National Defense Authorization Act for 2012

LEGISLATIVE PROVISIONS NOT ADOPTED

Explanatory Statement, 12/4/14, H8671

Sections of House and Senate Bills Not Enacted

Extension to United States Transportation Command of authorities relating to prohibition on contracting with the enemy

The House bill contained a provision (sec. 801) that would amend section 831(i)(1) of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66) to add U.S. Transportation Command to the list of covered combatant commands.

The Senate committee-reported bill contained a similar provision (sec. 861).

The agreement does not include this provision.

We note that the extension to U.S. Transportation Command of authorities relating to prohibition on contracting with the enemy was included in another provision of this agreement.

SEC. 801. EXTENSION TO UNITED STATES TRANSPORTATION COMMAND OF AUTHORITIES RELATING TO PROHIBITION ON CONTRACTING WITH THE ENEMY.

Section 831(i)(1) of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127 Stat. 813) is amended by inserting `United States Transportation Command,' after `United States Southern Command,'.

Governance of Joint Information Environment

The Senate committee-reported bill contained a provision (sec. 804) that would require the Secretary of Defense to install a stronger management element and set of controls on the Joint Information Environment (JIE) initiative, including by requiring the assignment of an experienced coordinator under the Chief Information Officer (CIO) to oversee the JIE migration, the establishment of a team of experts to support the coordinator, and modifications to the JIE Executive Committee and its working groups to ensure better representation of those who must use the JIE to execute warfighting missions and those who must defend the JIE from cyber attacks.

The House bill contained no similar provision.

The agreement does not include this provision.

We are encouraged that the newly appointed CIO has the necessary support from the Secretary and Deputy Secretary of Defense, and the intent, to impose greater discipline over the JIE migration, bolster the planning and engineering resources devoted to the initiative, and to ensure that the needs of the operational forces receive all due consideration alongside communications and computing efficiencies and cost savings.

We direct that the CIO be prepared to brief the congressional defense committees at regular intervals on the measures taken to achieve these improvements, including defining what JIE encompasses, and the "as is" condition and the "to be" architecture; developing an integrated master schedule and cost estimates; and tracking compliance with objectives, schedules, and costs.

In addition, we direct the CIO to identify and prioritize the applications in use in the Department of Defense (DOD) that the CIO assesses are candidates for migration to a cloud computing environment, and to determine which applications can and cannot, without modification or replacement, be shifted to a cloud computing environment, along with a time- phased plan to either modify or replace those applications that are not cloud-compatible. We note that a significant percentage of DOD computing applications cannot be virtualized or otherwise are not cloud-compatible, and that the cost and time required to modify such applications are substantial. Without an understanding of what applications can be readily migrated, and a plan to modify or replace those that cannot, neither DOD nor potential commercial cloud providers will be able to plan effectively. The CIO should complete this tasking, and be prepared to share the results with the congressional defense committees, within 270 days of the enactment of this Act.

SEC. 804. GOVERNANCE OF JOINT INFORMATION ENVIRONMENT.

(a) Governance Structure-

(1) ASSIGNMENT OF COORDINATOR- (A) The Secretary of Defense shall assign a senior military or civilian official to serve as the assistant to the Chief Information Officer of the Department of Defense and Coordinator of the Joint Information Environment of the Department (in this section referred to as the `Coordinator').

(B) In assigning an individual to serve as the assistant to the Chief Information Officer and as the Coordinator, the Secretary shall select from among individuals who have significant expertise in the following:

(i) Information technology planning and program management.

(ii) Command and control at the Joint Force level.

(iii) The United States Cyber Command's concept of operations for operating and defending information systems and networks.

(i) Balancing priorities and risks between efficient network acquisition and operation, effective execution of military missions through a network, and effective network defense.

(ii) Defining the elements and aspects of the current information architecture in the Department of Defense that are critical for the transition to the desired Joint Information Environment end state.

(iii) Developing the desired architecture for the Joint Information Environment to an appropriate level of detail.

(iv) Developing and updating an integrated master schedule for migrating to the Joint Information Environment, with milestones and critical dependencies.

(v) In conjunction with the Director of Cost Assessment and Program Evaluation, developing and updating cost estimates and performance measures for the Joint Information Environment.

(vi) Tracking compliance with, and deviations from, objectives, schedule, and costs of the Joint Information Environment.

(vii) Identifying gaps in plans and budgets of components of the Department of Defense that relate to the Joint Information Environment and identifying requirements for development and procurement to address those gaps.

(viii) Developing and verifying achievement of open systems architectures for major warfighting missions of the Department similar to the Defense Intelligence Information Environment architecture developed under the auspices of the Under Secretary of Defense for Intelligence for the intelligence mission of the Department.

(2) ESTABLISHMENT OF TEAM OF EXPERTS- (A) The Coordinator shall establish a team of experts to provide advice and assistance to the Coordinator in carrying out the responsibilities of the Coordinator.

(B) The Chief Information Officer, the commanders of the combatant commands, and the heads of the cyber components of the military departments shall assist the Coordinator by making available to the Coordinator experts who have operational experience in or with the following:

(i) The office of the Chief Information Officer of the Department or an office of a chief information officer of a military department.

(ii) Joint planning and operations at a combatant command.

(iii) The United States Cyber Command or a cyber component of a military department.

(iv) Technical aspects of information technology acquisition and cloud computing.

(3) EXPANSION OF EXECUTIVE COMMITTEE- (A) The Executive Committee of the Joint Information Environment shall include the Director for Operations (commonly referred to as the `J3') of the Joint Staff and the Director for Operations of the United States Cyber Command.

(B) The Executive Committee of the Joint Information Environment shall ensure that working groups within the Executive Committee include representatives from the operational communities responsible for executing military missions.

(4) SUPPORT BY MILITARY DEPARTMENTS AND AGENCIES- The head of each military department and defense agency shall assign an official to support the Coordinator and to align component plans and budgets with the objectives and schedules of the Joint Information Environment.

(b) Selection of Standard Language for Representing and Communicating Cyber Event and Threat Data- Not later than June 1, 2015, the Chief Information Officer shall select a standard language for representing and communicating cyber event and threat data that is machine-readable for the Joint Information Environment from among open source candidates.

(c) Assessment of Applications Used by Department of Defense and Estimate of Time-phased Cloud Computing Workload of Department of Defense-

(1) ASSESSMENT OF APPLICATIONS- As part of the Department's cloud computing migration strategy under the Joint Information Environment, the Chief Information Officer of the Department shall identify and prioritize the applications in use in the Department that should be considered for migration to a cloud computing environment and determine the following:

(A) Whether each of the applications used by the Department can be readily ported to a cloud computing environment.

(B) If an application used by the Department cannot be readily ported to a cloud computing environment, the cost and time required to enable, either by modification or replacement, the operation of the application in a cloud computing environment.

(C) Whether it would be cost-effective to enable, either by modification or replacement, the operation of an application described in subparagraph (B) in a cloud computing environment.

(D) A list of applications used by the Department that should be enabled, either by modification or replacement, to operate in a cloud computing environment, listed in the order of priority by which they should be enabled, and a schedule for such modification or replacement.

(2) ESTIMATE- The Chief Information Officer shall use the assessment conducted under paragraph (1) to develop an estimate of the time-phased cloud computing workload of the Department for the purpose of--

(A) informing the Department's cloud computing strategy under the Joint Information Environment initiative; and

(B) to assist commercial cloud computing providers to develop business proposals for the Department.

Improving opportunities for service-disabled veteran-owned small business

The House bill contained a provision (sec. 812) that would amend section 657 of title 15, United States Code, by consolidating the verification and appeals processes for Service-Disabled Veteran-Owned Small Business (SDVOSB) programs at the Department of Veterans Affairs and the Small Business Administration (SBA), and by moving the processes and resources of the SDVOSB verification programs at the Department of Veterans Affairs to the SBA. The provision would also allow the surviving spouse of a service-disabled veteran who acquires an ownership right in a small business concern to be treated as if the surviving spouse were that veteran for the purpose of maintaining the status of the small business as a small business concern owned and controlled by service-disabled veterans.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

We note that in the case of a transfer of ownership resulting from the death of a service-disabled veteran to a surviving spouse altering the status of the small business as a SDVOSB, we believe the small business concern can continue to perform existing contracts along with any remaining options to those contracts under existing law.

SEC. 812. IMPROVING OPPORTUNITIES FOR SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESSES.

