II 

Calendar No. 234 

115TH CONGRESS 

1ST SESSION S. 906 

[Report No. 115–165] 

To amend the Homeland Security Act of 2002 to provide for congressional 

notification regarding major acquisition program breaches, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 7, 2017 

Mrs. MCCASKILL (for herself and Mr. DAINES) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

OCTOBER 5, 2017 

Reported by Mr. JOHNSON, with an amendment 

[Insert the part printed in italic] 

A BILL 

To amend the Homeland Security Act of 2002 to provide 

for congressional notification regarding major acquisition 

program breaches, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Reducing DHS Acqui3 sition Cost Growth Act’’. 

4 SEC. 2. CONGRESSIONAL NOTIFICATION FOR MAJOR AC5 QUISITION PROGRAMS. 

6 (a) IN GENERAL.—Subtitle D of title VIII of the 

7 Homeland Security Act of 2002 (6 U.S.C. 391 et seq.) 

8 is amended by adding at the end the following: 

9 ‘‘SEC. 836. CONGRESSIONAL NOTIFICATION AND OTHER RE10 QUIREMENTS FOR MAJOR ACQUISITION PRO11 GRAM BREACH. 

12 ‘‘(a) DEFINITIONS.—In this section: 

13 ‘‘(1) ACQUISITION.—The term ‘acquisition’ has 

14 the meaning given the term in section 131 of title 

15 41, United States Code. 

16 ‘‘(2) ACQUISITION PROGRAM.—The term ‘acqui17 sition program’ means the process by which the De18 partment acquires, with any appropriated amounts, 

19 by contract for purchase or lease, property or serv20 ices (including construction) that support the mis21 sions and goals of the Department. 

22 ‘‘(3) ACQUISITION PROGRAM BASELINE.—The 

23 term ‘acquisition program baseline’, with respect to 

24 an acquisition program, means a summary of the 

25 cost, schedule, and performance parameters, ex26 pressed in standard, measurable, quantitative terms, 


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1 which shall be met in order to accomplish the goals 

2 of the program. 

3 ‘‘(4) APPROPRIATE COMMITTEES OF CON4 GRESS.—The term ‘appropriate committees of Con5 gress’ has the meaning given the term in section 

6 226(a). 

7 ‘‘(5) BEST PRACTICES.—The term ‘best prac8 tices’, with respect to acquisition, means a knowl9 edge-based approach to capability development that 

10 includes— 

11 ‘‘(A) identifying and validating needs; 

12 ‘‘(B) assessing alternatives to select the 

13 most appropriate solution; 

14 ‘‘(C) clearly establishing well-defined re15 quirements; 

16 ‘‘(D) developing realistic cost assessments 

17 and schedules; 

18 ‘‘(E) securing stable funding that matches 

19 resources to requirements; 

20 ‘‘(F) demonstrating technology, design, 

21 and manufacturing maturity; 

22 ‘‘(G) using milestones and exit criteria or 

23 specific accomplishments that demonstrate 

24 progress; 


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1 ‘‘(H) adopting and executing standardized 

2 processes with known success across programs; 

3 ‘‘(I) establishing an adequate workforce 

4 that is qualified and sufficient to perform nec5 essary functions; and 

6 ‘‘(J) integrating the capabilities described 

7 in subparagraphs (A) through (I) into the mis8 sion and business operations of the Depart9 ment. 

10 ‘‘(6) BREACH.—The term ‘breach’, with respect 

11 to a major acquisition program, means a failure to 

12 meet any cost, schedule, or performance threshold 

13 specified in the most recently approved acquisition 

14 program baseline. 

15 ‘‘(7) COMPONENT ACQUISITION EXECUTIVE.— 

16 The term ‘Component Acquisition Executive’ means 

17 the senior acquisition official within a component 

18 who is designated in writing by the Under Secretary 

19 for Management, in consultation with the component 

20 head, with authority and responsibility for leading a 

21 process and staff to provide acquisition and program 

22 management oversight, policy, and guidance to en23 sure that statutory, regulatory, and higher level pol24 icy requirements are fulfilled, including compliance 

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1 tion, and Department acquisition management direc2 tives established by the Under Secretary for Man3 agement. 

