[House Report 113-275]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-275
======================================================================
TRANSPORTATION SECURITY ACQUISITION REFORM ACT
_______
November 21, 2013.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. McCaul, from the Committee on Homeland Security, submitted the
following
R E P O R T
[To accompany H.R. 2719]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 2719) to require the Transportation Security
Administration to implement best practices and improve
transparency with regard to technology acquisition programs,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 6
Background and Need for Legislation.............................. 6
Hearings......................................................... 8
Committee Consideration.......................................... 9
Committee Votes.................................................. 12
Committee Oversight Findings..................................... 12
New Budget Authority, Entitlement Authority, and Tax Expenditures 12
Congressional Budget Office Estimate............................. 12
Statement of General Performance Goals and Objectives............ 13
Duplicative Federal Programs..................................... 13
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 13
Federal Mandates Statement....................................... 14
Preemption Clarification......................................... 14
Disclosure of Directed Rule Makings.............................. 14
Advisory Committee Statement..................................... 14
Applicability to Legislative Branch.............................. 14
Section-by-Section Analysis of the Legislation................... 14
Changes in Existing Law Made by the Bill, as Reported............ 29
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Transportation Security Acquisition
Reform Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Transportation Security Administration (in this Act
referred to as ``TSA'') does not consistently implement
Department of Homeland Security policies and Government best
practices for acquisition and procurement.
(2) TSA has not developed a multiyear technology investment
plan. As a result, TSA has underutilized innovation
opportunities within the private sector, including from small
businesses.
(3) Due in part to the deficiencies referred to in paragraphs
(1) and (2), TSA has faced challenges in meeting key
performance requirements for several major acquisitions and
procurements, resulting in reduced security effectiveness and
wasted expenditures.
SEC. 3. TRANSPORTATION SECURITY ADMINISTRATION ACQUISITION REFORM.
(a) In General.--Title XVI of the Homeland Security Act of 2002 (116
Stat. 2312) is amended to read as follows:
``TITLE XVI--TRANSPORTATION SECURITY
``Subtitle A--General Provisions
``SEC. 1601. DEFINITIONS.
``In this title:
``(1) Administration.--The term `Administration' means the
Transportation Security Administration.
``(2) Administrator.--The term `Administrator' means the
Administrator of the Transportation Security Administration.
``(3) Security-related technology.--The term `security-
related technology' means any technology that assists the
Administration in the prevention of, or defense against,
threats to United States transportation systems, including
threats to people, property, and information.
``Subtitle B--Transportation Security Administration Acquisition
Improvements
``SEC. 1611. MULTIYEAR TECHNOLOGY INVESTMENT PLAN.
``(a) In General.--The Administrator--
``(1) not later than 180 days after the date of enactment of
the Transportation Security Acquisition Reform Act, shall
develop and transmit to Congress a strategic multiyear
technology investment plan, which may include a classified
addendum to report sensitive transportation security risks,
technology vulnerabilities, or other sensitive security
information; and
``(2) to the extent possible, shall publish such plan in an
unclassified format within the public domain.
``(b) Consultation.--The Administrator shall develop the multiyear
technology investment plan in consultation with the Under Secretary for
Management, the Chief Information Officer, and the Under Secretary for
Science and Technology.
``(c) Approval.--The Secretary must have approved the multiyear
technology investment plan before it is published under subsection
(a)(2).
``(d) Contents of Plan.--The multiyear technology investment plan
shall include the following:
``(1) An analysis of transportation security risks and the
associated technology gaps, including consideration of the most
recent Quadrennial Homeland Security Review under section 707.
``(2) A set of transportation security-related technology
acquisition needs that--
``(A) is prioritized based on risk and gaps
identified under paragraph (1); and
``(B) includes planned technology programs and
projects with defined objectives, goals, and measures.
``(3) An analysis of current trends in domestic and
international passenger travel.
``(4) An identification of currently deployed security-
related technologies that are at or near the end of their
lifecycle.
``(5) An identification of test, evaluation, modeling, and
simulation capabilities that will be required to support the
acquisition of the security-related technologies to meet those
needs.
``(6) An identification of opportunities for public-private
partnerships, small and disadvantaged company participation,
intragovernment collaboration, university centers of
excellence, and national laboratory technology transfer.
``(7) An identification of the Administration's acquisition
workforce needs that will be required for the management of
planned security-related technology acquisitions, including
consideration of leveraging acquisition expertise of other
Federal agencies.
``(8) An identification of the security resources, including
information security resources, that will be required to
protect security-related technology from physical or cyber
theft, diversion, sabotage, or attack.
``(9) An identification of initiatives to streamline the
Administration's acquisition process and provide greater
predictability and clarity to small, medium, and large
businesses, including the timeline for testing and evaluation.
``(e) Leveraging the Private Sector.--To the extent possible, and in
a manner that is consistent with fair and equitable practices, the plan
shall--
``(1) leverage emerging technology trends and research and
development investment trends within the public and private
sectors;
``(2) incorporate feedback and input received from the
private sector through requests for information, industry days,
and other innovative means consistent with the Federal
Acquisition Regulation; and
``(3) leverage market research conducted by the Under
Secretary for Science and Technology to identify technologies
that exist or are in development that, with or without
adaptation, could be utilized to meet mission needs.
``(f) Disclosure.--The Administrator shall include with the plan
required under this section a list of any nongovernment persons that
contributed to the writing of the plan.
``(g) Update and Report.--Once every 2 years after the initial
strategic plan is transmitted to Congress, the Administrator shall
transmit to Congress an update of the plan and a report on the extent
to which each security-related technology acquired by the
Administration since the last issuance or update of the plan is
consistent with the planned technology programs and projects identified
under subsection (d)(2) for that technology.
``SEC. 1612. ACQUISITION JUSTIFICATION AND REPORTS.
``(a) Acquisition Justification.--Before the Administration
implements any security-related technology acquisition, the
Administrator shall, in accordance with the Department's policies and
directives, conduct a comprehensive analysis to determine whether the
acquisition is justified. The analysis shall include, but may not be
limited to, the following:
``(1) An identification of the type and level of risk to
transportation security that would be addressed by such
technology acquisition.
``(2) An assessment of how the proposed acquisition aligns to
the multiyear technology investment plan developed under
section 1611.
``(3) A comparison of the total expected lifecycle cost
against the total expected quantitative and qualitative
benefits to transportation security.
``(4) An analysis of alternative security solutions to
determine if the proposed technology acquisition is the most
effective and cost-efficient solution based on cost-benefit
considerations.
``(5) An evaluation of the privacy and civil liberties
implications of the proposed acquisition, and a determination
that the proposed acquisition is consistent with fair
information practice principles issued by the Privacy Officer
of the Department. To the extent practicable, the evaluation
shall include consultation with organizations that advocate for
the protection of privacy and civil liberties.
``(6) Confirmation that there are no significant risks to
human health and safety posed by the proposed acquisition.
``(b) Reports and Certification to Congress.--
``(1) In general.--Not later than the end of the 30-day
period preceding the award by the Administration of a contract
for any security-related technology acquisition exceeding
$30,000,000, the Administrator shall submit to the Committee on
Homeland Security of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the
Senate the results of the comprehensive acquisition analysis
required under this section and a certification by the
Administrator that the security benefits justify the contract
cost.
``(2) Extension due to imminent terrorist threat.--If there
is a known or suspected imminent threat to transportation
security, the Administrator may reduce the 30-day period under
paragraph (1) to 5 days in order to rapidly respond.
``(3) Notice to congress.--The Administrator shall provide
immediate notice of such imminent threat to the Committee on
Homeland Security of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the
Senate.
``SEC. 1613. ACQUISITION BASELINE ESTABLISHMENT AND REPORTS.
``(a) Baseline Requirements.--
``(1) In general.--Before the Administration implements any
security-related technology acquisition, the appropriate
acquisition official of the Department shall establish and
document a set of formal baseline requirements.
``(2) Contents.--The baseline requirements shall--
``(A) include the estimated costs (including
lifecycle costs), schedule, and performance milestones
for the planned duration of the acquisition; and
``(B) identify the acquisition risks and a plan for
mitigating these risks.
``(3) Feasibility.--In establishing the performance
milestones under paragraph (2), the appropriate acquisition
official of the Department shall, to the extent possible and in
consultation with the Under Secretary for Science and
Technology, ensure that achieving these milestones is
technologically feasible.
``(4) Test and evaluation plan.--The Administrator, in
consultation with the Under Secretary for Science and
Technology, shall develop a test and evaluation plan that, at a
minimum, describes--
``(A) the activities that will be required to assess
acquired technologies against the performance
milestones established under paragraph (2);
``(B) the necessary and cost-effective combination of
laboratory testing, field testing, modeling,
simulation, and supporting analysis to ensure that such
technologies meet the Administration's mission needs;
and
``(C) an efficient schedule to ensure that test and
evaluation activities are completed without undue
delay.
``(5) Verification and validation.--The appropriate
acquisition official of the Department--
``(A) subject to subparagraph (B), shall utilize
independent reviewers to verify and validate the
performance milestones and cost estimates developed
under paragraph (2) for a security-related technology
that pursuant to section 1611(d)(2) has been identified
as a high priority need in the most recent multiyear
technology investment plan; and
``(B) shall ensure that the utilization of
independent reviewers does not unduly delay the
schedule of any acquisition.
``(6) Streamlining access for interested vendors.--The
Administrator shall establish a streamlined process for an
interested vendor of a security-related technology to request
and receive appropriate access to the baseline requirements and
test and evaluation plans that are necessary for the vendor to
participate in the acquisitions process for such technology.
``(b) Review of Baseline Requirements and Deviation; Report to
Congress.--
``(1) Review.--
``(A) In general.--The appropriate acquisition
official of the Department shall review and assess each
implemented acquisition to determine if the acquisition
is meeting the baseline requirements established under
subsection (a).
``(B) Test and evaluation assessment.--The review
shall include an assessment of whether the planned
testing and evaluation activities have been completed
and the results of such testing and evaluation
demonstrate that the performance milestones are
technologically feasible.
``(2) Report.--
``(A) In general.--The Administrator shall report to
the Committee on Homeland Security of the House of
Representatives and the Committee on Commerce, Science,
and Transportation of the Senate the results of any
assessment that finds that--
``(i) the actual or planned costs exceed the
baseline costs by more than 10 percent;
``(ii) the actual or planned schedule for
delivery has been delayed by more than 180
days; or
``(iii) there is a failure to meet any
performance milestone that directly impacts
security effectiveness.
``(B) Cause.--The report shall include the cause for
such excessive costs, delay, or failure, and a plan for
corrective action.
``(C) Timeliness.--The report required under this
section shall be provided to the Committee on Homeland
Security of the House of Representatives and the
Committee on Commerce, Science, and Transportation of
the Senate no later than 30 days after identifying such
excessive costs, delay, or failure.
``SEC. 1614. INVENTORY UTILIZATION.
