C. 454(b))
is amended--
(1) by striking ``and'' at the end of paragraph (2);
(2) by striking the period at the end of paragraph (3) and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(4) include the multiyear acquisition strategy required
under section 839 of this Act.''.
SEC. 303. ACQUISITION REPORTS.
(a) In General.--Subtitle D of title VIII of the Homeland Security
Act of 2002 (6 U.S.C. 391 et seq.) is further amended by adding at the
end the following new section:
``SEC. 840. ACQUISITION REPORTS.
``(a) Comprehensive Acquisition Status Report.--
``(1) In general.--The Under Secretary for Management each
year shall submit to the congressional homeland security
committees, at the same time as the President's budget is
submitted for a fiscal year under section 1105(a) of title 31,
United States Code, a comprehensive acquisition status report.
The report shall include the following:
``(A) The information required under the heading
`Office of the Under Secretary for Management' under
Title I of division D of the Consolidated
Appropriations Act, 2012 (Public Law 112-74) (as
required under the Department of Homeland Security
Appropriations Act, 2013 (Public Law 113-6).
``(B) A listing of programs that have been cancelled,
modified, paused, or referred to the Under Secretary
for Management or Deputy Secretary for additional
oversight or action by the Board, Department Office of
Inspector General, or the Comptroller General.
``(C) A listing of established Executive Steering
Committees, which provide governance of a program or
related set of programs and lower-tiered oversight, and
support between acquisition decision events and
Component reviews, including the mission and membership
for each.
``(2) Information for major acquisition programs.--For each
major acquisition program, the report shall include the
following:
``(A) A narrative description, including current gaps
and shortfalls, the capabilities to be fielded, and the
number of planned increments or units.
``(B) Acquisition Review Board (or other board
designated to review the acquisition) status of each
acquisition, including the current acquisition phase,
the date of the last review, and a listing of the
required documents that have been reviewed with the
dates reviewed or approved.
``(C) The most current, approved acquisition program
baseline (including project schedules and events).
``(D) A comparison of the original acquisition
program baseline, the current acquisition program
baseline, and the current estimate.
``(E) Whether or not an independent verification and
validation has been implemented, with an explanation
for the decision and a summary of any findings.
``(F) A rating of cost risk, schedule risk, and
technical risk associated with the program (including
narrative descriptions and mitigation actions).
``(G) Contract status (including earned value
management data as applicable).
``(H) A lifecycle cost of the acquisition, and time
basis for the estimate.
``(3) Updates.--The Under Secretary shall submit quarterly
updates to such report not later than 45 days after the
completion of each quarter.
``(b) Quarterly Program Accountability Report.--The Under Secretary
for Management shall prepare a quarterly program accountability report
to meet the Department's mandate to perform program health assessments
and improve program execution and governance. The report shall be
submitted to the congressional homeland security committees.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of the
Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is further amended
by adding after the item relating to section 839 the following new
item:
``Sec. 840. Acquisition reports.''.
SEC. 304. GOVERNMENT ACCOUNTABILITY OFFICE REVIEW OF MULTIYEAR
ACQUISITION STRATEGY.
(a) Review Required.--After submission to Congress of the first
multiyear acquisition strategy (pursuant to section 839 of the Homeland
Security Act of 2002) after the date of the enactment of this Act, the
Comptroller General of the United States shall conduct a review of the
plan within 180 days to analyze the viability of the plan's
effectiveness in the following:
(1) Complying with the requirements in section 839 of the
Homeland Security Act of 2002, as added by section 302 of this
Act.
(2) Establishing clear connections between Department
objectives and acquisition priorities.
(3) Demonstrating that Department acquisition policy reflects
program management best practices and standards.
(4) Ensuring competition or the option of competition for
major acquisition programs.
(5) Considering potential cost savings through using already-
existing technologies when developing acquisition program
requirements.
(6) Preventing duplication within Department acquisition
workforce training requirements through leveraging already-
existing training within the Federal Government, academic
community, or private industry.
(7) Providing incentives for program managers to reduce
acquisition and procurement costs through the use of best
practices and disciplined program management.
(8) Assessing the feasibility of conducting a pilot program
to establish a Homeland Security Acquisition Workforce
Development Fund.
(b) Report Required.--The Comptroller General shall submit to the
congressional homeland security committees a report on the review
required by this section. The report shall be submitted in unclassified
form but may include a classified annex.
SEC. 305. OFFICE OF INSPECTOR GENERAL REPORT.
(a) Review Required.--No later than 2 years following the submission
of the report submitted by the Comptroller General of the United States
as required by section 304, the Department's Inspector General shall
conduct a review of whether the Department has complied with the
multiyear acquisition strategy (pursuant to section 839 of the Homeland
Security Act of 2002) and adhered to the strategies set forth in the
plan. The review shall also consider whether the Department has
complied with the requirements to provide the Acquisition Review Board
with a capability development plan for each major acquisition program.
(b) Report Required.--The Inspector General shall submit to the
congressional homeland security committees a report of the review
required by this section. The report shall be submitted in unclassified
form but may include a classified annex.
Purpose and Summary
The purpose of H.R. 4228 is to require the Department of
Homeland Security to improve discipline, accountability, and
transparency in acquisition program management.
Background and Need for Legislation
The Department of Homeland Security (DHS) spends billions
of taxpayer dollars each year in major acquisition programs to
help protect the homeland. For example, in fiscal year 2013,
DHS spent almost $10 billion on acquisition programs for a
variety of missions, such as border security, aviation
passenger screening, and infrastructure protection. DHS will
spend at least $300 million on each program and take years to
develop and procure them. Despite the critical need to protect
the homeland from terrorist attacks and other events, DHS
acknowledges that its current major acquisition portfolio is
unaffordable. Due to increasing fiscal constraints and
persistent security risks, DHS must ensure its acquisition
processes are effective and efficient to minimize cost
overruns, schedule delays, and performance issues. The DHS
Acquisition Accountability and Efficiency Act addresses these
issues and implements solutions to save taxpayer dollars and
increase mission performance.
Since 2005, the Comptroller General of the United States--
the head of the U.S. Government Accountability Office (GAO)--
has identified DHS's acquisition management as an activity on
GAO's ``High Risk List,'' which identifies programs highly
susceptible to fraud, waste, abuse, and mismanagement or most
in need of broad reform. In April 2014, GAO noted weaknesses in
DHS's acquisition planning process and portfolio management.
GAO found that, as of November 2013, DHS still lacked
Acquisition Program Baselines for 21 of 46 major acquisition
programs and, as of December 2013, DHS had only approved life
cycle cost estimates for 20 of 80 major acquisition programs.
Further, GAO found that DHS' largest acquisition programs will
likely experience schedule slips, cost growth, and capability
reductions in the coming years if funding instability worsens.
This year alone, there have been examples of poor DHS
acquisition management. In March 2014, GAO found that U.S.
Customs and Border Protection's (CBP) Arizona Border
Surveillance Technology Plan, a plan including seven programs
with estimated costs from $3 million to $961 million, does not
include an Integrated Master Schedule in accordance with best
practices nor does it have an independent cost estimate for its
life cycle cost estimate. In January 2014, GAO found that CBP's
TECS Modernization program, estimated to cost $724 million,
lacks a fully developed master schedule and is revising its
schedule baseline for the second time in under a year.
Immigration and Customs Enforcement's (ICE) TECS Modernization
program, estimated to cost $818 million, determined in June
2013 as unviable, is reassessing its design alternatives and
schedule and cost estimates, which jeopardizes its ability to
meet its 2015 deadline.
GAO also reported in September 2012 that 42 DHS acquisition
programs experienced cost growth, schedule delays, or both.
GAO's report noted that 16 programs incurred an aggregate total
cost growth of 166 percent. However, the report noted that many
acquisition programs lacked Acquisition Program Baselines-key
documents detailing a program's cost, schedule, and performance
goals. As a result, GAO could not assess to what extent cost
growth occurred in most major acquisition programs at DHS.
In addition, the DHS Office of Inspector General reported
in 2013 that DHS lacked reliable Department-wide inventory data
on legacy radio systems and mismanaged a $3 billion Department-
wide strategic sourcing contract to modernize these systems.
The Inspector General also reported in 2013 that the U.S.
Customs and Border Protection and U.S. Coast Guard could have
better coordinated on the acquisition and modification of DHS
helicopters. Examples from GAO and the Inspector General
highlight the need for a more disciplined, accountable, and
transparent process to DHS's acquisition management.
Over ten years after the creation of the Department, DHS
cannot rely on increased budgets to rectify past mistakes. DHS
cannot continue to utilize immature processes for the
management of acquisition functions. Combining 22 disparate
agencies under one department was one of the most extensive
reorganizations in the Federal Government since World War II.
However, over ten years later, DHS must improve its management
of major acquisitions. As the Department's Chief Acquisition
Officer, the Under Secretary for Management should have the
authorities needed to hold programs accountable.
The Committee believes that DHS must increase its
communication with Congress. Improving transparency when cost,
schedule, or performance issues arise will increase the
Committee's assurance that DHS has a plan to improve, track,
and institutionalize lessons learned to prevent future issues.
To date, DHS has lacked a strategy to guide the billions of
dollars it spends on these major acquisition programs. A more
strategic approach is needed to ensure taxpayer dollars are
spent in the most efficient and effective manner. The DHS
Acquisition Accountability and Efficiency Act addresses these
areas to improve the Department's management and better secure
the homeland.
Hearings
No hearings were held specifically on H.R. 4228. However,
the Committee held oversight hearings related to acquisition
issues addressed in H.R. 4228. These hearings are listed below.
112th Congress
On July 15, 2011, the Subcommittee on Oversight,
Investigations, and Management held a hearing entitled
``Homeland Security Contracting: Does the Department
Effectively Leverage Emerging Technologies?'' The Subcommittee
received testimony from Mr. Charles K. Edwards, Acting
Inspector General, Department of Homeland Security; Mr. David
Maurer, Director, Homeland Security and Justice Team,
Government Accountability Office; Mr. Rafael Borras, Under
Secretary for Management and Chief Acquisition Officer,
Department of Homeland Security; Dr. Tara O'Toole, Under
Secretary, Science and Technology Directorate, Department of
Homeland Security; Mr. Jim Williams, Vice Chair, Homeland
Security Committee, TechAmerica; Mr. Marc Pearl, President and
CEO, Homeland Security and Defense Business Council; and Mr.
Scott Amey, General Counsel, Project on Government Oversight.
On September 21, 2012, the Subcommittee on Oversight,
Investigations, and Management held a hearing entitled ``DHS
Acquisition Management Challenges: Solutions for Saving
Taxpayer Dollars.'' The Subcommittee received testimony from
Mr. John Hutton, Director, Acquisition and Sourcing Management,
Government Accountability Office; Dr. Nick Nayak, Chief
Procurement Officer, Department of Homeland Security; Mr. Mark
Borkowski, Assistant Commissioner, Office of Technology
Innovation and Acquisition, Customs and Border Protection,
Department of Homeland Security; Ms. Karen Shelton Waters,
Assistant Administrator, Office of Acquisition, Transportation
Security Administration, Department of Homeland Security.
113th Congress
On September 19, 2013, the Subcommittee on Oversight and
Management Efficiency held a hearing entitled ``DHS Acquisition
Practices: Improving Outcomes for Taxpayers Using Defense and
Private Sector Lessons Learned.'' The Subcommittee received
testimony from Hon. Rafael Borras, Undersecretary for
Management, Department of Homeland Security; Ms. Michele
Mackin, Director, GAO; Ms. Anne Richards, Assistant Inspector
General for Audits, DHS Office of Inspector General; Mr.
William C. Greenwalt, Visiting Fellow, American Enterprise
Institute; Mr. Stan Soloway, President and CEO, Professional
Services Council; Mr. David Berteau, Senior Vice President,
Center for Strategic and International Studies.
Committee Consideration
The Subcommittee on Oversight and Management Efficiency met
on March 26, 2014, to consider H.R. 4228, and ordered the
measure forwarded to the Full Committee with a favorable
recommendation, amended, by voice vote. The Committee took the
following actions:
The following amendments were offered:
An Amendment in the Nature of a Substitute offered by Mr.
Duncan (#1); was AGREED TO, as amended, by voice vote.
An en bloc amendment to the Amendment in the Nature of a
Substitute to H.R. 4228 offered by Mr. Barber (#1A); was AGREED
TO by voice vote.
Consisting of the following amendments:
An amendment:
Page 17, line 6, insert after ``including'' the following: ``, in
particular,''
An amendment:
Page 22, beginning on line 17, strike ``The Chief Financial
Officer'' and all that follows through ``The Board shall'' on line 20,
and insert ``The Secretary shall''.
An amendment:
Page 40, lines 15 and 16, strike ``ranked based on mission and
greatest security risks to the homeland''.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Mr. Daines (#1B); was AGREED TO by voice
vote.
Page 42, insert after line 2 a new paragraph entitled ``(6) Focus
on incentives to save taxpayer dollars.''
