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H.R. 6871: DHS Acquisition Reform Act


The text of the bill below is as of May 18, 2022 (Referred to Senate Committee).


IIB

117th CONGRESS

2d Session

H. R. 6871

IN THE SENATE OF THE UNITED STATES

May 18 (legislative day, May 17), 2022

Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs

AN ACT

To amend the Homeland Security Act of 2002 to provide for certain acquisition authorities for the Under Secretary of Management of the Department of Homeland Security, and for other purposes.

1.

Short title

This Act may be cited as the DHS Acquisition Reform Act.

2.

Acquisition authorities for the Under Secretary of Management of the Department of Homeland Security

Section 701 of the Homeland Security Act of 2002 (6 U.S.C. 341) is amended—

(1)

in subsection (a)—

(A)

in paragraph (2), by inserting and acquisition management after Procurement; and

(B)

in paragraph (6), by inserting (including firearms and other sensitive assets) after equipment;

(2)

by redesignating subsections (d), the first subsection (e) (relating to the system for award management consultation), and the second subsection (e) (relating to the definition of interoperable communications) as subsections (e), (f), and (g), respectively; and

(3)

by inserting after subsection (c) the following new subsection:

(d)

Acquisition and related responsibilities

(1)

In general

Notwithstanding section 1702(a) 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 authorities and perform the functions 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)

Functions and responsibilities

In addition to the authorities and functions specified in section 1702(b) of title 41, United States Code, the functions and responsibilities of the Under Secretary for Management related to acquisition (as such term is defined in section 131 of such title) include the following:

(A)

Advising the Secretary regarding acquisition management activities, considering 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 (as such term is defined in section 714) and standards and, where appropriate, acquisition innovation best practices.

(B)

Leading the Department’s acquisition oversight body, the Acquisition Review Board.

(C)

Synchronizing interagency coordination relating to acquisition programs and acquisition management efforts of the Department.

(D)

Exercising the acquisition decision authority (as such term is defined in section 714) to approve, pause, modify (including the rescission of approvals of program milestones), or cancel major acquisition programs (as such term is defined in section 714), unless the Under Secretary delegates such authority to a Component Acquisition Executive (as such term is defined in section 714) pursuant to paragraph (3).

(E)

Providing additional scrutiny and oversight for an acquisition that is not a major acquisition if—

(i)

the acquisition is for a program that is important to the strategic and performance plans of the Department;

(ii)

the acquisition is for a program with significant program or policy implications; and

(iii)

the Secretary determines that such scrutiny and oversight for the acquisition is proper and necessary.

(F)

Establishing policies for managing acquisitions across the Department that promote best practices (as such term is defined in section 714).

(G)

Establishing policies for acquisition that implement an approach that considers 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 (as such term is defined in section 714).

(H)

Ensuring that each major acquisition program has a Department-approved acquisition program baseline (as such term is defined in section 714), pursuant to the Department’s acquisition management policy that is traceable to the life-cycle cost estimate of the program, integrated master schedule, and operational requirements.

(I)

Assisting the heads of components and Component Acquisition Executives in efforts to comply with Federal law, the Federal Acquisition Regulation, and Department acquisition management directives.

(J)

Ensuring that grants and financial assistance are provided only to individuals and organizations that are not suspended or debarred.

(K)

Distributing guidance throughout the Department to ensure that contractors involved in acquisitions, particularly contractors that access the Department’s information systems and technologies, adhere to relevant Department policies related to physical and information security as identified by the Under Secretary.

(L)

Overseeing the Component Acquisition Executive organizational structure to ensure Component Acquisition Executives have sufficient capabilities and comply with Department acquisition policies.

(M)

Developing and managing a professional acquisition workforce to ensure the goods and services acquired by the Department meet the needs of the mission and are at the best value for the expenditure of public resources.

