Acquisition Reform in the House and Senate Versions of the FY2017 National Defense Authorization Act

Acquisition Reform in the House and Senate Versions of the FY2017 National Defense Authorization Act

Acquisition Reform in the House and Senate Versions of the FY2017 National Defense Authorization Act

July 13, 2016 (R44561)

Contents

Introduction

Comparison of House and Senate Bills

House Version

Senate Version

Tables

Table A-1. Selected Sections in the House Version Relating to Acquisition Reform

Table B-1. Selected Sections in the Senate Bill Relating to Acquisition Reform

Appendixes

Appendix A. Sections in the House Version Relating to Acquisition Reform

Appendix B. Sections in the Senate Bill Relating to Acquisition Reform

Introduction

This report focuses on the sections of the House and Senate versions of the Fiscal Year 2017 National Defense Authorization Act (H.R. 4909 and S. 2943, respectively) that appear closely linked to the respective armed services committees' stated efforts to reform the acquisition system.¹ For purposes of this analysis, CRS selected 31 sections of the House bill and 67 sections of the Senate bill. Each section is identified as fitting into one or more of the following six overarching categories:

1. Gathering information for future action,

2. Streamlining the current process (focusing on schedule and minimizing bureaucratic effort),

3. Improving the effectiveness of the current process (focusing on cost, performance, and public policy),

4. Improving the performance of the workforce (through recruitment/retention, professional development, or empowering decisionmaking),

5. Improving the use of data in decisionmaking, or

6. Reorganizing the acquisition management structure within the Department of Defense.

Comparison of House and Senate Bills

Conceptually, both bills prioritize general reform in the Department of Defense (DOD), and call specific attention to acquisition reform. The House committee report states

The committee believes that reform of the Department of Defense is necessary to increase the effectiveness and efficiency of the defense enterprise to get more defense for the dollar. But more importantly, reform is necessary to improve the military's agility and the speed at which it can adapt and respond to an increasingly complex security environment and unprecedented technological challenges.²

The House report goes on to outline five major reform initiatives contained in the bill, the first of which is acquisition reform.³

The Senate bill also addresses reform, stating

The National Defense Authorization Act for Fiscal Year 2017 continues the committee's commitment to defense reforms that enable our military to rise to the challenges of a more dangerous world both today and in the future. The NDAA…

Continues a comprehensive reform of the defense acquisition system designed to drive innovation and ensure accountability for delivering military capabilities to our warfighters on time, on budget, and as promised.⁴

Substantively, the acquisition reform sections of H.R. 4909 and S. 2943 have many similarities and in a number of instances seek to address the same issues. (See Appendix A and Appendix B for lists of corresponding sections in the two bills.)

Both bills have a subtitle dedicated exclusively to commercial items (Senate bill Title VIII, Subtitle E; House bill Title VIII, Subtitle C). Both take aim at what is perceived as improper use of Lowest Price Technically Acceptable (LPTA) source selection criteria, with each bill setting forth similar criteria for when LPTA can be used (House §§847, 804, 841; Senate §§825, 829D). And both require reports on bid protests (House §831; Senate §822) and amend protests on task orders (House §1862; Senate §819). The Senate bill goes further, seeking to require large contractors who lose a GAO protest to cover the cost of processing the protest, and withhold payments above costs to an incumbent who receives a bridge or temporary contract when the bridge or extension occurred because the incumbent filed a protest (§821).⁵

Both bills also have a number of sections aimed at updating and rationalizing acquisition laws. These sections seek to clarify statutory language (i.e., House §806; Senate §§802, 813, 814) conform statutes (i.e. Senate §§801, 833), re-categorize sections of law to create a more structured taxonomy (i.e., House §842; Senate §803), or otherwise update statutes and regulations (i.e., House §839; Senate §§812, 833). Taken as a whole, these sections are not intended to change acquisitions, but seek to help create a more consistent, clear, streamlined, and updated statutory governance structure.

Despite these similarities, the bills have striking differences: in length (the Senate version is longer), the philosophical approach taken to reform acquisitions, and the content of the bills. The acquisition reform effort in the House version is generally intended to be part of a continuation of a comprehensive, long-term, and collaborative effort that builds upon the FY2016 NDAA.⁶ The House bill requests more information than does its Senate counterpart, in part as a way to inform reform efforts that are expected to occur in the next few years. In contrast, the Senate bill takes a more sweeping, immediate, and in some instances, controversial, approach to acquisition reform.