Page 42, line 3, strike ``(6)'' and insert ``(7)''.
Page 42, line 13, strike ``(7)'' and insert ``(8)''.
Page 43, line 16, strike ``(8)'' and insert ``(9)''.
Page 43, line 18, strike ``(9)'' and insert ``(10)''.
Page 43, line 21, strike ``(10)'' and insert ``(11)''.
Page 44, line 2, strike ``(d)(8)'' and insert ``(d)(9)''.
Page 45, line 1, strike ``(d)(9)'' and insert ``(d)(10)''.
Page 46, line 21, strike ``(d)(10)'' and insert ``(d)(11)''.;
An en bloc amendment to the Amendment in the Nature of a
Substitute to H.R. 4228 offered by Mr. O'Rourke (#1C); was
AGREED TO by voice vote.
Consisting of the following amendments:
An amendment:
Page 21, starting on line 11, strike ``For each major
acquisition'' and all that follows through the period on line 16, and
insert the following: ``For each major acquisition, each head of a
Component shall--
``(1) establish a complete life cycle cost estimate with
supporting documentation;
``(2) verify each life cycle cost estimate against independent
cost estimates, and reconcile any differences;
``(3) complete a cost-benefit analysis with supporting
documentation;
``(4) develop and maintain a schedule that is consistent with
scheduling best practices as identified by the Comptroller General of
the United States, including, in appropriate cases, an integrated
master schedule; and
``(5) ensure that all acquisition program information provided
by the Component is complete, accurate, timely, and valid.
An amendment:
Page 40, line 17, after ``address'' insert ``, that includes the
expected security benefit of the program or system and an analysis of
how the security benefit derived from the program or system will be
measured''
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 on the roster by Mr. Payne (#1D); was ADOPTED by
unanimous consent.
Page 45, line 12, insert after ``personnel'' the following ``,
including contracting officer's representatives,''.;
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Mr. Payne (#1E); was ADOPTED by unanimous
consent.
Page 46, after line 18, insert the following:
``(F) strengthen the performance of contracting officer's
representatives (as defined in Subpart 1.602-2 and Subpart 2.101 of the
Federal Acquisition Regulation), including by-
``(i) assessing the extent to which contracting officer's
representatives are certified and receive training that is appropriate;
``(ii) determining what training is most effective with
respect to the type and complexity of assignment; and ``(ii)
implementing actions to improve training based on such assessment.''.
Page 46, line 4, strike ``and''.
Page 46, line 18, strike the period and insert ``; and''.
The Committee met on April 30, 2014, to consider H.R. 4228,
and ordered the measure to be reported to the House, with a
favorable recommendation, amended, by voice vote. The Committee
took the following actions:
An Amendment in the Nature of a Substitute to H.R. 4228
offered by Mr. Duncan (#1); was AGREED TO, amended, by voice
vote.
An en bloc amendment to the Amendment in the Nature of a
Substitute to H.R. 4228 offered by Mr. Thompson of Mississippi
(#1A); was AGREED TO by voice vote.
Consisting of the following amendments:
An amendment:
Page 11, after line 20, insert the following ``(F) Ensuring that
grants and financial Assistance are provided only to responsible
individuals and organizations that are not excluded from government
participation.
An amendment:
Page 13, after line 2, insert the following new paragraph entitled
``(4) Excluded parties list system consultation.''
An amendment:
Page 16, line 22, insert before the semicolon at the end the
following: ``and including training on how best to identify actions
that warrant referrals for suspension or debarment".
An amendment:
P. 17, line 11, strike ``businesses and'' and insert
``businesses,''.
Page 17, line 12, strike ``participation.'' and insert
``participation, and ensure, to the extent practicable, small
businesses that achieve qualified vendor status for security-related
technologies are provided an opportunity to compete for contracts for
such technology.''
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Mr. Barletta (#1B); was AGREED TO by voice
vote.
Page 48, line 12, strike ``and''.
Page 48, line 25, strike the period at the end and insert ``;
and''.
Page 48, after line 25, insert the following:
``(G) identify ways to increase training for relevant
investigators and auditors to examine fraud in major acquisition
programs, including identifying opportunities to leverage existing
Government and private sector resources in coordination with the
Inspector General of the Department.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Ms. Clarke (#1C); was AGREED TO by voice
vote.
Page 11, after line 20, insert the following:
``(F) Distributing guidance throughout the Department to ensure
that contractors involved in acquisitions, particularly companies that
access the Department's information systems and technologies, adhere to
internal cybersecurity policies established by the Department of
Homeland Security.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Mr. Barber (#1D); was WITHDRAWN by
unanimous consent.
Page 17, after line 12, insert the following (and make appropriate
technical and conforming amendments):
``(10) encourage the Department to enter into contracts with
nonprofit agencies employing persons who are blind or are other
severally disabled as defined under chapter 85 of title 41, United
States Code (popularly referred to as the Javits-Wagner-O'Day Act).''.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Mr. Barber (#1E); was AGREED TO by voice
vote.
At the end of title II (page 31, after line 17) insert the
following new section (and conform the table of contents accordingly):
``Sec. 204. Suspension and Debarment Audits.''
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Mr. O'Rourke (#1F); was AGREED TO by voice
vote.
Page 42, lines 2 and 4, after ``security'' insert ``and
economic''.
Page 43, line 15, after ``security insert ``and facilitate
trade''.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 on the roster by Ms. Jackson Lee (#1G); was ADOPTED
by unanimous consent.
At the end of title II (page 31, after line 17) insert the
following new section (and conform the table of contents accordingly):
``Sec. 204. Excluded Party List System Waivers.''
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Mr. Duncan (#1H); was AGREED TO by voice
vote.
Page 6, line 3, insert after ``Senate'' the following'': ``, where
appropriate''.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 4228 offered by Mr. O'Rourke (#1I); was WITHDRWAN by
unanimous consent.
Page 41, line 13, strike ``the academic community'' and insert
``civil liberties and academic communities''.
Page 43, after line 15, insert the a new paragraph entitled ``(6)
Civil Liberties Protections.''
Committee Votes
Clause 3(b) of Rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
No recorded votes were requested during consideration of
H.R. 4228.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of Rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
4228, the DHS Acquisition Accountability and Efficiency Act,
would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of Rule XIII of the Rules of the
House of Representatives, a cost estimate provided by the
Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974 was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of Rule XIII of the Rules of the
House of Representatives, H.R. 4228 contains the following
general performance goals, and objectives, including outcome
related goals and objectives authorized.
The performance goals and objectives of H.R. 4228 include
the development of a multiyear acquisition strategy to inform
the overall direction of DHS's acquisition programs. The bill
requires the Government Accountability Office to review the
effectiveness of the multiyear acquisition strategy, as well
as, the Office of Inspector General to evaluate the extent to
which DHS has complied with the strategy. The bill also
mandates the Department to provide the Committee with
acquisition reports to detail the performance of major
acquisition programs.
In addition, the Department shall notify the Committee in
instances when certain cost, schedule, or performance issues
occur. In these cases, the development of a remediation plan
and root cause analysis will inform DHS's approach on
corrective actions and allow the Committee to hold the
Department accountable for future acquisition issues.
Duplicative Federal Programs
The Committee finds that H.R. 4228 does not contain any
provision that establishes or reauthorizes a program known to
be duplicative of another Federal program.
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
In compliance with Rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the Rule
XXI.
Federal Mandates Statement
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Preemption Clarification
In compliance with section 423 of the Congressional Budget
Act of 1974, requiring the report of any Committee on a bill or
joint resolution to include a statement on the extent to which
the bill or joint resolution is intended to preempt State,
local, or Tribal law, the Committee finds that H.R. 4228 does
not preempt any State, local, or Tribal law.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 4228 would require no
directed rule makings.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short Title.
This section provides that bill may be cited as the ``DHS
Acquisition Accountability and Efficiency Act.''
Sec. 2. Table of Contents.
Sec. 3. Findings.
This section provides the congressional findings on
acquisition program management in the Department of Homeland
Security.
Sec. 4. Definitions.
The following list of terms and positions are defined:
``Secretary'', ``Department'', ``congressional homeland
security committees'', ``acquisition'', ``best practices'',
``acquisition decision authority'', ``acquisition decision
event'', ``acquisition decision memorandum'', ``acquisition
program baseline'', ``capability development plan'',
``component acquisition executive'', ``life cycle cost'', and
``major acquisition program''.
TITLE I-Acquisition Authorities
Sec. 101. Acquisition Authorities for Under Secretary for
Management.
Section 101 designates the Under Secretary for Management
(USM) as the Chief Acquisition Officer (CAO) for DHS. It also
specifies that the ability to exercise Acquisition Decision
Authority (ADA) is held by the Secretary but may be delegated
to the Deputy Secretary or USM in order to approve, halt,
modify, or cancel major acquisition programs. It is the
Committee's intent that whoever holds the ADA will take action
to stop or cancel failing programs. In particular, Section 101
requires that the USM take responsibility to ensure that every
major acquisition program has a Department-approved Acquisition
Program Baseline (APB). The Committee finds it very concerning
that according to an April 2014 GAO report, as of November
2013, DHS officials reported that 21 of 46 programs still
lacked approved baselines and as of April 2014 DHS has not
approved most of its major acquisition programs' cost
estimates.
Section 101 also requires that the USM ensure that the
heads of Components and Component Acquisition Executives follow
Federal law, the Federal Acquisition Regulation, and Department
acquisition management directives. It is the intent of the
Committee that all of the Components with acquisition
responsibilities follow these directives. Furthermore, it is
the Committee's view that decision-making authority and
processes should not reside solely within Department
Headquarters. Rather, the USM should transparently incorporate
Components into unified decision-making processes and the
analytic efforts that inform decision-making on major
acquisition programs and non-major acquisition programs to meet
U.S. homeland security missions in a cost effective manner.
Section 101 also authorizes the USM to delegate the ADA to
the relevant Component Acquisition Executive in certain
instances. First, for non-major acquisition programs with a
life cycle cost of less than $300 million, the USM may delegate
the ADA to the relevant Component Acquisition Executive.
Second, for major acquisition programs with a life cycle cost
between $300 million and $1 billion, the USM may delegate the
ADA only if the following conditions are met: The Component
shall have working policies, processes, and procedures that are
consistent with DHS acquisition policy; possess adequate,
experienced, dedicated program management professional staff
proportionate to the size of the delegated portfolio; and each
major acquisition program must have written documentation
showing that it has a Department-approved APB and that it is
meeting agreed-upon cost, schedule, and performance thresholds.
The USM shall not have the authority to delegate the ADA
for major acquisition programs with life cycle costs of over $1
billion. Furthermore, it is the Committee's intention that the
USM shall not delegate the ADA for any major acquisition
program that has experienced an actual breach of a cost overrun
greater than 15 percent of the APB or a schedule delay of more
than 180 days in the delivery schedule specified in the APB.
Section 101 also authorizes the Under Secretary for Science and
Technology (S&T) to cooperate in acquisitions so that S&T can
support current and future requirements more effectively.
Sec. 102. Acquisition authorities for Chief Financial
Officer.
Section 102 authorizes the Chief Financial Officer's (CFO)
responsibilities for providing leadership over financial
management policy and programs for DHS as they relate to DHS
acquisition programs in consultation with the USM. According to
a 2014 GAO report, from fiscal years 2003 to 2013, DHS's budget
authority nearly doubled from about $31 to $61 billion. Yet,
DHS's leadership did not consistently address affordability
issues during this time. In December 2012, the DHS Chief
Financial Officer reported that major acquisition programs will
cost 30 percent more than DHS's current five-year funding plan.
Unfortunately, according to GAO, in 2013, DHS made little
progress in addressing the Department's major acquisition
funding gap and the 30 percent figure noted by DHS in 2012 was
based on unreliable cost estimates, which raises concern that
the funding gap may be even more significant. It is the
Committee's view that the CFO should take an active role to
help DHS strengthen and enhance the programming and budgeting
process by incorporating the results of strategic analysis and
joint requirements planning into portfolios and increase DHS's
cost estimating capacity for major acquisition programs to help
prevent cost overruns and schedule delays.
The Committee intends to clarify and specify the role of
the CFO with regard to the acquisition process at DHS. Nothing
in this Act is intended to reduce or constrain the existing,
government-wide CFO authorities that apply to the DHS CFO under
current law.
Sec. 103. Acquisition authorities for Chief Information
Officer.
Section 103 authorizes the Chief Information Officer
(CIO)'s responsibilities to serve as the lead technical
authority for IT programs, to oversee the management of the
Homeland Security Enterprise Architecture, and to provide
recommendations to the Acquisition Review Board on IT programs
and IT acquisition strategic guidance. Section 103 also
requires that if the CIO determines that there are any IT
acquisitions that do not comply with Departmental management
directives, the CIO shall provide recommendations to the
Acquisition Review Board regarding noncompliance. It is the
Committee's view that the CIO should take an active role to
prevent IT failures of major acquisition programs. The CIO
should also consider the advantages of already-existing
innovative commercial solutions that may have the ability to
meet U.S. homeland security mission needs while providing
solutions for lower costs.
