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116th Congress   }                                             {   Report
                         HOUSE OF REPRESENTATIVES
 1st Session     }                                             {   116-96

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



 
                DHS ACQUISITION REVIEW BOARD ACT OF 2019

                                _______
                                

  May 30, 2019.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Thompson of Mississippi, from the Committee on Homeland Security, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 2609]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 2609) to amend the Homeland Security Act of 2002 
to establish the Acquisition Review Board in the Department of 
Homeland Security, and for other purposes, having considered 
the same, report favorably thereon without amendment and 
recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for Legislation..............................     2
Hearings.........................................................     2
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     3
C.B.O. Estimate, New Budget Authority, Entitlement Authority, and 
  Tax Expenditures...............................................     3
Federal Mandates Statement.......................................     5
Statement of General Performance Goals and Objectives............     5
Duplicative Federal Programs.....................................     5
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
  Benefits.......................................................     5
Advisory Committee Statement.....................................
Applicability to Legislative Branch..............................
Section-by-Section Analysis of the Legislation...................     5
Changes in Existing Law Made by the Bill, as Reported............     6

                          Purpose and Summary

    H.R. 2609, the ``DHS Acquisition Review Board Act of 2019'' 
authorizes the Department of Homeland Security's (Department or 
DHS) Acquisition Review Board (ARB) to ensure greater 
accountability and uniformity within the components' major 
acquisition programs--those with cost estimates greater than 
$300 million. The ARB reviews the Department's major 
acquisition programs for proper management, oversight, 
accountability, and alignment with the Department's strategic 
functions before authorizing advancement at key milestone 
events.

                  Background and Need for Legislation

    The Government Accountability Office (GAO) and the DHS 
Office of Inspector General (OIG) have reported on the 
longstanding challenges DHS faces in managing its major 
acquisition programs, which cost the Department over $6 billion 
each year. Since 2003, GAO has identified DHS' transformation 
of 22 agencies into one Department, and the Department's 
subsequent challenges with its management functions, as ``high 
risk.'' In GAO's 2019 high risk update, GAO reported that DHS 
continues to face challenges in funding its acquisition 
portfolio. Specifically, only 10 of 24 major acquisition 
programs with approved schedule and cost goals were on track to 
meet those goals.
    Additionally, in November 2018, the OIG reported that 
acquisition program management continues to be one of the 
Department's significant challenge areas. The OIG found that 
DHS components have an ongoing tendency to acquire systems 
before adequately defining requirements or developing 
performance measures.

                                Hearings

    The Committee did not hold a hearing on H.R. 2609 in the 
116th Congress. However, the Committee held four hearings on 
the Department's acquisition management during the 114th and 
115th Congresses.

114th Congress

    On February 26, 2015, the Subcommittee on Oversight and 
Management Efficiency held a hearing entitled ``Assessing DHS's 
Performance: Watchdog Recommendations to Improve Homeland 
Security.'' The Subcommittee received testimony from The 
Honorable John Roth, Inspector General, U.S. Department of 
Homeland Security; Ms. Rebecca Gambler, Director, Homeland 
Security and Justice, U.S. Government Accountability Office; 
and Dr. Daniel M. Gerstein, Senior Policy Researcher, The RAND 
Corporation.
    On April 22, 2015, the Subcommittee on Oversight and 
Management Efficiency held a hearing entitled ``Acquisition 
Oversight: How Effectively is DHS Safeguarding Taxpayer 
Dollars?'' The Subcommittee received testimony from Ms. Michele 
Mackin, Director, Acquisition and Sourcing Management, U.S. 
Government Accountability Office; The Honorable Chip Fulghum, 
Acting Deputy Undersecretary for Management and Chief Financial 
Officer, U.S. Department of Homeland Security; and Dr. Cedric 
Sims, Partner, Evermay Consulting Group.
    On September 18, 2015, the Subcommittee on Oversight and 
Management Efficiency held a hearing entitled ``Making DHS More 
Efficient: Industry Recommendations to Improve Homeland 
Security.'' The Subcommittee received testimony from Mr. Marc 
Pearl, President and Chief Executive Officer, Homeland Security 
and Defense Business Counsel; Mr. Harry Totonis, Board 
Director, Business Executives for National Security; and Ms. 
Elaine Duke, Principal, Elaine Duke & Associates, LLC.