House Version

Of the sections in the House bill related to acquisition reform, approximately

20% seek to gather information by requiring reports or mandating reviews;

40% seek to streamline the acquisition process;

35% seek to improve the effectiveness of the acquisition process; and

15% seek to improve the use of data to inform acquisition decision.⁷

As the data above indicate, many of the sections in the House bill seek to streamline the acquisition system, in some cases waiving or amending recurring reporting requirements (§§803, 811, 813, 836, 921), establishing specific deadlines for activities (§802) or providing various authorities and flexibilities that may enable faster procurement cycles (§§807, 1702).

The House bill has five provisions that focus on the acquisition of commercial items, which taken together seek to expand the definition of commercial items, promote a more effective use of data to promote commercial item acquisition decisions, and establish a pilot program for acquiring innovative commercial items (§§821-825).

Among the committee's chief concerns is the time it takes to develop and field Major Defense Acquisition Programs (MDAPs)⁸ and related technologies. To address these concerns, a separate section of the bill—Title XVII (entitled Department of Defense Acquisition Agility)—promotes designing weapon system platforms as open-system architectures to allow components and technologies to evolve faster and be incorporated into platforms more easily.⁹ Specifically, this title would require MDAPs to be designed and developed using a modular open system approach (§1701) and require that only sufficiently mature technologies that will not delay scheduled deployment be incorporated into a program (§1702). The title would also provide additional authorities for developing and incubating technologies for insertion into MDAPs (§1702); require creation of a scorecard against which to measure key acquisition metrics (such as cost and schedule) at each milestone; and make a number of amendments to technical data rights (§1705).

H.R. 4909 would provide the Secretary of Defense flexibility in funding the Defense Acquisition Workforce Development Fund for FY2017 and transfer funds from the fund to the Treasury (§§839 and 1002, respectively). This section does not eliminate the fund; as the committee report notes, the section "addresses an overfunding of the fund that has resulted from carryovers from prior years."¹⁰ (To see how each section is categorized, see Appendix A, Table A-1.)

Senate Version

Of the sections in the Senate version of S. 2943 that relate to acquisition reform, approximately

40% seek to streamline the acquisition process;

50% seek to improve the effectiveness of the acquisition process;

10% seek to improve the performance of the acquisition workforce; and

10% seek to improve the use of data to inform decisionmaking.¹¹

One of the more controversial sections of the Senate bill is Section 901, which aims to alter the structure of DOD by eliminating the position of Under Secretary of Defense for Acquisition, Technology, and Logistics (AT&L), as enshrined in 10 U.S.C. 133, and instead creating the position of Under Secretary of Defense for Research and Engineering (to serve as the chief acquisition officer and chief technology officer). Section 901 would also amend 10 U.S.C. 132a by changing the name of the Under Secretary of Defense for Business Management and Information to the Under Secretary of Defense for Management and Support. Under this section, the responsibilities of the current AT&L would generally be divided between the Under Secretary for R&E, the Under Secretary for Management and Support, and the military services. Related to Section 901 is Section 894, which would move certain testing offices out of AT&L and place them under the authority of the Director of Operational Test and Evaluation (who reports directly to the Secretary of Defense). According to the committee report:

In the 1960s and the 1970s, the Director of Defense for Research and Engineering which later became the Undersecretary of Defense for Research and Engineering.... led technological innovation in the Department of Defense. The position was held by leaders such as Harold Brown and William Perry, each of whom later became the Secretary of Defense. The USD(R&E) was the catalyst behind the Department's Second Offset program, which led to the development of stealth, precision guided munitions, and other revolutionary capabilities that advanced our nation's military technological dominance to this day.

During a series of hearings on defense reform, the committee heard from a wide range of experts that the U.S. military was falling behind technologically and that the current acquisition structure and process were significant factors in the inability to access new sources of innovation. The committee believes that reestablishing the position of USD(R&E) is particularly important in a time when U.S. technological dominance is eroding....