4 ‘‘(8) MAJOR ACQUISITION PROGRAM.—The term 

5 ‘major acquisition program’ means an acquisition 

6 program of the Department that is estimated by the 

7 Secretary to require an eventual total expenditure of 

8 at least $300,000,000 (based on fiscal year 2017 

9 constant dollars) over the life cycle cost of the pro10 gram. 

11 ‘‘(b) REQUIREMENTS WITHIN DEPARTMENT IN

12 EVENT OF BREACH.— 

13 ‘‘(1) NOTIFICATIONS.— 

14 ‘‘(A) NOTIFICATION OF BREACH.—If a 

15 breach occurs in a major acquisition program, 

16 the program manager for the program shall no17 tify the Component Acquisition Executive for 

18 the program, the head of the component con19 cerned, the Executive Director of the Program 

20 Accountability and Risk Management division, 

21 the Under Secretary for Management, and the 

22 Deputy Secretary not later than 30 calendar 

23 days after the date on which the breach is iden24 tified. 


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1 ‘‘(B) NOTIFICATION TO SECRETARY.—If a 

2 breach occurs in a major acquisition program 

3 and the breach results in a cost overrun greater 

4 than 15 percent, a schedule delay greater than 

5 180 days, or a failure to meet any of the per6 formance thresholds from the cost, schedule, or 

7 performance parameters specified in the most 

8 recently approved acquisition program baseline 

9 for the program, the Component Acquisition 

10 Executive for the program shall notify the Sec11 retary and the Inspector General of the Depart12 ment not later than 5 business days after the 

13 date on which the Component Acquisition Exec14 utive for the program, the head of the compo15 nent concerned, the Executive Director of the 

16 Program Accountability and Risk Management 

17 Division, the Under Secretary for Management, 

18 and the Deputy Secretary are notified of the 

19 breach under subparagraph (A). 

20 ‘‘(2) REMEDIATION PLAN AND ROOT CAUSE

21 ANALYSIS.— 

22 ‘‘(A) IN GENERAL.—If a breach occurs in 

23 a major acquisition program, the program man24 ager for the program shall submit in writing to 

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1 utive Director of the Program Accountability 

2 and Risk Management division, and the Under 

3 Secretary for Management, at a date estab4 lished by the Under Secretary for Management, 

5 a remediation plan and root cause analysis re6 lating to the breach and program. 

7 ‘‘(B) REMEDIATION PLAN.—The remedi8 ation plan required under subparagraph (A) 

9 shall— 

10 ‘‘(i) explain the circumstances of the 

11 breach at issue; 

12 ‘‘(ii) provide prior cost estimating in13 formation; 

14 ‘‘(iii) include a root cause analysis 

15 that determines the underlying cause or 

16 causes of shortcomings in cost, schedule, 

17 or performance of the major acquisition 

18 program with respect to which the breach 

19 has occurred, including the role, if any, 

20 of— 

21 ‘‘(I) unrealistic performance ex22 pectations; 

23 ‘‘(II) unrealistic baseline esti24 mates for cost or schedule or changes 

25 in program requirements; 


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1 ‘‘(III) immature technologies or 

2 excessive manufacturing or integra3 tion risk; 

4 ‘‘(IV) unanticipated design, engi5 neering, manufacturing, or technology 

6 integration issues arising during pro7 gram performance; 

8 ‘‘(V) changes to the scope of the 

9 program; 

10 ‘‘(VI) inadequate program fund11 ing or changes in planned out-year 

12 funding from one 5-year funding plan 

13 to the next 5-year funding plan as 

14 outlined in the Future Years Home15 land Security Program required under 

16 section 874; 

17 ‘‘(VII) legislative, legal, or regu18 latory changes; or 

19 ‘‘(VIII) inadequate program 

20 management personnel, including lack 

21 of sufficient number of staff, training, 

22 credentials, certifications, or use of 

23 best practices; 


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1 ‘‘(iv) propose corrective action to ad2 dress cost growth, schedule delays, or per3 formance issues; 

