CONGRESSWOMAN ELISE STEFANIK
H.R. 5013 is expected to be considered on the floor of the House on Wednesday, April 28, 2010, under a structured rule. The legislation was introduced by Rep. Robert Andrews (D-NJ) on April 14, 2010. The House Armed Services Committee unanimously reported the bill by a vote of 56-0 on April 23, 2010.
H.R. 5013 would reform the Department of Defense's (DOD) acquisition system, with a primary emphasis on assessing value in acquisition, improving the requirements process, the acquisition workforce and on the acquisition of services and information technology-this bill does not focus on weapons program procurement.
TITLE I-DEFENSE ACQUISITION SYSTEM
Performance Management of the Defense Acquisition System: The bill would require the Secretary to ensure that all elements of the defense acquisition system are subject to regular performance assessments at least annually. It would require each service acquisition executive within the DOD to create metrics for each element of the defense acquisition system within categories developed by the Secretary. The metrics, goals, and standards would be tailored to the specific element of the defense acquisition system being assessed.
The bill would require that the performance assessments be subjected to periodic audits to determine their accuracy, reliability, and completeness. Audits under this section would be required to meet generally accepted government auditing standards, use a risk based approach to audit planning, and appropriately account for issues associated with auditing assessments of activities occurring in a contingency operation.
H.R. 5013 would require that the results of the performance assessments be used in the management of elements of the defense acquisition system through: adjustments to the size of bonus pools available to the workforce of an element of the defense acquisition system; changes in rates of promotion; awards for acquisition excellence; and changes in the scope of work assigned to the organization. The bill would also clarify that the Chiefs of Staff of the Armed Forces may assist the secretaries of their respective military departments in the following acquisition-related functions: the development of requirements; the development of measures to control requirements creep; the development of career paths in acquisition for military personnel; and the assignment and training of contracting officer representatives when such representatives are required to be members of the armed forces.
Meaningful Consideration by Joint Requirements Oversight Council of Input from Certain Officials: This provision would add the Under Secretary of Defense for Policy to the list of civilian advisors to the Joint Requirements Oversight Council (JROC) and to allow the Chairman of the JROC to invite a combatant commander, or the deputy commander, to serve as a member of the JROC when matters related to such command are under discussion. This section would also require the Government Accountability Office (GAO) to assess whether the JROC is giving meaningful consideration to the input of combatant commanders, the Under Secretary of Defense for Acquisition, Technology, and Logistics, and the Director of Cost Assessment and Performance Evaluation.
Performance Management for the Joint Capabilities Integration and Development System: H.R. 5013 would require the Secretary to develop a performance management program for the Joint Capabilities Integration and Development System (JCIDS) to measure performance in JCIDS and to ensure that JCIDS: delivers timely capability to the warfighter; controls requirements creep; is responsive to changes in threats, emerging capabilities, and costs; and develops skilled requirements personnel. This section would require an initial report on measures of performance for JCIDS within 90 days after initial implementation and a final report on the outcomes of the performance management program four years after the date of implementation. This section would make continuation of the performance management program subject to the discretion Secretary's discretion five years after the date of enactment.
Requirements for the Acquisition of Services: The bill would require each of the Chiefs of Staff of the Armed Forces to establish a process for identifying, assessing, and approving requirements for the acquisition of services. This section would require that each process provide an opportunity for combatant commanders to provide input and that each process be revised to be consistent with any future guidance issued by the Chairman of the Joint Chiefs of Staff relating to joint requirements for the acquisition of services.
Joint Evaluation Task Forces: H.R. 5013 would require the Chairman of the Joint Requirements Oversight Council to designate the commander of a unified combatant command to provide a joint evaluation task force to participate in each major defense acquisition program. The task force would come from a military unit selected by the combatant commander. The task force would participate in all stages of the development and low rate initial production of the program and would provide user feedback.
Review of Defense Acquisition Guidance: This section would require the Secretary to review the acquisition guidance of DOD to consider:
• Whether guidance related to weapon systems acquisition is appropriately applied to other areas of acquisition;
• Whether long-term sustainment of weapon systems is appropriately emphasized;
• Whether appropriate mechanisms exist to communicate information relating to DOD's mission needs to the industrial base;
• The extent to which earned value management should be required on non-weapon systems;
• Whether measures of quality and technical performance should be included in the Department's implementation of earned value management; and
• The extent to which weapon systems processes should apply to the acquisition of information technology.