Section 901 would also establish an Assistant Secretary of Defense for Acquisition Policy and Oversight; eliminate the statutory requirement for four Assistant Secretary positions (Acquisition; Logistics and Materiel Readiness; Research and Engineering; and Energy, Installations, and Environment); and eliminate the statutory requirement for three Deputy Assistant Secretary of Defense positions (Developmental Test and Evaluation; Systems Engineering; and Manufacturing and Industrial Base). While Section 901 would eliminate the statutory requirement for certain positions, it does not abolish the positions, thus granting the Secretary of Defense discretion in organizing these positions and responsibilities as deemed appropriate. The Administration strongly objects to Section 901. According to the Statement on Administration Policy,

Unlike the USD/AT&L, the new Under Secretary for Research and Engineering would not have responsibility for developmental testing, which provides critical feedback regarding the early identification of design problems that is crucial for successful acquisition programs. The new Under Secretary would not have responsibility for contractor oversight and life-cycle sustainment costs, which would undermine DOD's ability to control contractor costs and oversee performance through the life of a program. And the new Under Secretary would not have the authority to direct the military departments and DOD components, undermining the ability of the Secretary of Defense to provide guidance and direction to the military services on major acquisition programs. Finally, the assignment of logistics oversight functions to both a new Deputy Assistant Secretary of Defense for Logistics and Sustainment under the new Assistant Secretary for Acquisition Policy and Oversight and a new Under Secretary of Defense for Business Management would fracture and misalign logistics authorities, management, and execution and ignore the key logistics authorities and policies related to deploying, sustaining, and retrograding forces in contingency operations. Taken together, these changes would roll back the acquisition reforms of the last two decades and risk returning the Department to an era in which overly optimistic cost estimates, inadequate system engineering and developmental testing, inappropriate reliance on immature technologies, ineffective contractor management, and lack of focus on life-cycle costs by the military departments led to explosive cost growth and the failure of multiple major defense acquisition programs. It is particularly inappropriate for the Congress to do this now, when the data clearly shows that recent performance of the Department's acquisition system has improved markedly in recent years.¹²

The Senate bill has a number of sections that seek to push DOD into using more fixed price contracts. Section 826 would generally penalize military departments and defense agencies for using cost-type contracts (the section would sunset in 2021); Section 827 would require the Defense Federal Acquisition Regulation Supplement (DFARS) to be updated to reflect a preference for fixed-price contracts and would require approvals for certain cost-type contracts; and Section 828 would require the use of fixed-price contracts for foreign military sales.¹³ According to the committee report,

The committee is frustrated by the continuous dependence of the Department of Defense on the use of cost type contracts. While there are some circumstances where cost-type contracts may be appropriate, the Department has over the years expanded the use of these types of contacts as a forcing mechanism to achieve absolute certainty in visibility over contractor costs.... The effect of the overuse of cost-type contracts is the narrowing of the industrial base as commercial firms make a choice not to invest in the unique accounting and financial systems necessary to execute a cost contract. While the committee has not mandated a complete ban on cost contracting this provision is designed to set up incentives that limit its use to appropriate exceptional cases.

The Administration objects to Sections 826 and 827, stating

Section 826 would unnecessarily constrain flexibility to tailor contract types for a given requirement. It also creates a complex financial transaction process that, to be auditable, will require extremely burdensome procedures. The Administration also objects to section 827, which would require higher level approval for the use of other than fixed-price contracts. This requirement is unnecessary and would result in the Department experiencing increased costs in situations where a cost-type contract would have been more appropriate. Acquisition officials and contracting officers should have the full range of contract types available to structure business arrangements that achieve a reasonable balance of risk between the Government and the contractor, while providing the contractor with the greatest incentive for efficient and economical performance. There is extensive history that demonstrates conclusively that fixed-price development is not in the Government or industry's interest in many circumstances.¹⁴

The Senate bill also seeks to repeal the ban on A-76 public-private competitions (§806),¹⁵ and has sections that may have a significant effect on workforce policies, including Section 509, which could be used to retain uniform program managers and other senior uniform acquisition personnel beyond the regular mandatory retirement date. (To see how each section is categorized, see Appendix B, Table B-1.)