The Committee intends to clarify and specify the important
role of the CIO in IT related acquisition programs at DHS.
Nothing in this Act is intended to reduce or constrain the
existing government-wide CIO authorities as they apply to the
DHS CIO under current law.
Sec. 104. Chief Procurement Officer.
Section 104 authorizes the position of Chief Procurement
Officer (CPO). This section does not create a new office within
DHS because many of these responsibilities are currently being
executed through the Office of the CPO. Nothing in this section
or Act is intended to diminish CPO authority as currently
exercised. Section 104 authorizes that the CPO reports directly
to the USM and is the senior procurement executive with
responsibility over procurement and contracting. The CPO is
also responsible for ensuring that DHS's contracting strategy
and plans are consistent with the intent and direction of the
ARB. Section 104 also designates the CPO as the main liaison to
industry and authorizes the CPO to oversee a certification and
training program for DHS's acquisition workforce that employs
best practices used by others in the Federal Government and
private sector. The Committee's intention is not for DHS to
duplicate the efforts of other Federal acquisition
certification and training efforts but instead to leverage
already existing efforts within the Federal Government, private
sector, or universities and colleges as appropriate.
This section also ensures that the CPO participates in the
selection and performance review of the head of each
contracting activity within DHS and that the CPO follows the
requirements established in the Small Business Act. The
Committee understands that according to the Small Business
Dashboard, DHS exceeded the Department goal of over 30 percent
and the Government-wide goal of 23 percent for contracts
awarded to Small Business and Small and Disadvantaged Business.
Additionally, according to the FY12 Small Business Procurement
Scorecard, DHS received an ``A'' rating. The Committee commends
DHS's efforts in this regard. The Committee commends the
Department's efforts to contract with nonprofit agencies
employing persons who are blind or severely disabled as defined
under Chapter 85 of Title 41, United States Code and encourages
the CPO to continue such efforts. The Committee encourages the
CPO to work toward developing a procurement goal and metrics
for this initiative as part of its strategic planning process.
The Committee urges DHS to think strategically to ensure that
DHS clearly matches U.S. homeland security mission needs with
the best business solutions available regardless of the size of
business in order to serve U.S. Government interests most
effectively.
Sec. 105. Requirements to ensure greater accountability for
acquisition programs.
Section 105 authorizes the USM to establish a mechanism
within the Management Directorate to improve the
accountability, standardization, and transparency of major
acquisition programs in order to increase effectiveness and
efficiencies. This mechanism will serve as the central
oversight function for all DHS acquisition programs. Section
105 does not create a new office within DHS because many of
these responsibilities are being executed through the Program
Accountability and Risk Management (PARM) Office. However, the
Committee's intention is not to codify PARM's existing
structure but rather to provide specific guidance of objectives
that DHS must meet while allowing DHS the flexibility to make
adjustments to the structure as necessary.
Section 105 also authorizes an Executive Director to report
directly to the USM to hold responsibility for meeting the
objectives as outlined in Section 105. The Executive Director's
responsibilities include regular monitoring of the performance
of DHS acquisition programs between acquisition decision
events. The Committee expects the Executive Director to take an
active role in regularly reviewing all major acquisition
programs and any non-major acquisition programs that the
Executive Director deems as ``high-risk'' in order to prevent
cost overruns, performance issues, or schedule delays before
these problems occur.
The Committee believes that non-major acquisitions that
meet the following criteria should be deemed ``high-risk'': (a)
Its importance to the Department's strategic and performance
plans is disproportionate to its life cycle cost; (b) it has
high executive visibility; (c) it impacts more than one
Component; (d) it has significant program or policy
implications; or (e) the Deputy Secretary, Under Secretary for
Management, or Acquisition Decision Authority recommends that
the program is worthy of the Acquisition Review Board's
examination.
The Executive Director shall also assist the USM in
managing DHS's acquisition portfolio; conducting oversight of
all acquisition programs (major and non-major) to ensure that
the programs have reliable and complete documentation; and
serving as the focal point within DHS for acquisition policy,
processes, and procedure regarding life cycle cost estimating
and analysis. It is the Committee's view that the Executive
Director shall work in consultation with the USM and CFO to
address funding shortfalls identified by DHS and GAO.
Moreover, the Executive Director should support the CPO in
developing strategies and specific plans to address DHS
acquisition workforce needs; develop standardized certification
standards in consultation with the Component Acquisition
Executives for all acquisition program managers; and play a
role in performance evaluations of acquisition program
managers. The Executive Director shall also be responsible for
preparing the DHS Comprehensive Acquisition Status Report
(CASR) and Quarterly Program Accountability Report (QPAR).
The Committee believes that carrying out DHS's acquisition
functions is a shared responsibility between DHS headquarters
and its Components. However, Components have not always adhered
to established DHS policies, which has contributed to cost
overruns, schedule delays, and performance issues. As a result,
section 105 also requires Components to follow Federal law, the
Federal Acquisition Regulation (FAR), and DHS acquisition
management directives. For major acquisition programs, heads of
Components must establish a complete life cycle cost estimate
with supporting documentation including an APB; verify each
life cycle cost estimates against independent cost estimates
(reconciling any differences); complete a cost-benefit analysis
with supporting documentation; develop and maintain a schedule
that is consistent with scheduling best practices identified by
the Comptroller General of the U.S. including an integrated
master schedule when appropriate; and ensure that the
underlying acquisition program information is complete,
accurate, timely, and valid.
TITLE II-Acquisiton Program Management Discipline
Sec. 201. Acquisition Review Board.
Section 201 authorizes the Secretary to establish an
Acquisition Review Board (ARB) to strengthen the accountability
and uniformity within DHS's acquisition review process, review
major acquisition programs, and evaluate the use of best
practices. Section 201 does not create a new office within DHS
because many of these responsibilities are being executed
through an ARB already; however, section 201 codifies and
sharpens the ARB's responsibilities in several ways.
The Committees intends for the Deputy Secretary or USM to
serve as the chair of the ARB. In addition, the composition of
the ARB should include the CFO, CIO, CPO, Under Secretary for
Science and Technology, Assistant Secretary for Policy, General
Counsel, Chief Human Capital Officer, Chief Readiness Support
Officer, Chief Security Officer, Component Acquisition
Executive, and user representatives from the Component
sponsoring a particular acquisition for review. At least two
Component heads or their designees shall serve as permanent
members of the ARB.
The Committee intends for the ARB to meet every time a
major acquisition program needs authorization to move from
acquisition decision events through the acquisition life cycle.
The Committee also expects the ARB to consider any major
acquisition program in actual breach and monitor those programs
with increased scrutiny in order to take appropriate corrective
action for the program. In addition, the Committee intends for
the ARB to convene for non-major acquisitions that are deemed
``high-risk'' by the Executive Director and to meet regularly
in order to ensure that all acquisition processes proceed in a
timely fashion to achieve mission readiness.
Furthermore, section 201 authorizes the ARB to determine
whether a proposed acquisition has met the requirements of key
phases of the acquisition life cycle framework in order to
proceed to the next phase, eventual full-rate production, and
deployment and to verify the acquisition documents of each
major acquisition program. The Committee will conduct strenuous
oversight of the ARB to determine whether it is carrying out
its responsibilities to validate the APB and ensure the
reliability of all underlying data for both major and non-major
acquisition programs as required by this Act. In particular,
section 201 also authorizes the ARB to adopt and implement
practices that consider the trade-offs among cost, schedule,
and performance objectives as part of the process for
developing requirements for major acquisition programs prior to
the initiation of the capability development.
The Committee is concerned that according to a 2014 GAO
report, the ARB within DHS has rarely directed programs to make
affordability tradeoffs, such as by modifying requirements,
even in light of the Department's 30 percent funding gap for
its major acquisitions. GAO found that the ARB met 13 times in
2013, but it only directed programs to make affordability
tradeoffs twice. The Committee intends for the ARB to
prioritize the consideration of trade-offs among cost,
schedule, and performance objectives and emphasize improving
these programs' affordability.
Section 201 also requires that in the event that the person
holding the Acquisition Decision Authority (ADA) approves a
major acquisition program without a Department-approved APB to
proceed beyond the acquisition decision event requiring a
capability development plan (the second acquisition decision
event), the USM shall create and approve an acquisition program
baseline report, and the Secretary shall submit to the
Congressional homeland security committees a written
notification of such decision within seven days of such a
decision and a report providing the rationale for the decision
and plan to create an acquisition program baseline for the
program within 60 days after the acquisition decision
memorandum is signed.
Sec. 202. Requirements to reduce duplication in acquisition
programs.
Section 202 authorizes the Deputy Secretary, in
consultation with the USM, to establish Department-wide
policies to integrate all phases of the investment life cycle
and help DHS identify, validate, and prioritize standards for
common Component requirements for major acquisition programs.
Section 202 does not create a new office within DHS because
many of these responsibilities are being executed through the
Capabilities and Requirements Council (CRC). However, the
Committee is concerned about the fragmented approach the CRC
has had so far in failing to consider a range of tradeoffs
across multiple functional portfolios. Thus, section 202
provides specific guidance on DHS responsibilities to reduce
duplication and inefficiency across multiple functional
portfolios although it leaves the particular mechanism of
implementation of these objectives up to the Deputy Secretary.
In 2003, DHS established a Joint Requirements Council (JRC)
to identify crosscutting opportunities and common requirements
among DHS Components. JRC stopped meeting in 2006. GAO
recommended in 2008 that DHS reinstate it. In June 2013, DHS
initiated a CRC pilot to consider tradeoffs across acquisition
programs within DHS's cybersecurity portfolio.
Section 202 emphasizes that the Deputy Secretary's policies
must include strategic alternatives for developing and
facilitating a Department Component-driven requirements process
that include oversight of a developmental test and evaluation
capability; identification of priority gaps and overlaps in
Departmental capability needs; and provision of feasible
technical alternatives, including commercially-available
alternatives, to meet capability needs. In particular, while
the Committee believes that the Secretary, acting through the
USM, holds the responsibility for the success or failure of DHS
acquisition programs, it is the responsibility of DHS
Headquarters to achieve Component buy-in and to facilitate a
Component-driven requirements process that meets U.S. homeland
security mission needs while reducing duplication and
efficiency among Component's acquisition programs.
Section 202 requires that the Deputy Secretary, in
consultation with the USM, meet at least quarterly and
communicate with Components often to ensure Components do not
create overlapping requirements or duplicative spending on
major investments and acquisition programs within their areas
of responsibilities. The Committee believes that the Components
must be working together to think strategically about how their
acquisition decisions impact other Components and connect to
the Department's strategic homeland security missions in the
most cost effective manner possible.
The Deputy Secretary is responsible for creating a
mechanism such as the Capability and Requirements Council to
review and validate the requirements documents of major
investments and acquisition programs before these programs move
through the acquisition decision events; and to ensure the
requirements and scope of major investments or acquisition
programs are stable, measurable, achievable, at an acceptable
risk level, and match the resources planned to be available.
Section 202 also requires that before any entity of the
Department issues a solicitation for a new contract, that the
Deputy Secretary is responsible for coordinating with all the
other entities within DHS with acquisition responsibilities as
appropriate to prevent duplication and inefficiency; implement
portfolio reviews to identify common mission requirements and
crosscutting opportunities among Components; standardize
equipment purchases, streamline the acquisition process,
improve efficiencies; and conduct best practices for strategic
sourcing. The Deputy Secretary shall also ensure that program
managers of major investments and acquisition programs focus on
cost, schedule, risk, performance, and operational efficiency
to determine that acquisition programs work as intended within
cost and budget expectations.
Sec. 203. Government Accountability Office review of Board
and of requirements to reduce duplication in acquisition
programs.
Section 203 requires GAO to conduct a review within one
year of the effectiveness of the Acquisition Review Board
established under section 201 and the Management Directorate to
Reduce Duplication in Acquisition Programs established under
section 202 in improving DHS' acquisition management process.
Sec. 204. Excluded Party List System waivers.
Section 204 requires that the Secretary provide
notification to the congressional homeland security committees
within five days after issuance of a waiver for the requirement
that an agency not engage in business with a contractor listed
in the Excluded Party List System, and an explanation for that
waiver. The Committee believes that this additional layer of
congressional scrutiny of the decision to waive the exclusion
should bring greater accountability to DHS's contracting
process.
Sec. 205. Inspector General oversight of suspension and
debarment.
Section 205 provides that the DHS Inspector General may
audit grant and procurement award decisions to ensure entities
that are suspended or debarred from receiving Federal funds are
not improperly receiving those awards. The section also
requires that the Inspector General review the Department's
suspension and debarment program to assess whether criteria are
being consistently applied throughout the Department.
TITLE III-Acquisition Program Management Accountability and
Transparency
Sec. 301. Congressional notification and other requirements
for major acquisition program breach.