Requirement to Include References to Services Contracting throughout the Federal Acquisition Regulation: This section would require the Federal Acquisition Regulation (FAR) be revised to incorporate references to the acquisition of services, in addition to those found in Part 37 (which relates to services contracting).
Procurement of Military Purpose Nondevelopmental Items: The bill would create an exception to the requirement for an offeror to submit certified cost or pricing data with a bid in certain circumstances involving the acquisition of a military purpose non-developmental item (MPNDI). This section would define a MPNDI as an item developed exclusively at private expense that can be delivered in production quantities within nine months of contract award, and has a unit cost of less than $10 million.
TITLE II-DEFENSE ACQUISITION WORKFORCE
Acquisition Workforce Excellence: This section would require DOD to develop and manage a highly skilled professional acquisition workforce. This section would authorize the Secretary to develop a system focused on rewarding, when appropriate, the acquisition workforce for its excellence and contribution to mission, ensuring that the technical expertise and business skills needed to obtain best value are resident within the workforce, and managing the workforce in a manner that complements and reinforces the performance management of the defense acquisition system.
This bill would require the Department to use several existing authorities and would direct the Secretary to require managers to develop individual performance plans for members of the acquisition workforce, as well as appropriate procedures for due process for members of the acquisition workforce who consistently fail to meet performance standards. This section also would authorize additional actions to be taken to restore the focus on professionalizing the acquisition workforce through the development of attractive career paths, encouraging continuing education and training, and utilizing the Defense Civilian Leadership Program. In order to facilitate the hiring for positions within the acquisition workforce, this section would allow the use of expedited security clearance processing.
This provision would provide DOD with greater authority to hire highly qualified experts for temporary leadership roles in critical positions, provide mentors to advise employees on their career paths and opportunities to advance and excel in the acquisition profession, and assist with the design of education and training programs for the acquisition workforce. This section would clarify that highly qualified experts hired by the Department could be hired on a part-time basis.
Amendments to the acquisition workforce demonstration project: This section would codify and extend the acquisition workforce demonstration project through 2017. The project is a personnel pilot program for members of the acquisition workforce, which would otherwise expire in 2012. This section would also require the Secretary to undertake an independent assessment of the project to capture lessons learned.
Incentive Programs for Civilian and Military Personnel in the Acquisition Workforce: This section would require the Secretary to develop an enhanced system of incentives for the encouragement of excellence in the civilian acquisition workforce, including connecting salary increases, bonuses, promotions and awards to performance and contribution to agency mission. In addition to other incentives that may be considered, this section would direct the Secretary to use the existing DOD Civilian Workforce Incentive Fund.
Career Development for Civilian and Military Personnel in the Acquisition Workforce: This section would require the Secretary to develop career paths for civilians in the acquisition workforce. It would require the Secretary to issue guidance to fulfill this requirement to ensure career paths exist that attract the highest quality civilian personnel, are consistent with a deliberate workforce development strategy, provide sufficient opportunities for promotion and advancement, and provide a sufficient number of trained and qualified people in the workforce. This section also would require the Secretary to develop and support career training and development for each career path (both civilian and military).
Recertification and Training Requirements: The bill would require the Secretary to increase training for members of the acquisition workforce, with additional emphasis on the acquisition of services, long term sustainment strategies, acquisition of information technology, and rapid acquisition. This section also would direct the Secretary to establish requirements for continuing education and periodic recertification. H.R. 5013 would require the Secretary to establish fulfillment standards in lieu of such training that takes into account an individual's demonstrated competencies in certain areas, as well as creating standards relating to the appropriate use of private sector contractors to provide training.
Information Technology Acquisition Workforce: This provision would require the Secretary to strengthen the part of the acquisition workforce that specializes in information technology (IT), including establishing defined targets for billets for IT acquisition, defined career paths in IT acquisition and specific certification requirements for IT acquisition.