``(a) In General.--Before the procurement of additional quantities of
equipment to fulfill a mission need, the Administrator shall, to the
extent practicable, utilize any existing units in the Administration's
inventory to meet that need.
``(b) Tracking of Inventory.--
``(1) Location.--The Administrator shall establish a process
for tracking the location of security-related equipment in such
inventory.
``(2) Utilization.--The Administrator shall--
``(A) establish a process for tracking the
utilization status of security-related technology in
such inventory; and
``(B) implement internal controls to ensure accurate
data on security-related technology utilization.
``(3) Quantity.--The Administrator shall establish a process
for tracking the quantity of security-related equipment in such
inventory.
``(c) Logistics Management.--
``(1) In general.--The Administrator shall establish
logistics principles for managing inventory in an effective and
efficient manner.
``(2) Limitation on just-in-time logistics.--The
Administrator may not use just-in-time logistics if doing so
would--
``(A) inhibit necessary planning for large-scale
delivery of equipment to airports or other facilities;
or
``(B) unduly diminish surge capacity for response to
a terrorist threat.
``SEC. 1615. SMALL BUSINESS CONTRACTING GOALS.
``Not later than 90 days after the date of enactment of the
Transportation Security Acquisition Reform Act, and annually
thereafter, the Administrator shall submit to the Committee on Homeland
Security of the House of Representatives and the Committee on Commerce,
Science, and Transportation of the Senate a report that includes the
following:
``(1) A restatement of the Administration's published goals
for contracting with small businesses, including small and
disadvantaged businesses, and the Administration's performance
record with respect to meeting those goals during the preceding
fiscal year.
``(2) If such goals were not met, or the Administration's
performance was below the published goals of the Department, an
itemized list of challenges, including deviations from the
Administration's subcontracting plans and the extent to which
contract bundling was a factor, that contributed to the level
of performance during the preceding fiscal year.
``(3) An action plan, with benchmarks, for addressing each of
the challenges identified in paragraph (2), prepared after
consultation with the Secretary of Defense and the heads of
Federal departments and agencies that achieved their published
goals for prime contracting with small and minority owned
businesses, including small and disadvantaged businesses, in
prior fiscal years, to identify policies and procedures that
could be incorporated at the Administration in furtherance of
achieving the Administration's published goal for such
contracting.
``(4) The status of implementing such action plan that was
developed in the preceding fiscal year in accordance with
paragraph (3).
``SEC. 1616. CONSISTENCY WITH THE FEDERAL ACQUISITION REGULATION AND
DEPARTMENTAL POLICIES AND DIRECTIVES.
``The Administrator shall execute responsibilities set forth in this
subtitle in a manner consistent with, and not duplicative of, the
Federal Acquisition Regulation and the Department's policies and
directives.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is amended by striking the items relating to title XVI and
inserting the following:
``TITLE XVI--TRANSPORTATION SECURITY
``Subtitle A--General Provisions
``Sec. 1601. Definitions.
``Subtitle B--Transportation Security Administration Acquisition
Improvements
``Sec. 1611. Multiyear technology investment plan.
``Sec. 1612. Acquisition justification and reports.
``Sec. 1613. Acquisition baseline establishment and reports.
``Sec. 1614. Inventory utilization.
``Sec. 1615. Small business contracting goals.
``Sec. 1616. Consistency with the Federal Acquisition Regulation and
departmental policies and directives.''.
(c) Prior Amendments Not Affected.--This section shall not be
construed to affect any amendment made by title XVI of such Act as in
effect before the date of enactment of this Act.
SEC. 4. GOVERNMENT ACCOUNTABILITY OFFICE REPORTS.
(a) Implementation of Previous Recommendations.--Not later than 1
year after the date of enactment of this Act, the Comptroller General
of the United States shall assess and report to Congress on
implementation by the Transportation Security Administration of
recommendations regarding the acquisition of technology that were made
by the Government Accountability Office before the date of enactment of
this Act.
(b) Implementation of Subtitle B of Title XVI.--Not later than 1 year
after the date of enactment of this Act and 3 years thereafter, the
Comptroller General of the United States shall evaluate and report to
Congress the Transportation Security Administration's progress in
implementing subtitle B of title XVI of the Homeland Security Act of
2002 (116 Stat. 2312), as amended by this Act (including provisions
added to such subtitle after the date of enactment of this Act),
including any efficiencies, cost savings, or delays that have resulted
from such implementation.
SEC. 5. REPORT ON FEASIBILITY OF INVENTORY TRACKING.
Not later than 90 days after the date of enactment of this Act, the
Administrator of the Transportation Security Administration shall
report to Congress on the feasibility of tracking transportation
security-related technology of the Administration through automated
information and data capture technologies.
SEC. 6. GOVERNMENT ACCOUNTABILITY OFFICE REVIEW OF TSA'S TEST AND
EVALUATION PROCESS.
Not later than 1 year after the date of the enactment of this Act,
the Comptroller General of the United States shall evaluate and report
to Congress on the Transportation Security Administration's testing and
evaluation activities related to security-related technologies. The
report shall include--
(1) information on the extent to which --
(A) the execution of such testing and evaluation
activities is aligned, temporally and otherwise, with
the Administration's acquisition needs, planned
procurements, and acquistions for technology programs
and projects; and
(B) the extent to which security-related technologies
that have been tested, evaluated, and certified for use
by the Administration are not procured by the
Administration, including information about why that
occurs; and
(2) recommendations to--
(A) improve the efficiency and efficacy of such
testing and evaluation activities; and
(B) better align such testing and evaluation with the
acquisitions process.
SEC. 7. NO ADDITIONAL AUTHORIZATION OF APPROPRIATIONS.
No additional funds are authorized to be appropriated to carry out
this Act and the amendments made by this Act, and this Act and such
amendments shall be carried out using amounts otherwise available for
such purpose.
Purpose and Summary
The purpose of H.R. 2719 is to require the Transportation
Security Administration to implement best practices and improve
transparency with regard to technology acquisition programs,
and for other purposes.
Background and Need for Legislation
The Department of Homeland Security (DHS), through the
Transportation Security Administration (TSA), is responsible
for the prevention of, and defense against threats to United
States transportation systems. Such threats come in many forms
and include threats to people, property, and information. The
events of September 11, 2001 demonstrated that malevolent
actions against U.S. transportation systems can have profound
impacts on national security and economic vitality. It is
therefore critical that TSA provide comprehensive, effective,
and efficient security measures to address a broad spectrum of
evolving threats. The Committee believes that this set of
transportation security measures needs to be risked-based and
implemented in a systematic, layered approach. Such a
systematic approach includes the appropriate combination of
security personnel, defensive barriers, and security-related
technologies. The focus of this legislation is to provide a
legislative framework for TSA's acquisition of security-related
technologies in the context of systematic risk-based security.
The TSA expends significant funds each year developing,
purchasing, and maintaining transportation security-related
technologies. For example, in Fiscal Year 2012, TSA spent more
than $550 million on its explosives detection screening
technologies and held over $3 billion in equipment inventories,
deployed across all major U.S. airports and multiple storage
locations. Due to the high cost of security technologies, and
because they are an integral part of the traveling public's
experience at checkpoints, much study has been devoted to this
equipment and how it is deployed. Since being established, the
Committee on Homeland Security has conducted extensive
oversight on TSA acquisition challenges and received testimony
and numerous briefings from TSA, DHS, the Government
Accountability Office (GAO), the DHS Inspector General (DHS
IG), and the private sector. Both GAO and DHS IG have reported
that TSA is not effectively implementing Government best
practices and DHS policy for acquiring new security
capabilities. This has resulted in acquisitions that have
failed to meet security performance objectives and/or wasted
Federal funds. Additionally, the private sector has criticized
TSA for failing to accurately communicate technology needs and
long-term investment plans, making it difficult for industry to
plan ahead and invest in the next generation of security-
related technologies.
H.R. 2719, the Transportation Security Acquisition Reform
Act, is bipartisan legislation developed from valuable input
from stakeholders and subject matter experts across Government
and industry. The Act introduces greater transparency and
accountability for TSA spending decisions through a series of
legislated reforms. The Act formally documents Congressional
findings resulting from the Committee's extensive oversight on
this topic. Furthermore, the Act codifies acquisition best-
practices that the Committee believes will result in more
effective and efficient security-related technology
acquisitions at TSA. The Act, which amends the Homeland
Security Act of 2002 (Pub. L. 107-296), requires TSA to develop
and share with the public, for the first time, a strategic,
multi-year technology investment plan. The Act also requires
TSA to share key information with Congress on technology
acquisitions, including cost overruns, delays, or technical
failures. Furthermore, the Act establishes principles for
managing equipment in inventory to eliminate expensive storage
of unusable or outdated technologies. Finally, in response to
TSAs persistent failure to meet its small business contracting
goals, the Act requires TSA to report on its goals for
contracting with small businesses and directs the
administration to consult with the Department of Defense and
other agencies that meet their small business contracting
goals. To inform continuing Congressional oversight, the Act
requires that the Government Accountability Office conduct an
initial and follow-on assessment of TSA's implementation of the
provisions of this legislation.
The Committee has received letters of support for H.R. 2719
from: The U.S. Travel Association; Airports Council
International-North America; the Security Industry
Manufacturers Coalition; the General Aviation Manufacturers
Association; and the Security Industry Association.
Hearings
No hearings were held on H.R. 2719. However, the Committee
held oversight hearings relating to programs contained within
H.R. 2719, these hearings are listed below.
112th Congress
On September 22, 2011, the Subcommittee on Transportation
Security held a hearing entitled ``TSA Reform: Exploring
Innovations in Technology Procurement to Stimulate Job
Growth.'' The Subcommittee received testimony from Ms. Elaine
C. Duke, President, Elaine Duke & Associates, LLC; Mr. Michael
P. Jackson, President, Firebreak Partners, LLC; and Mr. Stephen
M. Lord, Director, Homeland Security and Justice Issues,
Government Accountability Office.
On October 13, 2011, the Subcommittee on Transportation
Security continued its hearing from September, receiving
testimony from Mr. Marc A. Pearl, President and CEO, Homeland
Security and Defense Business Council; Mr. Scott Boylan, Vice
President and General Counsel, Safran Morpho Detection; and Mr.
Guy Ben-Ari, Deputy Director, Defense-Industrial Initiatives
Group, Fellow, International Security Program, Center for
Strategic and International Studies.
On November 3, 2011, the Subcommittee on Transportation
Security held a hearing entitled ``TSA Reform: Exploring
Innovations in Technology Procurement to Stimulate Job Growth,
Part III.'' The Subcommittee received testimony from Dr. Nick
Nayak, Chief Procurement Officer, Department of Homeland
Security; Mr. Robin E. Kane, Assistant Administrator, Security
Technology, Transportation Security Administration, Department
of Homeland Security; Mr. Paul Benda, Chief of Staff, Director,
Homeland Security Advanced Research Projects Agency, Department
of Homeland Security, accompanied by Dr. Susan Hallowell,
Director, Transportation Security Laboratory; and Mr. Charles
K. Edwards, Acting Inspector General, Department of Homeland
Security.
