[Senate Report 117-149]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 489
117th Congress     }                                    {       Report
                                 SENATE
 2d Session        }                                    {      117-149
_______________________________________________________________________

                                     



                       EXTENSION OF DEPARTMENT OF

                        HOMELAND SECURITY OTHER

                   TRANSACTION AUTHORITY ACT OF 2022

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 4553

             TO EXTEND OTHER TRANSACTION AUTHORITY FOR THE
                    DEPARTMENT OF HOMELAND SECURITY






[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]







               September 15, 2022.--Ordered to be printed 
               
                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
29-010                   WASHINGTON : 2022
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
                  Michelle M. Benecke, Senior Counsel
   Tiffany Ann Shujath, U.S. Department of Homeland Security Detailee
                Pamela Thiessen, Minority Staff Director
            Sam J. Mulopulos, Minority Deputy Staff Director
       Jeremy H. Hayes, Minority Senior Professional Staff Member
                     Laura W. Kilbride, Chief Clerk 


















                                                      Calendar No. 489
117th Congress     }                                    {       Report
                                 SENATE
 2d Session        }                                    {      117-149

======================================================================



 
    EXTENSION OF DEPARTMENT OF HOMELAND SECURITY OTHER TRANSACTION 
                         AUTHORITY ACT OF 2022

                                _______
                                

               September 15, 2022.--Ordered to be printed

                                _______
                                

        Mr. Peters, from the Committee on Homeland Security and
             Governmental Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 4553]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 4553), to extend 
other transaction authority for the Department of Homeland 
Security, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                     Page
  I. Purpose and Summary..............................................  1
 II. Background and Need for the Legislation..........................  2
III. Legislative History..............................................  2
 IV. Section-by-Section Analysis of the Bill, as Reported.............  2
  V. Evaluation of Regulatory Impact..................................  3
 VI. Congressional Budget Office Cost Estimate........................  3
VII. Changes in Existing Law Made by the Bill, as Reported............  4

                         I. Purpose and Summary

    S. 4553, the Extension of Department of Homeland Security 
Other Transaction Authority Act of 2022, would extend the 
Department of Homeland Security (DHS) other transaction 
authority for the purpose of carrying out research and 
development or prototype projects through fiscal year 2024.\1\
---------------------------------------------------------------------------
    \1\The Homeland Security Act of 2002, Section 831, authorized the 
Secretary of Homeland Security to exercise the same other transaction 
authorities granted to the Secretary of Defense under 10 U.S.C. 
Sec. 2371, as revised. The Secretary of Homeland Security was granted 
this authority on November 25, 2002, for a period of 5 years, but the 
authority has been repeatedly extended.
---------------------------------------------------------------------------

              II. Background and Need for the Legislation

    Other transaction agreements (OTAs) are legally binding 
agreements that are exempt from the Federal Acquisition 
Regulation (FAR). Unlike procurement contracts, grants, and 
cooperative agreements, OTAs provide greater access to non-
traditional contractors, or those who have not previously done 
business with the federal government.\2\ DHS uses OTAs when the 
Department and awardees need flexibility in the negotiation of 
terms and conditions that go beyond what is available in the 
FAR.
---------------------------------------------------------------------------
    \2\AcqNotes Program Management Tool for Aerospace, Contracts and 
Legal, Other Transaction Authority (OTA) (https://acqnotes.com/acqnote/
careerfields/other-transaction-authority-ota) (Accessed Aug. 22, 2022).
---------------------------------------------------------------------------
    This streamlined and rapid means of procurement is seen as 
a way for defense agencies to keep pace with global competitors 
such as China and Russia.\3\ DHS uses OTAs predominately with 
non-traditional government contractors working on cutting-edge, 
emerging technologies that otherwise would not be available to 
the Department in a timely manner or include specific 
government needs.\4\
---------------------------------------------------------------------------
    \3\Center for Strategic & International Studies, Department of 
Defense Other Transaction Authority Trends: A New R&D Funding Paradigm 
(Dec. 8, 2020) (www.csis.org/analysis/department-defense-other-
transaction-authority-trends-new-rd-funding-paradigm).
    \4\Department of Homeland Security, MD Number 0771.1, Other 
Transaction Authority 
(Jul. 8, 2005) (www.dhs.gov/xlibrary/assets/foia/
mgmt_directive_0771_1_other_transaction_
authority.pdf).
---------------------------------------------------------------------------

