50 U.S.C. § 3102 — Critical cost growth in major systems

Page 683 TITLE 50—WAR AND NATIONAL DEFENSE § 3102 this section and provisions set out as a note under this section], section 324 [enacting section 3102 of this title], or an amendment made by this section or section 324, shall be construed to exempt an acquisition program of the Department of Defense from the requirements of [former] chapter 144 of title 10, United States Code [see chapters 321, 324, and 325, subchapter I of chapter 322, and sections 3042, 4232, 4273, 4293, 4321, 4323, and 4328 of title 10][,] or Department of Defense Directive 5000, to the extent that such requirements are otherwise appli- cable.’’ § 3102. Critical cost growth in major systems (a) Reassessment of major system If the Director of National Intelligence deter- mines under section 3101(d) of this title that the total acquisition cost of a major system has in- creased by a percentage equal to or greater than the critical cost growth threshold for the major system, the Director shall— (1) determine the root cause or causes of the critical cost growth, in accordance with appli- cable statutory requirements, policies, proce- dures, and guidance; and (2) carry out an assessment of— (A) the projected cost of completing the major system if current requirements are not modified; (B) the projected cost of completing the major system based on reasonable modifica- tion of such requirements; (C) the rough order of magnitude of the costs of any reasonable alternative system or capability; and (D) the need to reduce funding for other systems due to the growth in cost of the major system. (b) Presumption of termination (1) After conducting the reassessment required by subsection (a) with respect to a major sys- tem, the Director shall terminate the major sys- tem unless the Director submits to Congress a Major System Congressional Report containing a certification in accordance with paragraph (2) and the information described in paragraph (3). The Director shall submit such Major System Congressional Report and certification not later than 90 days after the date the Director receives the relevant major system cost report under subsection (b) or (c) of section 3101 of this title. (2) A certification described by this paragraph with respect to a major system is a written cer- tification that— (A) the continuation of the major system is essential to the national security; (B) there are no alternatives to the major system that will provide acceptable capability to meet the intelligence requirement at less cost; (C) the new estimates of the total acquisi- tion cost have been determined by the Direc- tor to be reasonable; (D) the major system is a higher priority than other systems whose funding must be re- duced to accommodate the growth in cost of the major system; and (E) the management structure for the major system is adequate to manage and control the total acquisition cost. (3) A Major System Congressional Report ac- companying a written certification under para- graph (2) shall include, in addition to the re- quirements of section 3101(e) of this title, the root cause analysis and assessment carried out pursuant to subsection (a), the basis for each de- termination made in accordance with subpara- graphs (A) through (E) of paragraph (2), and a description of all funding changes made as a re- sult of the growth in the cost of the major sys- tem, including reductions made in funding for other systems to accommodate such cost growth, together with supporting documenta- tion. (c) Actions if major system not terminated If the Director elects not to terminate a major system pursuant to subsection (b), the Director shall— (1) restructure the major system in a man- ner that addresses the root cause or causes of the critical cost growth, as identified pursuant to subsection (a), and ensures that the system has an appropriate management structure as set forth in the certification submitted pursu- ant to subsection (b)(2)(E); (2) rescind the most recent Milestone ap- proval for the major system; (3) require a new Milestone approval for the major system before taking any action to enter a new contract, exercise an option under an existing contract, or otherwise extend the scope of an existing contract under the sys- tem, except to the extent determined nec- essary by the Milestone Decision Authority, on a nondelegable basis, to ensure that the system may be restructured as intended by the Director without unnecessarily wasting re- sources; (4) establish a revised current Baseline Esti- mate for the major system based upon an up- dated cost estimate; and (5) conduct regular reviews of the major sys- tem. (d) Actions if major system terminated If a major system is terminated pursuant to subsection (b), the Director shall submit to Con- gress a written report setting forth— (1) an explanation of the reasons for termi- nating the major system; (2) the alternatives considered to address any problems in the major system; and (3) the course the Director plans to pursue to meet any intelligence requirements otherwise intended to be met by the major system. (e) Form of report Any report or certification required to be sub- mitted under this section may be submitted in a classified form. (f) Waiver (1) The Director may waive the requirements of subsections (d)(2), (e), and (g) of section 3101 of this title and subsections (a)(2), (b), (c), and (d) of this section with respect to a major sys- tem if the Director determines that at least 90 percent of the amount of the current Baseline Estimate for the major system has been ex- pended. (2)(A) If the Director