(a) Small Business Definition of Small Business Concern Consolidated- Section 3(q) of the Small Business Act (15 U.S.C. 632(q)) is amended--

(1) by amending paragraph (2) to read as follows:

`(2) SMALL BUSINESS CONCERN OWNED AND CONTROLLED BY SERVICE-DISABLED VETERANS- The term `small business concern owned and controlled by service-disabled veterans' means a small business concern--

`(A)(i) not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and

`(ii) the management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran; or

`(B)(i) not less than 51 percent of which is owned by one or more veterans with service-connected disabilities that are permanent and total who are unable to manage the daily business operations of such concern or, in the case of a publicly owned business, not less than 51 percent of the stock of which is owned by one or more such veterans; and

`(ii) is included in the database described in section 8127(f) of title 38, United States Code.'; and

(2) by adding at the end the following:

`(6) TREATMENT OF BUSINESSES AFTER DEATH OF VETERAN-OWNER-

`(A) IN GENERAL- Subject to subparagraph (C), if the death of a service-disabled veteran causes a small business concern to be less than 51 percent owned by one or more such veterans, the surviving spouse of such veteran who acquires ownership rights in such small business concern shall, for the period described in subparagraph (B), be treated as if the surviving spouse were that veteran for the purpose of maintaining the status of the small business concern as a small business concern owned and controlled by service-disabled veterans.

`(B) PERIOD DESCRIBED- The period referred to in subparagraph (A) is the period beginning on the date on which the service-disabled veteran dies and ending on the earliest of the following dates:

`(i) The date on which the surviving spouse remarries.

`(ii) The date on which the surviving spouse relinquishes an ownership interest in the small business concern.

`(iii) The date that is ten years after the date of the veteran's death.

`(C) APPLICATION TO SURVIVING SPOUSE- Subparagraph (A) only applies to a surviving spouse of a veteran with a service-connected disability if--

`(i) the veteran had a service-connected disability rated as 100 percent disabling or died as a result of a service-connected disability; and

`(ii) prior to the death of the veteran and during the period in which the surviving spouse seeks to qualify under this paragraph, the small business concern is included in the database described in section 8127(f) of title 38, United States Code.'.

(b) Veterans Affairs Definition of Small Business Concern Consolidated- Section 8127 of title 38, United States Code, is amended--

(1) by striking subsection (h); and

(2) in subsection (l)(2), by striking `means' and all that follows through the period at the end and inserting the following: `has the meaning given that term under section 3(q) of the Small Business Act (15 U.S.C. 632(q)).'.

(c) SBA to Assume Control of Verification of Ownership and Control Status of Applicants for Inclusion in the Database of Small Businesses Owned and Controlled by Service Disabled Veterans and Veterans- The Small Business Act (15 U.S.C. 631 et seq.), as amended by section 815, is further amended by adding at the end the following new section:

`SEC. 49. VETS FIRST PROGRAM.

`In order to increase opportunities for small business concerns owned and controlled by service-disabled veterans and small business concerns owned and controlled by veterans in the Federal marketplace, not later than 180 days after the effective date of this section, the Administrator shall enter into a memorandum of understanding with the Secretary of Veterans Affairs that transfers control and administration of the program under subsections (e) through (g) of section 8127 of title 38, United States Code, to the Administrator, consistent with the following:

`(1) Not later than 270 days after completing the memorandum of understanding, the Administrator shall make rules to carry out the memorandum. If the Administrator does not make such rules by such date, the Administrator may not exercise the authority under section 7(a)(25)(A) until such time as those rules are made.

`(2) The Administrator shall assume authority and responsibility for maintenance and operation of the database and for verifications under the program. Any verifications undertaken by the Administrator shall employ fraud prevention measures at the time of the initial application, through detection and monitoring processes after initial acceptance, by investigating allegations of potential fraud, removing firms that do not quality from the database, and referring cases for prosecution when appropriate.

`(3) Any appeal by a small business concern, at the time that verification is denied or a contract is awarded, of any determination under the program shall be heard by the Office of Hearings and Appeals of the Small Business Administration.

`(4)(A) The Secretary shall, for a period of 6 years commencing on a date agreed to in the completed memorandum, reimburse to the Administrator of the Small Business Administration any costs incurred by the Administrator for actions undertaken pursuant to the memorandum from fees collected by the Secretary of Veteran Affairs under multiple-award schedule contracts. The Administrator and the Secretary shall endeavor to ensure maximum efficiency in such actions. Any disputes between the Secretary and the Administrator shall be resolved by the Director of the Office of Management and Budget.

`(B) The Secretary and the Administrator may extend the term of the memorandum of understanding, except for the reimbursement requirement under subparagraph (A). The Secretary and the Administrator may in a separate memorandum of understanding provide for an extension of such reimbursement.

`(5) Not later than 180 days after the date of enactment of this section, and every 180 days thereafter, the Secretary and the Administrator shall--

`(A) meet to discuss ways to improve collaboration under the memorandum to increase opportunities for service-disabled veteran-owned small businesses and veteran-owned small businesses; and

`(B) consult with congressionally chartered Veterans Service Organizations to discuss ways to increase opportunities for service-disabled veteran-owned small businesses and veteran-owned small businesses.

`(6) Not later than 180 days after the date of enactment of this section, and every 180 days thereafter, the Secretary and the Administrator shall report to the Committee on Small Business and the Committee on Veterans' Affairs of the House of Representatives, and the Committee on Small Business and Entrepreneurship and the Committee on Veterans' Affairs of the Senate on the progress made by the Secretary and the Administrator implementing this section.

`(7) In any meeting required under paragraph (5), the Secretary and the Administrator shall include in the discussion of ways to improve collaboration under the memorandum to increase opportunities for small businesses owned and controlled by service-disabled veterans who are women or minorities and small business concerns owned and controlled by veterans who are women or minorities.'.

(d) Memorandum of Understanding- Section 8127(f) of title 38, United States Code, is amended by adding at the end the following:

`(7) Not later than 180 days after the effective date of this paragraph, the Secretary shall enter into a memorandum of understanding with the Administrator of the Small Business Administration consistent with section 48 of the Small Business Act, which shall specify the manner in which the Secretary shall notify the Administrator as to whether an individual is a veteran and if that veteran has a service-connected disability.'.

Improving Federal Surety Bonds

The House bill contained a provision (sec. 816) that would amend section 411(c)(1) of the Small Business Investment Act of 1958 (Public Law 85-699) by raising the guarantee rate on the Small Business Administration's preferred security bond program from 70 percent to 90 percent.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 816. IMPROVING FEDERAL SURETY BONDS.

(a) Surety Bond Requirements- Chapter 93 of subtitle VI of title 31, United States Code, is amended--

(1) by adding at the end the following:

`SEC. 9310. INDIVIDUAL SURETIES.

`If another applicable law or regulation permits the acceptance of a bond from a surety that is not subject to sections 9305 and 9306 and is based on a pledge of assets by the surety, the assets pledged by such surety shall--

`(1) consist of eligible obligations described under section 9303(a); and

`(2) be submitted to the official of the Government required to approve or accept the bond, who shall deposit the assets with a depository described under section 9303(b).'; and

(2) in the table of contents for such chapter, by adding at the end the following:

`9310. Individual sureties'.

(b) SBA Surety Bond Guarantee- Section 411(c)(1) of the Small Business Investment Act of 1958 (15 U.S.C. 694b(c)(1)) is amended by striking `70' and inserting `90'.

(1) STUDY- The Comptroller General of the United States shall carry out a study on the following:

(A) All instances during the 10-year period prior to the date of enactment of the Act in which a surety bond proposed or issued by a surety in connection with a Federal project was--

(i) rejected by a Federal contracting officer; or

(ii) accepted by a Federal contracting officer, but was later found to have been backed by insufficient collateral or to be otherwise deficient or with respect to which the surety did not perform.

(B) The consequences to the Federal Government, subcontractors, and suppliers of the instances described under paragraph (1).

(C) The percentages of all Federal contracts that were awarded to new startup businesses (including new startup businesses that are small disadvantaged businesses or disadvantaged business enterprises), small disadvantaged businesses, and disadvantaged business enterprises as prime contractors in the 2-year period prior to and the 2-year period following the date of enactment of this Act, and an assessment of the impact of this Act and the amendments made by this Act upon such percentages.

(2) REPORT- Not later than the end of the 3-year period beginning on the date of the enactment of this Act, the Comptroller General shall issue a report to the Committee on the Judiciary of the House of Representatives and the Committee on Homeland Security and Government Affairs of the Senate containing all findings and determinations made in carrying out the study required under subsection (a).

(3) DEFINITIONS- For purposes of this section:

(A) DISADVANTAGED BUSINESS ENTERPRISE- The term `disadvantaged business enterprise' has the meaning given that term under section 26.5 of title 49, Code of Federal Regulations.