Defense Acquisition University Curriculum Review: This section would require a review of the curriculum of the Defense Acquisition University to ensure that such curriculum offers sufficient opportunities for training in the acquisition of services, IT, and appropriately emphasizes long term sustainment. This section would also require the Secretary to identify additional funding, if necessary, required to meet these goals.
Cost Estimating Internship and Scholarship Programs: This section would require the Secretary to establish internship and scholarship programs in cost estimating. The programs established would be for a four year period.
TITLE III-FINANCIAL MANAGEMENT
Incentives for Achieving Auditability: The provision would require the Under Secretary of Defense (Comptroller) to extend preferential treatment to a DOD component that has financial statements validated as ready for audit earlier than the current statutory deadline of September 30, 2017. The authority to provide such preferential treatment would expire in 2017.
Measures Required after Failure To Achieve Auditability: The bill would require the Secretary to take corrective measures to immediately address the failure of a DOD component to achieve a financial statement validated as ready for audit by September 30, 2017. This section would further require the Secretary to issue guidance detailing corrective measures to be taken.
Review of Obligation and Expenditure Thresholds: H.R. 5013 would require that the Chief Management Officer of DOD to review existing policy regarding obligation and expenditure benchmarks to ensure that such guidance does not inadvertently prevent the Department from obtaining best value. Further, it would a updated guidance to be issued regarding the use and value of obligation and expenditure benchmarks. Lastly, this provision would require that training for program managers and business managers emphasizes obligating and expending funds in a manner that achieves best value for the government.
TITLE IV-INDUSTRIAL BASE
Expansion of the Industrial Base: The bill would require the Secretary to establish a program to expand the defense industrial base by identifying and communicating with non-traditional suppliers using tools and resources available within the federal government and in the private sector. The program would include a continuous effort to review the defense industrial base and identify markets of importance to DOD.
Commercial Pricing Analysis: H.R. 5013 would revise and extend an existing report on commercial price trends to identify and evaluate cases where DOD is facing unjustified price escalation for certain commercial items.
Contractor and Grantee Disclosure of Delinquent Federal Tax Debts: The bill would require potential federal contractors and grantees to submit certifications as to whether they have a seriously delinquent tax debt during the bid, proposal, and grant application processes and to authorize the Secretary of the Treasury to verify these certifications. The requirement for disclosure would apply to individuals, partnerships, and corporations. This section defines a seriously delinquent tax debt as a debt exceeding $3,000 which has been assessed by the Secretary of the Treasury and not paid and for which a notice of lien has been filed in public records.
Independence of Contract Audits and Business System Reviews: The bill would provide for an independent General Counsel within the Defense Contract Audit Agency (DCAA) to serve as DCAA's chief legal officer. This section would also require DOD to carry out reviews of contractor business systems by independent auditing teams. This section would further require the Secretary to issue updated guidance related to contract audits.
Blue Ribbon Panel on Eliminating Barriers to Contracting with DOD: Finally, the bill would require the Secretary to establish a panel consisting of owners of large and small businesses that are not traditional defense suppliers to formulate recommendations on eliminating barriers to contracting with the DOD and its supply centers.
The purpose of H.R. 5013 is to improve performance and the quality of outcomes in the DoD acquisition system, particularly in service contracts and information technology. On March 17, 2009, Armed Services Committee Chairman Ike Skelton (D-MO) and then-Ranking Member John McHugh (R-NY) appointed a Panel on Defense Acquisition Reform from among Members of the committee to carry out a comprehensive review of the defense acquisition system. A central finding of this review was that while the nature of defense acquisition has substantially changed in the last two decades, the defense acquisition system has not kept pace. The system remains structured primarily for the acquisition of weapon systems at a time when services represent a much larger share of the Department's acquisitions. As a result, the Department's acquisition policy has limited application to the majority of the Department's acquisitions. Furthermore, the acquisition system is particularly poorly designed for the acquisition of information technology. This legislation seeks to put in place a statutory framework needed to achieve comprehensive improvements in defense acquisition.
In 2009, the House passed the Weapon Systems Acquisition Reform Act of 2009 (P.L. 111-23). That legislation reformed the organization and processes used by DoD to manage major weapons programs, which account for about 20 percent of Pentagon procurement spending. This legislation addresses the other 80 percent of DoD's acquisition spending.