Section 301 requires two forms of reporting for major
acquisition programs that experience a breach, defined as a
failure to meet any cost, schedule, or performance parameter
specified in the acquisition program baseline (APB). The
Committee does not intend for breach notifications to become a
paperwork exercise or for program managers to contort their
program to prevent their supervisors from reporting a breach to
the Congress. The breach notification's rationale is to
increase the transparency of programs that are not meeting
their APBs and require more fiscal discipline in managing a
program's cost, schedule, and performance objectives.
First, section 301 requires internal notification within
DHS if a breach occurs. If a major acquisition program has a
potential for a future breach, as determined by the program
manager for that program, the program manager has the
responsibility to notify the person exercising acquisition
decision authority for the program. In the case of an actual
breach in a major acquisition program, the program manager for
that program must notify the head of the Component concerned,
the Component Acquisition Executive for the program, and
Executive Director, the USM, and the Deputy Secretary. In the
case of a major acquisition that experiences an actual breach
with a cost overrun greater than 20 percent or a schedule delay
greater than 12 months from the costs or schedule set forth in
the APB, the Secretary and the Inspector General must be
notified no later than five business days after the actual
breach is identified.
Furthermore, in the case of an actual breach with a cost
overrun greater than 15 percent or a schedule delay greater
than 180 days from the costs or schedule set forth in the APB,
section 301 requires DHS to develop a remediation plan and root
cause analysis. The Committee encourages DHS to conduct such
analysis for all major acquisition programs in actual breach if
appropriate and if resources are available.
The USM has the responsibility to establish a date for
submission within DHS of the breach remediation plan and root
cause analysis. The USM also has the responsibility to
establish a date for submission within DHS of a program of
corrective action that ensures that one of the following has
occurred: (1) The breach has been corrected and the program is
again in compliance with the original APB; (2) a revised APB
has been approved; or (3) the program has been halted or
canceled. The Committee believes that DHS should keep the
original program baseline parameters on file in order to help
assess the development of each program and ensure knowledge
transfer in the case of personnel attrition or changes.
Second, section 301 requires notification to the
congressional homeland security committees for major
acquisition programs that experience an actual breach with a
cost overrun greater than 15 percent or a schedule delay
greater than 180 days from the costs or schedule set forth in
the APB or with an anticipated failure for any key performance
threshold or parameter specified in the APB. The USM will
submit this notification in the next quarterly Comprehensive
Acquisition Status Report.
In the event that a major acquisition program is likely to
experience a cost overrun greater than 20 percent or a likely
delay greater than 12 months from the costs and schedule set
forth in the APB, the USM shall include in the notification to
such committees a written certification that the acquisition is
essential to the accomplishment of the Department's mission;
there are no alternatives to such capability or asset that will
provide equal or greater capability in both a more cost-
effective and timely manner; the new acquisition schedule and
estimates for total acquisition costs are reasonable; and the
management structure for the acquisition program is adequate to
manage and control performance, cost and schedule.
Additionally, no later than 30 calendar days after the USM
submits the breach notification within the Comprehensive
Acquisition Status Report, the USM shall submit to such
committees a copy of the remediation plan and root cause
analysis prepared for the major acquisition program and a
statement describing the corrective action with a justification
for the action.
Finally, during the 90-day period following submission to
the congressional homeland security committees of the
remediation plan, root cause analysis, and statement describing
the corrective action for the major acquisition program, the
USM shall submit a certification that DHS has adjusted or
restructured the program in a manner that addresses the root
cause or causes of the cost growth and/or schedule delay in the
program and DHS has conducted a thorough review of the breached
program's current acquisition decision event approvals and
adjusted the current acquisition decision event approval for
the breached program as necessary to account for the
restructured program. If the USM fails to submit this required
certification within the 90-day period, then funds appropriated
to the major acquisition program shall not be obligated until
the USM submits such certification.
The Committee is concerned about the lack of accountability
with DHS acquisition programs. While the Committee wants to
provide for some variances in cost and schedule and prevent
disruption and potential increase of total acquisition costs,
the Committee firmly believes that DHS must take steps to
restrain the cost increases, schedule delays, and operational
effectiveness failures within its major acquisition programs.
Sec. 302. Multiyear acquisition strategy.
Section 302 requires the Secretary to create a multiyear
acquisition strategy to guide the overall direction of DHS's
acquisitions while allowing flexibility to deal with ever-
changing threats and risks and to help industry better
understand, plan, and align resources to meet the future
acquisition needs of DHS. The strategy should be updated and
included in each Future Years Homeland Security Program
(FYHSP). The Committee foresees the list, inventory, funding
gaps, and identification of capabilities to be an annual update
as part of the FYHSP that will help both Congress and industry
understand key homeland security priorities. Other parts should
be updated each year as necessary, but they should be
considered reaffirmed unless otherwise stated.
Section 302 requires that DHS submit this Multiyear
Acquisition Strategy no later than one year after the date of
the enactment of this section. The Committee believes that the
Secretary should consult to the maximum extent practicable with
DHS Headquarters, Components, employees in the field, and
individuals from industry and the academic community as
appropriate. The Committee intends for DHS to emphasize the
perspectives and experiences of its employees in the field in
crafting its acquisition strategy in order to ensure that DHS
bases its priorities on the practical needs of those who will
be responsible for the operational implementation of these
acquisitions to meet U.S. homeland security mission objectives.
The Committee intends for the report to be submitted in an
unclassified form online in the public domain. However, for any
sensitive or classified information, DHS may include a
classified annex.
List of Major Acquisition Programs and Inventory of Investments
Section 302 also requires that the USM develop a systematic
and integrated prioritized list of DHS's major acquisition
programs that includes the expected security and economic
benefit of the program or system and an analysis of how the
security and economic benefit derived from the program or
system will be measured. The Committee also expects that the
strategy as part of the FYHSP report explain how DHS's homeland
security strategy correlates to DHS's resource allocations and
priorities for major acquisition investments. The Committee
believes that DHS should submit enough information to provide
Congress with the ability to identify and assess how much DHS
plans to invest across its major acquisition portfolio, how
those funding priorities are ranked based on risk and threat to
the homeland, and how DHS expects to afford these priorities.
Section 302 also requires that DHS develop a reliable
Department-wide inventory of investments and real property
assets to help DHS plan, budget, schedule, and acquire upgrades
of its systems and equipment. In August 2013, the DHS Inspector
General found that DHS lacks reliable Department-wide inventory
data and had mismanaged a $3 billion Department-wide strategic
sourcing contract to modernize its legacy radio systems. The
Committee expects DHS to address this issue.
Funding Gaps
Section 302 also requires that DHS develop a plan to
address funding gaps between requirements for major acquisition
programs and planned resources. The 2013 Senate Report No. 112-
169 required that the fiscal year 2014 FYHSP report include the
funding plans for all major acquisitions. According to a 2014
GAO report, the 2014 FYHSP report accounted for a greater
proportion of major acquisition programs than prior years'
reports, but it did not account for all of the programs on
DHS's major acquisition oversight list. The Committee expects
that the FYHSP present funding plans for all major acquisitions
that include the planning, maintenance, and personnel funding.
The Committee also expects that the strategy as part of the
FYHSP report identify how major acquisition programs' annual
cost estimates compare to their funding plans and identify the
associated funding gaps in order to better understand how
anticipated resource constraints could affect DHS's largest
investments.
Identification of Capabilities
Section 302 also requires DHS to identify the capabilities
needed to support the acquisition or technologies to meet the
needs of the Multiyear Acquisition Strategy and ways to
leverage emerging technology trends and research and
development trends within the public and private sectors. In
particular, the Committee intends for DHS to prioritize
innovative commercially-available alternatives to meet
capability needs whenever possible. Section 302 also requires a
focus on flexible solutions and ways to incentivize program
managers and Department acquisition officials to save taxpayer
dollars by preventing cost overruns, avoiding schedule delays,
and achieving cost savings in major acquisition programs.
Acquisition Process and Communication with Industry
Further, section 302 requires DHS to assess how to improve
the acquisition process to minimize cost overruns in
requirements development, procurement announcements, requests
for proposals, and protests of decisions and awards. It also
requires DHS to identify ways to increase opportunities for
communication with industry, small and disadvantaged
businesses, intra-government entities, university centers of
excellence, accredited certification and standards development
organizations, and National Laboratories to ensure that DHS
understands the market for technologies, products, and
innovation that is available to meet its mission needs in order
to better inform the requirements-setting process and before
DHS engages in an acquisition.
In particular, the communications strategy should express
how Federal guidance such as the Office of Federal Procurement
Policy's ``Myth Busters'' will actually be ingrained into
business process changes and trainings employees receive, so
that the guidance will become a greater part of the culture of
the acquisition workforce. The strategy should also make it
clear to Congress and industry how goods and services are
procured and provide greater clarity to all. DHS should also
consider sending out press releases with contract
notifications. DHS should look at mechanisms when making a
contract award to do a same day release and notification.
Lowest-Price, Technically Acceptable
The Committee is concerned that a well-intentioned effort
by DHS to lower costs frequently results in awarding contracts
based on a lowest-price, technically acceptable (LPTA) standard
without considering a best-value tradeoff approach. The
Committee believes that awarding contracts based on an LPTA
basis should not become the default position of DHS. Instead,
careful consideration must be given to each contract to ensure
that there is an appropriate weighing of cost versus other
considerations.
Development of the Acquisition Workforce
Section 302 also requires a plan to ensure competition or
the option of competition in major acquisition programs; a plan
to address DHS acquisition workforce accountability and talent
management; and the feasibility of conducting a pilot program
to establish a Homeland Security Acquisition Workforce
Development Fund. The Committee intends for DHS to develop
innovative solutions to meet its needs through outlining DHS's
specific acquisition workforce needs and through assessing the
options involved with a fund to incentivize DHS acquisition
personnel to control cost growth, limit schedule delays, and
ensure operational effectiveness.
DHS Contracting Officer's Representatives conduct oversight
of DHS contracts and are responsible for monitoring contractor
performance. The Committee therefore believes that steps should
be taken to ensure that this particular cadre of the DHS
workforce is strengthened. Section 302 instructs DHS to include
in its plan, ways to strengthen the performance of its cadre of
contracting officer's representatives by assessing the extent
to which they are certified and trained; determining the most
effective form of training and improving the training offered
based on the final assessment.
Sec. 303. Acquisition reports.
Section 303 authorizes the USM to submit annually the
Comprehensive Acquisition Status Report (CASR) along with
quarterly updates no later than 45 days after the completion of
each quarter. Section 303 also authorizes the USM to prepare a
Quarterly Program Accountability Report (QPAR), which DHS is
currently doing of its own initiative to perform program health
assessments and to improve program execution and governance.
Furthermore, the Committee intends for the USM to also
include in the QPAR additional information for major
acquisition programs that DHS considers in the ``sustainment
phase'' as defined by the DHS May 2013 ``Acquisition Decision
Memorandum.'' This 2013 Memorandum directed Component
Acquisition Executives to ``waive the acquisition documentation
requirements for the 42 Level 1 and 2 acquisition programs''
that were in the sustainment phase prior to 2008 when D 102-01
was issued.
The Committee is concerned about this decision, as it
contradicts GAO findings for good program management. According
to a 2013 GAO report, a knowledge deficit early in a program
can cascade through design and production leaving decision
makers with less knowledge to support decisions about when and
how best to move into subsequent acquisition phases that commit
more budgetary resources.
The Committee believes that DHS's approach in removing
these 42 programs from these requirements sends the wrong
message to program managers about accountability for failure.
Furthermore, there are several programs widely known to have
serious problems with operational effectiveness, cost overruns,
or schedule delays that were included as in the ``sustainment
phase'' in the 2013 Memorandum. These programs were allowed to
proceed without the assurance that they had the appropriate
levels of knowledge to be successful. As a result, DHS allowed
taxpayer dollars to be put at high risk.
Thus, the Committee expects that the USM incorporate within
each QPAR the following information on every major acquisition
program for which five years or more have elapsed since final
approval for system procurement and deployment was given,
including (1) the Acquisition Program Baseline (APB) for the
major acquisition program; (2) the current five-year life cycle
cost for operation of the major acquisition program; (3) the
life cycle cost projected at the time of procurement and
deployment; (4) the projected five-year life cycle cost of
commercially available alternatives capable of replicating the
functionality or functionalities of the major acquisition
program, including major subsystems or capability Components
that can be separated or integrated into the major acquisition
program; and (5) DHS's assessment of ways it can reduce life
cycle costs associated with these major acquisition programs,
including through using already-existing innovative
commercially-available solutions.
Sec. 304. Government Accountability Office review of
multiyear acquisition strategy.
Section 304 requires that GAO conduct a review of the
Multiyear Acquisition Strategy within 180 days after submission
to Congress of the first Multiyear Acquisition Strategy to
analyze the plan's effectiveness.
Sec. 305. Office of Inspector General report.
Section 305 requires that the DHS Inspector General conduct
a review no later than 2 years following the submission of the
Multiyear Acquisition Strategy report to Congress to determine
whether DHS has complied with the strategy; adhered to the
strategies set forth in the plan; and complied with the
requirements to provide the Acquisition Review Board with a
capability development plan for each major acquisition.