Appendix A. Sections in the House Version Relating to Acquisition Reform

Table A-1 categorizes select sections of the House-passed H.R. 4909 into six overarching categories:

1. Gathering information for future action,

2. Streamlining the current process (focusing on schedule and minimizing bureaucratic effort),

3. Improving the effectiveness of the current process (focusing on cost, performance, and public policy),

4. Improving the performance of the workforce (through recruitment/retention, professional development, or empowering decisionmaking),

5. Improving the use of data in decisionmaking, or

6. Reorganizing the acquisition management structure within the Department of Defense.

Table A-1. Selected Sections in the House Version Relating to Acquisition Reform

Section

Description

Category

Senate (S. 2943) equivalent

Title VIII—Acquisition Policy, Acquisition Management, and Related Matters

Subtitle A—Amendments to General Contracting Authorities, Procedures, and Limitations

802

Amending the requirement to definitize undefinitized contracts in 180 days

Streamlining process

816

803

Revising requirement to track and report data on contracts for services

Improving data/Streamlining

804/820

807

Amending special emergency procurement authority

Streamlining process

—

809

Requiring procurement policy checklist to be used when acquiring services

Workforce (developing)

804

Subtitle B—Provisions Relating to Major Defense Acquisition Programs

811

Reducing time for DOD to submit a Selected Acquisition Report from 45 to 10 days

Streamlining process

—

812

Amending requirements for independent cost estimates, the role of the office of Cost Assessment and Program Evaluation (CAPE), and data gathering

Improving data/Streamlining

803/836

813

Amending Milestone B certification to require total life cycle (not the currently required acquisition cost) be taken into account to determine affordability; require certification that funding is expected to be available for the program (currently required to certify that funding is available).

Improving effectiveness

835

814

Requiring report on the extent to which sustainment is considered in the acquisition process

Gathering information/Data

834

Subtitle C—Provisions on Commercial Items

821

Expanding the definition of commercial items

Improving effectiveness

—

822

Requiring market research to support determination of price reasonableness

Improving effectiveness

—

823

Expanding data that can be used to support price reasonableness determination

Improving effectiveness

—

824

Expanding data in centralized records to support commercial item acquisition decisionmaking

Improving data

—

825

Allowing pilot program for acquiring innovative commercial items through competitive general solicitation

Streamlining process

868

Subtitle D—Other Matters

831/845a

Requiring report on bid protests related to MDAPS/including in the GAO annual report the most common grounds for sustaining protests related to bids for contracts

Gathering information

821/822

832

Requiring GAO report on indefinite delivery contracts

Gathering information

—

833

Requiring review and report on contract flow-down provisions for MDAPS

Gathering information

—

834

Requiring review of specifications in IT acquisitions to increase competition; review of brand names and specifications for acquisitions of goods and services

Improving effectiveness

829E

836

Waiving congressional notification for acquisition of tactical missiles and munitions that exceed the quantity specified in law

Streamlining process

840

837

Authorizing the closing out of certain legacy contracts

Streamlining process

829J/829K

847

Articulating when DOD may use LPTA contract strategies

Improving effectiveness

825

848

Requiring report on contracts awarded to minority and women-owned small businesses

Gathering Information

—

Title IX—Department of Defense Organization and Management (Subtitle B—Other Matters)

921

Modifying required elements of annual report on corrosion, and sunsetting in 2021 requirement to submit the report to Congress

Streamlining process

—

Title X—General Provisions (Subtitle G—Other Matters)

1098L

Requiring development of standards, policies, and guidelines to improve career development, recruitment, and management of program manager workforce

Workforce (Developing)

—

Title XI—Department of Defense Organization and Management

1112

Requiring report on the size and makeup of the civilian and contractor personnel workforce

Gathering information

—

Title XVII—Department of Defense Acquisition Agility

1701

Requiring MDAPs to pursue a modular open system approach to acquisitions

Improving effectiveness

843

1702

Requiring MDAPS to only include mature technologies that will not delay deployment; providing authorities to develop and incubate technologies and capabilities for later insertion into platforms

Improving effectiveness/Streamlining process

843

1703

Requiring the Secretary of Defense to set cost and schedule targets for MDAPs; requiring independent technical risk assessments prior to Milestones

Improving effectiveness

—

1704

Requiring a report to Congress following a Milestone A, B, or C approval that includes key acquisition metrics, for use as a scorecard against which to measure program performance

Improving data

—

1705

Amending Technical Rights statutory language

Improving effectiveness/Streamlining

—

Title XVIII—Matters Relating to Small Business Procurement (Subtitle G—Miscellaneous Provisions)

1862

Amending bid protests for task orders

Streamlining process

819

Sections That Could Significantly Affect Acquisitions

Title II—Research, Development, Test, and Evaluation (Subtitle C—Reports and Other Matters)

232

Establishing Pilot Program to evaluate commercial IT

Source: House passed H.R. 4909, the National Defense Authorization Act for FY2017; H.Rept. 114-537, Report of the Committee on Armed Services of the House of Representatives on H.R. 4909.