The Congressional Budget Office (CBO) estimates that implementing H.R. 5013 would cost about $250 million over five years. Although the legislation may improve efficiency and effectiveness in the acquisition process, CBO is unable to determine if, or to what extent, the bill may result in savings to the government.
1.) Rep. Skelton (D-MO): Makes technical corrections to the bill. Would ensure that nothing in contracts for military purpose non-developmental items restrict or otherwise affect the rights of the government, the contractor, or any subcontractor for items developed by the contractor or subcontractor exclusively at private expense.
2.) Rep. Sessions (R-TX): Clarifies that nothing in this bill restricts the current public-private competition requirements that already exist in Title 10 of the United States Code.
3.) Rep. Alcee Hastings (D-FL): Requires that the Secretary establish policies and issue guidance to ensure a diverse workforce development program with respect to career development for civilian and military personnel in the acquisition workforce.
4.) Rep. John Hall (D-NY): Requires the Director of the Office of Performance Assessment and Root Cause Analysis ("PARCA") to include performance assessments with significant findings in its annual report. It also requires submission of egregious problems to Congress.
5.) Rep. Donna Edwards (D-MD): Directs DoD to engage in outreach to businesses in the vicinity of DoD installations to notify them of opportunities to obtain contracts and subcontracts to perform work at such installations.
6.) Rep. Gwen Moore (D-WI): Specifies that assessment metrics required to measure contractor performance include compliance of such contractors with department policy regarding the use of certain small businesses, including those owned and controlled by veterans and women.
7.) Rep. Christopher Murphy (D-CT): Specifies that Title IV assistance in the legislation (Expansion of the Industrial Base) be limited to firms within the national technology and industrial base, as defined in the United States Code.
8.) Reps. Quigley (D-IL), Giffords (D-AZ), and Bartlett (R-MD): Includes energy efficiency as one of the metrics that may be used in performance assessment of defense acquisitions and would include energy efficiency of weapons systems as one of the items considered in the Secretary of Defense's review of defense acquisition guidance.
9.) Rep. Quigley (D-IL): Directs the Cost Assessment and Program Evaluation (CAPE) in its next report to Congress to assess whether program cost estimators for major defense acquisition programs are independent and whether a lack of independence affects their ability to generate reliable cost estimates.
10.) Rep. Schrader (D-OR): Prohibits the award of contracts for personal services by any DoD component for the purpose of obtaining the services of a senior mentor. Nothing would prohibit DoD from hiring retired generals and flag officers as "senior mentors" under the highly qualified expert provision of current law with additional financial disclosure and conflict of interest requirements in place.
11.) Rep. Connolly (D-VA): Creates an Industrial Base Council within DoD to provide recommendations to the Secretary on budget and policy matters related to the industrial base, funded by amounts appropriated or otherwise made available for that purpose.
12.) Rep. Childers (D-MS): Requires that training courses for acquisition personnel include market research strategies to ensure that the surrounding market is considered during the contracting process.
13.) Rep. Dahlkemper (D-PA): Directs the Secretary to carry out a program providing for cost savings on non-developmental items by allowing a contracting officer to make an award for an existing contract to an entity submitting a new proposal that provides for a savings of greater than 15 percent, provided that doing so does not constitute a breach of contract.
14.) Reps. Kissell (D-NC) and Michaud (D-ME): Requires GAO to study items purchased under the enlisted member clothing allowance to determine if there is sufficient domestic production of such items to adequately supply members of the Armed Forces. Would require DoD to provide Congress with an evaluation of whether such items should be covered under the Berry Amendment (a legal requirement to give preference in procuring certain articles from U.S. sources).
15.) Reps. Grayson (D-FL) and Hastings (D-FL): Requires DoD to give cost at least equal importance in evaluating competitive proposals for federal contracts versus other factors or explain any waivers of such requirement. The head of an agency could waive this requirement.
16.) Rep. Hare (D-IL): Expresses the sense of Congress that DoD should ensure full compliance throughout the acquisition process with the Berry Amendment and the Buy American Act. Declares the sense of Congress that the DoD not procure products made by U.S. manufacturers that violate U.S. labor laws.