On December 8, 2011, the Subcommittee on Transportation
Security held a hearing entitled ``A Review of Passenger
Screening Technology at U.S. Airports.'' The Subcommittee
received testimony from Hon. John S. Pistole, Administrator,
Transportation Security Administration, U.S. Department of
Homeland Security; Ms. Gale D. Rossides, Deputy Administrator,
Transportation Security Administration, U.S. Department of
Homeland Security; Mr. Robin E. Kane, Assistant Administrator
for Security Technology, Transportation Security
Administration, U.S. Department of Homeland Security; Hon.
Caryn Wagner, Under Secretary, Office of Intelligence and
Analysis, U.S. Department of Homeland Security; Dr. Tara
O'Toole, Under Secretary, Science and Technology Directorate,
U.S. Department of Homeland Security; Dr. Cedric Sims,
Executive Director, Office of Program Accountability and Risk
Management, Management Directorate, Department of Homeland
Security; Mr. Charles K. Edwards, Acting Inspector General,
Office of Inspector General, U.S. Department of Homeland
Security; Ms. Anne Richards, Assistant Inspector General for
Audits, Office of Inspector General, U.S. Department of
Homeland Security; and Mr. Stephen M. Lord, Director, Homeland
Security and Justice Issues, Government Accountability Office.
On June 19, 2012, the Subcommittee on Transportation
Security held a hearing entitled, ``Is TSA's Planned Purchase
of CAT/BPSS a Wise Use of Taxpayer Dollars?'' The Subcommittee
received testimony from Mr. Kelly Hoggan, Assistant
Administrator, Office of Security Capabilities, Transportation
Security Administration and Mr. Steven M. Lord, Director,
Homeland Security and Justice Issues, Government Accountability
Office.
On November 15, 2012, the Subcommittee on Transportation
Security held a hearing entitled ``TSA's Recent Scanner
Shuffle: Real Strategy or Wasteful Smokescreen?'' The
Subcommittee received testimony from Mr. Jonathan Cantor,
Acting Chief Privacy Officer, U.S. Department of Homeland
Security; and Mr. John Sanders, Assistant Administrator, Office
of Security Capabilities, Transportation Security
Administration, Department of Homeland Security.
113th Congress
The Subcommittee on Transportation Security held a hearing
on May 8, 2013, entitled ``TSA Procurement Reform: Saving
Taxpayer Dollars Through Smarter Spending Practices.'' The
Subcommittee received testimony from Ms. Karen Shelton Waters,
Assistant Administrator, Office of Acquisition, Transportation
Security Administration, U.S. Department of Homeland Security;
Mr. Paul Benda, Director, Advanced Research Projects Agency,
Science & Technology Directorate, U.S. Department of Homeland
Security; Mr. Stephen M. Lord, Director, Forensic Audits and
Investigative Services, U.S. Government Accountability Office;
and Mr. Charles K. Edwards, Deputy Inspector General, U.S.
Department of Homeland Security.
The Subcommittee on Transportation Security held a hearing
on July 17, 2013, entitled ``Stakeholder Perspectives on TSA
Acquisition Reform.'' The Subcommittee received testimony from
Mr. Marc Pearl, President & CEO, Homeland Security & Defense
Business Council; Ms. Shene Commodore, Government Contracts &
Business Manager, Intertek, testifying on behalf of the
Security Industry Association; and Mr. Dolan P. Falconer, Jr.,
Co-Founder, Chairman & General Manager, Scan Tech Holdings.
Committee Consideration
The Committee on Homeland Security met on October 29, 2013,
to consider H.R. 2719, and ordered the measure to be reported
to the House with a favorable recommendation, amended, by voice
vote. The Committee took the following actions:
The following amendments were offered:
An Amendment in the Nature of a Substitute to H.R. 2719 offered
by Mr. Hudson (#1); was AGREED TO, as amended, by voice vote.
A unanimous consent request by Mr. McCaul to consider the
Amendment in the Nature of a Substitute as base text for
purposes of amendment was not objected to.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 2719 offered by Ms. Loretta Sanchez of California (#1A);
was AGREED TO by voice vote.
Page 14, line 18, before the period insert the following: ``,
prepared after consultation with the Secretary of Defense and the heads
of Federal departments and agencies that achieved their published goals
for prime contracting with small and minority owned businesses,
including small and disadvantaged businesses, in prior fiscal years, to
identify policies and procedures that could be incorporated at the
Administration in furtherance of achieving the Administration's
published goal for such contracting''.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 2719 offered by Mr. Chaffetz (#1B); was AGREED TO by voice
vote.
Page 7, after line 23, insert the following: ``(6) Confirmation
that there are no significant risks to human health and safety posed by
the proposed acquisition.
An en bloc amendment to the Amendment in the Nature of a
Substitute to H.R. 2719 offered by Ms. Jackson Lee (#1C); was
AGREED TO by voice vote.
Consisting of the following amendments:
Page 7, line 23, after the period insert ``To the extent
practicable, the evaluation shall include consultation with
organizations that advocate for the protection of privacy and civil
liberties.''.
Page 15, line 15, in the section heading strike ``Report'' and
insert ``Reports''.
Page 15, after line 15, insert a new subsection entitled ``(a)
Implementation of Previous Recommendations.''
Page 16, after line 5, insert a new section entitled ``Sec. _.
Report on Feasibility of Inventory Tracking.''
An en bloc amendment to the Amendment in the Nature of a
Substitute to H.R. 2719 offered by Mr. Richmond (#1D); was
AGREED TO by voice vote.
Consisting of the following amendments:
Page 13, strike lines 7 through 10 and insert a new subsection
entitled ``(b) Tracking of Inventory.'';
Page 16, after line 5, insert a new section entitled ``Sec. _.
Government Accountability Office Review of TSA's Test and Evaluation
Process.''
An amendment to the Amendment in the Nature of a Substitute to
H.R. 2719 offered by Mr. Barber (#1E); was AGREED TO by voice
vote.
Page 16, line 5, before the period insert the following: ``,
including any efficiencies, cost savings, or delays that have resulted
from such implementation''.
An amendment to the Amendment in the Nature of a Substitute to
H.R. 2719 offered by Mr. O'Rourke (#1F); was AGREED TO by voice
vote.
Page 14, line 14 after ``challenges'' insert `` , including
deviations from the Administration's subcontracting plans and the
extent to which contract bundling was a factor.''.
Subcommittee Consideration
The Subcommittee on Transportation Security met on July 24,
2013, to consider H.R. 2719, and ordered the measure to be
forwarded to the Full Committee with a favorable
recommendation, amended, by voice vote. The Subcommittee took
the following actions:
The following amendments were offered:
An Amendment in the Nature of a Substitute offered by Mr.
Hudson (#1); was AGREED TO by voice vote.
A unanimous consent request by Mr. Hudson to consider the
Amendment in the Nature of a Substitute as base text for
purposes of amendment was not objected to.
An en bloc amendment to the Amendment in the Nature of a
Substitute offered by Mr. Richmond (#1A); was AGREED TO by
voice vote.
Consisting of the following amendments:
Page 5, strike ``and'' after the first semicolon at line 3, strike
the period at line 7 and insert ``; and'', and after line 7 insert the
following:
``(3) leverage market research conducted by the Under Secretary for
Science and Technology to identify technologies that exist or are in
development that, with or without adaptation, could be utilized to meet
mission needs.''
Page 9, after line 2, insert a new paragraph entitled ``(6)
Streamlining Access For Interested Vendors.''
An amendment to the Amendment in the Nature of a Substitute
offered by Mrs. Brooks of Indiana (#1B); was AGREED TO by voice
vote.
Page 4, after line 5, insert the following (and redesignate the
subsequent paragraphs accordingly):
``(3) An analysis of current trends in domestic and international
passenger travel.
(4) An identification of currently deployed security-related
technologies that are at or near the end of their lifecycle.
An en bloc amendment to the Amendment in the Nature of a
Substitute offered by Mr. Swalwell of California (#1C); was
AGREED TO by voice vote.
Consisting of the following amendments:
Page 4, after line 20, insert the following: ``(6) An
identification of the security resources, including information
security resources, that will be required to protect security-related
technology from physical of cyber thefts, diversion, sabotage, or
attack.''
A unanimous consent request by Mr. Richmond to consider
and adopt the following amendments was not objected to.
An amendment to the Amendment in the Nature of a Substitute
filed for consideration on the amendment roster by Ms. Jackson
Lee (#1D); was ADOPTED by a unanimous consent request by Mr.
Richmond.
Page 5, line 12, after ``Update' insert ``and Airport''.
Page 5 line 14, before the period insert ``and a report on the
extent to which each security-related technology acquired by the
Administration since the last issuance or update of the plan is
consistent with the acquisition roadmap required under subsection
(d)(2) for that technology''.
An amendment to the Amendment in the Nature of a Substitute
filed for consideration on the amendment roster by Ms. Jackson
Lee (#1E); was ADOPTED by a unanimous consent request by Mr.
Richmond.
Page 6, beginning at line 11, strike ``A determination that the
means of achieving such expected benefit to transportation security''
and insert ``An evaluation of the privacy and civil liberties
implications of the proposed acquisition, and a determination that the
proposed acquisition''.
An amendment to the Amendment in the Nature of a Substitute
filed for consideration on the amendment roster by Ms. Jackson
Lee (#1F); was ADOPTED by a unanimous consent request by Mr.
Richmond.
Page 8, beginning at line 23, strike paragraph (5) and insert a
new paragraph entitled ``(5) Verification and Validation.''
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
No recorded votes were requested during Committee
consideration.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
2719, the Transportation Security Acquisition Reform Act, would
result in no new or increased budget authority, entitlement
authority, or tax expenditures or revenues.
Congressional Budget Office Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
November 21, 2013.
Hon. Michael McCaul,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2719, the
Transportation Security Acquisition Reform Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 2719--Transportation Security Acquisition Reform Act
Based on information from the Department of Homeland
Security (DHS) and the Government Accountability Office (GAO),
CBO estimates that implementing H.R. 2719 would have no
significant cost. Enacting H.R. 2719 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures do
not apply.
H.R. 2719 would specify procedures for the Transportation
Security Administration (TSA) to follow when planning, making,
and evaluating acquisitions of security-related technology. The
bill would require the agency to develop a multiyear investment
plan to be transmitted to the Congress and updated every two
years. The bill also would specify analyses and reports that
TSA must complete to justify certain investments, evaluate the
performance of technology acquired under the bill, and enhance
its capacity to monitor and utilize existing inventories of
security-related equipment. In addition, H.R. 2719 would direct
GAO to review and report on issues related to TSA's policies
for procuring security-related technology.
According to DHS, the bill's requirements are largely
consistent with existing DHS procurement policies that already
apply to TSA. The legislation would not affect TSA's underlying
mission or responsibilities, and CBO estimates that meeting new
procedural requirements specified by H.R. 2719 would not impose
any new significant costs on the agency. We also estimate that
any increased costs to GAO to complete reports required under
H.R. 2719 would be negligible, assuming the availability of
appropriated funds.