Notes:

a. Sections consolidated due to their similarity. For purposes of analysis, consolidated sections are counted as a single section.

Appendix B. Sections in the Senate Bill Relating to Acquisition Reform

Table B-1 categorizes select sections of the Senate-passed into six overarching categories or goals:

1. Gathering information for future action,

2. Streamlining the current process (focusing on schedule and minimizing bureaucratic effort),

3. Improving the effectiveness of the current process (focusing on cost, performance, and public policy),

4. Improving the performance of the workforce (through recruitment/retention, professional development, or empowering decisionmaking),

5. Improving the use of data in decisionmaking, or

6. Reorganizing the acquisition management structure within the Department of Defense.

Table B-1. Selected Sections in the Senate Bill Relating to Acquisition Reform

Section

Description

Category

House (H.R. 4909) Equivalent

Title VIII—Acquisition Policy, Acquisition Management, and Related Matters

Subtitle A—Acquisition Policy and Management

803

Clarifying the role of CAPE in conducting independent cost estimates; consolidating statutes

Streamlining process

812

804

Requiring DOD to update guidance on how to train the workforce on, and how to categorize, service acquisition

Workforce (developing)/ Data

803/809

806

Repealing ban on A-76 public-private competitions

Improving effectiveness

—

Subtitle B—Amendments to General Contracting Authorities, Procedures, and Limitations

811

Establishing a Defense Cost Accounting Standards Board within DOD responsible for CAS regulations and policies

Improving effectiveness

—

814

Requiring issuance of regulations to determine when independent research and development costs are fair, reasonable, and allowable expenses

Improving effectiveness

—

815

Exempting cost or price as an evaluation factor in the initial underlying award for certain multiple award task or delivery order contracts

Improving effectiveness

—

816

Modifying and expanding restrictions on undefinitized contract actions; requiring contracts to be definitized within 90 days

Improving effectiveness

802

817

Clarifying the definition of non-traditional contractors to include certain business units

Improving effectiveness

—

818

Authorizing DOD to negotiate comprehensive small business subcontract plans with defense contractors

Streamlining process

—

819

Limiting protests on Task and Delivery Orders

Streamlining process

1862

820

Limiting data reporting requirements for service acquisitions

Streamlining process

803

821/822a

Amending certain GAO bid protest provisions/Requiring DOD to commission a report on the impact of bid protests on defense acquisitions

Improving effectiveness/ Gathering information

831/845

823

Permitting side-by-side testing of certain defense items and technologies manufactured and developed overseas to be deemed competitive procedures

Improving effectiveness

—

824

Expanding the scope of the Defense Acquisition Challenge Program

Improving effectiveness

—

825

Requiring DFARS to prescribe when Lowest Price Technically Acceptable source selection criteria can be used

Improving effectiveness

847

826/827a

Penalizing military services for using cost-type contracts/Establishing preference for fixed-price contracts

Improving effectiveness

—

828

Requiring fixed-price contracts for foreign military sales

Improving effectiveness

—

829

Amending the standards and process for using performance-based contract payments

Improving effectiveness/ Streamlining

—

829A

Requiring Defense Acquisition University to implement training on share-in-savings contracts

Workforce/developing

—

829C

Granting the Secretary of Defense special procurement authority for defending or recovering from cyber, nuclear, biological, chemical, or radiological attacks

Streamlining process

—

829E

Barring requirements in contracts that specify a brand name unless a justification is approved

Improving effectiveness

834

829F

Sunsetting 4 and repealing 5 acquisition-related statutes

Streamlining process

—

829G

Establishing award for superior use of acquisition flexibilities and authorities

Workforce (Empowering)

—

829J/ 829Ka

Authorizing closing out certain legacy contracts without completing reconciliation audits or other corrective actions

Streamlining process

837

Subtitle C—Provisions Relating to Major Defense Acquisition Programs 

831

Repealing Chapter 144A, removing Major Automated Information Systems as distinct from MDAPs

Streamlining process

—

832

Modifying definition of MDAPs to exclude programs using rapid fielding or prototyping process, or certain prototypes