(3)

Delegation of certain acquisition decision authority

The Under Secretary for Management may delegate acquisition decision authority, in writing, to the relevant Component Acquisition Executive for a major capital asset, service, or hybrid acquisition program that has a life-cycle cost estimate of at least $300,000,000 but not more than $1,000,000,000, based on fiscal year 2022 constant dollars, if—

(A)

the component concerned possesses working policies, processes, and procedures that are consistent with Department acquisition policy;

(B)

the Component Acquisition Executive concerned has adequate, experienced, and dedicated professional employees with program management training; and

(C)

each major acquisition program has a Department-approved acquisition program baseline, and it is meeting agreed-upon cost, schedule, and performance thresholds.

.

3.

Office of Test and Evaluation of the Department of Homeland Security

(a)

In general

Title III of the Homeland Security Act of 2002 (6 U.S.C. 181 et seq.) is amended by adding at the end the following new section:

323.

Office of Test and Evaluation

(a)

Establishment of Office

There is established in the Directorate of Science and Technology of the Department an Office of Test and Evaluation (in this section referred to as the Office). The Office shall—

(1)

serve as the principal advisory office for test and evaluation support across the Department; and

(2)

serve as the test and evaluation liaison with—

(A)

Federal agencies and foreign, State, local, Tribal, and territorial governments;

(B)

the private sector;

(C)

institutions of higher education; and

(D)

other relevant entities.

(b)

Director

The Office shall be led by a Director. The Director shall oversee the duties specified in subsection (a) and carry out the following responsibilities:

(1)

Serve as a member of the Department’s Acquisition Review Board.

(2)

Establish and update, as necessary, test and evaluation policies, procedures, and guidance for the Department.

(3)

Ensure, in coordination with the Chief Acquisition Officer, the Joint Requirements Council, the Under Secretary for Science and Technology, and relevant component heads, that acquisition programs (as such term is defined in section 714)—

(A)

complete reviews of operational requirements to ensure such requirements—

(i)

are informed by threats, including physical and cybersecurity threats;

(ii)

are operationally relevant; and

(iii)

are measurable, testable, and achievable within the constraints of cost and schedule;

(B)

complete independent testing and evaluation of a system or service throughout development of such system or service;

(C)

complete operational testing and evaluation that includes all system components and incorporates operators into such testing and evaluation to ensure that a system or service satisfies the mission requirements in the operational environment of such system or service as intended in the acquisition program baseline;

(D)

use independent verification and validation of test and evaluation implementation and results, as appropriate; and

(E)

document whether such programs meet all operational requirements.

(4)

Provide oversight of test and evaluation activities for major acquisition programs throughout the acquisition life cycle by—

(A)

approving program test and evaluation master plans, plans for individual test and evaluation events, and other related documentation, determined appropriate by the Director;

(B)

approving which independent test and evaluation agent or third-party tester is selected for each program; and

(C)

providing an independent assessment to the acquisition decision authority (as such term is defined in section 714) that assesses a program’s progress in meeting operational requirements and operational effectiveness, suitability, and resilience to inform production and deployment decisions.

(5)

Determine if testing of a system or service conducted by other Federal agencies, entities, or institutions of higher education are relevant and sufficient in determining whether such system or service performs as intended.

(c)

Annual report

(1)

In general

Not later than one year after the date of the enactment of this section and annually thereafter, the Director of the Office shall submit to the Secretary, the Under Secretary for Management, component heads, and the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs a report relating to the test and evaluation activities of the major acquisition programs of the Department for the previous fiscal year.

(2)

Elements

Each report required under paragraph (1) shall include the following:

(A)

An assessment of—

(i)

test and evaluation activities conducted for each major acquisition program with respect to demonstrating operational requirements and operational effectiveness, suitability, and resilience for each such program;

(ii)

any waivers of, or deviations from, approved program test and evaluation master plans referred to in subsection (b)(3)(A);

(iii)

any concerns raised by the independent test and evaluation agent or third-party tester selected and approved under subsection (b)(3)(B) relating to such waivers or deviations; and

(iv)

any actions that have been taken or are planned to be taken to address such concerns.

(B)

Recommendations with respect to resources, facilities, and levels of funding made available for test and evaluation activities referred to in subparagraph (A).

(3)

Form

Each report required under paragraph (1) shall be submitted in unclassified form but may include a classified annex.