H.R. 2719 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Megan Carroll.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H.R. 2719 contains the following
general performance goals, and objectives, including outcome
related goals and objectives authorized.
The performance goals and objectives of H.R. 2719 are based
on the development of a strategic multi-year technology
investment plan to aid in the prevention of, and defense
against threats to U.S. transportation systems. Upon
establishing the multi-year investment plan, H.R. 2719 then
requires TSA to make an objective and measurable determination
that planned security-related technology acquisitions are
appropriately justified. Once a specific technology acquisition
has been appropriately justified, H.R. 2719 requires that TSA
establish baseline goals and objectives, including the
establishment of cost, schedule, and performance requirements
of the acquisition. During acquisition of a justified security-
related technology, H.R. 2719 requires the Department to track
and measure actual progress against the baseline goals and
objectives, and report and respond to significant deviations.
H.R. 2719 furthermore requires TSA to establish goals and
objectives for inventory management and small business
contracting. The reports to Congress from DHS, TSA, and GAO
that are required by this Act will allow the Congress to hold
the Department accountable for the success or failure of
transportation security-related technology acquisitions.
Duplicative Federal Programs
The Committee finds that H.R. 2719 does not contain any
provision that establishes or reauthorizes a program known to
be duplicative of another Federal program.
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
Congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Preemption Clarification
In compliance with section 423 of the Congressional Budget
Act of 1974, requiring the report of any Committee on a bill or
joint resolution to include a statement on the extent to which
the bill or joint resolution is intended to preempt State,
local, or Tribal law, the Committee finds that H.R. 2719 does
not preempt any State, local, or Tribal law.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 2719 would require no
directed rule makings.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides that the bill may be cited as the
``Transportation Security Acquisition Reform Act.''
Sec. 2. Findings
This section states three specific findings resulting from
extensive Congressional oversight. These findings are described
as follows:
1. Congress finds that TSA has not consistently implemented
DHS policies and Government best practices for acquisition.
Applicable DHS policies include MD-102, HSAM-3007, and related
DHS acquisition guidebooks. Government acquisition best
practices are compiled and published at http://
www.acquisition.gov.
Information received in numerous Committee hearings and
briefings supports this finding. For example, in January 2012,
GAO reported that TSA did not fully follow DHS acquisition
policies when acquiring Advanced Imaging Technology (AIT),
which resulted in DHS approving AIT deployment without full
knowledge of TSA's revised technical specifications. Further,
in April 2012, GAO found that TSA's methods for developing life
cycle cost estimates for the Electronic Baggage Screening
Program did not fully adhere to best practices for developing
these estimates.
2. Congress also finds that TSA has not developed a multi-
year technology investment plan and has underutilized
opportunities to work collaboratively with the private sector.
Stakeholders have consistently urged TSA to develop and
share a multi-year investment plan to improve transparency and
insight into future spending plans. To address this gap in
planning, Congress directed TSA through the Consolidated and
Further Continuing Appropriations Act of 2013 to provide a
five-year investment plan that includes projected funding
levels for the next five fiscal years for all passenger
screening technology acquisitions. In addition, during the
hearing entitled: ``TSA Reform: Exploring Innovations in
Technology Procurement to Stimulate Job Growth, Part II,'' Mr.
Marc Pearl testified that the Homeland Security & Defense
Business Council strongly believes that TSA must strive to
develop a mid- to long-term strategic acquisition plan and
consider the possibility of multi-year budget plans. Further, a
strategic acquisition plan would provide all interested
companies with an insightful blueprint for Government's future
needs, and give them the necessary time to align and focus
financial and personnel resources towards addressing the
highest priority needs.
3. Lastly, Congress finds that TSA has faced challenges
meeting key performance requirements for acquisitions and
procurements, resulting in reduced security effectiveness and
wasted expenditures. This issue was highlighted at the hearing
entitled: ``TSA Procurement Reform: Saving Taxpayer Dollars
Through Smarter Spending Practices.'' GAO witness, Mr. Stephen
Lord, stated that GAO's prior work has found that realistic
acquisition program baselines with stable requirements for
cost, schedule, and performance are among the factors that are
important to successful acquisitions delivering capabilities
within cost and schedule. Further, program performance metrics
for cost and schedule can provide useful indicators of the
health of acquisition programs.
Since its creation, TSA has completed several acquisitions
that either did not result in the security benefits originally
promised or were not implemented effectively. For example, in
2006, TSA spent $29.6 million on 207 explosives trace portal
(puffer) machines. The puffer machines represented the first
deployment of a checkpoint technology whose development had
been initiated by TSA. However, it turned out the machines had
been inadequately tested and failed to work in dirty, humid
airport environments. The machines were ultimately removed from
service.
In addition, in 2010, GAO reported that TSA had revised its
explosive detection system (EDS) requirements to better address
current threats, but only some of the EDS machines in TSA's
fleet were configured to detect explosives at the required
levels established in 2005. The remaining EDS machines were
configured to detect explosives at 1998 levels. While TSA
maintained that it was working toward phasing in the new
requirements, some machines were in fact operating at pre-9/11
levels, resulting in a potential security vulnerability.
Further, as part of the FAA Modernization and Reform Act of
2012 (Pub. L. 112-95), in January 2012, Congress mandated that
all Advanced Imaging Technology (AIT) used to screen passengers
had to be equipped with Automatic Target Recognition (ATR)
software. ATR displays a computer generated, generic human
image, which relieves certain passenger privacy concerns. While
millimeter wave AIT machines have been equipped with ATR, ATR
software for the backscatter units was never successfully
tested. Subsequently, TSA ended its contract, the maker of the
backscatter AITs and backscatter units were removed from
airports. Each backscatter AIT machine cost TSA, and in turn,
U.S. taxpayers $150,000. TSA had a total inventory of 246
backscatter AIT machines, at a total cost of $36.9 million.
While the contractor removed and stored all of the units at
their own expense, TSA remained at a loss due to the fact that
it was not able to utilize the machines for their entire life
cycle.
Based on these findings, the Committee believes that TSA,
in collaboration with the Department and stakeholders, would
greatly benefit from a reform of its security-related
technology acquisition policies, procedures, practices, and
culture. The Committee strongly encourages the Administration
to identify, adopt, and implement a comprehensive set of
acquisition reforms that will ultimately lead to more effective
and efficient procurements. It is the belief of the Committee,
supported by GAO recommendations, that TSA would most benefit
from a legislative framework that is based on widely-accepted
acquisition best-practices. As such, the legislative language
in the following sections describes an acquisition framework
that the Committee believes to be necessary for TSA to address
the findings identified in this section. This framework is
based in part on acquisition reforms legislated for the U.S.
Coast Guard under 124 STAT. 2942; Pub. L. 111-281. The Coast
Guard, through formal briefings with Committee Staff, indicated
that such a legislative framework has resulted in more
effective and efficient Coast Guard procurements.
The Committee plans to continue to conduct oversight and
monitor TSA's progress on acquisition reform. The Committee
will consider additional acquisition reform legislation should
such continuing oversight identify additional opportunities for
improvement.
Sec. 3. Transportation Security Administration acquisition
reform
This section amends Title XVI of the Homeland Security Act
of 2002 (116 Stat. 2312).
1601. Definitions
In this subsection, the terms ``Administration'' and
``Administrator'' are defined in the context of the Department
of Homeland Security's Transportation Security Administration
(TSA).
The term ``security-related technology'' is defined to
clarify the scope of acquisitions that are covered under this
legislation. It is the Committee's intent that the acquisition
of any and all security-related technologies that meet this
definition are subject to this legislation. It is the
Committee's intent that security-related acquisitions that do
not involve technology solutions, such as the procurement of
personnel services, would not be subject to this legislation.
However, since this legislation provides a framework that is
based on widely-accepted acquisition best-practices, the
Committee encourages the Department and TSA to apply these
best-practices, where applicable, to the acquisition of all
goods and services.
1611. Multi-year technology investment plan
(a) In general
This subsection requires the Administrator to develop and
report on a multi-year, strategic technology investment plan.
The plan is intended to guide the overall direction of
security-related technology acquisitions, and unclassified
information shared with the public. A classified addendum for
sensitive transportation security risks, technology
vulnerability, etc. may be included. This report is due to
Congress no later than 180 days after enactment of this Act and
every 2 years thereafter.
(b) Consultation
This subsection requires the Administrator to consult with
three Department officials during the development of the plan.
Consultation with the Undersecretary for Management, who also
serves as the Chief Acquisition Officer for the Department,
enables TSA to achieve consistency with the Department's
acquisition policies, directives, and procedures relevant to
acquisition planning. Consultation with the Chief Information
Officer will enable TSA to achieve consistency with the
acquisition policies, directives and procedures for the
acquisition of information technology and relevant cyber-
security assurance. Consultation with the Undersecretary for
Science and Technology (S&T) is consistent with the roles and
responsibilities of the Undersecretary as defined in Section
300 of the Homeland Security Act of 2002. Specifically,
consultation with the Undersecretary for S&T will help ensure
that technology innovation, technology management best-
practices and test & evaluation aspects are being fully
considered during the technology acquisition planning phase.
(c) Approval
This subsection requires that the Administrator seek the
formal approval of the Secretary prior to publication of its
report. It is the Committee's expectation that the Secretary,
acting through the Chief Acquisition Officer, will require
multiple DHS Components to produce similar multi-year
technology investment plans. As such, the Committee encourages
the Secretary to actively integrate these multi-year plans
together to identify opportunities for cross-component
leveraging, elimination of duplicative efforts, and systems
integration. Furthermore, the multi-year plan will likely
identify budgetary needs and gaps for out-year planned
acquisitions, and the Secretary will need to integrate and
prioritize these needs and gaps into the OMB budget planning
process.
(d) Contents of the plan
In this subsection, the contents of the multi-year
technology investment plan are prescribed. The contents
prescribed herein are the minimum contents and it is the
Committee's expectation that TSA will include additional
content as necessary to enable effective multi-year planning.
While the timeline of the plan is not specified in the
legislation, the Committee strongly encourages TSA to cover
near-term (e.g. 1-3 years), mid-term (e.g. 3-7 years), and
long-term (e.g. 8 years and beyond) aspects in the plan. Based
on significant testimony from stakeholders, GAO, and the DHS
IG, the Committee believes that such a multi-year technology
investment plan will enable the private sector to better plan
and invest in their internal research and development
activities.
The multi-year plan is to include an analysis of
transportation security risks and gaps. It is the Committee's
intent that the plan is strategic in nature and derived from
transportation security risks, needs, and gaps as currently
known and projected into the future. The risk and gap analysis
is to draw upon other relevant analyses conducted by the
Federal Government, including the Quadrennial Homeland Security
Review (QHSR).
The multi-year plan is to include a prioritized set of
planned technology programs and projects with clearly defined
objectives, goals, and measures. These programs and projects
should be derived from the risk and gap analysis in order to
achieve an effective risk-based transportation security system.