115th Congress

    On February 16, 2017, the Subcommittee on Oversight and 
Management Efficiency held a hearing entitled ``Watchdog 
Recommendations: A Better Way Ahead to Manage the Department of 
Homeland Security.'' The Subcommittee received testimony from 
The Honorable John Roth, Inspector General, U.S. Department of 
Homeland Security, and Ms. Rebecca Gambler, Director, Homeland 
Security and Justice, U.S. Government Accountability Office.

                        Committee Consideration

    The Committee met on May 15, 2019, with a quorum being 
present, to consider H.R. 2609 and ordered the measure to be 
reported to the House with a favorable recommendation, without 
amendment, by unanimous consent.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto.
    No recorded votes were requested during consideration of 
H.R. 2609.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

Congressional Budget Office Estimate, New Budget Authority, Entitlement 
                    Authority, and Tax Expenditures

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee adopts as its 
own the estimate of the estimate of new budget authority, 
entitlement authority, or tax expenditures or revenues 
contained in the cost estimate prepared by the Director of the 
Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 22, 2019.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for Department of Homeland 
Security Legislation.
    If you wish further details on these estimates, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

    
    

    On May 15, the House Committee on Homeland Security ordered 
reported the following bills:
           H.R. 542, the Supporting Research and 
        Development for First Responders Act, which would 
        codify laboratory programs that currently exist at the 
        Department of Homeland Security (DHS);
           H.R. 2589, the Unifying DHS Intelligence 
        Enterprise Act, which would direct DHS to manage and 
        provide guidance for the use of intelligence throughout 
        the department;
           H.R.2590, the DHS Overseas Personnel 
        Enhancement Act of 2019, which would require DHS to 
        devise a plan to improve the effectiveness of 
        department personnel who are stationed at foreign 
        locations;
           H.R. 2609, the DHS Acquisition Review Board 
        Act of 2019, which would direct the department to 
        establish a board to review major acquisition programs 
        and enhance accountability and uniformity in the review 
        process for DHS acquisitions; and
           H.R. 2621, the Homeland Security Assessment 
        of Terrorists Use of Ghost Guns Act, which would 
        require DHS to evaluate the threat posed by firearms 
        without unique serial numbers.
    DHS is currently carrying out activities similar to those 
required by the bills listed above, and any new activities 
required under the legislation would not require substantial 
action by the department. Thus, CBO estimates that implementing 
each bill would not significantly affect spending by DHS.
    The CBO staff contact for these estimates is Mark 
Grabowicz. The estimates were reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Duplicative Federal Programs

    Pursuant to clause 3(c) of rule XIII, the Committee finds 
that H.R. 2609 does not contain any provision that establishes 
or reauthorizes a program known to be duplicative of another 
Federal program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
2609 would codify in law certain acquisition management 
oversight mechanisms in the Department of Homeland Security.

                          Advisory on Earmarks

    In compliance with rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule 
XXI.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section provides that this bill may be cited as the 
``DHS Acquisition Review Board Act of 2019''.

Sec. 2. Acquisition Review Board

    This section amends subtitle D of title VIII of the 
Homeland Security Act of 2002 to codify the Acquisition Review 
Board (ARB) and requires the ARB, chaired by the Under 
Secretary for Management (USM), to meet regularly to review 
major acquisition programs.
    Section 2 establishes responsibilities for the ARB which, 
among other things, includes determining whether an acquisition 
program has met requirements to proceed to the next key phase 
of the acquisition life cycle. It also requires the ARB to 
review key documents of each major acquisition, such as the 
Acquisition Program Baseline (APB) that contains cost, 
schedule, and performance requirements. This section also 
requires the ARB to ensure practices are adopted to consider 
trade-offs among cost, schedule, and performance objectives as 
part of the process for developing program requirements.
    Section 2 also contains reporting requirement. If the ARB 
allows a major acquisition program to proceed without an APB, 
the USM shall create a report on the approval and the Secretary 
shall notify the House and Senate Committees on Homeland 
Security and provide a justification for the decision. Further, 
this section requires the USM to provide acquisition oversight 
documentation to the House and Senate Committees on Homeland 
Security to enhance congressional oversight of major 
acquisition programs. For example, the USM must provide 
acquisition decision memorandums for each ARB meeting held, 
which provide key information on meeting participants, 
outcomes, and the status of the program.
    This section also includes relevant definitions related to 
acquisition management.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