(B) NEW STARTUP BUSINESS- The term `new startup business' means a business that was formed in the 2-year period ending on the date on which the business bids on a Federal contract that requires giving a surety bond.

(C) SMALL DISADVANTAGED BUSINESS- The term `small disadvantaged business' has the meaning given that term under section 124.1002(b) of title 13, Code of Federal Regulations.

Publication of required justification that consolidation of contract requirements

The House bill contained a provision (sec. 817) that would require publication of certain justification and approval documents.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 817. PUBLICATION OF REQUIRED JUSTIFICATION THAT CONSOLIDATION OF CONTRACT REQUIREMENTS.

Section 44(c)(2)(A) of the Small Business Act (15 U.S.C. 657q(c)(2)(A)) is amended by adding at the end the following: `This justification shall be published prior to the issuance of a solicitation.'.

Small business prime and subcontract participation goals raised; accounting of subcontracting

The House bill contained a provision (sec. 818) that would raise the goals for small business subcontracting.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 818. SMALL BUSINESS PRIME AND SUBCONTRACT PARTICIPATION GOALS RAISED; ACCOUNTING OF SUBCONTRACTORS.

(a) Prime Contracting Goals- Section 15(g)(1)(A) of the Small Business Act (15 U.S.C. 644(g)(1)(A)) is amended--

(1) in clause (i), by striking `23 percent' and inserting `25 percent'; and

(2) by adding at the end the following new clause:

`(vi) The Governmentwide goal for participation by small business concerns in subcontract awards shall be established at not less than 40 percent of the total value of all subcontract dollars awarded pursuant to section 8(d) of this Act for each fiscal year.'.

(b) Delayed Effective Date- The amendment made by subsection (a)(2) of this section shall take effect only beginning on the date on which the Administrator of the Small Business Administration has promulgated any regulations necessary, and the Federal Acquisition Regulation has been revised, to implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014 and the amendments made by such section.

(c) Repeal of Certain Provision Pertaining to Accounting of Subcontractors- Section 15(g) of the Small Business Act (15 U.S.C. 644(g)) is amended by striking paragraph (3).

Small business cyber education

The House bill contained a provision (sec. 819) that would allow the Secretary of Defense, in consultation with the Administrator of the Small Business Administration, to promote an outreach and education program to assist small businesses in understanding the cyber threat and in defending their networks and intellectual property.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

We recognize the challenges faced by small business, both in protecting their own networks and intellectual property, and also in developing effective capabilities to address cyber security needs. As noted in the Joint Explanatory Statement accompanying H.R. 3304, we recognize the challenges that the defense acquisition system can pose for small businesses, but the purpose of the small and disadvantaged businesses offices established in each of the services is to handle the whole gamut of small business issues. We are aware of the activities the Department of Defense (DOD) has instituted in order to improve small business access to threat information and best practices pertaining to cyber security. Last year, DOD briefed the Armed Services Committees of the Senate and House of Representatives on plans to support cyber education activities for small business through the existing small business program. We recognize that this is a work in progress, and that an ongoing assessment of those efforts should be commenced in order to determine the effectiveness of those efforts. Therefore, we direct the Comptroller General of the United States to submit a report to the Armed Services Committees of the Senate and House of Representatives by November 1, 2015 on the DOD's outreach and education to assist small businesses in understanding cyber threats.

This report should address the following: (1) An assessment of the planning being done to integrate cyber education and outreach into the programs of the offices of small and disadvantaged businesses of DOD and the military services; (2) The capabilities of these offices to support small businesses in preparing plans for the protection of their corporate networks and intellectual property; and (3) Development of metrics to determine the performance and effectiveness of those programs and planning activities.

SEC. 819. SMALL BUSINESS CYBER EDUCATION.

The Secretary of Defense, in consultation with the Administrator of the Small Business Administration, may make every reasonable effort to promote an outreach and education program to assist small businesses (as defined in section 3 of the Small Business Act (15 U.S.C. 632)) contracted by the Department of Defense to assist such businesses to--

(1) understand the gravity and scope of cyber threats;

(2) develop a plan to protect intellectual property; and

(3) develop a plan to protect the networks of such businesses.

Procurement of personal protective equipment

The House bill contained a provision (sec. 824) that would require the Secretary of Defense to use best value tradeoff source selection methods to the maximum extent practicable when procuring an item of personal protective equipment (PPE) or critical safety items. PPE items include, but are not limited to, body armor components, combat helmets, combat protective eyewear, environmental and fire resistant clothing, footwear, organizational clothing and individual equipment (OCIE), and other items as determined appropriate by the Secretary.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

We note that PPE such as body armor, helmets, specialized clothing and footwear as well as other OCIE items are specifically designed to meet challenging military requirements and specifications. These PPE items are usually not commercial off-the-shelf products, but are frequently highly engineered, critical life-saving equipment items designed and manufactured to meet rigorous performance standards, first article testing and stringent production quality requirements. We remain committed to providing the warfighter with the best equipment possible and encourage the Department of Defense to use proper source selection methods to fulfill these requirements. In cases where offerors have widely diverse technical qualifications and are expected to provide products that differ significantly in performance characteristics, source selection criteria should not be solely based on cost in the procurement of OCIE and PPE.

SEC. 824. PROCUREMENT OF PERSONAL PROTECTIVE EQUIPMENT.

(a) Requirement- The Secretary of Defense shall use best value tradeoff source selection methods to the maximum extent practicable when procuring an item of personal protective equipment or critical safety items.

(b) Personal Protective Equipment Defined- In this section, the term `personal protective equipment' includes the following:

(1) Body armor components.

(2) Combat helmets.

(3) Combat protective eyewear.

(4) Environmental and fire resistant clothing.

(5) Footwear.

(6) Organizational clothing and individual equipment.

(7) Other items as determined appropriate by the Secretary.

Authority for Defense Contract Audit Agency to interview contractor employees in connection with examination of contractor records

The Senate committee-reported bill contained a provision (sec. 825) that would amend subsection (a)(1) of section 2313 of title 10, United States Code, to grant the Defense Contract Audit Agency specific authority to interview contractor employees similar to the authority granted to the Comptroller General of the United States in subsection (c)(1) of that same section.

The House bill contained no similar provision.

The agreement does not include this provision.

We believe that under the authorities provided by section 2313 of title 10, United States Code, Defense Contract Audit Agency (DCAA) officials have the authority to interview contractor employees during the course of an audit if such an interview is required to complete the audit. We therefore encourage contractors to make available for interview the employees associated with matters related to an audit conducted in accordance with section 2313. We also note that failure to provide reasonable access to interview employees associated with matters under review during an audit could result in a qualified audit opinion.

SEC. 825. AUTHORITY FOR DEFENSE CONTRACT AUDIT AGENCY TO INTERVIEW CONTRACTOR EMPLOYEES IN CONNECTION WITH EXAMINATION OF CONTRACTOR RECORDS.

(a) Authority- Section 2313(a)(1) of title 10, United States Code, is amended by inserting `, interview employees,' after `is authorized to inspect the plant'.

(b) Applicability- The amendment made by subsection (a) shall apply with respect to contracts entered into after the date of the enactment of this Act.

(c) Regulations- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to implement the amendment made by subsection (a).

Prohibition on funds for contracts violating Executive Order No. 11246

The House bill contained a provision (sec. 825) that would prohibit funding authorized to be appropriated by this Act or otherwise made available to the Department of Defense to be used to enter into any contract with any entity if such contract would violate Executive Order No. 11246 (relating to non-retaliation for disclosure of compensation information), as amended by the announcement of the President on April 8, 2014.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 825. PROHIBITION ON FUNDS FOR CONTRACTS VIOLATING EXECUTIVE ORDER NO. 11246.

None of the funds authorized to be appropriated by this Act or otherwise made available to the Department of Defense may be used to enter into any contract with any entity if such contract would violate Executive Order No. 11246 (relating to nonretaliation for disclosure of compensation information), as amended by the announcement of the President on April 8, 2014.

Requirement for policies and standard checklist in procurement of services

The House bill contained a provision (sec. 826) that would amend section 2330a of title 10, United States Code, by requiring the Under Secretary of Defense for Personnel and Readiness to implement a standard checklist to be used for new contract approval for services or exercising an option under an existing contract for services. The checklist required would be modeled on the policy and checklist relating to services contract approval form (dated August 2012) established and in use by the Department of the Army. Finally, the provision would require the Comptroller General of the United States to submit to the congressional defense committees a report on the implementation of the standard checklist for each of fiscal years 2015, 2016, and 2017.

The Senate committee-reported bill contained no similar provision.

