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H.R. 3093: CODER Act of 2019


The text of the bill below is as of Jun 4, 2019 (Introduced).


I

116th CONGRESS

1st Session

H. R. 3093

IN THE HOUSE OF REPRESENTATIVES

June 4, 2019

introduced the following bill; which was referred to the Committee on Armed Services

A BILL

To establish acquisition pathways for software applications and software upgrades and software development and software acquisition training and management programs for the Department of Defense, and for other purposes.

1.

Short title

This Act may be cited as the Creating Opportunities through Defense Engineering Requirements Act of 2019 or the CODER Act of 2019.

2.

Establishment of acquisition pathways for software applications and software upgrades

(a)

Guidance required

Not later than March 1, 2020, the Secretary of Defense shall establish guidance authorizing the use of acquisition pathways described in subsection (b) for the rapid acquisition of software applications and software upgrades that are intended to be fielded within one year. A contract awarded under this section—

(1)

shall be in an amount equal to or less than $50,000,000; and

(2)

may be entered into for a period of not more than one year.

(b)

Software acquisition pathways

The guidance required by subsection (a) shall provide for the use of the following two acquisition pathways:

(1)

Applications

The applications pathway shall provide for the use of rapid development and implementation of software applications to be used with commercially available hardware.

(2)

Upgrades

The upgrades pathway shall provide for the rapid development and insertion of software upgrades for embedded weapon systems or another hardware system solely used by the Department of Defense.

(c)

General requirements

The guidance required by subsection (a) shall provide for—

(1)

the use of proven technologies and solutions to continuously engineer, update, and deliver capabilities in software; and

(2)

a streamlined and coordinated requirements, budget, and acquisition process that results in the rapid fielding of software applications and software upgrades.

(d)

Expedited process

(1)

In general

An acquisition conducted under the guidance required by subsection (a) shall not be subject to the Joint Capabilities Integration and Development System Manual and Department of Defense Directive 5000.01, except to the extent specifically provided in such guidance.

(2)

Requirements process

The guidance required by subsection (a) shall provide that the requirements for acquisition of software applications and software upgrades—

(A)

are developed, refined, and prioritized on an iterative basis through continuous participation and collaboration by users, testers, and requirements authorities;

(B)

include an identification of the need for, and users of, the software to be acquired and a rationale for how the software will support increased efficiency of the Department of Defense;

(C)

are stated in the form of a summary-level list of vulnerabilities in existing software systems and desired features or capabilities of the software to be acquired; and

(D)

consider issues related to lifecycle costs, systems interoperability, and logistics support if the developer of the software to be acquired stops providing support.

(3)

Execution of rapid acquisitions

The Secretary shall ensure that—

(A)

an acquisition conducted under the guidance required by subsection (a) is supported by an entity capable of regular automated testing of the source code of the software to be acquired and that such entity is authorized to buy storage, bandwidth, and computing capability as necessary;

(B)

the Department of Defense can collect and analyze the testing data described in subparagraph (A) to make decisions regarding software acquisition and oversight;

(C)

the Director of Operational Test and Evaluation and the project manager appointed under paragraph (5) design test cases to ensure that the entity described in subparagraph (A) can test the software to be acquired to ensure such software meets the requirements of the contract;

(D)

the project manager appointed under paragraph (5) closely monitors the progress of an acquisition conducted under the guidance required by subsection (a);

(E)

an independent cost estimate is conducted that considers—

(i)

the iterative process of the development of the software to be acquired; and

(ii)

the long-term value of the software to be acquired to the Department of Defense, not based on the value of individual lines of source code of the software;

(F)

the performance of fielded versions of the software to be acquired are demonstrated and evaluated in an operational environment; and

(G)

performance metrics of the software to be acquired, such as metrics relating to when the software can be fielded, delivery capabilities of the software (including speed of recovery from outages and cybersecurity vulnerabilities), and assessments and estimations of the size and complexity of such software, are automatically generated on a continuous basis and made available to the Department of Defense and the congressional defense committees.

(4)

Administration of software acquisition pathways

The guidance required by subsection (a) may provide for the use of any of the following streamlined procedures:

(A)

The service acquisition executive of the military department concerned shall appoint a project manager for each acquisition of software applications and software upgrades, as determined by the service acquisition executive. Such project manager shall be appointed from among civilian employees or members of the Armed Forces who have significant and relevant experience in current software processes.

(B)

Each project manager shall report with respect to such acquisition directly, and without intervening review or approval, to the service acquisition executive of the military department concerned.

(C)

The service acquisition executive of the military department concerned shall evaluate the job performance of such manager on an annual basis. In conducting an evaluation under this paragraph, a service acquisition executive shall consider the extent to which the manager has achieved the objectives of the acquisition for which the manager is responsible, including quality, timeliness, and cost objectives.

(D)

The project manager shall be authorized staff positions for a technical staff, including experts in software engineering to enable the manager to manage the acquisition without the technical assistance of another organizational unit of an agency to the maximum extent practicable.