                     HOMELAND SECURITY ACT OF 2002


SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Homeland 
Security Act of 2002''.
  (b) Table of Contents.--The table of contents for this Act is 
as follows:

Sec. 1. Short title; table of contents.
     * * * * * * *

 TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; 
      UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

     * * * * * * *

                        Subtitle D--Acquisitions

     * * * * * * *
Sec. 835. Prohibition on contracts with corporate expatriates.
Sec. 836. Acquisition Review Board.
     * * * * * * *

TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; 
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

           *       *       *       *       *       *       *


Subtitle D--Acquisitions

           *       *       *       *       *       *       *


SEC. 836. ACQUISITION REVIEW BOARD.

  (a) In General.--The Secretary shall establish an Acquisition 
Review Board (in this section referred to as the ``Board'') 
to--
          (1) strengthen accountability and uniformity within 
        the Department acquisition review process;
          (2) review major acquisition programs; and
          (3) review the use of best practices.
  (b) Composition.--
          (1) Chair.--The Under Secretary for Management shall 
        serve as chair of the Board.
          (2) Participation.-- The Secretary shall ensure 
        participation by other relevant Department officials 
        with responsibilities related to acquisitions as 
        permanent members of the Board.
          (3) Oversight.--The Under Secretary for Management 
        shall designate a full time employee of the Department 
        to oversee the operations of the Board.
  (c) Meetings.--The Board shall meet regularly for purposes of 
ensuring all acquisitions processes proceed in a timely fashion 
to achieve mission readiness. The Board shall convene at the 
Secretary's discretion and at any time--
          (1) a major acquisition program--
                  (A) requires authorization to proceed from 
                one acquisition decision event to another 
                throughout the acquisition life cycle;
                  (B) is in breach of its approved 
                requirements; or
                  (C) requires additional review, as determined 
                by the Under Secretary for Management; or
          (2) a non-major acquisition program requires review, 
        as determined by the Under Secretary for Management.
  (d) Responsibilities.--The responsibilities of the Board are 
as follows:
          (1) Determine whether a proposed acquisition has met 
        the requirements of key phases of the acquisition life 
        cycle framework and is able to proceed to the next 
        phase and eventual full production and deployment.
          (2) Oversee whether a proposed acquisition's business 
        strategy, resources, management, and accountability is 
        executable and is aligned to strategic initiatives.
          (3) Support the person with acquisition decision 
        authority for an acquisition in determining the 
        appropriate direction for such acquisition at key 
        acquisition decision events.
          (4) Conduct systematic reviews of acquisitions to 
        ensure that such acquisitions are progressing in 
        compliance with the approved documents for their 
        current acquisition phases.
          (5) Review the acquisition documents of each major 
        acquisition program, including the acquisition program 
        baseline and documentation reflecting consideration of 
        tradeoffs among cost, schedule, and performance 
        objectives, to ensure the reliability of underlying 
        data.
          (6) Ensure that practices are adopted and implemented 
        to require consideration of trade-offs among cost, 
        schedule, and performance objectives as part of the 
        process for developing requirements for major 
        acquisition programs prior to the initiation of the 
        second acquisition decision event, including, at a 
        minimum, the following practices:
                  (A) Department officials responsible for 
                acquisition, budget, and cost estimating 
                functions are provided with the appropriate 
                opportunity to develop estimates and raise cost 
                and schedule matters before performance 
                objectives are established for capabilities 
                when feasible.
                  (B) Full consideration is given to possible 
                trade-offs among cost, schedule, and 
                performance objectives for each alternative.
  (e) Acquisition Program Baseline Report Requirement.--If the 
person exercising acquisition decision authority over a major 
acquisition program approves such program to proceed into the 
planning phase before such program has a Department-approved 
acquisition program baseline, the Under Secretary for 
Management shall create and approve an acquisition program 
baseline report regarding such approval, and the Secretary 
shall--
          (1) within 7 days after an acquisition decision 
        memorandum is signed, notify in writing the Committee 
