CODER Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 3093 To establish acquisition pathways for software applications and software up- grades and software development and software acquisition training and management programs for the Department of Defense, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 4, 2019 Ms. SLOTKIN introduced the following bill; which was referred to the Committee on Armed Services A BILL To establish acquisition pathways for software applications and software upgrades and software development and software acquisition training and management programs for the Department of Defense, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Creating Opportunities 4 through Defense Engineering Requirements Act of 2019’’ 5 or the ‘‘CODER Act of 2019’’. 6 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 2 •HR 3093 IH SEC. 2. ESTABLISHMENT OF ACQUISITION PATHWAYS FOR 1 SOFTWARE APPLICATIONS AND SOFTWARE 2 UPGRADES. 3 (a) GUIDANCE REQUIRED.—Not later than March 1, 4 2020, the Secretary of Defense shall establish guidance 5 authorizing the use of acquisition pathways described in 6 subsection (b) for the rapid acquisition of software appli- 7 cations and software upgrades that are intended to be 8 fielded within one year. A contract awarded under this sec- 9 tion— 10 (1) shall be in an amount equal to or less than 11 $50,000,000; and 12 (2) may be entered into for a period of not 13 more than one year. 14 (b) SOFTWARE ACQUISITION PATHWAYS.—The guid- 15 ance required by subsection (a) shall provide for the use 16 of the following two acquisition pathways: 17 (1) APPLICATIONS.—The applications pathway 18 shall provide for the use of rapid development and 19 implementation of software applications to be used 20 with commercially available hardware. 21 (2) UPGRADES.—The upgrades pathway shall 22 provide for the rapid development and insertion of 23 software upgrades for embedded weapon systems or 24 another hardware system solely used by the Depart- 25 ment of Defense. 26 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 3 •HR 3093 IH (c) GENERAL REQUIREMENTS.—The guidance re- 1 quired by subsection (a) shall provide for— 2 (1) the use of proven technologies and solutions 3 to continuously engineer, update, and deliver capa- 4 bilities in software; and 5 (2) a streamlined and coordinated require- 6 ments, budget, and acquisition process that results 7 in the rapid fielding of software applications and 8 software upgrades. 9 (d) EXPEDITED PROCESS.— 10 (1) IN GENERAL.—An acquisition conducted 11 under the guidance required by subsection (a) shall 12 not be subject to the Joint Capabilities Integration 13 and Development System Manual and Department 14 of Defense Directive 5000.01, except to the extent 15 specifically provided in such guidance. 16 (2) REQUIREMENTS PROCESS.—The guidance 17 required by subsection (a) shall provide that the re- 18 quirements for acquisition of software applications 19 and software upgrades— 20 (A) are developed, refined, and prioritized 21 on an iterative basis through continuous partici- 22 pation and collaboration by users, testers, and 23 requirements authorities; 24 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 4 •HR 3093 IH (B) include an identification of the need 1 for, and users of, the software to be acquired 2 and a rationale for how the software will sup- 3 port increased efficiency of the Department of 4 Defense; 5 (C) are stated in the form of a summary- 6 level list of vulnerabilities in existing software 7 systems and desired features or capabilities of 8 the software to be acquired; and 9 (D) consider issues related to lifecycle 10 costs, systems interoperability, and logistics 11 support if the developer of the software to be 12 acquired stops providing support. 13 (3) EXECUTION OF RAPID ACQUISITIONS.—The 14 Secretary shall ensure that— 15 (A) an acquisition conducted under the 16 guidance required by subsection (a) is sup- 17 ported by an entity capable of regular auto- 18 mated testing of the source code of the software 19 to be acquired and that such entity is author- 20 ized to buy storage, bandwidth, and computing 21 capability as necessary; 22 (B) the Department of Defense can collect 23 and analyze the testing data described in sub- 24 VerDate Sep 11 2014 02:08 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 5 •HR 3093 IH paragraph (A) to make decisions regarding soft- 1 ware acquisition and oversight; 2 (C) the Director of Operational Test and 3 Evaluation and the project manager appointed 4 under paragraph (5) design test cases to ensure 5 that the entity described in subparagraph (A) 6 can test the software to be acquired to ensure 7 such software meets the requirements of the 8 contract; 9 (D) the project manager appointed under 10 paragraph (5) closely monitors the progress of 11 an acquisition conducted under the guidance re- 12 quired by subsection (a); 13 (E) an independent cost estimate is con- 14 ducted that considers— 15 (i) the iterative process of the develop- 16 ment of the software to be acquired; and 17 (ii) the long-term value of the soft- 18 ware to be acquired to the Department of 19 Defense, not based on the value of indi- 20 vidual lines of source code of the software; 21 (F) the performance of fielded versions of 22 the software to be acquired are demonstrated 23 and evaluated in an operational environment; 24 and 25 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 6 •HR 3093 IH (G) performance metrics of the software to 1 be acquired, such as metrics relating to when 2 the software can be fielded, delivery capabilities 3 of the software (including speed of recovery 4 from outages and cybersecurity vulnerabilities), 5 and assessments and estimations of the size 6 and complexity of such software, are automati- 7 cally generated on a continuous basis and made 8 available to the Department of Defense and the 9 congressional defense committees. 10 (4) ADMINISTRATION OF SOFTWARE ACQUISI- 11 TION PATHWAYS.—The guidance required by sub- 12 section (a) may provide for the use of any of the fol- 13 lowing streamlined procedures: 14 (A) The service acquisition executive of the 15 military department concerned shall appoint a 16 project manager for each acquisition of software 17 applications and software upgrades, as deter- 18 mined by the service acquisition executive. Such 19 project manager shall be appointed from among 20 civilian employees or members of the Armed 21 Forces who have significant and relevant expe- 22 rience in current software processes. 23 (B) Each project manager shall report 24 with respect to such acquisition directly, and 25 VerDate Sep 11 2014 02:08 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 7 •HR 3093 IH without intervening review or approval, to the 1 service acquisition executive of the military de- 2 partment concerned. 3 (C) The service acquisition executive of the 4 military department concerned shall evaluate 5 the job performance of such manager on an an- 6 nual basis. In conducting an evaluation under 7 this paragraph, a service acquisition executive 8 shall consider the extent to which the manager 9 has achieved the objectives of the acquisition 10 for which the manager is responsible, including 11 quality, timeliness, and cost objectives. 12 (D) The project manager shall be author- 13 ized staff positions for a technical staff, includ- 14 ing experts in software engineering to enable 15 the manager to manage the acquisition without 16 the technical assistance of another organiza- 17 tional unit of an agency to the maximum extent 18 practicable. 19 (E) The project manager shall be author- 20 ized, in coordination with the users and testers 21 of the software to be acquired, to make trade- 22 offs among lifecycle costs, requirements, and 23 schedules to meet the goals of the acquisition. 24 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 8 •HR 3093 IH (F) The service acquisition executive or the 1 Under Secretary of Defense for Acquisition and 2 Sustainment, as applicable, shall serve as the 3 decision authority for the acquisition. 4 (G) The project manager of a defense 5 streamlined acquisition shall be provided a 6 process to expeditiously seek a waiver from 7 Congress from any statutory or regulatory re- 8 quirement that the project manager determines 9 adds little or no value to the management of 10 the acquisition. 11 (e) CONTRACT TERMS.— 12 (1) IN GENERAL.—A contract entered into pur- 13 suant to the guidance required by subsection (a)— 14 (A) may be awarded within a 90-day pe- 15 riod after solicitation on the basis of— 16 (i) statements of qualifications and 17 past performance data submitted by 18 offerors; and 19 (ii) discussions with two or more 20 qualified offerors without regard to price; 21 (B) may be a time-and-materials contract; 22 (C) shall be treated as a contract for the 23 acquisition of commercial services (as defined in 24 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 9 •HR 3093 IH section 103a of title 41, United States Code, as 1 in effect on January 1, 2020); 2 (D) shall identify the individuals to per- 3 form the work of the contract, and such individ- 4 uals may not be replaced without the advance 5 written consent of the contracting officer; and 6 (E) may allow for a contractor performing 7 the work of the contract to review existing soft- 8 ware in consultation with the user community 9 and incorporate user feedback to— 10 (i) define and prioritize software re- 11 quirements; and 12 (ii) design and implement new soft- 13 ware applications and software upgrades. 