Streamlining process

—

834

Implementing initiatives to improve life cycle cost controls, including requiring a review of sustainment costs five years after operational capability

Improving effectiveness

814

835

Modifying Milestone B certification

Improving effectiveness

813

836/803a

Removing requirement to disclose confidence levels in estimates for MDAPS; requiring guidance for including discussion on program risk in decision documents

Improving data

812

837

Expanding authority to designate increments or blocks of items as major subprograms of MDAPs

Improving effectiveness

—

838

Counting first and second tier subcontractors for MDAPs toward DOD small business goals

Improving effectiveness

—

840

Waiving requirement to notify Congress when DOD acquires tactical missiles and munitions above the budgeted quantity

Streamlining process

836

841

Establishing pilot program to use multi-year contracts for items produced at the same facility that are used by multiple defense programs

Improving effectiveness/ Streamlining

—

842

Establishing pilot program to reduce Key Performance Parameters for acquisition programs

Improving effectiveness

—

843

Requiring using a modular open system architecture approach in certain acquisition programs and buying appropriate data rights for interface to share and publish

Improving effectiveness/ Streamlining

1701/1702

Subtitle D—Provisions Relating to Commercial Items 

851

Requiring development of standards, policies, and guidelines to improve career development, recruitment, and management of program manager workforce

Workforce (developing)

—

853

Requiring DOD to pursue initiatives to improve the use of data to support acquisition decisionmaking

Improving data

—

854

Expanding the authority to use Defense Acquisition Workforce Development Funds

Workforce (developing)/Data

—

Subtitle E—Provisions Related to Commercial Items 

861

Exempting acquisition of commercial items and commercially available off-the-shelf items from certain contract-clauses

Streamlining process/Improving effectiveness

—

862

Exempting acquisitions of commercially available off-the-shelf items from certain executive orders; allows waiver from said executive orders for any other purchases

Streamlining process/Improving effectiveness

—

863

Requiring use of commercial and performance specifications in lieu of military specifications

Improving effectiveness

—

865

Expanding definition of commercial items to include certain items valued at less than $10,000 purchased by prospective contractors

Streamlining process

—

867

Requiring, to the extent practicable, the use of fixed-price contracts for purchase of commercial items

Improving effectiveness

—

868

Authorizing a pilot program for acquiring innovative commercial items, technologies, and services using competitive procedures (only with fixed-price contracts)

Improving effectiveness

825

Subtitle F—Industrial Base Matters 

871/872a

Requiring plan to better integrate the entities that constitute the national technical industrial base; requiring increased reliance on commercial technologies

Improving effectiveness/ Data

—

873

Authorizing DOD to make storage and distribution services available to weapon system support contractors

Streamlining process

—

876

Establishing pilot program for nontraditional contractors and small businesses to design, develop, and demonstrate innovative prototype military platforms

Improving effectiveness

—

Subtitle G—International Contracting Matters

881

Requiring plan to improve management and use of fees from transfer of defense articles to foreign entities under the Defense Security Cooperation Agency

Improving effectiveness

—

882

Authorizing a working capital fund for precision guided munitions exports in support of contingency operations

Streamlining process

—

Subtitle H—Other Matters

891

Requiring program for improving contractor business systems to improve data and decrease costs

Improving data/Streamlining

—

893

Requiring DOD entities to conduct business operations using commercial management practices and principles (allowing waivers from existing regulations)

Streamlining process/Improving effectiveness

—

894

Transferring Developmental Test and Evaluation, and Test Resource Management Center to the Director of Operational Test and Evaluation (DOT&E) and clarifying role of DOT&E

Reorganization

—

895

Exempting national security IT systems that are integral parts of weapon systems from capital planning and investment control requirement

Streamlining process

—

897

Allowing use of acquisition authorities for electronic warfare acquisitions

Streamlining process

—

899A

Amending FY2016 NDAA pilot program to allow each military service to also have funds for rapid fielding and prototyping

Streamlining process

—

899B

Clarifying and amending authority for authorizations for the Defense Modernization Account

Improving effectiveness

—

Title IX—Department of Defense Organization and Management 

Subtitle A—Office of the Secretary of Defense and Related Matters

901

Establishing the Under Secretary of Defense for Research and Engineering; reorganizing Assistant Secretary positions and eliminating statutory requirement for other positions