The agreement does not include the provision.

We direct the Under Secretary of Defense for Acquisition, Technology, and Logistics, and the senior acquisition executive for the Department of the Navy and the Department of the Air Force, no later than March 30, 2015, to issue to the Defense agencies and the military services, respectively, policies implementing a standard checklist to be completed before the issuance of a solicitation for any new contract for services or exercising an option under an existing contract for services, including services provided under a contract for goods. We recommend that the Under Secretary and the senior acquisition executives, to the extent practicable, model their policies and checklists on the policy and checklist relating to services contract approval currently used by the Department of the Army. We also direct the Comptroller General of the United States to submit to the congressional defense committees a report on the Defense agencies' and military services' implementation of a standard checklist by January 30, 2016.

SEC. 826. REQUIREMENT FOR POLICIES AND STANDARD CHECKLIST IN PROCUREMENT OF SERVICES.

(a) Requirement- Section 2330a of title 10, United States Code, is amended--

(1) by redesignating subsections (g), (h), (i), and (j) as subsections (h), (i), (j), and (k), respectively; and

(2) by inserting after subsection (f) the following new subsection (g):

`(g) Request for Service Contract Approval- The Under Secretary of Defense for Personnel and Readiness shall--

`(1) issue policies implementing a standard checklist to be completed before the issuance of a solicitation for any new contract for services or exercising an option under an existing contract for services, including services provided under a contract for goods; and

`(2) ensure such policies and checklist are incorporated into the Department of Defense Supplement to the Federal Acquisition Regulation.'.

(b) Army Model- In implementing section 2330a(g) of title 10, United States Code, as added by subsection (a), the Under Secretary of Defense for Personnel and Readiness shall model, to the maximum extent practicable, its policies and checklist on the policies and checklist relating to services contract approval established and in use by the Department of the Army (as set forth in the request for services contract approval form updated as of August 2012, or any successor form).

(c) Deadline- The policies required under such section 2230a(g) shall be issued within 120 days after the date of the enactment of this Act.

(d) Report- The Comptroller General of the United States shall submit to the congressional defense committees a report on the implementation of the standard checklist required under such section 2330a(g) for each of fiscal years 2015, 2016, and 2017 within 120 days after the end of each such fiscal year.

Debarment required of persons convicted of fraudulent use of `made in America' labels

The House bill contained a provision (sec. 828) that would debar people convicted of the fraudulent use of "Made in America'' labels.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 828. DEBARMENT REQUIRED OF PERSONS CONVICTED OF FRAUDULENT USE OF `MADE IN AMERICA' LABELS.

(a) Debarment Required- Subsection (a) of section 2410f of title 10, United States Code, is amended by striking `the Secretary shall' and all that follows through the period and inserting `the person shall be debarred from contracting with the Department of Defense unless the Secretary waives the debarment under subsection (b).'.

(b) Waiver Authority and Notification Requirement- Section 2410f of such title is further amended--

(1) by redesignating subsection (b) as subsection (d); and

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

`(b) Waiver for National Security- The Secretary may waive a debarment required by subsection (a) if the Secretary determines that the exercise of such a waiver would be in the national security interests of the United States.

`(c) Notification- The Secretary shall notify the congressional defense committees annually, not later than March 1 of each year, of any exercise of the waiver authority under subsection (b).'.

(1) in subsection (a), by inserting `Debarment Required- ' after `(a)'; and

(2) in subsection (d), as redesignated by subsection (b), by inserting `Definition- ' before `In this section'.

Requirement to buy American flags from domestic sources

The House bill contained a provision (sec. 830) that would require the purchase of American flags from domestic sources.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

We note that flags of the United States procured by the Department of Defense are procured in accordance with section 2533a(b)(1)(D) of title 10, United States Code.

SEC. 830. REQUIREMENT TO BUY AMERICAN FLAGS FROM DOMESTIC SOURCES.

Section 2533a(b) of title 10, United States Code, is amended by adding at the end the following new paragraph:

`(3) A flag of the United States of America (within the meaning of chapter 1 of title 4).'.

Tenure and accountability of program managers for program development periods

The Senate committee-reported bill contained a provision (sec. 842) that would require the Secretary of Defense to revise Department of Defense (DOD) guidance for defense acquisition programs to address the tenure and accountability of program managers for the program development period of defense acquisition programs.

The House bill contained no similar provision.

The agreement does not include this provision.

We note that we require the Secretary of Defense to provide recommendations on program manager tenure as part of an overarching review of program manager development elsewhere in this Act. We express our intent to address program manager tenure in next year's National Defense Authorization Act in the context of a larger DOD acquisition reform effort.

SEC. 842. TENURE AND ACCOUNTABILITY OF PROGRAM MANAGERS FOR PROGRAM DEVELOPMENT PERIODS.

(a) Revised Guidance Required- Not later than 180 days after date of the enactment of this Act, the Secretary of Defense shall revise Department of Defense guidance for defense acquisition programs to address the tenure and accountability of program managers for the program development period of defense acquisition programs.

(b) Program Development Period- For the purpose of this section, the term `program development period' refers to the period before a decision on Milestone B approval (or Key Decision Point B approval in the case of a space program).

(c) Responsibilities- The revised guidance required by subsection (a) shall provide that the program manager for the program development period of a defense acquisition program is responsible for--

(1) bringing to maturity the technologies and manufacturing processes that will be needed to carry out the program;

(2) ensuring continuing focus during program development on meeting stated mission requirements and other requirements of the Department of Defense;

(3) making trade-offs between program cost, schedule, and performance for the life-cycle of the program;

(4) developing a business case for the program; and

(5) ensuring that appropriate information is available to the milestone decision authority to make a decision on Milestone B approval (or Key Decision Point B approval in the case of a space program), including information necessary to make the certification required by section 2366a of title 10, United States Code.

(d) Qualifications, Resources, and Tenure- The Secretary of Defense shall ensure that each program manager for the program development period of a defense acquisition program--

(1) has the appropriate management, engineering, technical, and financial expertise needed to meet the responsibilities assigned pursuant to subsection (c);

(2) is provided the resources and support (including systems engineering expertise, cost estimating expertise, and software development expertise) needed to meet such responsibilities; and

(3) is assigned to the program manager position for such program until such time as such program is ready for a decision on Milestone B approval (or Key Decision Point B approval in the case of a space program).

Tenure and accountability of program managers for program execution periods

The Senate committee-reported bill contained a provision (sec. 843) that would address the tenure and accountability of program managers for the program execution period. The provision would require each such program manager to enter into a performance agreement with the milestone decision authority (MDA) that establishes the expected parameters of performance, including the commitment of the MDA that adequate funding and resources are available and will be provided, and assurance of the program manager that the parameters are achievable. The provision would also require that program managers be given authority comparable to the authority given to private sector program managers and that they be assigned to a program until the delivery of the first production units, with a narrow waiver authority.

The House bill contained no similar provision.

The agreement does not include this provision.

SEC. 843. TENURE AND ACCOUNTABILITY OF PROGRAM MANAGERS FOR PROGRAM EXECUTION PERIODS.

(a) Revised Guidance Required- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall revise Department of Defense guidance for defense acquisition programs to address the tenure and accountability of program managers for the program execution period of defense acquisition programs.

(b) Program Execution Period- For purposes of this section, the term `program execution period' refers to the period after Milestone B approval (or Key Decision Point B approval in the case of a space program).

(1) require the program manager for the program execution period of a defense acquisition program to enter into a performance agreement with the milestone decision authority for such program within six months of assignment, that--

(A) establishes expected parameters for the cost, schedule, and performance of the program consistent with the business case for the program;

(B) provides the commitment of the milestone decision authority to provide the level of funding and resources required to meet such parameters; and

(C) provides the assurance of the program manager that such parameters are achievable and that the program manager will be accountable for meeting such parameters; and

(2) provide the program manager with the authority to--

(A) veto the addition of new program requirements that would be inconsistent with the parameters established in the performance agreement entered into pursuant to paragraph (1), subject to the authority of the Under Secretary of Defense for Acquisition, Technology, and Logistics to override the veto based on critical national security reasons;

(B) make trade-offs between cost, schedule, and performance, provided that such trade-offs are consistent with the parameters established in the performance agreement entered into pursuant to paragraph (1);

(C) redirect funding within such program, to the extent necessary to achieve the parameters established in the performance agreement entered into pursuant to paragraph (1);

(D) develop such interim goals and milestones as may be required to achieve the parameters established in the performance agreement entered into pursuant to paragraph (1); and

(E) use program funds to recruit and hire such technical experts as may be required to carry out the program, if necessary expertise is not otherwise provided by the Department of Defense.