        on Homeland Security of the House of Representatives 
        and the Committee on Homeland Security and Governmental 
        Affairs of the Senate of such decision; and
          (2) within 60 days after the acquisition decision 
        memorandum is signed, submit to such committees a 
        written explanation of the rationale for such decision 
        and a plan of action to address acquisition program 
        baseline requirements for such program.
  (f) Report.--The Under Secretary for Management shall provide 
information to the Committee on Homeland Security of the House 
of Representatives and the Committee on Homeland Security and 
Governmental Affairs of the Senate on an annual basis through 
fiscal year 2024 on the activities of the Board for the prior 
fiscal year that includes information relating to the 
following:
          (1) For each meeting of the Board, any acquisition 
        decision memoranda.
          (2) Results of the systematic reviews conducted 
        pursuant to paragraph (4) of subsection (d).
          (3) Results of acquisition document reviews required 
        pursuant to paragraph (5) of subsection (d).
          (4) Activities to ensure that practices are adopted 
        and implemented throughout the Department pursuant to 
        paragraph (6) of subsection (d).
  (g) 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, 
        held by the Secretary acting through the Deputy 
        Secretary or 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 cancelling) an acquisition 
                program through 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 good acquisition program 
                management of cost, schedule, risk, and system 
                performance of the acquisition program at 
                issue, including assessing acquisition program 
                baseline breaches and directing any corrective 
                action for such breaches; and
                  (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 to avoid and mitigate acquisition 
                program baseline breaches.
          (3) Acquisition decision event.--The term 
        ``acquisition decision event'', with respect to an 
        acquisition program, means a predetermined point within 
        each of the acquisition phases at which the acquisition 
        decision authority determines whether such acquisition 
        program shall proceed to the next acquisition phase.
          (4) Acquisition decision memorandum.--The term 
        ``acquisition decision memorandum'', with respect to an 
        acquisition, means the official acquisition decision 
        event record that includes a documented record of 
        decisions, exit criteria, and assigned actions for such 
        acquisition, as determined by the person exercising 
        acquisition decision authority for such acquisition.
          (5) Acquisition program.--The term ``acquisition 
        program'' means the process by which the Department 
        acquires, with any appropriated amounts, by contract 
        for purchase or lease, property or services (including 
        construction) that support the missions and goals of 
        the Department.
          (6) Acquisition program baseline.--The term 
        ``acquisition program baseline'', with respect to an 
        acquisition program, means a summary of the cost, 
        schedule, and performance parameters, expressed in 
        standard, measurable, quantitative terms, which must be 
        met in order to accomplish the goals of such program.
          (7) Best practices.--The term ``best practices''', 
        with respect to acquisition, means a knowledge-based 
        approach to capability development that includes--
                  (A) identifying and validating needs;
                  (B) assessing alternatives to select the most 
                appropriate solution;
                  (C) clearly establishing well-defined 
                requirements;
                  (D) developing realistic cost assessments and 
                schedules;
                  (E) securing stable funding that matches 
                resources to requirements;
                  (F) demonstrating technology, design, and 
                manufacturing maturity;
                  (G) using milestones and exit criteria or 
                specific accomplishments that demonstrate 
                progress;
                  (H) adopting and executing standardized 
                processes with known success across programs;
                  (I) establishing an adequate workforce that 
                is qualified and sufficient to perform 
                necessary functions; and
                  (J) integrating the capabilities described in 
                subparagraphs (A) through (I) into the 
                Department's mission and business operations.
          (8) Major acquisition program.--The term ``major 
        acquisition program'' means a Department acquisition 
        program that is estimated by the Secretary to require 
        an eventual total expenditure of at least $300,000,000 
        (based on fiscal year 2019 constant dollars) over its 
        life cycle cost.

           *       *       *       *       *       *       *