(E)

The project manager shall be authorized, in coordination with the users and testers of the software to be acquired, to make tradeoffs among lifecycle costs, requirements, and schedules to meet the goals of the acquisition.

(F)

The service acquisition executive or the Under Secretary of Defense for Acquisition and Sustainment, as applicable, shall serve as the decision authority for the acquisition.

(G)

The project manager of a defense streamlined acquisition shall be provided a process to expeditiously seek a waiver from Congress from any statutory or regulatory requirement that the project manager determines adds little or no value to the management of the acquisition.

(e)

Contract terms

(1)

In general

A contract entered into pursuant to the guidance required by subsection (a)—

(A)

may be awarded within a 90-day period after solicitation on the basis of—

(i)

statements of qualifications and past performance data submitted by offerors; and

(ii)

discussions with two or more qualified offerors without regard to price;

(B)

may be a time-and-materials contract;

(C)

shall be treated as a contract for the acquisition of commercial services (as defined in section 103a of title 41, United States Code, as in effect on January 1, 2020);

(D)

shall identify the individuals to perform the work of the contract, and such individuals may not be replaced without the advance written consent of the contracting officer; and

(E)

may allow for a contractor performing the work of the contract to review existing software in consultation with the user community and incorporate user feedback to—

(i)

define and prioritize software requirements; and

(ii)

design and implement new software applications and software upgrades.

(2)

Options

A contract entered into pursuant to the guidance required by subsection (a) may contain an option to extend the contract once, for a period not to exceed one year, to complete the implementation of one or more specified software applications and software upgrades identified during the period of the initial contract. Such an option may not be in an amount greater than $100,000,000 and—

(A)

if the option is a time-and-materials contract, it shall be treated as a contract for the acquisition of commercial services (as defined in section 103a of title 41, United States Code); and

(B)

if the option is a fixed-price contract, it shall be treated as a contract for the acquisition of commercial products (as defined in section 103 of title 41, United States Code).

(f)

Rule of construction

Nothing in this section shall be deemed to prevent the use of other methods of acquisition to procure software applications and upgrades.

(g)

Conforming amendment

Section 2430(a)(2) of title 10, United States Code, is amended—

(1)

in subparagraph (A), by striking or at the end;

(2)

in subparagraph (B), by striking the period at the end and inserting ; or; and

(3)

by adding at the end the following new subparagraph:

(C)

an acquisition program for software applications and software upgrades carried out using the acquisition guidance issued pursuant to the CODER Act of 2019.

.

3.

Software development and software acquisition training and management programs

(a)

Establishment of software development and software acquisition training and management programs

(1)

In general

The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment and in consultation with the Under Secretary of Defense for Research and Engineering and the Chief Information Officer of the Department of Defense, shall establish software development and software acquisition training and management programs for all software acquisition professionals, software developers, and other appropriate individuals, as determined by the Secretary of Defense to earn a certification in software development and software acquisition.

(2)

Program contents

The programs established under paragraph (1) shall—

(A)

develop and expand the use of specialized training programs for chief information officers of the military departments and the Defense Agencies, service acquisition executives, program executive officers, and program managers to include training on and experience in—

(i)

continuous software development; and

(ii)

acquisition pathways available to acquire software;

(B)

ensure program managers for major defense acquisition programs, defense business systems, and other software programs of the Department of Defense—

(i)

have demonstrated competency in current software processes;

(ii)

have the skills to lead a workforce that can quickly meet challenges, use software tools that prioritize continuous or frequent upgrades as such tools become available, take up opportunities provided by new innovations, and plan software activities in short iterations to learn from risks of software testing; and

(iii)

have the experience and training to delegate technical oversight and execution decisions; and

(C)

include continuing education courses and experiential training to help individuals maintain skills learned through the programs.

(b)

Reports

(1)

Reports required

The Secretary shall submit to the congressional defense committees—

(A)

not later than 90 days after the date of the enactment of this Act, an initial report; and

(B)

not later than one year after the date of the enactment of this Act, a final report.

(2)

Contents

Each report required under paragraph (1) shall include—

(A)

the status of implementing the software development and software acquisition training and management programs established under subsection (a)(1);

(B)

a description of the requirements for certification, including the requirements for competencies in current software processes;

(C)

a description of potential career paths in software development and software acquisition within the Department of Defense;

(D)

an independent assessment conducted by the Defense Innovation Board of the progress made on implementing the programs established under subsection (a)(1); and

(E)

any recommendations for changes to existing law to facilitate the implementation of the programs established under subsection (a)(1).

(c)

Definitions

In this section:

(1)

Program executive officer; program manager

The terms program executive officer and program manager have the meanings given those terms, respectively, in section 1737 of title 10, United States Code.

(2)

Service acquisition executive

The terms military department, Defense Agency, and service acquisition executive have the meanings given those terms, respectively, in section 101 of title 10, United States Code.

(3)

Major defense acquisition program

The term major defense acquisition program has the meaning given in section 2430 of title 10, United States Code.

(4)

Defense business system

The term defense business system has the meaning given in section 2222(i)(1) of title 10, United States Code.