Reorganization

—

Subtitle C—Organization and Management of Other Department of Defense Offices and Elements

943

Modifying the role, responsibility, and make-up of the Joint Requirements Oversight Council

Improving effectiveness/ Streamlining

—

Title X—General Provisions (Subtitle H—Studies and Reports)

1082/ 1083/ 1102a

Repealing certain required reports to Congress, including reports on strategic plan for acquisition workforce and Defense Acquisition Workforce Development Fund

Streamlining process

—

Title XI—Civilian Personnel Matters (Subtitle A—Department of Defense Matters) Generally

1104

Authorizing the establishment of pay flexibilities for the acquisition and supporting workforce (making permanent and expanding authorities from the AcqDemo pilot)

Workforce (recruiting)

—

1105

Authorizing Direct Hire authority for positions, including financial management, auditing, and cost estimating

Workforce (recruiting)

—

Sections that can affect acquisitions

Title V—Military Personnel Policy (Subtitle A—Personnel Policy)

509

Allowing for retention of officers in specified positions beyond the regular mandatory retirement

Title XI—Civilian Personnel Management (Subtitle A—Department of Defense Matters Generally)

1106

Authorizing Direct Hire authority for post-secondary students and recent graduates

Source: Senate-passed S. 2943; S.Rept. 114-255, Report of the Committee on Armed Services of the House of Representatives to Accompany S. 2943.

Notes:

a. Sections consolidated due to their similarity. For purposes of analysis, consolidated sections are counted as a single section.

Author Contact Information

[author name scrubbed], Specialist in Defense Acquisition ([email address scrubbed], [phone number scrubbed])

Footnotes

1.

Because the House Armed Services Committee's focus on small business predates the current reform effort, and because small business provisions also affect a specific segment of the industrial base, not the overall acquisition system, such sections were generally excluded from this analysis. Sections making pilot programs permanent were also generally excluded from this analysis as were sections clarifying or conforming prior legislation.

2.

See U.S. Congress, House Committee on Armed Services, Report of the Committee on Armed Services House of Representatives on H.R. 4909 , 114th Cong., 2nd sess., May 4, 2016, H.Rept. 114-537, p. 3.

3.

Ibid., The initiatives, as listed, are "(1) acquisition reform, (2) healthcare reform, (3) commissary reform, (4) military justice reform, and (5) Goldwater-Nichols reform."

4.

See U.S. Congress, Senate Committee on Armed Services, National Defense Authorization Act for Fiscal Year 2017, report to accompany S. 2943, 114th Cong., 2nd sess., May 18, 2016, S.Rept. 114-225 (Washington: GPO, 2016), p. 2.

5.

Both the House and Senate passed versions of the FY2016 NDAA had sections that would have required a report on bid protests but no such provision survived conference.

6.

U.S. Congress, House Committee on Armed Services, Report of the Committee on Armed Services House of Representatives on H.R. 1735, 114th Cong., 2nd sess., May 5, 2015, H.Rept. 114-102, p. 3. This is consistent with numerous prior statements of Chairman Mac Thornberry.

7.

Percentages do not equal 100% because some sections of the bill fall into more than one category.

8.

An MDAP is defined in 10 USC 2430 as an acquisition program (that is not a highly sensitive classified program), that is either

designated by the Secretary of Defense as such,

estimated to exceed $300 million in research, development, test, and evaluation costs (in 1990 dollars), or

estimated to exceed $1.8 billion in procurement costs (including increments)(in 1990 dollars).

9.

Report of the Committee on Armed Services House of Representatives on H.R. 4909, page 336.

10.

Report of the Committee on Armed Services House of Representatives on H.R. 490, page 198.

11.

Percentages do not equal 100% because some sections of the bill fall into more than one category.

12.

Executive Office of the President, Office of Management and Budget, Statement of Administration Policy, S. 2943 - National Defense Authorization Act for Fiscal Year 2017, July 7, 2016, p. 4.

13.

Other sections in the Senate bill also seek to promote the use of fixed-price contracting, including sections 816, 832, 833, 867, and 868.

14.

See Statement of Administration Policy, p. 13.

15.

For a discussion on A-76, see CRS Report R40854, Circular A-76 and the Moratorium on DOD Competitions: Background and Issues for Congress, by [author name scrubbed].