It is the Committee's expectation that adequate detail will be
provided in these objectives, goals and measures to enable any
interested technology vendor to plan well in advance. The
Committee expects that near-term aspects of the plan will
include activity-level details, whereas longer-term aspects
will be more general in nature.
The Committee notes that the requirements in this bill,
including multi-year planning, only apply to TSA, and other
departments and agencies that are listed herein. The Committee
specifically directs that if TSA identifies a security gap
onboard an aircraft and plans to procure a technology that
would address such gap, nothing in this bill affects the
responsibilities of the Federal Aviation Administration to
ensure that safety standards are adhered to prior to the
deployment of a security technology onboard any aircraft.
The multi-year plan is to include an analysis of current
trends in domestic or international passenger travel. These
trends are especially important as specific passenger
facilities may need to grow or shrink in the future depending
on demand. A projection of such growth or shrinkage is
necessary to adequately plan for the quantities and deployment
locations of security-related equipment.
The multi-year plan is to include an identification of
currently deployed security-related technologies that are
becoming outdated. The Committee strongly encourages TSA to
timely identify such equipment and to make risk-informed
decisions as to whether the equipment should be sustained,
refreshed, or retired.
The multi-year plan is to include an identification of
test, evaluation, modeling, and simulation capabilities for
supporting the technology programs and projects described under
paragraph (a). The Committee believes that an early
identification of these capabilities will help ensure that such
capabilities are made available during the planned
acquisitions. The Committee encourages TSA to look collectively
at needed capabilities including those at TSA, DHS
Transportation Security Laboratory, and third-party
capabilities at universities, national laboratories, and
independent private test facilities.
The multi-year plan is to include an identification of
opportunities for partnerships and collaboration with third
parties. Given the significant interdependence between the
public and private sectors in transportation security, the
Committee strongly encourages the TSA to seek out and implement
innovative opportunities for such partnerships and
collaborations.
The multi-year plan is to include an identification of
acquisition workforce needs. The Committee believes that TSA
and DHS need to continue to work closely together to improve
the quality of TSA's professional acquisition workforce. The
Committee also believes that TSA and DHS would greatly benefit
by learning from, and in some cases directly utilizing,
acquisition professionals from other parts of the Federal
Government that have such expertise. While several branches of
the Federal Government have acquisition expertise, the
Committee notes that private sector stakeholders have cited the
Department of Defense and the National Aeronautics and Space
Administration (NASA) as having extensive expertise that could
be appropriately leveraged.
The multi-year plan is to include an identification of
security resources required to protect security-related
technology from physical or cyber theft, diversion, sabotage or
attack. Acquired equipment will need to be properly protected,
whether it is deployed at a facility or stored in a warehouse.
The Committee believes that it is critically important to
identify how such equipment will be secured and what security
resources will be required. Security resources would include
the appropriate combination of physical security, personnel
security, information security, and other technical security
means. The Committee strongly encourages TSA to use due
diligence with regard to assessing and addressing cyber-
security aspects of all its acquired equipment.
The multi-year plan is to include an identification of
initiatives to streamline the acquisitions process and provide
predictability and clarity for the private sector. The
Committee understands that acquisition is not an exact science
and requires the continuous evaluation and improvement of the
underlying processes. The Committee also believes that such
acquisition processes need to be sufficiently rigorous in order
to lead to effective procurements. That said, such processes
could become overly constraining and overly burdensome and
become inefficient from a mission delivery perspective. The
Committee therefore strongly encourages TSA, in collaboration
with DHS and the private sector, to evaluate and appropriately
streamline its acquisition processes.
(e) Leveraging the private sector
This subsection prescribes the elements of the multi-year
plan for leveraging the private sector. Private sector
leveraging is to be done to the greatest extent possible, as
long as it does not create any unfair or inequitable advantage
to specific vendors or specific segments of the private sector.
The Committee's intent is that ``private sector'' encompasses
small, medium, and large businesses, both for-profit, and non-
profit. The Committee believes that TSA has underutilized
private sector leveraging and has been overly conservative in
its interpretation of the Federal Acquisition Regulations (FAR)
in this regard. Specifically, the Committee encourages TSA to
conduct additional market research through proactive and
extensive industry engagement. The Committee also encourages
TSA, in collaboration with DHS, to educate its acquisition
workforce on the private sector engagement that is possible
within the context of the FAR. The Committee notes that such a
``FAR myth-busting campaign'' has been highly effective at
NASA, resulting in increased technological innovation through
public-private partnering.
The plan is to leverage emerging trends within the private
and public sectors. Security technologies often advance
rapidly, and the Committee believes that it is essential that
TSA understand these trends in order to acquire the latest and
most appropriate security solutions. The Committee encourages
TSA to look at security technologies from other Government
agencies and a broad cross-section of industry. Specifically,
the Committee encourages TSA to consider security-related
technologies that were developed for other security purposes
but could be applied to transportation security.
The plan is to incorporate feedback and input received from
the private sector through a variety of communications
mechanisms. The bill includes a requirement that TSA utilize
innovative means for incorporating feedback and input from the
private sector. The Committee notes that such innovative means
could include social media, webinars, and workshops. The
Committee strongly encourages TSA to proactively identify the
range of technology solutions that could potentially be offered
by the private sector well before committing to a specific
vendor's proposed solution.
The plan is to leverage market research conducted by the
Undersecretary for Science and Technology. The Committee
believes that the DHS Science and Technology Directorate,
particularly within its Homeland Security Advanced Research
Projects Agency (HSARPA), and within its national laboratory
network, have significant technical expertise on emerging
security-related technologies. The Committee encourages TSA to
leverage S&T's expertise and objectively consider these
potential emerging technologies well before committing to a
specific technology solution.
(f) Disclosure
This subsection requires that all non-government persons
involved in writing the plan are disclosed. The Committee
believes that TSA needs to be fully transparent and identify
all third-parties in order to avoid any appearance of
conflicts-of-interest.
(g) Update and report
This subsection requires that the multi-year plan be
updated and transmitted every two years. The subsection also
requires that TSA include a report on whether or not recently
acquired security-related technologies were consistent with the
last issuance of the plan. The Committee believes that it is
important that TSA implement the multi-year plan that it
develops. The Committee also recognizes that plans can change
due to unforeseen circumstances, and encourages TSA to actively
update and republish the plan regularly as needed.
1612. Acquisition justification and reports
(a) Acquisition justification
This subsection requires that TSA conduct an analysis prior
to implementing an acquisition to demonstrate the justification
of the acquisition. While the bill does not specify a timeline
for such an analysis, the Committee encourages TSA to conduct
this analysis as early as possible in the acquisition planning
cycle. And while the bill does not specify the level of detail
of the analysis, the Committee expects that TSA would tailor
the level of detail based on the risk and complexity of the
planned acquisition. Specifically, higher risk and/or higher
complexity acquisitions are expected to require more
justification analysis detail. The Committee strongly
encourages TSA to collaborate with DHS and develop a scalable
acquisition justification process that is both effective and
efficient.
The justification analysis is to include an identification
of the type and level of risk to transportation security that a
technology acquisition would address. The Committee strongly
encourages that this risk analysis be conducted in the context
of the multi-year plan and is based on an overall risk-based
security systems architecture.
The justification analysis is to include an assessment of
how the acquisition aligns with the multi-year technology
investment plan. The Committee believes that it is very
important that TSA implement the multi-year plan that it
develops. Recognizing that unforeseen circumstances may require
a deviation from the plan, the Committee expects TSA to
document the reason for such deviation so that the plan can be
appropriately updated and communicated.
The justification analysis is to include a comparison of
lifecycle costs against total expected benefits to
transportation security. The Committee believes, based on GAO
testimony, that this ``cost-benefit'' analysis is of critical
importance. Such cost-benefit analysis enables TSA to make
objective decisions on whether or not to proceed with a planned
acquisition. While the details of the cost-benefit analysis and
lifecycle cost estimations are not prescribed in the bill, the
Committee strongly encourages TSA to utilize best practices,
such as those published by the GAO, when implementing this
section of the bill.
The justification analysis is to identify alternative
security solutions to determine if such alternatives would
result in a preferred mission outcome. Based on GAO testimony,
the Committee believes that this ``analysis-of-alternatives''
(AOA), is of critical importance. Such an AOA enables TSA to
make objective decisions on whether or not a specific
technology solution is the best approach towards achieving
risk-based security outcomes. When conducting this AOA, the
Committee expects TSA to consider both technical and non-
technical means for addressing security gaps. The Committee
believes that sometimes a security gap can be addressed with
administrative means instead of through a security-related
technology, and such alternative approaches need to be
considered prior to committing to a specific acquisition.
The justification is to include an evaluation of the
privacy and civil liberties implications of the proposed
acquisition and a determination that the proposed acquisition
is consistent with Fair Information Practice Principles
(FIPPs). The bill also requires that the evaluation include
consultation with organizations that advocate for the
protection of privacy and civil liberties to the extent
practicable. The Committee strongly encourages TSA to
collaborate with the DHS Privacy Officer and establish a
process to ensure that privacy and civil liberties issues are
addressed well in advance of deploying a security-related
technology. Using TSA's Advanced Imaging Technology (AIT) as an
example, the Committee notes that a lack of attention to
privacy issues can lead to cost, schedule, and performance
deficiencies during such acquisitions.
The justification is to include confirmation that there are
no significant risks to human health and safety posed by the
proposed technology acquisition. This provision is derived from
the Committee's oversight observations that TSA did not
adequately consider, evaluate, and communicate the human health
aspects of x-ray-based AIT machines. The Committee notes that
TSA must follow applicable Federal rules and standards for
health and safety as issued by other agencies such as the
Environmental Protection Agency and the Occupational Safety and
Health Administration. The Committee also notes that
contractors developing technologies are also required to follow
such applicable rules and standards. The Committee's intent of
this provision is to direct TSA to include in its acquisition
process a confirmation that applicable human and safety risks
have been adequately addressed. The Committee strongly
encourages TSA, in consultation with technology vendors and
other Federal agencies, to identify any applicable health and
safety risks, and develop a plan to mitigate and communicate
risks, as appropriate. The Committee also strongly encourages
TSA to consider and appropriately monitor health and safety
risks throughout the full lifecycle of deployed equipment.
(b) Reports and certification to Congress
This subsection requires that TSA submit the results of its
acquisition analysis to the relevant House and Senate
committees for all planned acquisition contracts that exceed
$30 million. This report is due at least 30 days prior to
placing said contract, but the Committee encourages TSA to
submit notification as early as possible in the acquisition
planning process. Furthermore, the Administrator is to provide
to the relevant House and Senate committees a certification
that the security benefits justify the contract cost. The
Committee expects this certification to derive from the cost-
benefit analysis required under this section.