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):
HOMELAND SECURITY ACT OF 2002
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents for this Act is
as follows:
* * * * * * *
TITLE VII--MANAGEMENT
* * * * * * *
Sec. 708. Chief Procurement Officer.
Sec. 709. Requirements to ensure greater accountability for acquisition
programs.
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
* * * * * * *
Subtitle D--Acquisitions
* * * * * * *
Sec. 836. Acquisition Review Board.
Sec. 837. Requirements to reduce duplication in acquisition programs.
Sec. 838. Congressional notification and other requirements for major
acquisition program breach.
Sec. 839. Multiyear acquisition strategy.
Sec. 840. Acquisition reports.
* * * * * * *
SEC. 2. DEFINITIONS.
(a) In General.-- In this Act, the following definitions
apply:
(1) * * *
(2)(A) The term ``appropriate congressional
committee'' means any committee of the House of
Representatives or the Senate having legislative or
oversight jurisdiction under the Rules of the House of
Representatives or the Senate, respectively, over the
matter concerned.
(B) The term ``congressional homeland security
committees'' means--
(i) the Committee on Homeland Security of the
House of Representatives and the Committee on
Homeland Security and Governmental Affairs of
the Senate; and
(ii) the Committee on Appropriations of the
House of Representatives and of the Senate,
where appropriate.
(b) Acquisition-Related Definitions.--In this Act, the
following definitions apply:
(1) Acquisition.--The term ``acquisition'' has the
meaning provided in section 131 of title 41, United
States Code.
(2) Acquisition decision authority.--The term
``acquisition decision authority'' means the authority,
held by the Secretary acting through the Deputy
Secretary or Under Secretary for Management--
(A) to ensure compliance with Federal law,
the Federal Acquisition Regulation, and
Department acquisition management directives;
(B) to review (including approving, halting,
modifying, or cancelling) an acquisition
program through the life cycle of the program;
(C) to ensure that program managers have the
resources necessary to successfully execute an
approved acquisition program; and
(D) to ensure good program management of
cost, schedule, risk, and system performance of
the acquisition, including assessing
acquisition program baseline breaches and
directing any corrective action for such
breaches.
(3) Acquisition decision event.--The term
``acquisition decision event'', with respect to an
investment or acquisition program, means a
predetermined point within the acquisition phases of
the investment or acquisition program at which the
investment or acquisition program will undergo a review
prior to commencement of the next phase.
(4) Acquisition decision memorandum.--The term
``acquisition decision memorandum'', with respect to an
acquisition, means the official acquisition decision
event record that includes a documented record of
decisions, exit criteria, and assigned actions for the
acquisition as determined by the person exercising
acquisition decision authority for the acquisition.
(5) Acquisition program baseline.--The term
``acquisition program baseline'', with respect to an
acquisition program, means a summary of the cost,
schedule, and performance parameters, expressed in
standard, measurable, quantitative terms, which must be
met in order to accomplish the goals of the program.
(6) Capability development plan.--The term
``capability development plan'', with respect to a
proposed acquisition, means the document that the
Acquisition Review Board approves for the first
acquisition decision event related to validating the
need of a proposed acquisition.
(7) Component acquisition executive.--The term
``Component Acquisition Executive'' means the senior
acquisition official within a Component who is
designated in writing by the Under Secretary for
Management, in consultation with the Component head,
with authority and responsibility for leading a process
and staff to provide acquisition and program management
oversight, policy, and guidance to ensure that
statutory, regulatory, and higher level policy
requirements are fulfilled, including compliance with
Federal law, the Federal Acquisition Regulation, and
Department acquisition management directives
established by the Under Secretary for Management.
(8) Life cycle cost.--The term ``life cycle cost'',
with respect to an acquisition program, means all costs
associated with research, development, procurement,
operation, integrated logistics support, and disposal
under the program, including supporting infrastructure
that plans, manages, and executes the program over its
full life, and costs of common support items incurred
as a result of the program.
(9) Major acquisition program.--The term ``major
acquisition program'' means a Department acquisition
program that is estimated by the Secretary to require
an eventual total expenditure of at least $300,000,000
(based on fiscal year 2014 constant dollars) over its
life cycle cost.
* * * * * * *
TITLE VII--MANAGEMENT
SEC. 701. UNDER SECRETARY FOR MANAGEMENT.
(a) In General.--The Under Secretary for Management shall
serve as the Chief Management Officer and principal advisor to
the Secretary on matters related to the management of the
Department, including management integration and transformation
in support of homeland security operations and programs. The
Secretary, acting through the Under Secretary for Management,
shall be responsible for the management and administration of
the Department, including the following:
(1) * * *
(2) [Procurement] Acquisition and procurement.
* * * * * * *
(d) Acquisition and Related Responsibilities.--
(1) In general.--Notwithstanding section 1702(b) of
title 41, United States Code, the Under Secretary for
Management is the Chief Acquisition Officer of the
Department. As Chief Acquisition Officer, the Under
Secretary shall have the authority and perform the
functions as specified in section 1702(b) of such
title, and perform all other functions and
responsibilities delegated by the Secretary or
described in this subsection.
(2) Duties and responsibilities.--In addition to the
authority and functions specified in section 1702(b) of
title 41, United States Code, the duties and
responsibilities of the Under Secretary for Management
related to acquisition include the following:
(A) Advising the Secretary regarding
acquisition management activities, taking into
account risks of failure to achieve cost,
schedule, or performance parameters, to ensure
that the Department achieves its mission
through the adoption of widely accepted program
management best practices and standards.
(B) Exercising the acquisition decision
authority to approve, halt, modify (including
the rescission of approvals of program
milestones), or cancel major acquisition
programs, unless the Under Secretary delegates
the authority to a Component Acquisition
Executive pursuant to paragraph (3).
(C) Establishing policies for acquisition
that implement an approach that takes into
account risks of failure to achieve cost,
schedule, or performance parameters that all
Components of the Department shall comply with,
including outlining relevant authorities for
program managers to effectively manage
acquisition programs.
(D) Ensuring that each major acquisition
program has a Department-approved acquisition
program baseline.
(E) Ensuring that the heads of Components and
Component Acquisition Executives comply with
Federal law, the Federal Acquisition
Regulation, and Department acquisition
management directives.
(F) Ensuring that grants and financial
assistance are provided only to individuals and
organizations that are not suspended or
debarred.
(G) Distributing guidance throughout the
Department to ensure that contractors involved
in acquisitions, particularly companies that
access the Department's information systems and
technologies, adhere to internal cybersecurity
policies established by the Department of
Homeland Security.
(3) Delegation of acquisition decision authority.--
(A) Level 3 acquisitions.--The Under
Secretary for Management may delegate
acquisition decision authority in writing to
the relevant Component Acquisition Executive
for an acquisition program that has a life
cycle cost estimate of less than $300,000,000.
(B) Level 2 acquisitions.--The Under
Secretary for Management may delegate
acquisition decision authority in writing to
the relevant Component Acquisition Executive
for a major acquisition program that has a life
cycle cost estimate of at least $300,000,000
but not more than $1,000,000,000 if all of the
following requirements are met:
(i) The Component concerned possesses
working policies, processes, and
procedures that are consistent with
Department-level acquisition policy.
(ii) The Component Acquisition
Executive has adequate, experienced,
dedicated program management
professional staff commensurate with
the size of the delegated portfolio.
(iii) Each major acquisition program
concerned has written documentation
showing that it has a Department-
approved acquisition program baseline
and it is meeting agreed-upon cost,
schedule, and performance thresholds.
(4) Excluded parties list system consultation.--The
Under Secretary for Management shall require that all
Department contracting and procurement officials
consult the Excluded Parties List System (or successor
system) as maintained by the General Services
Administration prior to awarding a contract or grant or
entering into other transactions to ascertain whether
the selected contractor is excluded from receiving
Federal contracts, certain subcontracts, and certain
types of Federal financial and non-financial assistance
and benefits.
(5) Relationship to under secretary for science and
technology.--Nothing in this subsection shall diminish
the authority granted to the Under Secretary for
Science and Technology under this Act. The Under
Secretary for Management and the Under Secretary for
Science and Technology shall cooperate in matters
related to the coordination of acquisitions across the
Department so that investments of the Directorate of
Science and Technology can support current and future
requirements of the Components.
SEC. 702. CHIEF FINANCIAL OFFICER.
(a) * * *
(b) Program Analysis and Evaluation Function.--
(1) * * *
(2) Responsibilities.--The Office shall perform the
following functions:
(A) * * *
* * * * * * *
(J) Notwithstanding section 902 of title 31,
United States Code, provide leadership over
financial management policy and programs for
the Department as they relate to the
Department's acquisitions programs, in
consultation with the Under Secretary for
Management.
* * * * * * *
SEC. 703. CHIEF INFORMATION OFFICER.
(a) * * *
* * * * * * *
(c) Acquisition Responsibilities.--Notwithstanding section
11315 of title 40, United States Code, the acquisition
responsibilities of the Chief Information Officer, in
consultation with the Under Secretary for Management, shall
include the following:
(1) Serve as the lead technical authority for
information technology programs and establish
departmental information technology priorities,
policies, processes, standards, guidelines, and
procedures.
(2) Oversee the management of the Homeland Security
Enterprise Architecture and ensure that, before each
acquisition decision event, approved information
technology acquisitions comply with departmental
information technology management processes, technical
requirements, and the Homeland Security Enterprise
Architecture, and in any case in which information
technology acquisitions do not comply with Departmental
management directives, make recommendations to the
Acquisition Review Board regarding such noncompliance.
(3) Be responsible for providing recommendations to
the Acquisition Review Board established in section 836
of this Act on information technology programs, and be
responsible for developing information technology
acquisition strategic guidance.
* * * * * * *
SEC. 708. CHIEF PROCUREMENT OFFICER.
(a) In General.--There is a Chief Procurement Officer of the
Department, who shall report directly to the Under Secretary
for Management. The Chief Procurement Officer is the senior
procurement executive for purposes of section 1702(c) of title
41, United States Code, and shall perform procurement functions
as specified in such section. The Chief Procurement Officer
also shall perform other functions and responsibilities set
forth in this section and as may be assigned by the Under
Secretary for Management.
(b) Responsibilities.--The Chief Procurement Officer shall--
(1) exercise leadership and authority to the extent
delegated by the Under Secretary for Management over
the Department procurement function;
(2) issue acquisition regulations and policies;
(3) account for the integrity, performance, and
oversight of Department procurement and contracting
functions and be responsible for ensuring that a
procurement's contracting strategy and plans are
consistent with the intent and direction of the
Acquisition Review Board established in section 836 of
this Act;
(4) serve as the Department's business advisor and
main liaison to industry on procurement-related issues
by providing advice on industry engagement, acquisition
policy, oversight of the procurement function, and
development of the acquisition workforce;
(5) oversee a centralized certification and training
program, in consultation with the Under Secretary for
Management, for the entire Department acquisition
workforce while using, to the greatest extent
practicable, best practices and acquisitions training
opportunities already in existence within the Federal
Government, the private sector, or universities and
colleges, as appropriate, and including training on how
best to identify actions that warrant referrals for
suspension or debarment;
(6) delegate or retain contracting authority, as
appropriate, except as provided in section 701(d)(3) of
this Act;
(7) participate in the selection, and periodic
performance review, of the head of each contracting
activity within the Department;
(8) collect baseline data and establish performance
measures on the impact of strategic sourcing
initiatives on the private sector, including, in
particular, small businesses; and
(9) ensure that a fair proportion (as defined
pursuant to the Small Business Act (15 U.S.C. 631 et
seq.)) of Federal contract and subcontract dollars are
awarded to small businesses, maximize opportunities for
small business participation, and ensure, to the extent
practicable, small businesses that achieve qualified
vendor status for security-related technologies are
provided an opportunity to compete for contracts for
such technology.
SEC. 709. REQUIREMENTS TO ENSURE GREATER ACCOUNTABILITY FOR ACQUISITION
PROGRAMS.
(a) Requirement To Establish Mechanism.--Within the
Management Directorate, the Under Secretary for Management
shall establish a mechanism to prioritize improving the
accountability, standardization, and transparency of major
acquisition programs of the Department in order to increase
opportunities for effectiveness and efficiencies and to serve
as the central oversight function of all Department acquisition
programs.
(b) Responsibilities of Executive Director.--The Under
Secretary for Management shall designate an Executive Director
to oversee the requirement under subsection (a). The Executive
Director shall report directly to the Under Secretary and shall
carry out the following responsibilities:
(1) Monitor the performance of Department acquisition
programs regularly between acquisition decision events
to identify problems with cost, performance, or
schedule that Components may need to address to prevent
cost overruns, performance issues, or schedule delays.
(2) Assist the Chief Acquisition Officer in managing
the Department's acquisition portfolio.
(3) Conduct oversight of individual acquisition
programs to implement Department acquisition program
policy, procedures, and guidance with a priority on
ensuring the data it collects and maintains from its
Components is accurate and reliable.