(d) Qualifications, Resources, and Tenure- The Secretary shall ensure that each program manager for the program execution period of a defense acquisition program--

(1) has the appropriate management, engineering, technical, and financial expertise needed to meet the responsibilities assigned pursuant to subsection (c);

(2) is provided the resources and support (including systems engineering expertise, cost estimating expertise, and software development expertise) needed to meet such responsibilities; and

(3) is assigned to the program manager position for such program at the time of Milestone B approval (or Key Decision Point B approval in the case of a space program) and continues in such position until the delivery of the first production units of the program.

(e) Limited Waiver Authority- The Secretary may waive the requirement in paragraph (3) of subsection (d) that a program manager for the program execution period of a defense acquisition program serve in that position until the delivery of the first production units of such program upon submitting to the congressional defense committees a written determination that--

(1) the program is so complex, and the delivery of the first production units will take so long, that it would not be feasible for a single individual to serve as program manager for the entire period covered by such paragraph; and

(2) the complexity of the program, and length of time that will be required to deliver the first production units, are not the result of a failure to meet the certification requirements under section 2366a of title 10, United States Code.

Removal of requirements related to waiver of preliminary design review and post-preliminary design review before Milestone B

The Senate committee-reported bill contained a provision (sec. 844) that would add an alternative to one of the certification requirements established by section 2366b of title 10, United States Code, for major defense acquisition programs entering the acquisition system at Milestone B.

The House bill contained no similar provision.

The agreement does not include this provision.

SEC. 844. REMOVAL OF REQUIREMENTS RELATED TO WAIVER OF PRELIMINARY DESIGN REVIEW AND POST-PRELIMINARY DESIGN REVIEW BEFORE MILESTONE B.

Section 2366b(a)(2) of title 10, United States Code, is amended by adding before the semicolon the following: `, or certifies that the program is based on mature technology for which no risk reduction phase activities are needed prior to Milestone B and provides an explanation of how design reviews will be accomplished in an appropriate manner'.

Short title

The House bill contained a provision (sec. 5001) that would provide a short title to the provisions contained in title L of this Act.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5001. SHORT TITLE.

This division may be cited as the `Federal Information Technology Acquisition Reform Act'.

Table of contents

The House bill contained a provision (sec. 5002) that would provide a table of contents for title L of this Act.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5002. TABLE OF CONTENTS.

The table of contents for this division is as follows:

DIVISION E--FEDERAL INFORMATION TECHNOLOGY ACQUISITION REFORM

Sec. 5001. Short title.

Sec. 5002. Table of contents.

Sec. 5003. Definitions.

TITLE LI--MANAGEMENT OF INFORMATION TECHNOLOGY WITHIN FEDERAL GOVERNMENT

Sec. 5101. Increased authority of agency Chief Information Officers over information technology.

Sec. 5102. Lead coordination role of Chief Information Officers Council.

Sec. 5103. Reports by Government Accountability Office.

TITLE LII--DATA CENTER OPTIMIZATION

Sec. 5201. Purpose.

Sec. 5202. Definitions.

Sec. 5203. Federal data center optimization initiative.

Sec. 5204. Performance requirements related to data center consolidation.

Sec. 5205. Cost savings related to data center optimization.

Sec. 5206. Reporting requirements to Congress and the Federal Chief Information Officer.

TITLE LIII--ELIMINATION OF DUPLICATION AND WASTE IN INFORMATION TECHNOLOGY ACQUISITION

Sec. 5301. Inventory of information technology software assets.

Sec. 5302. Website consolidation and transparency.

Sec. 5303. Transition to the cloud.

Sec. 5304. Elimination of unnecessary duplication of contracts by requiring business case analysis.

TITLE LIV--STRENGTHENING IT ACQUISITION WORKFORCE

Sec. 5411. Expansion of training and use of information technology acquisition cadres.

Sec. 5412. Plan on strengthening program and project management performance.

Sec. 5413. Personnel awards for excellence in the acquisition of information systems and information technology.

TITLE LV--ADDITIONAL REFORMS

Sec. 5501. Maximizing the benefit of the Federal strategic sourcing initiative.

Sec. 5502. Governmentwide software purchasing program.

Sec. 5503. Promoting transparency of blanket purchase agreements.

Sec. 5504. Additional source selection technique in solicitations.

Sec. 5505. Enhanced transparency in information technology investments.

Sec. 5506. Enhanced communication between government and industry.

Sec. 5507. Clarification of current law with respect to technology neutrality in acquisition of software.

Sec. 5508. No additional funds authorized.

Definitions

The House bill contained a provision (sec. 5003) that would provide for definition of terms contained in title L of this Act.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5003. DEFINITIONS.

In this division:

(1) CHIEF ACQUISITION OFFICERS COUNCIL- The term `Chief Acquisition Officers Council' means the Chief Acquisition Officers Council established by section 1311(a) of title 41, United States Code.

(2) CHIEF INFORMATION OFFICER- The term `Chief Information Officer' means a Chief Information Officer (as designated under section 3506(a)(2) of title 44, United States Code) of an agency listed in section 901(b) of title 31, United States Code.

(3) CHIEF INFORMATION OFFICERS COUNCIL- The term `Chief Information Officers Council' or `CIO Council' means the Chief Information Officers Council established by section 3603(a) of title 44, United States Code.

(4) DIRECTOR- The term `Director' means the Director of the Office of Management and Budget.

(5) FEDERAL AGENCY- The term `Federal agency' means each agency listed in section 901(b) of title 31, United States Code.

(6) FEDERAL CHIEF INFORMATION OFFICER- The term `Federal Chief Information Officer' means the Administrator of the Office of Electronic Government established under section 3602 of title 44, United States Code.

(7) INFORMATION TECHNOLOGY OR IT- The term `information technology' or `IT' has the meaning provided in section 11101(6) of title 40, United States Code.

(8) RELEVANT CONGRESSIONAL COMMITTEES- The term `relevant congressional committees' means each of the following:

(A) The Committee on Oversight and Government Reform and the Committee on Armed Services of the House of Representatives.

(B) The Committee on Homeland Security and Governmental Affairs and the Committee on Armed Services of the Senate.

Lead coordination role of Chief Information Officers Council

The House bill contained a provision (sec. 5102) that would provide a lead coordination role to the Chief Information Officers Council.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5102. LEAD COORDINATION ROLE OF CHIEF INFORMATION OFFICERS COUNCIL.

(a) Lead Coordination Role- Subsection (d) of section 3603 of title 44, United States Code, is amended to read as follows:

`(d) Lead Interagency Forum-

`(1) IN GENERAL- The Council is designated the lead interagency forum for improving agency coordination of practices related to the design, development, modernization, use, operation, sharing, performance, and review of Federal Government information resources investment. As the lead interagency forum, the Council shall develop cross-agency portfolio management practices to allow and encourage the development of cross-agency shared services and shared platforms. The Council shall also issue guidelines and practices for infrastructure and common information technology applications, including expansion of the Federal Enterprise Architecture process if appropriate. The guidelines and practices may address broader transparency, common inputs, common outputs, and outcomes achieved. The guidelines and practices shall be used as a basis for comparing performance across diverse missions and operations in various agencies.

`(2) REPORT- Not later than December 1 in each of the 6 years following the date of the enactment of this paragraph, the Council shall submit to the relevant congressional committees a report (to be known as the `CIO Council Report') summarizing the Council's activities in the preceding fiscal year and containing such recommendations for further congressional action to fulfill its mission as the Council considers appropriate.

`(3) RELEVANT CONGRESSIONAL COMMITTEES- For purposes of the report required by paragraph (2), the relevant congressional committees are each of the following:

`(A) The Committee on Oversight and Government Reform and the Committee on Armed Services of the House of Representatives.

`(B) The Committee on Homeland Security and Governmental Affairs and the Committee on Armed Services of the Senate.'.

(b) References to Administrator of E-Government as Federal Chief Information Officer-

(1) REFERENCES- Section 3602(b) of title 44, United States Code, is amended by adding at the end the following: `The Administrator may also be referred to as the Federal Chief Information Officer.'.

(2) DEFINITION- Section 3601(1) of such title is amended by inserting `or Federal Chief Information Officer' before `means'.

Reports by Government Accountability Office

The House bill contained a provision (sec. 5103) that would require certain reports by the Government Accountability Office.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5103. REPORTS BY GOVERNMENT ACCOUNTABILITY OFFICE.

(a) Requirement to Examine Effectiveness- The Comptroller General of the United States shall examine the effectiveness of the Chief Information Officers Council in meeting its responsibilities under section 3603(d) of title 44, United States Code, as added by section 5102, with particular focus on whether agencies are actively participating in the Council and heeding the Council's advice and guidance.