4 ‘‘(v) explain the rationale for why a 

5 proposed corrective action is recommended; 

6 and 

7 ‘‘(vi) in coordination with the Compo8 nent Acquisition Executive for the pro9 gram, discuss all options considered, in10 cluding— 

11 ‘‘(I) the estimated impact on 

12 cost, schedule, or performance of the 

13 program if no changes are made to 

14 current requirements; 

15 ‘‘(II) the estimated cost of the 

16 program if requirements are modified; 

17 and 

18 ‘‘(III) the extent to which fund19 ing from other programs will need to 

20 be reduced to cover the cost growth of 

21 the program. 

22 ‘‘(3) REVIEW OF CORRECTIVE ACTIONS.— 

23 ‘‘(A) IN GENERAL.—The Under Secretary 

24 for Management— 


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1 ‘‘(i) shall review each remediation 

2 plan required under paragraph (2); and 

3 ‘‘(ii) not later than 30 days after sub4 mission of a remediation plan under para5 graph (2), may approve the plan or provide 

6 an alternative proposed corrective action. 

7 ‘‘(B) SUBMISSION TO CONGRESS.—Not 

8 later than 30 days after the date on which the 

9 Under Secretary for Management completes a 

10 review of a remediation plan under subpara11 graph (A), the Under Secretary for Manage12 ment shall submit to the appropriate commit13 tees of Congress— 

14 ‘‘(i) a copy of the remediation plan; 

15 and 

16 ‘‘(ii) a statement describing the cor17 rective action or actions that have occurred 

18 pursuant to paragraph (2)(B)(iv) for the 

19 major acquisition program at issue, with a 

20 justification for each action. 

21 ‘‘(c) REQUIREMENTS RELATING TO CONGRESSIONAL

22 NOTIFICATION IF BREACH OCCURS.— 

23 ‘‘(1) NOTIFICATION TO CONGRESS.—If a notifi24 cation to the Secretary is made under subsection 

25 (b)(1)(B) relating to a breach in a major acquisition 


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1 program, the Under Secretary for Management shall 

2 notify the appropriate committees of Congress of the 

3 breach in the next quarterly Comprehensive Acquisi4 tion Status Report, as required in the matter under 

5 the heading ‘OFFICE OF THE UNDER SECRETARY

6 FOR MANAGEMENT’ in title I of division F of the 

7 Consolidated Appropriations Act of 2016 (Public 

8 Law 114–113; 129 Stat. 2493), after receipt by the 

9 Under Secretary for Management of notification 

10 under that subsection. 

11 ‘‘(2) SIGNIFICANT VARIANCES IN COSTS OR

12 SCHEDULE.—If a likely cost overrun is greater than 

13 20 percent or a likely delay is greater than 12 

14 months from the costs and schedule specified in the 

15 acquisition program baseline for a major acquisition 

16 program, the Under Secretary for Management shall 

17 include in the notification required in paragraph (1) 

18 a written certification, with supporting explanation, 

19 that— 

20 ‘‘(A) the program is essential to the ac21 complishment of the mission of the Depart22 ment; 

23 ‘‘(B) there are no alternatives to the capa24 bility or asset provided by the program that will 


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1 provide equal or greater capability in a more 

2 cost-effective and timely manner; 

3 ‘‘(C) the new acquisition schedule and esti4 mates for total acquisition cost are reasonable; 

5 and 

6 ‘‘(D) the management structure for the 

7 program is adequate to manage and control 

8 cost, schedule, and performance.’’. 

9 (b) CLERICAL AMENDMENT.—The table of contents 

10 in section 1(b) of the Homeland Security Act of 2002 

11 (Public Law 107–296; 116 Stat. 2135) is amended by in12 serting after the item relating to section 835 the following: 

‘‘Sec. 836. Congressional notification and other requirements for major acquisition program breach.’’. 

13 SEC. 3. REPORT ON BID PROTESTS. 

14 (a) DEFINITION.—In this section, the term ‘‘Depart15 ment’’ means the Department of Homeland Security. 

