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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

House Conference Report 109-360

SEC. 801. REQUIREMENT FOR CERTIFICATION BEFORE MAJOR DEFENSE ACQUISITION PROGRAM MAY PROCEED TO MILESTONE B.

(a) Certification Requirement- Chapter 139 of title 10, United States Code, is amended by inserting after section 2366 the following new section:

`Sec. 2366a. Major defense acquisition programs: certification required before Milestone B or Key Decision Point B approval

`(a) Certification- A major defense acquisition program may not receive Milestone B approval, or Key Decision Point B approval in the case of a space program, until the milestone decision authority certifies that--

`(1) the technology in the program has been demonstrated in a relevant environment;

`(2) the program demonstrates a high likelihood of accomplishing its intended mission;

`(3) the program is affordable when considering the per unit cost and the total acquisition cost in the context of the total resources available during the period covered by the future-years defense program submitted during the fiscal year in which the certification is made;

`(4) the Department of Defense has completed an analysis of alternatives with respect to the program;

`(5) the program is affordable when considering the ability of the Department of Defense to accomplish the program's mission using alternative systems;

`(6) the Joint Requirements Oversight Council has accomplished its duties with respect to the program pursuant to section 181(b) of this title, including an analysis of the operational requirements for the program; and

`(7) the program complies with all relevant policies, regulations, and directives of the Department of Defense.

`(b) Submission to Congress- The certification required under subsection (a) with respect to a major defense acquisition program shall be submitted to the congressional defense committees with the first Selected Acquisition Report submitted under section 2432 of this title after completion of the certification.

`(c) Waiver for National Security- The milestone decision authority may waive the applicability to a major defense acquisition program of one or more components (as specified in paragraph (1), (2), (3), (4), (5), or (6) of subsection (a)) of the certification requirement if the milestone decision authority determines that, but for such a waiver, the Department would be unable to meet critical national security objectives. Whenever the milestone decision authority makes such a determination and authorizes such a waiver, the waiver, the determination, and the reasons for the determination shall be submitted in writing to the congressional defense committees within 30 days after the waiver is authorized.

`(d) Nondelegation- The milestone decision authority may not delegate the certification requirement under subsection (a) or the authority to waive any component of such requirement under subsection (c).

`(e) Definitions- In this section:

`(1) The term `major defense acquisition program' means a Department of Defense acquisition program that is a major defense acquisition program for purposes of section 2430 of this title.

`(2) The term `milestone decision authority', with respect to a major defense acquisition program, means the individual within the Department of Defense designated with overall responsibility for the program.

`(3) The term `Milestone B approval' has the meaning provided that term in section 2366(e)(7) of this title.

`(4) The term `Key Decision Point B' means the official program initiation of a National Security Space program of the Department of Defense, which triggers a formal review to determine maturity of technology and the program's readiness to begin the preliminary system design.'.

(b) Clerical Amendment- The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 2366 the following new item:

`2366a. Major defense acquisition programs: certification required before Milestone B approval or Key Decision Point B approval.'.

The House bill contained a provision (sec. 801) that would require the Secretary of Defense to certify that a major defense acquisition program meets certain criteria (including technological maturity requirements) before it receives Milestone B approval, or key Decision Point B approval in the case of a space program. The Secretary could waive the certification requirement for national security reasons.

The Senate amendment contained two similar provisions (sections 809 and 858). Section 809 would require the Department of Defense to complete an analysis of alternatives before commencing a major defense acquisition program. Section 858 would extend an existing requirement for annual reports on major defense acquisition programs that fail to meet technological maturity requirements.

The Senate recedes with an amendment that would: (1) incorporate the requirement for an analysis of alternatives into the House provision; (2) require certification or waiver by the milestone decision authority, rather than the Secretary; and (3) authorize waiver of the certification requirement only if, absent the waiver, the Department of Defense would be unable to meet critical national security objectives.

House Report 109-89

SECTION 801--REQUIREMENT FOR CERTIFICATION BY SECRETARY OF DEFENSE BEFORE MAJOR DEFENSE ACQUISITION PROGRAM MAY PROCEED TO MILESTONE B

This section would amend chapter 139 of title 10, United States Code, by requiring the Secretary of Defense to make a certification before a major defense acquisition program (MDAP) enters Milestone B or Key Decision Point B in the case of a space system. A MDAP may not receive Milestone B approval, or Key Decision Point B approval in the case of a space program, until the Secretary certifies that:

(1) The technology in the program has been demonstrated in a relevant environment;

(2) The program demonstrates a high likelihood of accomplishing its intended mission;

(3) The program is affordable when considering the per unit cost and total acquisition cost in the context of the total available resources available during the period covered by the future years defense program submitted during the fiscal year in which the certification is made;

(4) The program is affordable when considering the ability of the Department of Defense (DOD) to accomplish the program's mission using alternative systems;

(5) The Joint Requirements Oversight Council has accomplished its duties with respect to the program as required in section 181(b) of title 10, United States Code, including an analysis of the operational requirements for the program; and

(6) The program complies with all relevant policies, regulations, and directives of the Department of Defense.

This section would require the Secretary to submit the certification to the congressional defense committees no fewer then 30 days before approval of Milestone B or Key Decision Point B in the case of a space system. The Secretary could waive the certification requirement for national security reasons. Such a waiver would require a subsequent report to the congressional defense committees outlining the rationale for the waiver within 30 days after authorizing the waiver. The certification required would be non-delegable.

As stated in a March 2004 report by the Government Accountability Office (GAO), Defense Acquisitions: Assessments of Major Weapons Programs, `production maturity cannot be attained if the design is not mature, and design maturity cannot be attained if the key technologies are not mature.'

Section 804 of the National Defense Authorization Act for Fiscal Year 2002, (Public Law 107-107) directed the Secretary to report annually to the Senate Committee on Armed Services and the House Committee on Armed Services on the maturity of technology at the initiation of major defense acquisition programs. The Act requires a report during each year from 2003 to 2006 on a requirement in DOD's policy that technology must have been demonstrated in a relevant environment (or preferably in an operational environment) to be considered mature enough to use for product development in systems integration. To date, the committee has received and reviewed with interest the reports from fiscal years 2002-2004. The committee strongly believes that MDAPs should not enter the Systems Development and Demonstration phase prior to the demonstration of mature technologies.

The committee believes that the Secretary should personally make this certification in light of the significance of the weapon systems. The committee does not believe such a requirement is too burdensome. The committee notes that in the past 10 years only 63 MDAPs have gone through Milestone B.