14 (2) OPTIONS.—A contract entered into pursu- 15 ant to the guidance required by subsection (a) may 16 contain an option to extend the contract once, for a 17 period not to exceed one year, to complete the imple- 18 mentation of one or more specified software applica- 19 tions and software upgrades identified during the 20 period of the initial contract. Such an option may 21 not be in an amount greater than $100,000,000 22 and— 23 (A) if the option is a time-and-materials 24 contract, it shall be treated as a contract for 25 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 10 •HR 3093 IH the acquisition of commercial services (as de- 1 fined in section 103a of title 41, United States 2 Code); and 3 (B) if the option is a fixed-price contract, 4 it shall be treated as a contract for the acquisi- 5 tion of commercial products (as defined in sec- 6 tion 103 of title 41, United States Code). 7 (f) RULE OF CONSTRUCTION.—Nothing in this sec- 8 tion shall be deemed to prevent the use of other methods 9 of acquisition to procure software applications and up- 10 grades. 11 (g) CONFORMING AMENDMENT.—Section 2430(a)(2) 12 of title 10, United States Code, is amended— 13 (1) in subparagraph (A), by striking ‘‘or’’ at 14 the end; 15 (2) in subparagraph (B), by striking the period 16 at the end and inserting ‘‘; or’’; and 17 (3) by adding at the end the following new sub- 18 paragraph: 19 ‘‘(C) an acquisition program for software 20 applications and software upgrades carried out 21 using the acquisition guidance issued pursuant 22 to the CODER Act of 2019.’’. 23 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 11 •HR 3093 IH SEC. 3. SOFTWARE DEVELOPMENT AND SOFTWARE ACQUI- 1 SITION TRAINING AND MANAGEMENT PRO- 2 GRAMS. 3 (a) ESTABLISHMENT OF SOFTWARE DEVELOPMENT 4 AND SOFTWARE ACQUISITION TRAINING AND MANAGE- 5 MENT PROGRAMS.— 6 (1) IN GENERAL.—The Secretary of Defense, 7 acting through the Under Secretary of Defense for 8 Acquisition and Sustainment and in consultation 9 with the Under Secretary of Defense for Research 10 and Engineering and the Chief Information Officer 11 of the Department of Defense, shall establish soft- 12 ware development and software acquisition training 13 and management programs for all software acquisi- 14 tion professionals, software developers, and other ap- 15 propriate individuals, as determined by the Secretary 16 of Defense to earn a certification in software devel- 17 opment and software acquisition. 18 (2) PROGRAM CONTENTS.—The programs es- 19 tablished under paragraph (1) shall— 20 (A) develop and expand the use of special- 21 ized training programs for chief information of- 22 ficers of the military departments and the De- 23 fense Agencies, service acquisition executives, 24 program executive officers, and program man- 25 agers to include training on and experience in— 26 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C42 with BILLS 12 •HR 3093 IH (i) continuous software development; 1 and 2 (ii) acquisition pathways available to 3 acquire software; 4 (B) ensure program managers for major 5 defense acquisition programs, defense business 6 systems, and other software programs of the 7 Department of Defense— 8 (i) have demonstrated competency in 9 current software processes; 10 (ii) have the skills to lead a workforce 11 that can quickly meet challenges, use soft- 12 ware tools that prioritize continuous or fre- 13 quent upgrades as such tools become avail- 14 able, take up opportunities provided by 15 new innovations, and plan software activi- 16 ties in short iterations to learn from risks 17 of software testing; and 18 (iii) have the experience and training 19 to delegate technical oversight and execu- 20 tion decisions; and 21 (C) include continuing education courses 22 and experiential training to help individuals 23 maintain skills learned through the programs. 24 (b) REPORTS.— 25 VerDate Sep 11 2014 00:32 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3093.IH H3093 kjohnson on DSK79L0C [Text truncated for display. 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