16 (b) STUDY AND REPORT.—Not later than 1 year after 

17 the date of enactment of this Act, the Inspector General of 

18 the Department shall conduct a study and submit to the 

19 Committee on Homeland Security and Governmental Af20 fairs of the Senate and the Committee on Homeland Secu21 rity of the House of Representatives a report on the preva22 lence and impact of bid protests on the acquisition process 

23 of the Department, in particular bid protests filed with the 


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1 Government Accountability Office and the United States 

2 Court of Federal Claims. 

3 (c) CONTENTS.—The report required under subsection 

4 (b) shall include— 

5 (1) with respect to contracts with the Depart6 ment— 

7 (A) trends in the number of bid protests 

8 filed with Federal agencies, the Government Ac9 countability Office, and Federal courts, the effec10 tiveness of each forum for contracts and task or 

11 delivery orders, and the rate of those bid protests 

12 compared to contract obligations and the number 

13 of contracts; 

14 (B) an analysis of bid protests filed by in15 cumbent contractors, including the rate at which 

16 those contractors are awarded bridge contracts or 

17 contract extensions over the period during which 

18 the bid protest remains unresolved; 

19 (C) a comparison of the number of bid pro20 tests and the outcome of bid protests for— 

21 (i) awards of contracts compared to 

22 awards of task or delivery orders; 

23 (ii) contracts or orders primarily for 

24 products compared to contracts or orders 

25 primarily for services; 


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1 (iii) protests filed pre-award to chal2 lenge the solicitation compared to those filed 

3 post-award; 

4 (iv) contracts or awards with single 

5 protestors compared to multiple protestors; 

6 and 

7 (v) contracts with single awards com8 pared to multiple award contracts; 

9 (D) a description of trends in the number 

10 of bid protests filed as a percentage of contracts 

11 and as a percentage of task or delivery orders by 

12 the value of the contract or order with respect 

13 to— 

14 (i) contracts valued at more than 

15 $300,000,000; 

16 (ii) contracts valued at not less than 

17 $50,000,000 and not more than 

18 $300,000,000; 

19 (iii) contracts valued at not less than 

20 $10,000,000 and not more than 

21 $50,000,000; and 

22 (iv) contracts valued at less than 

23 $10,000,000; 

24 (E) an assessment of the cost and schedule 

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1 tests, as well as delineation of litigation costs, 

2 filed on major acquisitions with more than 

3 $100,000,000 in annual expenditures or 

4 $300,000,000 in lifecycle costs; 

5 (F) an analysis of how often bid protestors 

6 are awarded the contract that was the subject of 

7 the bid protest; 

8 (G) a summary of the results of bid protests 

9 in which the contracting Federal agencies took 

10 unilateral corrective action, including the aver11 age time for remedial action to be completed; 

12 (H) the time it takes Federal agencies to 

13 implement corrective actions after a ruling or 

14 decision with respect to a bid protest, and the 

15 percentage of those corrective actions that are 

16 subsequently protested, including the outcome of 

17 any subsequent bid protest; 

18 (I) an analysis of those contracts with re19 spect to which a company files a bid protest and 

20 later files a subsequent bid protest; 

21 (J) an analysis of the time spent at each 

22 phase of the procurement process attempting to 

23 prevent a bid protest, addressing a bid protest, 

24 or taking corrective action in response to a bid 

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1 tempted to prevent the occurrence of a protest; 

2 and 

3 (K) with respect to a company bidding on 

4 contracts or task or delivery orders, the extent to 

5 and manner in which the bid protest process af6 fects or may affect the decision to offer a bid or 

7 proposal on single award or multiple award con8 tracts when the company is the incumbent or 

9 non-incumbent contractor; and 

10 (2) any recommendations by the Inspector Gen11 eral of the Department relating to the study con12 ducted under this section. 


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Calendar No. 234 

115TH CONGRESS 

1ST SESSION S. 906 

[Report No. 115–165] 

A BILL 

To amend the Homeland Security Act of 2002 to 

other purposes. major acquisition program breaches, and for provide for congressional notification regarding 

OCTOBER 5, 2017 

Reported with an amendment 


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