(b) Reports- Not later than 1 year, 3 years, and 5 years after the date of the enactment of this Act, the Comptroller General shall submit to the relevant congressional committees a report containing the findings and recommendations of the Comptroller General from the examination required by subsection (a).

Purpose

The House bill contained a provision (sec. 5201) that would state the purpose of title LII of this Act.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5201. PURPOSE.

The purpose of this title is to optimize Federal data center usage and efficiency.

Definitions

The House bill contained a provision (sec. 5202) that would provide definitions of terms in title LII of this Act.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5202. DEFINITIONS.

In this title:

(1) FEDERAL DATA CENTER OPTIMIZATION INITIATIVE- The term `Federal Data Center Optimization Initiative' or the `Initiative' means the initiative developed and implemented by the Director, through the Federal Chief Information Officer, as required under section 5203.

(2) COVERED AGENCY- The term `covered agency' means any agency included in the Federal Data Center Optimization Initiative.

(3) DATA CENTER- The term `data center' means a closet, room, floor, or building for the storage, management, and dissemination of data and information, as defined by the Federal Chief Information Officer under guidance issued pursuant to this section.

(4) FEDERAL DATA CENTER- The term `Federal data center' means any data center of a covered agency used or operated by a covered agency, by a contractor of a covered agency, or by another organization on behalf of a covered agency.

(5) SERVER UTILIZATION- The term `server utilization' refers to the activity level of a server relative to its maximum activity level, expressed as a percentage.

(6) POWER USAGE EFFECTIVENESS- The term `power usage effectiveness' means the ratio obtained by dividing the total amount of electricity and other power consumed in running a data center by the power consumed by the information and communications technology in the data center.

Performance requirements related to data center consolidation

The House bill contained a provision (sec. 5204) that would require certain performance requirements related to data center consolidation.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5204. PERFORMANCE REQUIREMENTS RELATED TO DATA CENTER CONSOLIDATION.

(a) Server Utilization- Each covered agency may use the following methods to achieve the maximum server utilization possible as determined by the Federal Chief Information Officer:

(1) The closing of existing data centers that lack adequate server utilization, as determined by the Federal Chief Information Officer. If the agency fails to close such data centers, the agency shall provide a detailed explanation as to why this data center should remain in use as part of the submitted plan. The Federal Chief Information Officer shall include an assessment of the agency explanation in the annual report to Congress.

(2) The consolidation of services within existing data centers to increase server utilization rates.

(3) Any other method that the Federal Chief Information Officer, in consultation with the chief information officers of covered agencies, determines necessary to optimize server utilization.

(b) Power Usage Effectiveness- Each covered agency may use the following methods to achieve the maximum energy efficiency possible as determined by the Federal Chief Information Officer:

(1) The use of the measurement of power usage effectiveness to calculate data center energy efficiency.

(2) The use of power meters in facilities dedicated to data center operations to frequently measure power consumption over time.

(3) The establishment of power usage effectiveness goals for each data center.

(4) The adoption of best practices for managing--

(A) temperature and airflow in facilities dedicated to data center operations; and

(B) power supply efficiency.

(5) The implementation of any other method that the Federal Chief Information Officer, in consultation with the Chief Information Officers of covered agencies, determines necessary to optimize data center energy efficiency.

Cost savings related to data center optimization

The House bill contained a provision (sec. 5205) that would require the tracking of costs resulting from implementation of the Federal Data Center Optimization Initiative.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5205. COST SAVINGS RELATED TO DATA CENTER OPTIMIZATION.

(a) Requirement To Track Costs-

(1) IN GENERAL- Each covered agency shall track costs resulting from implementation of the Federal Data Center Optimization Initiative within the agency and submit a report on those costs annually to the Federal Chief Information Officer. Covered agencies shall determine the net costs from data consolidation on an annual basis.

(2) FACTORS- In calculating net costs each year under paragraph (1), a covered agency shall use the following factors:

(A) Energy costs.

(B) Personnel costs.

(D) Capital expense costs.

(E) Maintenance and support costs such as operating subsystem, database, hardware, and software license expense costs.

(F) Other appropriate costs, as determined by the agency in consultation with the Federal Chief Information Officer.

(b) Requirement To Track Savings-

(1) IN GENERAL- Each covered agency shall track realized and projected savings resulting from implementation of the Federal Data Center Optimization Initiative within the agency and submit a report on those savings annually to the Federal Chief Information Officer. Covered agencies shall determine the net savings from data consolidation on an annual basis.

(2) FACTORS- In calculating net savings each year under paragraph (1), a covered agency shall use the following factors:

(A) Energy savings.

(B) Personnel savings.

(D) Capital expense savings.

(E) Maintenance and support savings such as operating subsystem, database, hardware, and software license expense savings.

(F) Other appropriate savings, as determined by the agency in consultation with the Federal Chief Information Officer.

(3) PUBLIC AVAILABILITY- The Federal Chief Information Officer shall make publicly available a summary of realized and projected savings for each covered agency. The Federal Chief Information Officer shall identify any covered agency that failed to provide the annual report required under paragraph (1).

(c) Requirement To Use Cost-Effective Measures- Covered agencies shall use the most cost-effective measures to implement the Federal Data Center Optimization Initiative, such as using estimation to measure or track costs and savings using a methodology approved by the Federal Chief Information Officer.

(d) Government Accountability Office Review- Not later than 6 months after the date of the enactment of this Act, the Comptroller General of the United States shall examine methods for calculating savings from the Initiative and using them for the purposes identified in subsection (d), including establishment and use of a special revolving fund that supports data centers and server optimization, and shall submit to the Federal Chief Information Officer and Congress a report on the Comptroller General's findings and recommendations.

Reporting requirements to Congress and the Federal Chief Information Officer

The House bill contained a provision (sec. 5206) that would require certain reports to Congress and the Federal Chief Information Officer.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5206. REPORTING REQUIREMENTS TO CONGRESS AND THE FEDERAL CHIEF INFORMATION OFFICER.

(a) Agency Requirement To Report to CIO-

(1) IN GENERAL- Except as provided in paragraph (2), each covered agency each year shall submit to the Federal Chief Information Officer a report on the implementation of the Federal Data Center Optimization Initiative, including savings resulting from such implementation. The report shall include an update of the agency's plan for implementing the Initiative.

(2) DEPARTMENT OF DEFENSE- The Secretary of Defense shall comply with paragraph (1) each year by submitting to the Federal Chief Information Officer a report with relevant information collected under section 2867 of Public Law 112-81 (10 U.S.C. 2223a note) or a copy of the report required under section 2867(d) of such law.

(b) Federal Chief Information Officer Requirement To Report to Congress- Each year, the Federal Chief Information Officer shall submit to the relevant congressional committees a report that assesses agency progress in carrying out the Federal Data Center Optimization Initiative and updates the plan under section 5203. The report may be included as part of the annual report required under section 3606 of title 44, United States Code.

Website consolidation and transparency

The House bill contained a provision (sec. 5302) that would require the elimination or consolidation of websites found to be duplicative or overlapping.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5302. WEBSITE CONSOLIDATION AND TRANSPARENCY.

(a) Website Consolidation- The Director shall--

(1) in consultation with Federal agencies, and after reviewing the directory of public Federal Government websites of each agency (as required to be established and updated under section 207(f)(3) of the E-Government Act of 2002 (Public Law 107-347; 44 U.S.C. 3501 note)), assess all the publicly available websites of Federal agencies to determine whether there are duplicative or overlapping websites; and

(2) require Federal agencies to eliminate or consolidate those websites that are duplicative or overlapping.

(b) Website Transparency- The Director shall issue guidance to Federal agencies to ensure that the data on publicly available websites of the agencies are open and accessible to the public.

(1) develop guidelines, standards, and best practices for interoperability and transparency;

(2) identify interfaces that provide for shared, open solutions on the publicly available websites of the agencies; and

(3) ensure that Federal agency Internet home pages, web-based forms, and web-based applications are accessible to individuals with disabilities in conformance with section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d).

(d) Deadline for Guidance- The guidance required by subsection (b) shall be issued not later than 180 days after the date of the enactment of this Act.

Transition to the cloud

The House bill contained a provision (sec. 5303) that would express the sense of Congress that transition to cloud computing offers significant potential benefits for the implementation of Federal information technology projects in terms of flexibility, cost, and operational benefits.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5303. TRANSITION TO THE CLOUD.

(a) Sense of Congress- It is the sense of Congress that transition to cloud computing offers significant potential benefits for the implementation of Federal information technology projects in terms of flexibility, cost, and operational benefits.