The purpose of this subsection is to provide transparency
to the American public and enable effective Congressional
oversight. The $30 million threshold was based on the
Committee's analysis of historical TSA acquisitions and a
determination that high-risk and/or high-complexity
acquisitions tend to fall above this threshold. Furthermore,
this threshold provides a reasonable balance between
Congressional oversight needs and potentially burdensome
reporting requirements. While the bill does not require TSA to
notify Congress of acquisitions below this threshold, the
Committee encourages TSA to provide Congressional notification
of any acquisition, regardless of cost, if such notification
would improve transparency to Congress, the American public, or
the private sector. The Committee notes that TSA may continue
to place contracts after providing notification and that this
bill does not require formal Congressional approval for TSA to
proceed.
The Committee recognizes that the Congressional reporting
requirements, while essential for increasing the transparency
for the tax-paying public, could potentially lead to unintended
consequences such as slowing down major acquisition programs.
To address this concern, the Committee has held detailed
discussions with both DHS and TSA, and the reporting thresholds
and requirements herein will compliment, rather than duplicate,
existing reporting processes within DHS and TSA. The Committee
also believes that the legislative language offers sufficient
flexibility so that TSA can tailor its Congressional reports to
minimize additional administrative burdens. The Committee
strongly encourages TSA to implement these new reporting
requirements in a manner that does not unduly delay acquisition
implementation. The Committee is committed to continue working
with TSA to ensure that Congressional reporting remains
mutually beneficial, timely, and value-added.
The reporting requirement includes the ability for the
Administrator to reduce the 30 day notification period to 5
days should there be an imminent threat. The relevant House and
Senate Committees are to receive immediate notice of such an
imminent threat. It is the Committee's intent that a Member
and/or Staff briefing, or appropriate written communication,
would serve as an effective form of notification in the event
of an imminent threat.
1613. Acquisition baseline establishment and reports
(a) Baseline requirements
This subsection prescribes the set of baseline acquisition
requirements that are set prior to implementing a specific
security-related technology acquisition. These requirements are
established and documented by the appropriate acquisition
official of the Department. The Committee believes that
formalization of such requirements should be performed at DHS
rather than at TSA in order to achieve more objective outcomes.
The Committee furthermore believes that the appropriate
acquisition official will depend on the level of risk or
complexity of a specific acquisition. As such, the appropriate
acquisition official is expected to be the Department's Chief
Acquisition Officer, or a designee.
While the bill does not specify a timeline for such a
baseline establishment, the Committee expects the Department
and TSA to establish effective requirements as early as
possible in the acquisition planning cycle. And while the bill
does not specify the level of detail included in these
requirements, the Committee expects that the Department and TSA
would tailor the level of detail based on the risk and
complexity of the planned acquisition. Specifically, higher
risk and/or higher complexity acquisitions are expected to
require more detailed requirements. The Committee strongly
encourages TSA to collaborate with DHS and develop a scalable
acquisition baseline requirements process that is both
effective and efficient.
The contents of the requirements are to address cost,
schedule, and technical performance milestones. Based on
extensive GAO testimony, the Committee believes that
establishment and tracking of all three aspects is critical for
mission success. The Committee strongly encourages DHS and TSA
to utilize best practices, such as those published by the GAO,
when estimating and establishing cost estimates and other key
acquisition parameters. When establishing the baseline
requirements, the Department, working with TSA, is also to
identify acquisition risks and a plan for mitigating risks. The
Committee believes that these risks simultaneously address cost
risks, schedule risks, and technical performance risks, in the
context of the transportation security objectives.
The establishment of the baseline requirements is also to
include efforts to ensure that the performance milestones are
technologically feasible. This feasibility review is conducted
in consultation with the Science and Technology Directorate,
whose expertise in technology development brings additional
objectivity to the requirements establishment process. The
Committee strongly encourages the DHS S&T Directorate to use
quantitative metrics, such as technology readiness levels, when
assessing technological feasibility.
The establishment of the baseline requirements is to
include a test and evaluation plan. The plan is conducted in
consultation with the Science and Technology Directorate. The
minimum contents of the plan are prescribed in the bill and
include: The set of activities required for assessing
technologies against performance milestones; the appropriate
combination of laboratory testing, field testing, modeling,
simulation and supporting analysis; and the schedule for such
test and evaluation activities.
The Committee believes that test and evaluation is a
critical aspect of all security-related technology
acquisitions. Based on GAO testimony, several of TSA's
technology acquisition projects failed to meet objectives due
to inadequate test and evaluation; both in planning and in
execution. The Committee believes that TSA has responded to
GAO's recommendations and is starting to include an extensive
set of test and evaluation activities during its major
acquisitions. That said, the Committee has observed that TSA's
most recent approach to test and evaluation is not very
efficient. Specifically, the Committee observes that TSA
executes many of its test and evaluation activities, including
laboratory tests and field tests in a consecutive fashion. This
series approach appears to have significantly extended the time
it takes for TSA to accept new technologies and deploy them at
checkpoints. The Committee encourages TSA to explore parallel
approaches to shorten the test and evaluation schedules, while
still retaining an effective technology evaluation against
requirements. The Committee strongly encourages TSA, in
collaboration with S&T and the private sector, to establish a
test and evaluation process that is scalable, effective and
efficient. The Committee strongly encourages TSA to share its
test and evaluation plan with all stakeholders to increase
transparency and improve industry's ability to budget and plan
for testing, particularly small businesses that may not have as
many resources at their disposal for continuous testing over
several years.
The establishment of baseline requirements is also to
include verification and validation (V&V) activities. The bill
requires that V&V activities be managed by the Department in
order to lead to more objective outcomes. While the bill does
not specify the level of detail included in these V&V
activities, the Committee expects that the Department and TSA
would tailor the level of detail based on the risk and
complexity of the planned acquisition. Although the bill
requires that only those acquisitions that are identified as
highest priority undergo V&V, the Committee encourages DHS and
TSA to consider use of V&V in any acquisition that is of high
risk and/or high complexity. The Committee expects independent
V&V to be conducted prior to officially establishing the
baseline requirements, and to continue during implementation of
the acquisition, as appropriate. In that manner, there would be
periodic third-party assessment that the acquisition has a set
of well-established requirements and that the implemented
acquisition is meeting all those requirements. The Committee
recognizes that V&V activities may add costs and/or time to the
acquisition schedule, so the Committee encourages DHS and TSA
to work together to establish a scalable, risk-based V&V
process that is both effective and schedule efficient. For this
reason, the bill requires that independent V&V not unduly delay
the schedule of such security-related acquisitions.
The establishment of baseline requirements also requires
that TSA establish a streamlined process for the technology
vendor community to obtain access to these requirements. The
Committee believes that TSA needs to improve its transparency
when communicating requirements to technology vendors, so that
they can better plan for technology development. The Committee
recognizes that some baseline requirements may contain
sensitive security information and/or classified information.
As such, the Committee expects TSA to establish a process that
appropriately manages need-to-know aspects while balancing the
need for transparency, open competition, and technology
innovation. This is particularly important for small businesses
that may not have staff with security clearances. Such
companies may have a better product, but they are at a
competitive disadvantage to companies that already have cleared
staff who can review performance requirements--requirements
that oftentimes are not technically ``classified'' but rather
deemed ``sensitive'' by TSA.
(b) Review of baseline requirements and deviation; reports to
Congress
This subsection requires that the Department review and
assess each technology acquisition during its implementation to
determine if the acquisition is meeting the documented baseline
requirements. Although the time period is not prescribed in the
bill, the Committee expects that acquisitions will be reviewed
periodically, with higher risk and/or higher complexity
acquisitions reviewed more frequently and in more depth. The
Committee strongly encourages that during such reviews, cost,
schedule, and performance aspects are assessed. The review of
baseline requirements is to include an assessment that planned
test and evaluation activities have been completed and the
results demonstrate that performance milestones remain
technologically feasible. The Committee expects that the
outcome of such reviews will result in documented decisions
that include: Continuation of the acquisition according to
plan; corrective actions; a re-baseline of the acquisition; or
a cancellation of the acquisition.
The bill requires that TSA report to the appropriate House
and Senate committees the result of any assessment that finds a
significant deviation from baseline requirements. These
significant deviations, referred to as an ``acquisition
breach'', occur when TSA identifies that the cost, schedule, or
performance thresholds exceed a prescribed threshold. These
thresholds (e.g. 10 percent or 180 days) were determined from
the Committee's analysis of historical TSA acquisitions and are
believed to provide the appropriate balance between
transparency, oversight, and efficient acquisition
implementation. The Committee notes that these thresholds are
similar to those required under law for other departments and
agencies within the Federal Government and are consistent with
current internal DHS policy. The bill further requires that the
report of such an acquisition breach include the cause and
corrective actions, and be delivered within 30 days of
identifying such a breach. The Committee expects TSA and DHS to
be fully transparent in reporting potential or actual breaches.
The Committee also expects that such reports be provided
through briefings or other appropriate written notifications.
1614. Inventory utilization
(a) In general
This subsection requires TSA, to the extent practicable, to
utilize applicable existing equipment in its inventory prior to
procuring additional quantities of that equipment. In some
cases, the Committee has observed that TSA stockpiles large
quantities of screening equipment in warehouses. In other
cases, the Committee has observed that TSA waits until it
urgently needs the equipment at a specific checkpoint before
placing a procurement contract. This inconsistent inventory
management approach makes it difficult for vendors, airport
operators, and security personnel to properly plan for the
procurement, deployment, and implementation of security-related
technologies. Therefore, the Committee strongly encourages TSA,
in collaboration with DHS and private sector stakeholders, to
establish a risk-based process for inventory management that is
both effective and efficient.
(b) Tracking of inventory
This subsection requires TSA to establish a process for
tracking the location, utilization status, and quantity of
equipment in inventory, and to implement effective controls for
utilizing its inventory. The Committee strongly encourages TSA
to leverage and adopt inventory management tools that are based
on best-practices. The Committee notes that GAO has published
such inventory best practices. And the Committee notes that the
Department of Defense has extensive inventory management tools
that could be potentially leveraged for TSA's mission.
For example, according to a report released by the
Department of Homeland Security (DHS) Inspector General (OIG-
913-113), the Department cannot account for radio equipment.
The report found that the Department has no reliable way to
create an inventory of existing radio systems, and component-
level data is often inaccurate and incomplete. Specifically,
TSA was unable to provide the name, description, or condition
of radios or their batteries. The IG report also found that
without significant reforms, significant funds could be wasted
on current and future radio procurement programs.
(c) Logistics management
This subsection requires TSA to establish logistics
principles for managing inventory in an effective and efficient
manner. In particular, the Committee expects TSA to establish
under what circumstances a ``just-in-time-delivery'' would be
most appropriate and under what circumstances a ``deliver-to-
inventory'' approach would be preferred. For example, the bill
limits the use of just-in-time logistics if doing so would
inhibit planning for a large-scale deployment or would unduly
diminish surge capacity for response to a terrorist threat.