(4) Serve as the focal point within the Department
for policy, process, and procedure regarding life cycle
cost estimating and analysis.
(5) Serve as the focal point and coordinator for the
acquisition life cycle review process and as the
executive secretariat for the Acquisition Review Board
established under section 836 of this Act.
(6) Advise the persons having acquisition decision
authority in making acquisition decisions consistent
with all applicable laws and in establishing clear
lines of authority, accountability, and responsibility
for acquisition decisionmaking within the Department.
(7) Engage in the strategic planning and performance
evaluation process required under section 306 of title
5, United States Code, and sections 1105(a)(28), 1115,
1116, and 9703 of title 31, United States Code, by
supporting the Chief Procurement Officer in developing
strategies and specific plans for hiring, training, and
professional development in order to rectify any
deficiency within the Department's acquisition
workforce.
(8) Oversee the Component Acquisition Executive
structure to ensure it has sufficient capabilities and
complies with Department policies.
(9) Develop standardized certification standards in
consultation with the Component Acquisition Executives
for all acquisition program managers.
(10) In the event that a program manager's
certification or actions need review for purposes of
promotion or removal, provide input, in consultation
with the relevant Component Acquisition Executive, into
the relevant program manager's performance evaluation,
and report positive or negative experiences to the
relevant certifying authority.
(11) Provide technical support and assistance to
Department acquisitions and acquisition personnel in
conjunction with the Chief Procurement Officer.
(12) Prepare the Department's Comprehensive
Acquisition Status Report, as required by the
Department of Homeland Security Appropriations Act,
2013 (division D of Public Law 113-6; 127 Stat. 343)
and section 840 of this Act, and make such report
available to congressional homeland security
committees.
(13) Prepare the Department's Quarterly Program
Accountability Report as required by section 840 of
this Act, and make such report available to the
congressional homeland security committees.
(c) Responsibilities of Components.--Each head of a Component
shall comply with Federal law, the Federal Acquisition
Regulation, and Department acquisition management directives
established by the Under Secretary for Management. For each
major acquisition program, each head of a Component shall--
(1) establish a complete life cycle cost estimate
with supporting documentation, including an acquisition
program baseline;
(2) verify each life cycle cost estimate against
independent cost estimates, and reconcile any
differences;
(3) complete a cost-benefit analysis with supporting
documentation;
(4) develop and maintain a schedule that is
consistent with scheduling best practices as identified
by the Comptroller General of the United States,
including, in appropriate cases, an integrated master
schedule; and
(5) ensure that all acquisition program information
provided by the Component is complete, accurate,
timely, and valid.
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
* * * * * * *
Subtitle D--Acquisitions
* * * * * * *
SEC. 836. ACQUISITION REVIEW BOARD.
(a) In General.--The Secretary shall establish an Acquisition
Review Board (in this section referred to as the ``Board'') to
strengthen accountability and uniformity within the Department
acquisition review process, review major acquisition programs,
and review the use of best practices.
(b) Composition.--The Deputy Secretary or Under Secretary for
Management shall serve as chair of the Board. The Secretary
shall also ensure participation by other relevant Department
officials, including at least two Component heads or their
designees, as permanent members of the Board.
(c) Meetings.--The Board shall meet every time a major
acquisition program needs authorization to proceed from
acquisition decision events through the acquisition life cycle
and to consider any major acquisition program in breach as
necessary. The Board may also be convened for non-major
acquisitions that are deemed high-risk by the Executive
Director referred to in section 709(b) of this Act. The Board
shall also meet regularly for purposes of ensuring all
acquisitions processes proceed in a timely fashion to achieve
mission readiness.
(d) Responsibilities.--The responsibilities of the Board are
as follows:
(1) Determine whether a proposed acquisition has met
the requirements of key phases of the acquisition life
cycle framework and is able to proceed to the next
phase and eventual full production and deployment.
(2) Oversee executable business strategy, resources,
management, accountability, and alignment to strategic
initiatives.
(3) Support the person with acquisition decision
authority for an acquisition in determining the
appropriate direction for the acquisition at key
acquisition decision events.
(4) Conduct systematic reviews of acquisitions to
ensure that they are progressing in compliance with the
approved documents for their current acquisition phase.
(5) Validate the acquisition documents of each major
acquisition program, including the acquisition program
baseline, to ensure the reliability of underlying data.
(6) Ensure that practices are adopted and implemented
to require consideration of trade-offs among cost,
schedule, and performance objectives as part of the
process for developing requirements for major
acquisition programs prior to the initiation of the
capability development plan, second acquisition
decision event, including, at a minimum, the following
practices:
(A) Department officials responsible for
acquisition, budget, and cost estimating
functions are provided with the appropriate
opportunity to develop estimates and raise cost
and schedule matters before performance
objectives are established for capabilities
when feasible.
(B) Full consideration of possible trade-offs
among cost, schedule, and performance
objectives for each alternative is considered.
(e) Acquisition Program Baseline Report Requirement.--If the
person exercising acquisition decision authority over a major
acquisition program approves the program to proceed beyond the
acquisition decision event requiring a capability development
plan before it has a Department-approved acquisition program
baseline, then the Under Secretary for Management shall create
and approve an acquisition program baseline report on the
decision, and the Secretary shall--
(1) within seven days after an acquisition decision
memorandum is signed, notify in writing the
congressional homeland security committees of such
decision; and
(2) within 60 days after the acquisition decision
memorandum is signed, submit a report to such
committees stating the rationale for the decision and a
plan of action to require an acquisition program
baseline for the program.
(f) Best Practices Defined.--In this section, the term ``best
practices'' has the meaning provided in section 4(b) of the DHS
Acquisition Accountability and Efficiency Act.
SEC. 837. REQUIREMENTS TO REDUCE DUPLICATION IN ACQUISITION PROGRAMS.
(a) Requirement To Establish Policies.--In an effort to
reduce duplication and inefficiency for all Department
investments, including major acquisition programs, the Deputy
Secretary, in consultation with the Under Secretary for
Management, shall establish Department-wide policies to
integrate all phases of the investment life cycle and help the
Department identify, validate, and prioritize standards for
common Component requirements for major acquisition program
requirements in order to increase opportunities for
effectiveness and efficiencies. The policies shall also include
strategic alternatives for developing and facilitating a
Department Component-driven requirements process that includes
oversight of a development test and evaluation capability;
identification of priority gaps and overlaps in Department
capability needs; and provision of feasible technical
alternatives, including innovative commercially available
alternatives, to meet capability needs.
(b) Mechanisms To Carry Out Requirement.--The Deputy
Secretary, in consultation with the Under Secretary for
Management, shall coordinate the actions necessary to carry out
subsection (a), using such mechanisms as considered necessary
by the Secretary to help the Department reduce duplication and
inefficiency for all Department investments, including major
acquisition programs.
(c) Coordination.--In coordinating the actions necessary to
carry out subsection (a), the Deputy Secretary shall consult
with the Under Secretary for Management, Component Acquisition
Executives, and any other Department officials, including the
Under Secretary for Science and Technology or his designee,
with specific knowledge of Department or Component acquisition
capabilities to prevent unnecessary duplication of
requirements.
(d) Advisors.--The Deputy Secretary, in consultation with the
Under Secretary for Management, shall seek and consider input
within legal and ethical boundaries from members of Federal,
State, local, and tribal governments, nonprofit organizations,
and the private sector, as appropriate, on matters within their
authority and expertise in carrying out the Department's
mission.
(e) Meetings.--The Deputy Secretary, in consultation with the
Under Secretary for Management, shall meet at least quarterly
and communicate with Components often to ensure that Components
do not overlap or duplicate spending or priorities on major
investments and acquisition programs within their areas of
responsibility.
(f) Responsibilities.--In carrying out this section, the
responsibilities of the Deputy Secretary are as follows:
(1) To review and validate the requirements documents
of major investments and acquisition programs prior to
acquisition decision events of the investments or
programs.
(2) To ensure the requirements and scope of a major
investment or acquisition program are stable,
measurable, achievable, at an acceptable risk level,
and match the resources planned to be available.
(3) Before any entity of the Department issues a
solicitation for a new contract, coordinate with other
Department entities as appropriate to prevent
duplication and inefficiency and--
(A) to implement portfolio reviews to
identify common mission requirements and
crosscutting opportunities among Components to
harmonize investments and requirements and
prevent overlap and duplication among
Components; and
(B) to the extent practicable, to standardize
equipment purchases, streamline the acquisition
process, improve efficiencies, and conduct best
practices for strategic sourcing.
(4) To ensure program managers of major investments
and acquisition programs conduct analyses, giving
particular attention to factors such as cost, schedule,
risk, performance, and operational efficiency in order
to determine that programs work as intended within cost
and budget expectations.
(5) To propose schedules for delivery of the
operational capability needed to meet each Department
investment and major acquisition program.
(g) Best Practices Defined.--In this section, the term ``best
practices'' has the meaning provided in section 4(b) of the DHS
Acquisition Accountability and Efficiency Act.
SEC. 838. CONGRESSIONAL NOTIFICATION AND OTHER REQUIREMENTS FOR MAJOR
ACQUISITION PROGRAM BREACH.
(a) Breach Defined.--The term ``breach'', with respect to a
major acquisition program, means a failure to meet any cost,
schedule, or performance parameter specified in the acquisition
program baseline.
(b) Requirements Within Department if Breach Occurs.--
(1) Notifications.--
(A) Notification of potential breach.--If a
major acquisition program has a potential for a
future breach, as determined by the program
manager for that program, the program manager
shall notify the person exercising acquisition
decision authority for the program.
(B) Notification of actual breach.--If an
actual breach occurs in a major acquisition
program, the program manager for that program
shall notify the head of the Component
concerned, the Component Acquisition Executive
for the program, the Executive Director
referred to in section 709(b) of this Act, the
Under Secretary for Management, and the Deputy
Secretary.
(C) Notification to secretary.--If a major
acquisition program has an actual breach with a
cost overrun greater than 20 percent or a
schedule delay greater than 12 months from the
costs or schedule set forth in the acquisition
program baseline for the program, the Secretary
and the Inspector General of the Department
shall be notified not later than five business
days after the actual breach is identified.
(2) Remediation plan and root cause analysis.--
(A) In general.--In the case of an actual
breach with a cost overrun greater than 15
percent or a schedule delay greater than 180
days from the costs or schedule set forth in
the acquisition program baseline, a remediation
plan and root cause analysis is required, and
the Under Secretary for Management or his
designee shall establish a date for submission
within the Department of a breach remediation
plan and root cause analysis in accordance with
this subsection.
(B) Remediation plan.--The remediation plan
required under this subsection shall be
submitted in writing to the head of the
Component concerned, the Executive Director
referred to in section 709(b) of this Act, and
the Under Secretary for Management. The plan
shall--
(i) explain the circumstances of the
breach;
(ii) provide prior cost estimating
information;
(iii) propose corrective action to
control cost growth, schedule delays,
or performance issues;
(iv) in coordination with Component
Acquisition Executive, discuss all
options considered, including the
estimated impact on cost, schedule, or
performance of the program if no
changes are made to current
requirements, the estimated cost of the
program if requirements are modified,
and the extent to which funding from
other programs will need to be reduced
to cover the cost growth of the
program; and
(v) explain the rationale for why the
proposed corrective action is
recommended.
(C) Root cause analysis.--The root cause
analysis required under this subsection shall
determine the underlying cause or causes of
shortcomings in cost, schedule, or performance
of the program, including the role, if any, of
the following:
(i) Unrealistic performance
expectations.
(ii) Unrealistic baseline estimates
for cost or schedule or changes in
program requirements.
(iii) Immature technologies or
excessive manufacturing or integration
risk.
(iv) Unanticipated design,
engineering, manufacturing, or
technology integration issues arising
during program performance.
(v) Changes in procurement
quantities.
(vi) Inadequate program funding or
changes in planned out-year funding
from one five-year funding plan to the
next five-year funding plan as outlined
in the Future Years Homeland Security
Program required under section 874 of
this Act.
(vii) Legislative, legal, or
regulatory changes.
(viii) Inadequate program management
personnel, including lack of training,
credentials, certifications, or use of
best practices.
(3) Correction of breach.--The Under Secretary for
Management or his designee shall establish a date for
submission within the Department of a program of
corrective action that ensures that one of the
following actions has occurred:
(A) The breach has been corrected and the
program is again in compliance with the
original acquisition program baseline
parameters.
(B) A revised acquisition program baseline
has been approved.
(C) The program has been halted or cancelled.
(c) Requirements Relating to Congressional Notification if
Breach Occurs.--
(1) Notification to congress.--If a notification is
made under subsection (b)(1)(B) for a breach in a major
acquisition program with a cost overrun greater than 15
percent or a schedule delay greater than 180 days from
the costs or schedule set forth in the acquisition
program baseline, or with an anticipated failure for
any key performance threshold or parameter specified in
the acquisition program baseline, the Under Secretary
for Management shall notify the congressional homeland
security committees of the breach in the next quarterly
Comprehensive Acquisition Status Report after the Under
Secretary for Management receives the notification from
the program manager under subsection (b)(1)(B).