(b) Governmentwide Application- In assessing cloud computing opportunities, the Chief Information Officers Council shall define policies and guidelines for the adoption of Governmentwide programs providing for a standardized approach to security assessment and operational authorization for cloud products and services.

(c) Additional Budget Authorities for Transition- In transitioning to the cloud, a Chief Information Officer of an agency listed in section 901(b) of title 31, United States Code, may establish such cloud service Working Capital Funds, in consultation with the Chief Financial Officer of the agency, as may be necessary to transition to cloud-based solutions. Any establishment of a new Working Capital Fund under this subsection shall be reported to the Committees on Appropriations of the House of Representatives and the Senate and relevant Congressional committees.

Elimination of unnecessary duplication of contracts by requiring business case analysis

The House bill contained a provision (sec. 5304) that would require a business case analysis before issuance of a solicitation for certain contracts.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5304. ELIMINATION OF UNNECESSARY DUPLICATION OF CONTRACTS BY REQUIRING BUSINESS CASE ANALYSIS.

(a) Purpose- The purpose of this section is to leverage the Government's buying power and achieve administrative efficiencies and cost savings by eliminating unnecessary duplication of contracts.

(b) Requirement for Business Case Approval-

(1) IN GENERAL- Chapter 33 of title 41, United States Code, is amended by adding at the end the following new section:

`Sec. 3312. Requirement for business case approval for new Governmentwide contracts

`(a) In General- An executive agency may not issue a solicitation for a covered Governmentwide contract unless the agency performs a business case analysis for the contract and obtains an approval of the business case analysis from the Administrator for Federal Procurement Policy.

`(b) Review of Business Case Analysis-

`(1) IN GENERAL- With respect to any covered Governmentwide contract, the Administrator for Federal Procurement Policy shall review the business case analysis submitted for the contract and provide an approval or disapproval within 60 days after the date of submission.

Any business case analysis not disapproved within such 60-day period is deemed to be approved.

`(2) BASIS FOR APPROVAL OF BUSINESS CASE- The Administrator for Federal Procurement Policy shall approve or disapprove a business case analysis based on the adequacy of the analysis submitted. The Administrator shall give primary consideration to whether an agency has demonstrated a compelling need that cannot be satisfied by existing Governmentwide contract in a timely and cost-effective manner.

`(c) Content of Business Case Analysis- The Administrator for Federal Procurement Policy shall issue guidance specifying the content for a business case analysis submitted pursuant to this section. At a minimum, the business case analysis shall include details on the administrative resources needed for such contract, including an analysis of all direct and indirect costs to the Federal Government of awarding and administering such contract and the impact such contract will have on the ability of the Federal Government to leverage its purchasing power.

`(b) Definitions- In this section:

`(1) COVERED GOVERNMENTWIDE CONTRACT- The term `covered Governmentwide contract' means any contract, blanket purchase agreement, or other contractual instrument for acquisition of information technology or other goods or services that allows for an indefinite number of orders to be placed under the contract, agreement, or instrument, and that is established by one executive agency for use by multiple executive agencies to obtain goods or services. The term does not include--

`(A) a multiple award schedule contract awarded by the General Services Administration;

`(B) a Governmentwide acquisition contract for information technology awarded pursuant to sections 11302(e) and 11314(a)(2) of title 40;

`(C) orders under Governmentwide contracts in existence before the effective date of this section; or

`(D) any contract in an amount less than $10,000,000, determined on an average annual basis.

`(2) EXECUTIVE AGENCY- The term `executive agency' has the meaning provided that term by section 105 of title 5.'.

(2) CLERICAL AMENDMENT- The table of sections for chapter 33 of title 41, United States Code, is amended by adding after the item relating to section 3311 the following new item:

`3312. Requirement for business case approval for new Governmentwide contracts.'.

(c) Report- Not later than June 1 in each of the next 6 years following the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall submit to the relevant congressional committees a report on the implementation of section 3312 of title 41, United States Code, as added by subsection (b), including a summary of the submissions, reviews, approvals, and disapprovals of business case analyses pursuant to such section.

(d) Guidance- The Administrator for Federal Procurement Policy shall issue guidance for implementing section 3312 of such title.

(e) Revision of FAR- Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be amended to implement section 3312 of such title.

(g) Effective Date- Section 3312 of such title is effective on and after 180 days after the date of the enactment of this Act.

Plan on strengthening program and project management performance

The House bill contained a provision (sec. 5412) that would require a plan to strengthen program and project management performance.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5412. PLAN ON STRENGTHENING PROGRAM AND PROJECT MANAGEMENT PERFORMANCE.

(a) Plan on Strengthening Program and Project Management Performance- Not later than June 1 following the date of the enactment of this Act, the Director, in consultation with the Director of the Office of Personnel Management, shall submit to the relevant congressional committees a plan for improving management of IT programs and projects.

(b) Matters Covered- The plan required by subsection (a) shall include, at a minimum, the following:

(1) Creation of a specialized career path for program management.

(2) The development of a competency model for program management consistent with the IT project manager model.

(3) A career advancement model that requires appropriate expertise and experience for advancement.

(4) A career advancement model that is more competitive with the private sector and that recognizes both Government and private sector experience.

(c) Combination With Other Cadres Plan- The Director may combine the plan required by subsection (a) with the IT Acquisition Cadres Strategic Plan required under section 1704(j) of title 41, United States Code, as added by section 5411.

Personnel awards for excellence in the acquisition information systems and information technology

The House bill contained a provision (sec. 5413) that would provide authority for awards for excellence in the acquisition of information systems and information technology.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5413. PERSONNEL AWARDS FOR EXCELLENCE IN THE ACQUISITION OF INFORMATION SYSTEMS AND INFORMATION TECHNOLOGY.

(a) In General- Not later than 180 days after the date of the enactment of this Act, the Director of the Office of Personnel Management shall develop policy and guidance for agencies to develop a program to recognize excellent performance by Federal Government employees and teams of such employees in the acquisition of information systems and information technology for the agency.

(b) Elements- The program referred to in subsection (a) shall, to the extent practicable--

(1) obtain objective outcome measures; and

(2) include procedures for--

(A) the nomination of Federal Government employees and teams of such employees for eligibility for recognition under the program; and

(B) the evaluation of nominations for recognition under the program by 1 or more agency panels of individuals from Government, academia, and the private sector who have such expertise, and are appointed in such a manner, as the Director of the Office of Personal Management shall establish for purposes of the program.

(c) Award of Cash Bonuses and Other Incentives- In carrying out the program referred to in subsection (a), the Director of the Office of Personnel Management, in consultation with the Director of the Office of Management and Budget, shall establish policies and guidance for agencies to reward any Federal Government employee or teams of such employees recognized pursuant to the program--

(1) with a cash bonus, to the extent that the performance of such individual or team warrants the award of such bonus and is authorized by any provision of law;

(2) through promotions and other nonmonetary awards;

(3) by publicizing--

(A) acquisition accomplishments by individual employees; and

(B) the tangible end benefits that resulted from such accomplishments, as appropriate; and

(4) through other awards, incentives, or bonuses that the head of the agency considers appropriate.

Promoting transparency of blanket purchase agreements

The House bill contained a provision (sec. 5503) that would promote the transparency of blanket purchase agreements.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5503. PROMOTING TRANSPARENCY OF BLANKET PURCHASE AGREEMENTS.

(a) Price Information To Be Treated as Public Information- The final negotiated price offered by an awardee of a blanket purchase agreement shall be treated as public information.

(b) Publication of Blanket Purchase Agreement Information- Not later than 180 days after the date of the enactment of this Act, the Administrator of General Services shall make available to the public a list of all blanket purchase agreements entered into by Federal agencies under its Federal Supply Schedules contracts and the prices associated with those blanket purchase agreements. The list and price information shall be updated at least once every 6 months.

Additional source selection technique in solicitations

The House bill contained a provision (sec. 5504) that would allow for additional source selection techniques in certain solicitations.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5504. ADDITIONAL SOURCE SELECTION TECHNIQUE IN SOLICITATIONS.

Section 3306(d) of title 41, United States Code, is amended--

(1) by striking `or' at the end of paragraph (1);

(2) by striking the period and inserting `; or' at the end of paragraph (2); and

(3) by adding at the end the following new paragraph:

`(3) stating in the solicitation that the award will be made using a fixed price technical competition, under which all offerors compete solely on nonprice factors and the fixed award price is pre-announced in the solicitation.'.