(d)

Relationship to Under Secretary for Science and Technology

(1)

In general

The Under Secretary for Management and the Under Secretary for Science and Technology shall coordinate in matters related to Department-wide acquisitions so that investments of the Directorate of Science and Technology are able to support current and future requirements of the components of the Department.

(2)

Rule of construction

Nothing in this subsection may be construed as affecting or diminishing the authority of the Under Secretary for Science and Technology.

.

(b)

Clerical amendment

The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by inserting after the item relating to section 322 the following new item:

Sec. 323. Office of Test and Evaluation.

.

4.

Acquisition authorities for Chief Financial Officer of the Department of Homeland Security

Paragraph (2) of section 702(b) of the Homeland Security Act of 2002 (6 U.S.C. 342(b)) is amended by—

(1)

redesignating subparagraph (I) as subparagraph (J); and

(2)

inserting after subparagraph (H) the following new subparagraph:

(I)

Oversee the costs of acquisition programs (as such term is defined in section 714) and related activities to ensure that actual and planned costs are in accordance with budget estimates and are affordable, or can be adequately funded, over the life cycle of such programs and activities.

.

5.

Acquisition authorities for Chief Information Officer of the Department of Homeland Security

Section 703 of the Homeland Security Act of 2002 (6 U.S.C. 343) is amended—

(1)

by redesignating subsection (b) as subsection (c); and

(2)

by inserting after subsection (a) the following new subsection:

(b)

Acquisition responsibilities

In addition to the responsibilities specified in 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)

Overseeing the management of the Homeland Security Enterprise Architecture and ensuring that, before each acquisition decision event (as such term is defined in section 714), approved information technology acquisitions comply with any departmental information technology management requirements, security protocols, and the Homeland Security Enterprise Architecture, and in any case in which information technology acquisitions do not so comply, making recommendations to the Department’s Acquisition Review Board regarding such noncompliance.

(2)

Providing recommendations to the Acquisition Review Board regarding information technology programs and developing information technology acquisition strategic guidance.

.

6.

Acquisition authorities for Under Secretary of Strategy, Policy, and Plans of the Department of Homeland Security

Subsection (c) of section 709 of the Homeland Security Act of 2002 (6 U.S.C. 349) is amended by—

(1)

redesignating paragraphs (4) through (7) as (5) through (8), respectively; and

(2)

inserting after paragraph (3) the following new paragraph:

(4)

ensure acquisition programs (as such term is defined in section 714) support the DHS Quadrennial Homeland Security Review Report, the DHS Strategic Plan, the DHS Strategic Priorities, and other appropriate successor documents;

.

7.

Acquisition authorities for program accountability and risk management (PARM) of the Department of Homeland Security

(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:

714.

Program Accountability and Risk Management office

(a)

Establishment of office

There is established in the Management Directorate of the Department a Program Accountability and Risk Management office. Such office shall—

(1)

provide consistent accountability, standardization, and transparency of major acquisition programs of the Department;

(2)

serve as the central oversight function for all Department major acquisition programs; and

(3)

provide review and analysis of Department acquisition programs, as appropriate.

(b)

Executive Director

The Program Accountability and Risk Management office shall be led by an Executive Director. The Executive Director shall oversee the duties specified in subsection (a), report directly to the Under Secretary for Management, and carry out the following responsibilities:

(1)

Regularly monitor the performance of Department major acquisition programs 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 Under Secretary for Management in managing the Department’s acquisition programs, acquisition workforce, and related activities of the Department.

(3)

Conduct oversight of individual acquisition programs to implement Department acquisition program policy, procedures, and guidance, with a priority on ensuring the data the office collects and maintains from Department components is accurate and reliable.

(4)

Serve as the focal point and coordinator for the acquisition life-cycle review process and as the executive secretariat for the Department’s Acquisition Review Board.

(5)

Advise the persons having acquisition decision authority to—

(A)

make acquisition decisions consistent with all applicable laws; and

(B)

establish clear lines of authority, accountability, and responsibility for acquisition decision-making within the Department.