The Committee notes that in mid-2012, DHS established a
policy that required TSA to deliver equipment directly to the
airport destination so that TSA does not need to store units in
warehouses. The Committee believes that the implementation of
this policy did not adequately consider the fact that airport
construction projects are typically multi-year efforts and TSA
must order equipment well in advance to align to planned
construction schedules. If a construction schedule slips, as
they often do, TSA's ordering plan and delivery schedule for
the equipment would need to be adjusted since the policy did
not make accommodations for temporary warehousing. The
Committee notes that during the procurement of Explosive
Detection Systems (EDS) in December of 2012, TSA delayed the
equipment deliveries within weeks of contractually determined
schedules due to changes in airport project schedules. The
Committee believes that last minute delivery schedule changes
of this nature are extremely disruptive and costly in the short
term and could ultimately jeopardize the industrial base and
manufacturing supply chain in the long term. The Committee
further believes that ``just-in-time'' logistics is not the
best approach in all circumstances, particularly for low-volume
or specialized equipment with long lead-times and few global
customers. The Committee strongly encourages DHS and TSA to use
its best judgment on when and where to apply various logistical
approaches. The Committee believes that once TSA publishes a
set of logistics principles, then their acquisition officials
will be better educated on how to balance the use of various
logistics options.
1615. Small business contracting goals
This section requires TSA to submit to the relevant House
and Senate committees a report on its small business
contracting goals. The report is due 90 days after enactment
and annually thereafter. The Congressional intent of this
section is to encourage TSA to manage its small business
contracting in a manner that could potentially improve
technology innovation during the acquisition process. The
Committee encourages TSA to implement this section in
consultation with the DHS Office of Small and Disadvantaged
Business Utilization.
The small business goals are required to be restated in the
Congressional Report. And TSA's performance towards meeting
those goals during the prior fiscal year are to be reported.
The Committee believes that the small business goals need to be
set so that they are credible, achievable, and lead to the
desired outcome of improved innovation. The Committee
recognizes that such goals may be set by the Department, or in
some cases, by other Government entities. The Committee
encourages TSA to strive to meet those goals, even when they
are set by others. The Committee also recognizes that small
businesses may not have adequate capabilities or expertise to
directly deliver large quantities of complex security equipment
to meet TSA's mission needs. The Committee believes that small
businesses, when they partner with larger business, may
increase their likelihood of introducing innovative ideas and
technologies into the TSA security system. For that reason, the
Committee strongly encourages TSA to track and report on small
business subcontracting goals to complement their small
business prime contracting goals.
If TSA under achieves its stated small business contracting
goals for a given year, then the bill requires that TSA report
on the challenges that contributed to that underachievement,
including whether deviations from the Administration's
subcontracting plans or contract bundling were contributing
factors. Additionally, the bill requires that TSA develop and
report on an action plan for addressing those challenges. The
Congressional Report is to include an action plan, with
benchmarks, for addressing underachievement, which is to be
developed following consultation with other relevant Federal
agencies. The Committee recognizes that small business
contracting is a complex policy issue, and encourages TSA to
implement this section of the bill in a manner that leads to
increased innovation while providing fairness of opportunity.
1616. Consistency with the Federal Acquisition Regulation and
Departmental policies and directives
This section of the bill requires TSA to execute the
provisions of Subtitle B in a manner consistent with, and not
duplicative of, the Federal Acquisition Regulation (FAR) and
DHS policies and directives. In conducting Congressional
oversight on security-related technology acquisition at TSA,
the Committee extensively researched the acquisition
requirements to which TSA is already subject. The Committee
notes that DHS and TSA are required by statute to follow the
FAR, and the Committee believes that nothing in this bill
supersedes nor duplicates applicable sections of the FAR.
While TSA is required to follow DHS internal acquisition
policy and directives, Congress has found, per Section 2, that
TSA has not always consistently implemented these policies and
directives. It is therefore the Committee's intent to codify
into law, through this bill, those critical acquisition best-
practices with which DHS already requires TSA to comply. With
the exception of the multi-year technology investment plan, the
Committee believes that all the acquisition reforms prescribed
in the bill are already a Departmental requirement for TSA, and
therefore should not lead to any duplication or inconsistency.
As of the writing of this report, the Committee understands
that GAO has recommended that DHS broadly implement multi-year
technology acquisition plans, and that TSA is in the process of
developing such multi-year plans. Therefore, the Committee
believes that all provisions of this bill are relatively
straightforward for TSA to implement, and strongly encourages
TSA to implement these provisions in a streamlined, effective
manner.
Sec. 4. Government Accountability Office reports
This section requires the GAO to evaluate and report on
TSA's progress in implementing subtitle B of this bill. The
evaluation and report are to include an identification of
efficiencies, cost savings, or delays that have resulted from
such implementation. The purpose of this section is to gather
data and assess TSA's ongoing performance in acquiring
security-related technologies. These GAO reports provide
important input for continuing Congressional oversight and
provide additional transparency for the American public.
Sec. 5. Report on feasibility of inventory tracking
This section requires TSA to report to Congress on the
feasibility of tracking its security-related technologies using
automated information and data capture technologies.
Sec. 6. Government Accountability Office review of TSA's test
and evaluation process
This section requires the GAO to evaluate and report to
Congress on the Transportation Security Administration's
testing and evaluation activities related to security-related
technologies. The report is to include information on the
extent to which the execution of such testing and evaluation
activities is aligned with TSA's acquisition needs, planned
procurements, and acquisitions for technology programs and
projects; the extent to which security-related technologies
that have been tested, evaluated, and certified for use by TSA
are not procured by TSA; and recommendations for how TSA can
improve the efficiency and efficacy of such testing and
evaluation activities and better align such testing and
evaluation with the acquisitions process.
The Committee has been informed by businesses both large
and small that TSA's testing and evaluation process may be
overly cumbersome and, as a result, drive participation in the
marketplace down. While the Committee encourages a test and
evaluation process that produces effective security-related
technologies, it recognizes that such a process must be
conducted in the most efficient and cost-effective way
possible. The failure to do so will result in increased cost to
taxpayers due to the lack of competition in the marketplace.
The Committee believes this dynamic is especially true for
small business that may have innovative security-related
technologies capable of improving the passenger screening
experience and security but lack the capital necessary to
survive a test and evaluation process that may be unnecessarily
cumbersome.
Sec. 7. No additional authorization of appropriations
This section requires the provisions of this bill to be
carried out using amounts otherwise available. The Committee
believes that the reform provisions in this bill largely
already exist in current Department policies and directives. As
such, the Committee believes that TSA should appropriately
absorb the minimal costs required to improve its acquisition
performance, report to Congress, and increase its transparency.
The Committee strongly encourages TSA to implement these
provisions in a manner that leads to more effective and
efficient acquisitions, thereby resulting in long-term Federal
Government savings.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents for this Act is
as follows:
* * * * * * *
[TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE
TRANSPORTATION SECURITY
[Sec. 1601. Retention of security sensitive information authority at
Department of Transportation.
[Sec. 1602. Increase in civil penalties.
[Sec. 1603. Allowing United States citizens and United States nationals
as screeners.]
TITLE XVI--TRANSPORTATION SECURITY
Subtitle A--General Provisions
Sec. 1601. Definitions.
Subtitle B--Transportation Security Administration Acquisition
Improvements
Sec. 1611. Multiyear technology investment plan.
Sec. 1612. Acquisition justification and reports.
Sec. 1613. Acquisition baseline establishment and reports.
Sec. 1614. Inventory utilization.
Sec. 1615. Small business contracting goals.
Sec. 1616. Consistency with the Federal Acquisition Regulation and
departmental policies and directives.
* * * * * * *
[TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE
TRANSPORTATION SECURITY
[SEC. 1601. RETENTION OF SECURITY SENSITIVE INFORMATION AUTHORITY AT
DEPARTMENT OF TRANSPORTATION
[(a) Section 40119 of title 49, United States Code, is
amended--
[(1) in subsection (a)--
[(A) by inserting ``and the Administrator of
the Federal Aviation Administration each''
after ``for Security''; and
[(B) by striking ``criminal violence and
aircraft piracy'' and inserting ``criminal
violence, aircraft piracy, and terrorism and to
ensure security''; and
[(2) in subsection (b)(1)--
[(A) by striking ``, the Under Secretary''
and inserting ``and the establishment of a
Department of Homeland Security, the Secretary
of Transportation'';
[(B) by striking ``carrying out'' and all
that follows through ``if the Under Secretary''
and inserting ``ensuring security under this
title if the Secretary of Transportation''; and
[(C) in subparagraph (C) by striking ``the
safety of passengers in transportation'' and
inserting ``transportation safety''.
[(b) Section 114 of title 49, United States Code, is amended
by adding at the end the following:
[``(s) Nondisclosure of security activities
[``(1) In general.--Notwithstanding section 552 of
title 5, the Under Secretary shall prescribe
regulations prohibiting the disclosure of information
obtained or developed in carrying out security under
authority of the Aviation and Transportation Security
Act (Public Law 107-71) or under chapter 449 of this
title if the Under Secretary decides that disclosing
the information would--
[``(A) be an unwarranted invasion of personal
privacy;
[``(B) reveal a trade secret or privileged or
confidential commercial or financial
information; or
[``(C) be detrimental to the security of
transportation.
[``(2) Availability of information to congress.--
Paragraph (1) does not authorize information to be
withheld from a committee of Congress authorized to
have the information.
[``(3) Limitation on transferability of duties.--
Except as otherwise provided by law, the Under
Secretary may not transfer a duty or power under this
subsection to another department, agency, or
instrumentality of the United States.''.
[SEC. 1602. INCREASE IN CIVIL PENALTIES
[Section 46301(a) of title 49, United States Code, is amended
by adding at the end the following:
[``(8) Aviation security violations.--Notwithstanding
paragraphs (1) and (2) of this subsection, the maximum
civil penalty for violating chapter 449 or another
requirement under this title administered by the Under
Secretary of Transportation for Security shall be
$10,000; except that the maximum civil penalty shall be
$25,000 in the case of a person operating an aircraft
for the transportation of passengers or property for
compensation (except an individual serving as an
airman).''.
[SEC. 1603. ALLOWING UNITED STATES CITIZENS AND UNITED STATES NATIONALS
AS SCREENERS
[Section 44935(e)(2)(A)(ii) of title 49, United States Code,
is amended by striking ``citizen of the United States'' and
inserting ``citizen of the United States or a national of the
United States, as defined in section 1101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22))''.]
TITLE XVI--TRANSPORTATION SECURITY
Subtitle A--General Provisions
SEC. 1601. DEFINITIONS.
In this title:
(1) Administration.--The term ``Administration''
means the Transportation Security Administration.
(2) Administrator.--The term ``Administrator'' means
the Administrator of the Transportation Security
Administration.
(3) Security-related technology.--The term
``security-related technology'' means any technology
that assists the Administration in the prevention of,
or defense against, threats to United States
transportation systems, including threats to people,
property, and information.
Subtitle B--Transportation Security Administration Acquisition
Improvements
SEC. 1611. MULTIYEAR TECHNOLOGY INVESTMENT PLAN.