(2) Substantial variances in costs or schedule.--If a
likely cost overrun is greater than 20 percent or a
likely delay is greater than 12 months from the costs
and schedule set forth in the acquisition program
baseline for a major acquisition program, the Under
Secretary for Management shall include in the
notification required in (c)(1) a written
certification, with supporting explanation, that--
(A) the acquisition is essential to the
accomplishment of the Department's mission;
(B) there are no alternatives to such
capability or asset that will provide equal or
greater capability in both a more cost-
effective and timely manner;
(C) the new acquisition schedule and
estimates for total acquisition cost are
reasonable; and
(D) the management structure for the
acquisition program is adequate to manage and
control performance, cost, and schedule.
(3) Submissions to congress.--Not later than 30
calendar days after submission to such committees of a
breach notification under paragraph (1) of this section
for a major acquisition program, the Under Secretary
for Management shall submit to such committees the
following:
(A) A copy of the remediation plan and the
root cause analysis prepared under subsection
(b)(2) for the program.
(B) A statement describing the corrective
action or actions that have occurred pursuant
to subsection (b)(3) for the program, with a
justification for the action or actions.
(d) Additional Actions if Breach Occurs.--
(1) Prohibition on obligation of funds.--During the
90-day period following submission under subsection
(c)(3) of a remediation plan, root cause analysis, and
statement of corrective actions with respect to a major
acquisition program, the Under Secretary for Management
shall submit a certification described in paragraph (2)
of this subsection to the congressional homeland
security committees. If the Under Secretary for
Management does not submit such certification by the
end of such 90-day period, then funds appropriated to
the major acquisition program shall not be obligated
until the Under Secretary for Management submits such
certification.
(2) Certification.--For purposes of paragraph (1),
the certification described in this paragraph is a
certification that--
(A) the Department has adjusted or
restructured the program in a manner that
addresses the root cause or causes of the cost
growth in the program; and
(B) the Department has conducted a thorough
review of the breached program's acquisition
decision event approvals and the current
acquisition decision event approval for the
breached program has been adjusted as necessary
to account for the restructured program.
SEC. 839. MULTIYEAR ACQUISITION STRATEGY.
(a) Multiyear Acquisition Strategy Required.--Not later than
one year after the date of the enactment of this section, the
Secretary shall submit to the appropriate homeland security
committees a multiyear acquisition strategy to guide the
overall direction of the acquisitions of the Department while
allowing flexibility to deal with ever-changing threats and
risks and to help industry better understand, plan, and align
resources to meet the future acquisition needs of the
Department. The strategy shall be updated and included in each
Future Years Homeland Security Program required under section
874 of this Act.
(b) Consultation.--In developing the strategy, the Secretary
shall consult with others as the Secretary deems appropriate,
including headquarters, Components, employees in the field, and
when appropriate, individuals from industry and the academic
community.
(c) Form of Strategy.--The report shall be submitted in
unclassified form but may include a classified annex for any
sensitive or classified information if necessary. The
Department also shall publish the plan in an unclassified
format that is publicly available.
(d) Contents of Strategy.--The strategy shall include the
following:
(1) Prioritized list.--A systematic and integrated
prioritized list developed by the Under Secretary for
Management or his designee in coordination with all of
the Component Acquisition Executives of Department
major acquisition programs that Department and
Component acquisition investments seek to address, that
includes the expected security and economic benefit of
the program or system and an analysis of how the
security and economic benefit derived from the program
or system will be measured.
(2) Inventory.--A plan to develop a reliable
Department-wide inventory of investments and real
property assets to help the Department plan, budget,
schedule, and acquire upgrades of its systems and
equipment and plan for the acquisition and management
of future systems and equipment.
(3) Funding gaps.--A plan to address funding gaps
between funding requirements for major acquisition
programs and known available resources including, to
the maximum extent practicable, ways of leveraging best
practices to identify and eliminate overpayment for
items to prevent wasteful purchasing, achieve the
greatest level of efficiency and cost savings by
rationalizing purchases, aligning pricing for similar
items, and utilizing purchase timing and economies of
scale.
(4) Identification of capabilities.--An
identification of test, evaluation, modeling, and
simulation capabilities that will be required to
support the acquisition of the technologies to meet the
needs of the plan and ways to leverage to the greatest
extent possible the emerging technology trends and
research and development trends within the public and
private sectors and an identification of ways to ensure
that the appropriate technology is acquired and
integrated into the Department's operating doctrine and
procured in ways that improve mission performance.
(5) Focus on flexible solutions.--An assessment of
ways the Department can improve its ability to test and
acquire innovative solutions to allow needed incentives
and protections for appropriate risk-taking in order to
meet its acquisition needs with resiliency, agility,
and responsiveness to assure the Nation's homeland
security and facilitate trade.
(6) Focus on incentives to save taxpayer dollars.--An
assessment of ways the Department can develop
incentives for program managers and senior Department
acquisition officials to prevent cost overruns, avoid
schedule delays, and achieve cost savings in major
acquisition programs.
(7) Focus on addressing delays and bid protests.--An
assessment of ways the Department can improve the
acquisition process to minimize cost overruns in
requirements development, procurement announcements,
requests for proposals, evaluation of proposals,
protests of decisions and awards and through the use of
best practices as defined in section 4(b) of the DHS
Acquisition Accountability and Efficiency Act and
lessons learned by the Department and other Federal
agencies.
(8) Focus on improving outreach.--An identification
and assessment of ways to increase opportunities for
communication and collaboration with industry, small
and disadvantaged businesses, intra-government
entities, university centers of excellence, accredited
certification and standards development organizations,
and national laboratories to ensure that the Department
understands the market for technologies, products, and
innovation that is available to meet its mission needs
to inform the requirements-setting process and before
engaging in an acquisition, including--
(A) methods designed especially to engage
small and disadvantaged businesses and a cost-
benefit analysis of the tradeoffs that small
and disadvantaged businesses provide, barriers
to entry for small and disadvantaged
businesses, and unique requirements for small
and disadvantaged businesses; and
(B) within the Department Vendor
Communication Plan and Market Research Guide,
instructions for interaction by program
managers with such entities to prevent
misinterpretation of acquisition regulations
and to permit freedom within legal and ethical
boundaries for program managers to interact
with such businesses with transparency.
(9) Competition.--A plan regarding competition as
described in subsection (e).
(10) Acquisition workforce.--A plan regarding the
Department acquisition workforce as described in
subsection (f).
(11) Feasibility of workforce development fund pilot
program.--An assessment of the feasibility of
conducting a pilot program to establish an acquisition
workforce development fund as described in subsection
(g).
(e) Competition Plan.--The strategy shall also include a plan
(referred to in subsection (d)(9)) that shall address actions
to ensure competition, or the option of competition, for major
acquisition programs. The plan may include assessments of the
following measures in appropriate cases if such measures are
cost effective:
(1) Competitive prototyping.
(2) Dual-sourcing.
(3) Unbundling of contracts.
(4) Funding of next-generation prototype systems or
subsystems.
(5) Use of modular, open architectures to enable
competition for upgrades.
(6) Acquisition of complete technical data packages.
(7) Periodic competitions for subsystem upgrades.
(8) Licensing of additional suppliers, including
small businesses.
(9) Periodic system or program reviews to address
long-term competitive effects of program decisions.
(f) Acquisition Workforce Plan.--
(1) Acquisition workforce.--The strategy shall also
include a plan (referred to in subsection (d)(10)) to
address Department acquisition workforce accountability
and talent management that identifies the acquisition
workforce needs of each Component performing
acquisition functions and develops options for filling
those needs with qualified individuals, including a
cost-benefit analysis of contracting for acquisition
assistance.
(2) Additional matters covered.--The acquisition
workforce plan shall address ways to--
(A) improve the recruitment, hiring,
training, and retention of Department
acquisition workforce personnel, including
contracting officer's representatives, in order
to retain highly qualified individuals that
have experience in the acquisition life cycle,
complex procurements, and management of large
programs;
(B) empower program managers to have the
authority to manage their programs in an
accountable and transparent manner as they work
with the acquisition workforce;
(C) prevent duplication within Department
acquisition workforce training and
certification requirements through leveraging
already-existing training within the Federal
Government, academic community, or private
industry;
(D) achieve integration and consistency with
Government-wide training and accreditation
standards, acquisition training tools, and
training facilities;
(E) designate the acquisition positions that
will be necessary to support the Department
acquisition requirements, including in the
fields of--
(i) program management;
(ii) systems engineering;
(iii) procurement, including
contracting;
(iv) test and evaluation;
(v) life cycle logistics;
(vi) cost estimating and program
financial management; and
(vii) additional disciplines
appropriate to Department mission
needs;
(F) strengthen the performance of contracting
officer's representatives (as defined in
Subpart 1.602-2 and Subpart 2.101 of the
Federal Acquisition Regulation), including by--
(i) assessing the extent to which
contracting officer's representatives
are certified and receive training that
is appropriate;
(ii) determining what training is
most effective with respect to the type
and complexity of assignment; and
(iii) implementing actions to improve
training based on such assessment; and
(G) identify ways to increase training for
relevant investigators and auditors to examine
fraud in major acquisition programs, including
identifying opportunities to leverage existing
Government and private sector resources in
coordination with the Inspector General of the
Department.
(g) Feasibility of Workforce Development Fund Pilot
Program.--The strategy shall also include an assessment
(referred to in subsection (d)(11)) of the feasibility of
conducting a pilot program to establish a Homeland Security
Acquisition Workforce Development Fund (in this subsection
referred to as the ``Fund'') to ensure the Department
acquisition workforce has the capacity, in both personnel and
skills, needed to properly perform its mission and ensure that
the Department receives the best value for the expenditure of
public resources. The assessment shall address the following:
(1) Ways to fund the Fund, including the use of
direct appropriations, or the credit, transfer, or
deposit of unobligated or unused funds from Department
Components into the Fund to remain available for
obligation in the fiscal year for which credited,
transferred, or deposited and to remain available for
successive fiscal years.
(2) Ways to reward the Department acquisition
workforce and program managers for good program
management in controlling cost growth, limiting
schedule delays, and ensuring operational effectiveness
through providing a percentage of the savings or
general acquisition bonuses.
(3) Guidance for the administration of the Fund that
includes provisions to do the following:
(A) Describe the costs and benefits
associated with the use of direct
appropriations or credit, transfer, or deposit
of unobligated or unused funds to finance the
Fund.
(B) Describe the manner and timing for
applications for amounts in the Fund to be
submitted.
(C) Explain the evaluation criteria to be
used for approving or prioritizing applications
for amounts in the Fund in any fiscal year.
(D) Explain the mechanism to report to
Congress on the implementation of the Fund on
an ongoing basis.
(E) Detail measurable performance metrics to
determine if the Fund is meeting the objective
to improve the acquisition workforce and to
achieve cost savings in acquisition management.
SEC. 840. ACQUISITION REPORTS.
(a) Comprehensive Acquisition Status Report.--
(1) In general.--The Under Secretary for Management
each year shall submit to the congressional homeland
security committees, at the same time as the
President's budget is submitted for a fiscal year under
section 1105(a) of title 31, United States Code, a
comprehensive acquisition status report. The report
shall include the following:
(A) The information required under the
heading ``Office of the Under Secretary for
Management'' under Title I of division D of the
Consolidated Appropriations Act, 2012 (Public
Law 112-74) (as required under the Department
of Homeland Security Appropriations Act, 2013
(Public Law 113-6).
(B) A listing of programs that have been
cancelled, modified, paused, or referred to the
Under Secretary for Management or Deputy
Secretary for additional oversight or action by
the Board, Department Office of Inspector
General, or the Comptroller General.
(C) A listing of established Executive
Steering Committees, which provide governance
of a program or related set of programs and
lower-tiered oversight, and support between
acquisition decision events and Component
reviews, including the mission and membership
for each.
(2) Information for major acquisition programs.--For
each major acquisition program, the report shall
include the following:
(A) A narrative description, including
current gaps and shortfalls, the capabilities
to be fielded, and the number of planned
increments or units.
(B) Acquisition Review Board (or other board
designated to review the acquisition) status of
each acquisition, including the current
acquisition phase, the date of the last review,
and a listing of the required documents that
have been reviewed with the dates reviewed or
approved.
(C) The most current, approved acquisition
program baseline (including project schedules
and events).
(D) A comparison of the original acquisition
program baseline, the current acquisition
program baseline, and the current estimate.
(E) Whether or not an independent
verification and validation has been
implemented, with an explanation for the
decision and a summary of any findings.
(F) A rating of cost risk, schedule risk, and
technical risk associated with the program
(including narrative descriptions and
mitigation actions).
(G) Contract status (including earned value
management data as applicable).
(H) A lifecycle cost of the acquisition, and
time basis for the estimate.
(3) Updates.--The Under Secretary shall submit
quarterly updates to such report not later than 45 days
after the completion of each quarter.