(6)

Develop standardized certification standards, in consultation with the Component Acquisition Executives, for all acquisition program managers.

(7)

Assess the results of major acquisition programs’ post-implementation reviews, and identify opportunities to improve performance throughout the acquisition process.

(8)

Provide technical support and assistance to Department acquisition programs and acquisition personnel, and coordinate with the Chief Procurement Officer regarding workforce training and development activities.

(9)

Assist, as appropriate, with the preparation of the Future Years Homeland Security Program, and make such information available to the congressional homeland security committees.

(10)

In coordination with the Component Acquisition Executives, maintain the Master Acquisition Oversight List, updated quarterly, that shall serve as an inventory of all major acquisition programs and non-major acquisition programs within the Department, including for each such program—

(A)

the component sponsoring the acquisition;

(B)

the name of the acquisition;

(C)

the acquisition level as determined by the anticipated life-cycle cost of the program and other criteria pursuant to the Department-level acquisition policy;

(D)

the acquisition decision authority for the acquisition; and

(E)

the current acquisition phase.

(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 an organizational structure for conducting acquisitions within the component, to be managed by a Component Acquisition Executive;

(2)

obtain the resources necessary to operate such an organizational structure that are aligned with the number, type, size, and complexity of the acquisition programs of the component; and

(3)

oversee sustainment of capabilities deployed by major acquisition programs and non-major acquisition programs after all planned deployments are completed until such capabilities are retired or replaced.

(d)

Responsibilities of Component Acquisition Executives

Each Component Acquisition Executive shall—

(1)

establish and implement policies and guidance for managing and conducting oversight for major acquisition programs and non-major acquisition programs within the component at issue that comply with Federal law, the Federal Acquisition Regulation, and Department acquisition management directives established by the Under Secretary for Management;

(2)

for each major acquisition program—

(A)

define baseline requirements and document changes to such requirements, as appropriate;

(B)

establish a complete life cycle cost estimate with supporting documentation that is consistent with cost estimating best practices as identified by the Comptroller General of the United States;

(C)

verify each life cycle cost estimate against independent cost estimates or assessments, as appropriate, and reconcile any differences;

(D)

complete a cost-benefit analysis with supporting documentation; and

(E)

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;

(3)

ensure that all acquisition program documentation provided by the component demonstrates the knowledge required for successful program execution prior to final approval and is complete, accurate, timely, and valid;

(4)

in such cases where it is appropriate, exercise the acquisition decision authority to approve, pause, modify (including the rescission of approvals of program milestones), or cancel major acquisition programs or non-major acquisition programs when delegated by the Under Secretary for Management pursuant to section 701(d)(3); and

(5)

review, oversee, and direct activities between acquisition decision events for major acquisition programs within the component for which the Under Secretary for Management is the acquisition decision authority.

(e)

Definitions

In this section:

(1)

Acquisition

The term acquisition has the meaning given such term in section 131 of title 41, United States Code.

(2)

Acquisition decision authority

The term acquisition decision authority means the authority, in addition to the authorities and functions specified in subsection (b) of section 1702 of title 41, United States Code, held by the Secretary acting through the Under Secretary for Management to—

(A)

ensure compliance with Federal law, the Federal Acquisition Regulation, and Department acquisition management directives;

(B)

review (including approving, pausing, modifying, or canceling) an acquisition program throughout the life cycle of such program;

(C)

ensure that acquisition program managers have the resources necessary to successfully execute an approved acquisition program;

(D)

ensure appropriate acquisition program management of cost, schedule, risk, and system or service performance of the acquisition program at issue, including assessing acquisition program baseline breaches and directing any corrective action for such breaches;

(E)

ensure that acquisition program managers, on an ongoing basis, monitor cost, schedule, and performance against established baselines and use tools to assess risks to an acquisition program at all phases of the life-cycle of such program; and

(F)

establish policies and procedures for major acquisition programs of the Department.

(3)

Acquisition decision event

The term acquisition decision event, with respect to an acquisition program, means a predetermined point within the acquisition life-cycle at which the acquisition decision authority determines whether such acquisition program shall proceed to the next acquisition phase.