(a) In General.--The Administrator--
(1) not later than 180 days after the date of
enactment of the Transportation Security Acquisition
Reform Act, shall develop and transmit to Congress a
strategic multiyear technology investment plan, which
may include a classified addendum to report sensitive
transportation security risks, technology
vulnerabilities, or other sensitive security
information; and
(2) to the extent possible, shall publish such plan
in an unclassified format within the public domain.
(b) Consultation.--The Administrator shall develop the
multiyear technology investment plan in consultation with the
Under Secretary for Management, the Chief Information Officer,
and the Under Secretary for Science and Technology.
(c) Approval.--The Secretary must have approved the multiyear
technology investment plan before it is published under
subsection (a)(2).
(d) Contents of Plan.--The multiyear technology investment
plan shall include the following:
(1) An analysis of transportation security risks and
the associated technology gaps, including consideration
of the most recent Quadrennial Homeland Security Review
under section 707.
(2) A set of transportation security-related
technology acquisition needs that--
(A) is prioritized based on risk and gaps
identified under paragraph (1); and
(B) includes planned technology programs and
projects with defined objectives, goals, and
measures.
(3) An analysis of current trends in domestic and
international passenger travel.
(4) An identification of currently deployed security-
related technologies that are at or near the end of
their lifecycle.
(5) An identification of test, evaluation, modeling,
and simulation capabilities that will be required to
support the acquisition of the security-related
technologies to meet those needs.
(6) An identification of opportunities for public-
private partnerships, small and disadvantaged company
participation, intragovernment collaboration,
university centers of excellence, and national
laboratory technology transfer.
(7) An identification of the Administration's
acquisition workforce needs that will be required for
the management of planned security-related technology
acquisitions, including consideration of leveraging
acquisition expertise of other Federal agencies.
(8) An identification of the security resources,
including information security resources, that will be
required to protect security-related technology from
physical or cyber theft, diversion, sabotage, or
attack.
(9) An identification of initiatives to streamline
the Administration's acquisition process and provide
greater predictability and clarity to small, medium,
and large businesses, including the timeline for
testing and evaluation.
(e) Leveraging the Private Sector.--To the extent possible,
and in a manner that is consistent with fair and equitable
practices, the plan shall--
(1) leverage emerging technology trends and research
and development investment trends within the public and
private sectors;
(2) incorporate feedback and input received from the
private sector through requests for information,
industry days, and other innovative means consistent
with the Federal Acquisition Regulation; and
(3) leverage market research conducted by the Under
Secretary for Science and Technology to identify
technologies that exist or are in development that,
with or without adaptation, could be utilized to meet
mission needs.
(f) Disclosure.--The Administrator shall include with the
plan required under this section a list of any nongovernment
persons that contributed to the writing of the plan.
(g) Update and Report.--Once every 2 years after the initial
strategic plan is transmitted to Congress, the Administrator
shall transmit to Congress an update of the plan and a report
on the extent to which each security-related technology
acquired by the Administration since the last issuance or
update of the plan is consistent with the planned technology
programs and projects identified under subsection (d)(2) for
that technology.
SEC. 1612. ACQUISITION JUSTIFICATION AND REPORTS.
(a) Acquisition Justification.--Before the Administration
implements any security-related technology acquisition, the
Administrator shall, in accordance with the Department's
policies and directives, conduct a comprehensive analysis to
determine whether the acquisition is justified. The analysis
shall include, but may not be limited to, the following:
(1) An identification of the type and level of risk
to transportation security that would be addressed by
such technology acquisition.
(2) An assessment of how the proposed acquisition
aligns to the multiyear technology investment plan
developed under section 1611.
(3) A comparison of the total expected lifecycle cost
against the total expected quantitative and qualitative
benefits to transportation security.
(4) An analysis of alternative security solutions to
determine if the proposed technology acquisition is the
most effective and cost-efficient solution based on
cost-benefit considerations.
(5) An evaluation of the privacy and civil liberties
implications of the proposed acquisition, and a
determination that the proposed acquisition is
consistent with fair information practice principles
issued by the Privacy Officer of the Department. To the
extent practicable, the evaluation shall include
consultation with organizations that advocate for the
protection of privacy and civil liberties.
(6) Confirmation that there are no significant risks
to human health and safety posed by the proposed
acquisition.
(b) Reports and Certification to Congress.--
(1) In general.--Not later than the end of the 30-day
period preceding the award by the Administration of a
contract for any security-related technology
acquisition exceeding $30,000,000, the Administrator
shall submit to the Committee on Homeland Security of
the House of Representatives and the Committee on
Commerce, Science, and Transportation of the Senate the
results of the comprehensive acquisition analysis
required under this section and a certification by the
Administrator that the security benefits justify the
contract cost.
(2) Extension due to imminent terrorist threat.--If
there is a known or suspected imminent threat to
transportation security, the Administrator may reduce
the 30-day period under paragraph (1) to 5 days in
order to rapidly respond.
(3) Notice to congress.--The Administrator shall
provide immediate notice of such imminent threat to the
Committee on Homeland Security of the House of
Representatives and the Committee on Commerce, Science,
and Transportation of the Senate.
SEC. 1613. ACQUISITION BASELINE ESTABLISHMENT AND REPORTS.
(a) Baseline Requirements.--
(1) In general.--Before the Administration implements
any security-related technology acquisition, the
appropriate acquisition official of the Department
shall establish and document a set of formal baseline
requirements.
(2) Contents.--The baseline requirements shall--
(A) include the estimated costs (including
lifecycle costs), schedule, and performance
milestones for the planned duration of the
acquisition; and
(B) identify the acquisition risks and a plan
for mitigating these risks.
(3) Feasibility.--In establishing the performance
milestones under paragraph (2), the appropriate
acquisition official of the Department shall, to the
extent possible and in consultation with the Under
Secretary for Science and Technology, ensure that
achieving these milestones is technologically feasible.
(4) Test and evaluation plan.--The Administrator, in
consultation with the Under Secretary for Science and
Technology, shall develop a test and evaluation plan
that, at a minimum, describes--
(A) the activities that will be required to
assess acquired technologies against the
performance milestones established under
paragraph (2);
(B) the necessary and cost-effective
combination of laboratory testing, field
testing, modeling, simulation, and supporting
analysis to ensure that such technologies meet
the Administration's mission needs; and
(C) an efficient schedule to ensure that test
and evaluation activities are completed without
undue delay.
(5) Verification and validation.--The appropriate
acquisition official of the Department--
(A) subject to subparagraph (B), shall
utilize independent reviewers to verify and
validate the performance milestones and cost
estimates developed under paragraph (2) for a
security-related technology that pursuant to
section 1611(d)(2) has been identified as a
high priority need in the most recent multiyear
technology investment plan; and
(B) shall ensure that the utilization of
independent reviewers does not unduly delay the
schedule of any acquisition.
(6) Streamlining access for interested vendors.--The
Administrator shall establish a streamlined process for
an interested vendor of a security-related technology
to request and receive appropriate access to the
baseline requirements and test and evaluation plans
that are necessary for the vendor to participate in the
acquisitions process for such technology.
(b) Review of Baseline Requirements and Deviation; Report to
Congress.--
(1) Review.--
(A) In general.--The appropriate acquisition
official of the Department shall review and
assess each implemented acquisition to
determine if the acquisition is meeting the
baseline requirements established under
subsection (a).
(B) Test and evaluation assessment.--The
review shall include an assessment of whether
the planned testing and evaluation activities
have been completed and the results of such
testing and evaluation demonstrate that the
performance milestones are technologically
feasible.
(2) Report.--
(A) In general.--The Administrator shall
report to the Committee on Homeland Security of
the House of Representatives and the Committee
on Commerce, Science, and Transportation of the
Senate the results of any assessment that finds
that--
(i) the actual or planned costs
exceed the baseline costs by more than
10 percent;
(ii) the actual or planned schedule
for delivery has been delayed by more
than 180 days; or
(iii) there is a failure to meet any
performance milestone that directly
impacts security effectiveness.
(B) Cause.--The report shall include the
cause for such excessive costs, delay, or
failure, and a plan for corrective action.
(C) Timeliness.--The report required under
this section shall be provided to the Committee
on Homeland Security of the House of
Representatives and the Committee on Commerce,
Science, and Transportation of the Senate no
later than 30 days after identifying such
excessive costs, delay, or failure.
SEC. 1614. INVENTORY UTILIZATION.
(a) In General.--Before the procurement of additional
quantities of equipment to fulfill a mission need, the
Administrator shall, to the extent practicable, utilize any
existing units in the Administration's inventory to meet that
need.
(b) Tracking of Inventory.--
(1) Location.--The Administrator shall establish a
process for tracking the location of security-related
equipment in such inventory.
(2) Utilization.--The Administrator shall--
(A) establish a process for tracking the
utilization status of security-related
technology in such inventory; and
(B) implement internal controls to ensure
accurate data on security-related technology
utilization.
(3) Quantity.--The Administrator shall establish a
process for tracking the quantity of security-related
equipment in such inventory.
(c) Logistics Management.--
(1) In general.--The Administrator shall establish
logistics principles for managing inventory in an
effective and efficient manner.
(2) Limitation on just-in-time logistics.--The
Administrator may not use just-in-time logistics if
doing so would--
(A) inhibit necessary planning for large-
scale delivery of equipment to airports or
other facilities; or
(B) unduly diminish surge capacity for
response to a terrorist threat.
SEC. 1615. SMALL BUSINESS CONTRACTING GOALS.
Not later than 90 days after the date of enactment of the
Transportation Security Acquisition Reform Act, and annually
thereafter, the Administrator shall submit to the Committee on
Homeland Security of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the
Senate a report that includes the following:
(1) A restatement of the Administration's published
goals for contracting with small businesses, including
small and disadvantaged businesses, and the
Administration's performance record with respect to
meeting those goals during the preceding fiscal year.
(2) If such goals were not met, or the
Administration's performance was below the published
goals of the Department, an itemized list of
challenges, including deviations from the
Administration's subcontracting plans and the extent to
which contract bundling was a factor, that contributed
to the level of performance during the preceding fiscal
year.
(3) An action plan, with benchmarks, for addressing
each of the challenges identified in paragraph (2),
prepared after consultation with the Secretary of
Defense and the heads of Federal departments and
agencies that achieved their published goals for prime
contracting with small and minority owned businesses,
including small and disadvantaged businesses, in prior
fiscal years, to identify policies and procedures that
could be incorporated at the Administration in
furtherance of achieving the Administration's published
goal for such contracting.
(4) The status of implementing such action plan that
was developed in the preceding fiscal year in
accordance with paragraph (3).
SEC. 1616. CONSISTENCY WITH THE FEDERAL ACQUISITION REGULATION AND
DEPARTMENTAL POLICIES AND DIRECTIVES.
The Administrator shall execute responsibilities set forth in
this subtitle in a manner consistent with, and not duplicative
of, the Federal Acquisition Regulation and the Department's
policies and directives.
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