(b) Quarterly Program Accountability Report.--The Under
Secretary for Management shall prepare a quarterly program
accountability report to meet the Department's mandate to
perform program health assessments and improve program
execution and governance. The report shall be submitted to the
congressional homeland security committees.
* * * * * * *
Subtitle H--Miscellaneous Provisions
* * * * * * *
SEC. 874. FUTURE YEAR HOMELAND SECURITY PROGRAM.
(a) * * *
(b) Contents.--The Future Years Homeland Security Program
under subsection (a) shall--
(1) * * *
(2) set forth the homeland security strategy of the
Department, which shall be developed and updated as
appropriate annually by the Secretary, that was used to
develop program planning guidance for the Future Years
Homeland Security Program; [and]
(3) include an explanation of how the resource
allocations included in the Future Years Homeland
Security Program correlate to the homeland security
strategy set forth under paragraph (2)[.]; and
(4) include the multiyear acquisition strategy
required under section 839 of this Act.
* * * * * * *
Additional Views
------
ADDITIONAL VIEWS OF BENNIE G. THOMPSON, RANKING MEMBER, ON BEHALF OF
COMMITTEE DEMOCRATS
Committee Democrats were pleased to support H.R. 4228, the
``DHS Acquisition Accountability and Efficiency Act'' (Act).
While we agree with the vast majority of the language contained
within the Report accompanying H.R. 4228 (Report), we would
like to highlight a number of areas within the legislation that
that were strengthened by Democrat input and Amendments that
warrant further detail. Additionally, we would like to
disassociate ourselves with some of the language contained in
the Report.
Background and Need for Legislation
According to the Report, DHS ``will spend at least $300
million on each program and take years to develop and procure
them.'' Committee Democrats wish to point out that the $300
million figure is an estimate. Committee Democrats anticipate
that the provisions in the underlying legislation putting
controls and limitations in place, including the strengthening
of the Acquisition Review Board, may reduce this estimated
amount.
According to the Report, ``[t]o date, DHS has lacked a
strategy to guide the billions of dollars it spends on these
major acquisition programs.'' Committee Democrats agree that a
more strategic approach is needed to ensure taxpayer dollars
are spent in the most efficient and effective manner. However,
Committee Democrats disagree with the notion that ``DHS has
lacked a strategy.'' DHS has numerous acquisition and
procurement strategies in place, including Management Directive
102, which forms the framework for the underlying legislation,
a DHS Acquisitions Planning Guide released by the Office of the
Chief Procurement Officer, the Chief Procurement Office
Strategic Plan, the Integrated Investment Life Cycle, which has
aided the Department in narrowing the scope of its inclusion on
the Government Accountability Office ``High Risk List.''
Committee Democrats note that while DHS has not always been
successful at implementing the numerous strategies that are in
place, strategies do exist.
TITLE I--ACQUISITION AUTHORITIES
Section 101--Acquisition authorities for Under Secretary for Management
During the Full Committee Markup, the Committee adopted an
amendment offered by Rep. Yvette Clarke (D-NY) related to cyber
hygiene. Rep. Clarke's amendment requires the Under Secretary
for Management (USM) to distribute guidance throughout DHS to
ensure that contractors involved in acquisitions adhere to
internal cybersecurity policies established by DHS. Every day,
numerous DHS contractors interface with DHS' networks and
access its information systems and technologies. According to
DHS, 96% of cyber breaches are avoidable through simple or
intermediate controls and almost 97% of cyber events could have
been prevented or damages mitigated, if enterprises would
simply use good cyber hygiene.
At the Full Committee Markup, amendments were also adopted
that were offered by Rep. Bennie G. Thompson (D-MS) that
related to DHS' management of its suspension and debarment
program. Pursuant to his amendments, Section 101 now requires
that DHS contracting and procurement officials consult the U.S.
General Services Administration's (GSA) Excluded Parties List
System, or any successor system, prior to awarding a contract
or other Federal funds to ensure that the recipient is eligible
to receive a Federal contract or Federal financial and
nonfinancial assistance and benefits. Committee Democrats
believe that requiring DHS to make certain that it does not
award contracts to individuals or entities that have been
suspended or debarred can help prevent potential risks
associated with such awards and to ensure that its operations
are in compliance with the Federal Acquisition Regulation.
Section 103--Acquisition authorities for Chief Information Officer
The Committee Report states that it is the Committee's view
that the Chief Information Officer (CIO) should consider the
advantages of already-existing innovative commercial solutions
that may have the ability to meet U.S. homeland security
mission needs while providing solutions for lower costs. While
Democrat Members believe that there are many instances where
commercially-available solutions may prove to be the
appropriate course, it is the view of Committee Democrats that
the CIO should weigh all appropriate options and determine
which approach is most responsive to the Department's
operational needs.
Section 104--Chief Procurement Officer
During the Full Committee markup, an amendment offered by
Ranking Member Thompson (D-MS) was adopted and included in
Section 104. As a result of this amendment, the certification
and training program overseen by the DHS Chief Procurement
Officer (CPO) must also include training on how best to
identify actions that warrant referrals for suspension or
debarment. This amendment is consistent with Government
Accountably Office and the Office of Management and Budget
guidance that Federal agencies improve training in this area to
better equip contracting officials with the knowledge they need
to protect the Federal Government's interest.
This section also incorporates Democrat language,
championed by the Ranking Member of the Subcommittee on
Oversight and Management Efficiency Rep. Ron Barber (D-AZ),
that strengthens the role of small businesses in DHS
contracting. I am disappointed with the incomplete
characterization of the Department's record when it comes to
contracting with small businesses. According to the Report, DHS
``exceeds the U.S. Government-wide goal of 31.75 percent for
contracts awarded to Small Business and Small and Disadvantaged
Business.'' However, this information is deceptive and obscures
the true reality of whether DHS components are meeting Federal
small business goals. For example, the Transportation Security
Administration (TSA) has established 23.0 percent as its goal
for prime small business contracting; however, it is current
contracting at 16.2 percent. Similarly, the Federal Emergency
Management Agency utilizes the DHS-wide goal of 32.0 percent as
its own standard; yet, its current percentage is 24.8 percent,
far below both its own and the DHS-wide goal. Committee
Democrats commends DHS and those Components that meet or exceed
its established goals and congratulates DHS on its agency-wide
Scorecard grade. At the same time, Committee Democrats want to
emphasize that established goals should be met or exceeded
across all components.
As a result of language offered by Committee Democrats that
was incorporated into the Act, Section 104 requires the CPO to
follow small business requirements established in the Small
Business Act; take efforts to ensure that small businesses are
not negatively impacted by strategic sourcing; and instructs
DHS to maximize opportunities for small businesses, as required
by law.
Finally, as a result of an amendment offered by Ranking
Member Thompson and adopted at the Full Committee Markup, this
section seeks to provide opportunities to small businesses that
succeed in completing the Department's process for becoming a
qualified vendor for a security-related technology, thus
increasing competition in the market. Representatives from TSA
have testified that its small business challenges are
attributable to the high cost associated with being able to
endure the testing and evaluation that occurs on security-
related technologies the agency intends to procure.
TITLE II--ACQUISITION PROGRAM MANAGEMENT DISCIPLINE
Section 201--Acquisition Review Board
On April 17, 2014, the Government Accountability Office
(GAO) released a report regarding homeland security
acquisitions. While Committee Democrats were pleased with GAO's
oversight and releasing reports on DHS acquisitions matters,
this report did not; however, inform the basis of this
legislation because it was released after the Full Committee
Markup. As a result, Democrats do not support the inclusion of
references to the ``2014 GAO report'' as a basis for the
underlying legislation. While Committee Democrats will pursue
the findings contained within the report and whether DHS has
adequately addressed the recommendations, we cannot assert that
we intend for the Acquisition Review Board (ARB) to make
affordability ``trade-offs'' without first determining through
oversight, which has not yet occurred, whether this is the best
course of action.
Section 204--Excluded party list system waivers
As part of the suspension and debarment process, the U.S.
General Services Administration maintains a system for
identifying suspended and debarred individuals and businesses.
The purpose of this list--which must be consulted before the
awarding of a contract or other funds--is to protect the
Government from doing business with bad actors. Prior to
issuing an award, contracting officers are required to consult
the system to verify that a vendor is eligible to do business
with the Government. However, contracting officers also have
the ability to issue a waiver that allows the individual or
business to receive a contract despite being suspended or
debarred. According to the Federal Acquisition Regulation, in
an effort to protect the Government, such a waiver should only
be issued if a ``compelling reason'' exists. To ensure that the
exercise of this waiver authority is responsible and
appropriate, Rep. Sheila Jackson-Lee (D-TX) offered an
amendment that was adopted by the Full Committee to Section 204
that requires that the Secretary provide notification to the
congressional homeland security committees within five days
after issuance of a waiver for the requirement that an agency
not engage in business with a contractor listed in the Excluded
Party List System, and an explanation for that waiver.
Committee Democrats believe that this additional layer of
Congressional scrutiny of the decision to waive the exclusion
should bring greater accountability to DHS' contracting process
and guard against overruns and other contract breaches.
Section 205--Inspector General oversight of suspension and debarment
Committee Democrats believe that failing to suspend or
debar poorly performing contractors in addition to awarding
contracts to those that have defrauded the government, violated
laws, or committed other misconduct undermines public
confidence and puts scarce homeland security dollars at risk
and as a result Congressional oversight of this process is
necessary. Moreover, the vast majority of DHS contracts are
awarded in an effort to carry out the homeland security
mission; therefore if this process lacks integrity, it has the
potential to impact our Nation's security. Committee Democrats
also believes that while there is a need for DHS to implement a
robust suspension and debarment program, this process should be
consistently applied, among all business concerns, including
large, small, minority, veteran-owned, disadvantaged and woman-
owned businesses. As a result, Rep. Ron Barber (D-AZ)
introduced an amendment that was adopted at Full Committee that
resulted in Section 204 providing that the DHS Inspector
General may audit grant and procurement award decisions to
ensure entities that are suspended or debarred from receiving
Federal funds are not improperly receiving those awards. Rep.
Barber's adopted amendment also required that the Inspector
General review the Department's suspension and debarment
program to assess whether suspension and debarment criteria is
disproportionately impacts small, minority, veteran-owned,
women-owned or disadvantaged businesses that contract with DHS.
TITLE III--ACQUISITION PROGRAM MANAGEMENT ACCOUNTABILITY AND
TRANSPARENCY
Development of the Acquisition Workforce
DHS Contracting Officer's Representatives (CORs) conduct
oversight of DHS contracts and are primarily responsible for
monitoring contractor performance. It is the responsibility of
this aspect of the workforce to detect and address when
breaches occur and poor performance. Committee Democrats
believe that steps should be taken to ensure that this
particular cadre of the DHS workforce is strengthened. To that
end, Rep. Donald Payne (D-NJ) offered an amendment that was
adopted during the Subcommittee on Oversight and Management
Efficiency Markup of H.R. 4228 that was incorporated into the
Amendment in the Nature of the Substitute that was offered by
Rep. Jeff Duncan (R-SC) at Full Committee. Pursuant to Rep.
Payne's amendment, Section 302 contains provisions that
strengthen the DHS CORs workforce. According to the DHS
Inspector General, many major acquisitions fail due to
inadequate contractor oversight. Furthermore, the Office of
Management and Budget has found that CORs are increasingly
being asked to manage high-value, complex contracts that
involve varying degrees of risk; however, many are not trained
and developed appropriately. As a result of Rep. Payne's
amendment, Section 302 seeks to address this challenge by
requiring DHS to provide particular emphasis on CORs in its
efforts to recruit, hire, train and retain an effective
acquisition and procurement workforce. This section also
instructs DHS to include in its plan, ways to strengthen the
performance of its cadre of contracting officer's
representatives by assessing the extent to which they are
certified and trained; determining the most effective form of
training and improving the training offered based on the final
assessment.
Section 303--Acquisition reports
Committee Democrats are looking forward to receiving the
Quarterly Program Accountability Report that the USM is
authorized to submit to pursuant to Section 303. Moreover,
Committee Democrats agree with the consternation expressed in
the Report with the DHS May 2013 Acquisition Decision
Memorandum that allows Component Acquisition Executive to waive
acquisition documentation for 42 Level I and Level II
acquisition programs that were in the sustainment phase prior
to 2008. While Committee Democrats disagree with that decision,
we do not agree that the waiver requirement bears any relation
to the creation of a knowledge deficit, as indicate by the
Report. Upon information received from DHS, the decision to
grant this waiver authority was an attempt to reduce the large
number of programs reviewed by the Acquisitions Review Board to
avoid more comprehensive and focused review on more recent and
prospective acquisitions. DHS thus used 2008 as the cutoff date
for ARB requirements. Unfortunately, this decision removed from
review some major question programs that were worthy of closer
scrutiny. Therefore, Committee Democrats associate themselves,
in part, with the criticism associated with this decision but
do not agree that this decision was in contradiction with the
referenced 2013 GAO report.
Bennie G. Thompson.