                        III. Legislative History

    Chairman Gary Peters (D-MI) introduced S. 4553, the 
Extension of Department of Homeland Security Other Transaction 
Authority Act of 2022, on July 19, 2022, with Ranking Member 
Rob Portman (R-OH). The bill was referred to the Committee on 
Homeland Security and Governmental Affairs.
    The Committee considered S. 4553 at a business meeting on 
August 3, 2022. The bill was ordered reported favorably by 
voice vote en bloc with Senators Peters, Hassan, Sinema, Rosen, 
Padilla, Ossoff, Lankford, Romney, Scott, and Hawley present.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section provides that the Act may be cited as the 
``Extension of Department of Homeland Security Other 
Transaction Authority Act of 2022.''

Sec. 2. Department of Homeland Security other transaction authority

    This section amends Section 831 of the Homeland Security 
Act of 2002 (6 U.S.C. Sec. 391) to extend the DHS other 
transaction authority through fiscal year 2024 and correct the 
section number of the reference to the DoD other transaction 
authority at 10 U.S.C. Sec. 4022, formerly section 2371(b).

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's (CBO) statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, September 7, 2022.
Hon. Gary Peters,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 4553, the Extension 
of Department of Homeland Security Other Transaction Authority 
Act of 2022.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jeremy Crimm.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    S. 4553 would extend through 2024 the authority for the 
Department of Homeland Security (DHS) to waive requirements of 
the Federal Acquisition Regulation, the procedures that guide 
federal procurement actions, for certain research and 
development and prototype projects. The authority, known as 
``Other Transaction Authority,'' helps DHS work with 
organizations that have not previously contracted with the 
federal government. The agency uses the authority to 
participate in research that broadens its knowledge base and to 
develop prototypes of emerging technologies. Under current law, 
the authority expires at the end of fiscal year 2022.
    The authority is a contracting tool which affects DHS's 
procurement process for certain research and development 
projects, but it does not impact DHS spending on those 
activities. Based on that information, CBO estimates that 
implementing S. 4553 would have no effect on spending over the 
2022-2027 period.
    S. 4553 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jeremy Crimm. 
The estimate was reviewed by LeoLex, Deputy Director of Budget 
Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 6--DOMESTIC SECURITY

           *       *       *       *       *       *       *


CHAPTER 1--HOMELAND SECURITY ORGANIZATION

           *       *       *       *       *       *       *



  Subchapter VIII--Coordination With Non-Federal Entities; Insepctor 
General; United States Secret Service; Coast Guard; General Provisions

           *       *       *       *       *       *       *



PART D--ACQUISITIONS

           *       *       *       *       *       *       *



SEC. 391. RESEARCH AND DEVELOPMENT PROJECTS

    (a) Authority
    Until [September 30, 2017] September 30, 2024 and subject 
to subsection (d), the Secretary may carry out a pilot program 
under which the Secretary may exercise the following 
authorities:
          (1) * * *
          (2) [Prototype projects
    The Secretary may, under the authority of paragraph (1), 
carry out prototype projects in accordance with the 
requirements and conditions provided for carrying out prototype 
projects under section 845 of the National Defense 
Authorization Act for Fiscal Year 1994 (Public Law 103-160). In 
applying the authorities of that section 845, subsection (c) of 
that section shall apply with respect to prototype projects 
under this paragraph, and the Secretary shall perform the 
functions of the Secretary of Defense under subsection (d) 
thereof.]
          Prototype projects.--The Secretary--
                  (A) may, under the authority of paragraph 
                (1), carry out prototype projects under section 
                4022 of title 10, United States Code; and
                  (B) in applying the authorities of such 
                section 4022, the Secretary shall perform the 
                functions of the Secretary of Defense as 
                prescribed in such section.
    (b) * * *
    (c) Additional Requirements
          (1) In general
          The authority of the Secretary under this section 
        shall terminate [September 30, 2017] September 30, 
        2024, unless before that date the Secretary--
                  (A) issues policy guidance detailing the 
                appropriate use of that authority; and
                  (B) provides training to each employee that 
                is authorized to exercise that authority.
          (2) * * *
    (d) Definition of Nontraditional Government Contractor
    In this section, the term ``nontraditional Government 
contractor'' has the same meaning as the term ``nontraditional 
defense contractor'' as defined in [section 845(e) of the 
National Defense Authorization Act for Fiscal Year 1994 (Public 
Law 103-160; 10 U.S.C. 2371 note)] section 4022(e) of title 10, 
United States Code.

                                  [all]