Enhanced communication between government and industry

The House bill contained a provision (sec. 5506) that would enhance communication between government and industry.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5506. ENHANCED COMMUNICATION BETWEEN GOVERNMENT AND INDUSTRY.

Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall prescribe a regulation making clear that agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms.

Clarification of current law with respect to technology neutrality in acquisition of software

The House bill contained a provision (sec. 5507) that would clarify current law with respect to technology neutrality in acquisition of software.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5507. CLARIFICATION OF CURRENT LAW WITH RESPECT TO TECHNOLOGY NEUTRALITY IN ACQUISITION OF SOFTWARE.

(a) Purpose- The purpose of this section is to establish guidance and processes to clarify that software acquisitions by the Federal Government are to be made using merit-based requirements development and evaluation processes that promote procurement choices--

(1) based on performance and value, including the long-term value proposition to the Federal Government;

(2) free of preconceived preferences based on how technology is developed, licensed, or distributed; and

(3) generally including the consideration of proprietary, open source, and mixed source software technologies.

(b) Technology Neutrality- Nothing in this section shall be construed to modify the Federal Government's long-standing policy of following technology-neutral principles and practices when selecting and acquiring information technology that best fits the needs of the Federal Government.

(c) Guidance- Not later than 180 days after the date of the enactment of this Act, the Director, in consultation with the Chief Information Officers Council, shall issue guidance concerning the technology-neutral procurement and use of software within the Federal Government.

(d) Matters Covered- In issuing guidance under subsection (c), the Director shall include, at a minimum, the following:

(1) Guidance to clarify that the preference for commercial items in section 3307 of title 41, United States Code, includes proprietary, open source, and mixed source software that meets the definition of the term `commercial item' in section 103 of title 41, United States Code, including all such software that is used for non-Government purposes and is licensed to the public.

(2) Guidance regarding the conduct of market research to ensure the inclusion of proprietary, open source, and mixed source software options.

(3) Guidance to define Governmentwide standards for security, redistribution, indemnity, and copyright in the acquisition, use, release, and collaborative development of proprietary, open source, and mixed source software.

(4) Guidance for the adoption of available commercial practices to acquire proprietary, open source, and mixed source software for widespread Government use, including issues such as security and redistribution rights.

(5) Guidance to establish standard service level agreements for maintenance and support for proprietary, open source, and mixed source software products widely adopted by the Government, as well as the development of Governmentwide agreements that contain standard and widely applicable contract provisions for ongoing maintenance and development of software.

(e) Report to Congress- Not later than 2 years after the issuance of the guidance required by subsection (b), the Comptroller General of the United States shall submit to the relevant congressional committees a report containing--

(1) an assessment of the effectiveness of the guidance;

(2) an identification of barriers to widespread use by the Federal Government of specific software technologies; and

(3) such legislative recommendations as the Comptroller General considers appropriate to further the purposes of this section.

No additional funds authorized

The House bill contained a provision (sec. 5508) that would limit the availability of funds to implement and provisions in title L of this Act to funds otherwise authorized or appropriated.

The Senate committee-reported bill contained no similar provision.

The agreement does not include this provision.

SEC. 5508. NO ADDITIONAL FUNDS AUTHORIZED.

No additional funds are authorized to carry out the requirements of this division and the amendments made by this division. Such requirements shall be carried out using amounts otherwise authorized or appropriated.

Short title

A proposed amendment to the Senate committee-reported bill (amendment number 3743A) contained a provision that would provide a short title.

The House bill contained no similar provision.

The agreement does not include this provision.

SEC. 1271. SHORT TITLE. This Act may be cited as the ``Never Contract With the Enemy Act''.

SEC. 801. EXTENSION TO UNITED STATES TRANSPORTATION COMMAND OF AUTHORITIES RELATING TO PROHIBITION ON CONTRACTING WITH THE ENEMY.

SEC. 804. GOVERNANCE OF JOINT INFORMATION ENVIRONMENT.

SEC. 812. IMPROVING OPPORTUNITIES FOR SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESSES.

`SEC. 49. VETS FIRST PROGRAM.

SEC. 816. IMPROVING FEDERAL SURETY BONDS.

`SEC. 9310. INDIVIDUAL SURETIES.

SEC. 817. PUBLICATION OF REQUIRED JUSTIFICATION THAT CONSOLIDATION OF CONTRACT REQUIREMENTS.

SEC. 818. SMALL BUSINESS PRIME AND SUBCONTRACT PARTICIPATION GOALS RAISED; ACCOUNTING OF SUBCONTRACTORS.

SEC. 819. SMALL BUSINESS CYBER EDUCATION.

SEC. 824. PROCUREMENT OF PERSONAL PROTECTIVE EQUIPMENT.

SEC. 825. AUTHORITY FOR DEFENSE CONTRACT AUDIT AGENCY TO INTERVIEW CONTRACTOR EMPLOYEES IN CONNECTION WITH EXAMINATION OF CONTRACTOR RECORDS.

SEC. 825. PROHIBITION ON FUNDS FOR CONTRACTS VIOLATING EXECUTIVE ORDER NO. 11246.

SEC. 826. REQUIREMENT FOR POLICIES AND STANDARD CHECKLIST IN PROCUREMENT OF SERVICES.

SEC. 828. DEBARMENT REQUIRED OF PERSONS CONVICTED OF FRAUDULENT USE OF `MADE IN AMERICA' LABELS.

SEC. 830. REQUIREMENT TO BUY AMERICAN FLAGS FROM DOMESTIC SOURCES.

SEC. 842. TENURE AND ACCOUNTABILITY OF PROGRAM MANAGERS FOR PROGRAM DEVELOPMENT PERIODS.

SEC. 843. TENURE AND ACCOUNTABILITY OF PROGRAM MANAGERS FOR PROGRAM EXECUTION PERIODS.

SEC. 844. REMOVAL OF REQUIREMENTS RELATED TO WAIVER OF PRELIMINARY DESIGN REVIEW AND POST-PRELIMINARY DESIGN REVIEW BEFORE MILESTONE B.

SEC. 5001. SHORT TITLE.

SEC. 5002. TABLE OF CONTENTS.

DIVISION E--FEDERAL INFORMATION TECHNOLOGY ACQUISITION REFORM

TITLE LI--MANAGEMENT OF INFORMATION TECHNOLOGY WITHIN FEDERAL GOVERNMENT

TITLE LII--DATA CENTER OPTIMIZATION

TITLE LIII--ELIMINATION OF DUPLICATION AND WASTE IN INFORMATION TECHNOLOGY ACQUISITION

TITLE LIV--STRENGTHENING IT ACQUISITION WORKFORCE

TITLE LV--ADDITIONAL REFORMS

SEC. 5003. DEFINITIONS.

SEC. 5102. LEAD COORDINATION ROLE OF CHIEF INFORMATION OFFICERS COUNCIL.

SEC. 5103. REPORTS BY GOVERNMENT ACCOUNTABILITY OFFICE.

SEC. 5201. PURPOSE.

SEC. 5202. DEFINITIONS.

SEC. 5204. PERFORMANCE REQUIREMENTS RELATED TO DATA CENTER CONSOLIDATION.

SEC. 5205. COST SAVINGS RELATED TO DATA CENTER OPTIMIZATION.

SEC. 5206. REPORTING REQUIREMENTS TO CONGRESS AND THE FEDERAL CHIEF INFORMATION OFFICER.

SEC. 5302. WEBSITE CONSOLIDATION AND TRANSPARENCY.

SEC. 5303. TRANSITION TO THE CLOUD.

SEC. 5304. ELIMINATION OF UNNECESSARY DUPLICATION OF CONTRACTS BY REQUIRING BUSINESS CASE ANALYSIS.

`Sec. 3312. Requirement for business case approval for new Governmentwide contracts

SEC. 5412. PLAN ON STRENGTHENING PROGRAM AND PROJECT MANAGEMENT PERFORMANCE.

SEC. 5413. PERSONNEL AWARDS FOR EXCELLENCE IN THE ACQUISITION OF INFORMATION SYSTEMS AND INFORMATION TECHNOLOGY.

SEC. 5503. PROMOTING TRANSPARENCY OF BLANKET PURCHASE AGREEMENTS.

SEC. 5504. ADDITIONAL SOURCE SELECTION TECHNIQUE IN SOLICITATIONS.

SEC. 5506. ENHANCED COMMUNICATION BETWEEN GOVERNMENT AND INDUSTRY.

SEC. 5507. CLARIFICATION OF CURRENT LAW WITH RESPECT TO TECHNOLOGY NEUTRALITY IN ACQUISITION OF SOFTWARE.

SEC. 5508. NO ADDITIONAL FUNDS AUTHORIZED.

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