grants a waiver under paragraph (1) with respect to a major system, the Director shall submit to the congressional Page 684 TITLE 50—WAR AND NATIONAL DEFENSE § 3103 intelligence committees written notice of the waiver that includes— (i) the information described in section 3101(f) of this title; and (ii) if the current total acquisition cost of the major system has increased by a percent- age equal to or greater than the critical cost growth threshold— (I) a determination of the root cause or causes of the critical cost growth, as de- scribed in subsection (a)(1); and (II) a certification that includes the ele- ments described in subparagraphs (A), (B), and (E) of subsection (b)(2). (B) The Director shall submit the written no- tice required by subparagraph (A) not later than 90 days after the date that the Director receives a major system cost report under subsection (b) or (c) of section 3101 of this title that indicates that the total acquisition cost for the major sys- tem has increased by a percentage equal to or greater than the significant cost growth thresh- old or critical cost growth threshold. (g) Definitions In this section, the terms ‘‘cost estimate’’, ‘‘critical cost growth threshold’’, ‘‘current Base- line Estimate’’, ‘‘major system’’, and ‘‘total ac- quisition cost’’ have the meaning given those terms in section 3101(a) of this title. (July 26, 1947, ch. 343, title V, § 506F, as added Pub. L. 111–259, title III, § 324(a), Oct. 7, 2010, 124 Stat. 2679.) Editorial Notes CODIFICATION Section was formerly classified to section 415a–8 of this title prior to editorial reclassification and renum- bering as this section. § 3103. Future budget projections (a) Future Year Intelligence Plans (1) The Director of National Intelligence, with the concurrence of the Director of the Office of Management and Budget, shall provide to the congressional intelligence committees a Future Year Intelligence Plan, as described in para- graph (2), for— (A) each expenditure center in the National Intelligence Program; and (B) each major system in the National Intel- ligence Program. (2)(A) A Future Year Intelligence Plan sub- mitted under this subsection shall include the year-by-year proposed funding for each center or system referred to in subparagraph (A) or (B) of paragraph (1), for the budget year for which the Plan is submitted and not less than the 4 subse- quent fiscal years. (B) A Future Year Intelligence Plan submitted under subparagraph (B) of paragraph (1) for a major system shall include— (i) the estimated total life-cycle cost of such major system; and (ii) major milestones that have significant resource implications for such major system. (b) Long-term Budget Projections (1) The Director of National Intelligence, with the concurrence of the Director of the Office of Management and Budget, shall provide to the congressional intelligence committees a Long- term Budget Projection for each element of the intelligence community funded under the Na- tional Intelligence Program acquiring a major system that includes the budget for such ele- ment for the 5-year period that begins on the day after the end of the last fiscal year for which year-by-year proposed funding is included in a Future Year Intelligence Plan for such major system in accordance with subsection (a)(2)(A). (2) A Long-term Budget Projection submitted under paragraph (1) shall include— (A) projections for the appropriate element of the intelligence community for— (i) pay and benefits of officers and employ- ees of such element; (ii) other operating and support costs and minor acquisitions of such element; (iii) research and technology required by such element; (iv) current and planned major system ac- quisitions for such element; (v) any future major system acquisitions for such element; and (vi) any additional funding projections that the Director of National Intelligence considers appropriate; (B) a budget projection based on effective cost and schedule execution of current or planned major system acquisitions and appli- cation of Office of Management and Budget in- flation estimates to future major system ac- quisitions; (C) any additional assumptions and projec- tions that the Director of National Intel- ligence considers appropriate; and (D) a description of whether, and to what ex- tent, the total projection for each year ex- ceeds the level that would result from apply- ing the most recent Office of Management and Budget inflation estimate to the budget of that element of the intelligence community. (c) Submission to Congress The Director of National Intelligence, with the concurrence of the Director of the Office of Management and Budget, shall submit to the congressional intelligence committees each Fu- ture Year Intelligence Plan or Long-term Budg- et Projection required under subsection (a) or (b) for a fiscal year at the time that the Presi- dent submits to Congress the budget for such fis- cal year pursuant to section 1105 of title 31. (d) Major system affordability report (1) The Director of National Intelligence, with the concurrence of the Director of the Office of Management and Budget, shall prepare a report on the acquisition of a major system funded under the National Intelligence Program before the time that the President submits to Congress the budget for the first fiscal year in which ap- propriated funds are anticipated to be obligated for the development or procurement of such major system. (2) The report on such major system shall in- clude an assessment of whether, and to what ex- tent, such acquisition, if developed, procured, and operated, is projected to cause an increase