(4)

Acquisition program

The term acquisition program means the conceptualization, initiation, design, development, test, contracting, production, deployment, logistics support, modification, or disposal of systems, supplies, or services (including construction) to satisfy the Department’s needs.

(5)

Acquisition program baseline

The term acquisition program baseline, with respect to an acquisition program, means the cost, schedule, and performance parameters, expressed in standard, measurable, quantitative terms, which must be met to accomplish the goals of such program.

(6)

Best practices

The term best practices, with respect to acquisition, means a knowledge-based approach to capability development, procurement, and support that includes the following:

(A)

Identifying and validating needs.

(B)

Assessing alternatives to select the most appropriate solution.

(C)

Establishing well-defined requirements.

(D)

Developing realistic cost assessments and schedules that account for the entire life-cycle of an acquisition.

(E)

Demonstrating technology, design, and manufacturing maturity before initiating production.

(F)

Using milestones and exit criteria or specific accomplishments that demonstrate the attainment of knowledge to support progress throughout the acquisition phases.

(G)

Regularly assessing and managing risks to achieve requirements and cost and schedule goals.

(H)

To the maximum extent possible, adopting and executing standardized processes.

(I)

Establishing a workforce that is qualified to perform necessary acquisition roles.

(J)

Integrating into the Department’s mission and business operations the capabilities described in subparagraphs (A) through (I).

(7)

Breach

The term breach, with respect to a major acquisition program, means a failure to meet any cost, schedule, or performance threshold specified in the most recently approved acquisition program baseline.

(8)

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 the Committee on Appropriations of the Senate.

(9)

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.

(10)

Life-cycle cost

The term life-cycle cost means the total cost to the Government of acquiring, operating, supporting, and (if applicable) disposing of the items being acquired.

(11)

Major acquisition program

The term major acquisition program means a Department capital asset, services, or hybrid acquisition program that is estimated by the Secretary to require an eventual total expenditure of at least $300,000,000 (based on fiscal year 2022 constant dollars) over its life cycle or a program identified by the Chief Acquisition Officer as a program of special interest.

.

(b)

Clerical amendment

The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by inserting after the item relating to section 710 the following new item:

Sec. 714. Program Accountability and Risk Management office.

.

8.

Acquisition documentation

(a)

In general

Subtitle D of title VIII of the Homeland Security Act of 2002 (6 U.S.C. 391 et seq.), as amended by this Act, is further amended by adding at the end the following new section:

837.

Acquisition documentation

For each major acquisition program (as such term is defined in section 714), the Secretary, acting through the Under Secretary for Management, shall require the head of each relevant component or office of the Department to—

(1)

maintain acquisition documentation that is complete, accurate, timely, and valid, and that includes—

(A)

operational requirements that are validated consistent with departmental policy;

(B)

a complete life-cycle cost estimate with supporting documentation;

(C)

verification of such life-cycle cost estimate against independent cost estimates, and reconciliation of any differences;

(D)

a cost-benefit analysis with supporting documentation;

(E)

an integrated master schedule with supporting documentation;

(F)

plans for conducting systems engineering reviews and test and evaluation activities throughout development to support production and deployment decisions;

(G)

an acquisition plan that outlines the procurement approach, including planned contracting vehicles;

(H)

a logistics and support plan for operating and maintaining deployed capabilities until such capabilities are disposed of or retired; and

(I)

an acquisition program baseline that is traceable to the operational requirements of the program required under subparagraphs (A), (B), and (E);

(2)

prepare cost estimates and schedules for major acquisition programs pursuant to subparagraphs (B) and (E) of paragraph (1) in a manner consistent with best practices as identified by the Comptroller General of the United States; and

(3)

ensure any revisions to the acquisition documentation maintained pursuant to paragraph (1) are reviewed and approved in accordance with departmental policy.

.

(b)

Clerical amendment

The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by adding after the item relating to section 836, as added by section 3 of this Act, the following new item:

Sec. 837. Acquisition documentation.

.

Passed the House of Representatives May 17, 2022.

Cheryl L. Johnson,

Clerk.