40 U.S.C. § 11303 — Performance-based and results-based

Page 229 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 11303 for managing enterprise software license agreements and commercial software licenses; and ‘‘(2) require the Chief Information Officer of each executive agency to— ‘‘(A) establish a comprehensive inventory, includ- ing 80 percent of software license spending and en- terprise licenses in the executive agency, by identi- fying and collecting information about software li- cense agreements using automated discovery and inventory tools; ‘‘(B) regularly track and maintain software li- censes to assist the executive agency in imple- menting decisions throughout the software license management life cycle; ‘‘(C) analyze software usage and other data to make cost-effective decisions; ‘‘(D) provide training relevant to software license management; ‘‘(E) establish goals and objectives of the software license management program of the executive agen- cy; and ‘‘(F) consider the software license management life cycle phases, including the requisition, recep- tion, deployment and maintenance, retirement, and disposal phases, to implement effective decision- making and incorporate existing standards, proc- esses, and metrics. ‘‘(c) REPORT ON SOFTWARE LICENSE MANAGEMENT.— ‘‘(1) IN GENERAL.—Beginning in the first fiscal year beginning after the date of enactment of this Act [July 29, 2016], and in each of the following 5 fiscal years, the Chief Information Officer of each executive agency shall submit to the Director a report on the financial savings or avoidance of spending that re- sulted from improved software license management. ‘‘(2) AVAILABILITY.—The Director shall make each report submitted under paragraph (1) publically available.’’ APPROPRIATE USE OF REQUIREMENTS REGARDING EXPE- RIENCE AND EDUCATION OF CONTRACTOR PERSONNEL IN THE PROCUREMENT OF INFORMATION TECHNOLOGY SERVICES Pub. L. 106–398, § 1 [[div. A], title VIII, § 813], Oct. 30, 2000, 114 Stat. 1654, 1654A–214, provided that: ‘‘(a) AMENDMENT OF THE FEDERAL ACQUISITION REGU- LATION.—Not later than 180 days after the date of the enactment of this Act [Oct. 30, 2000], the Federal Acqui- sition Regulation issued in accordance with sections 6 and 25 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 405 and 421) [see 41 U.S.C. 1121, 1303] shall be amended to address the use, in the procure- ment of information technology services, of require- ments regarding the experience and education of con- tractor personnel. ‘‘(b) CONTENT OF AMENDMENT.—The amendment issued pursuant to subsection (a) shall, at a minimum, provide that solicitations for the procurement of infor- mation technology services shall not set forth any min- imum experience or educational requirement for pro- posed contractor personnel in order for a bidder to be eligible for award of a contract unless— ‘‘(1) the contracting officer first determines that the needs of the executive agency cannot be met without any such requirement; or ‘‘(2) the needs of the executive agency require the use of a type of contract other than a performance- based contract. ‘‘(c) GAO REPORT.—Not later than one year after the date on which the regulations required by subsection (a) are published in the Federal Register, the Comp- troller General shall submit to Congress an evaluation of— ‘‘(1) executive agency compliance with the regula- tions; and ‘‘(2) conformance of the regulations with existing law, together with any recommendations that the Comptroller General considers appropriate. ‘‘(d) DEFINITIONS.—In this section: ‘‘(1) The term ‘executive agency’ has the meaning given that term in section 4(1) of the Office of Federal Procurement Policy Act (former 41 U.S.C. 403(1)) [now 41 U.S.C. 133]. ‘‘(2) The term ‘information technology’ has the meaning given that term in section 5002(3) of the Clinger-Cohen Act of 1996 (40 U.S.C. 1401(3)) [now 40 U.S.C. 11101(6)]. ‘‘(3) The term ‘performance-based’, with respect to a contract, means that the contract includes the use of performance work statements that set forth con- tract requirements in clear, specific, and objective terms with measurable outcomes.’’ § 11303. Performance-based and results-based management (a) IN GENERAL.—The Director of the Office of Management and Budget shall encourage the use of performance-based and results-based manage- ment in fulfilling the responsibilities assigned under section 3504(h) of title 44. (b) EVALUATION OF AGENCY PROGRAMS AND IN- VESTMENTS.— (1) REQUIREMENT.—The Director shall evalu- ate the information resources management practices of the executive agencies with re- spect to the performance and results of the in- vestments made by the executive agencies in information technology. (2) DIRECTION FOR EXECUTIVE AGENCY AC- TION.—The Director shall issue to the head of each executive agency clear and concise direc- tion that the head of each agency shall— (A) establish effective and efficient capital planning processes for selecting, managing, and evaluating the results of all of its major investments in information systems; (B) determine, before making an invest- ment in a new information system— (i) whether the function to be supported by the system should be performed by the private sector and, if so, whether any com- ponent of the executive agency performing that function should be converted from a governmental organization to a private sector organization; or (ii) whether the function should be per- formed by the executive agency and, if so, whether the function should be performed by a private sector source under contract or by executive agency personnel; (C) analyze the missions of the executive agency and, based on the analysis, revise the executive agency’s mission-related processes and administrative processes, as appro- priate, before making significant invest- ments in information technology to be used in support of those missions; and (D) ensure that the information security policies, procedures, and practices are ade- quate. (3) GUIDANCE FOR MULTIAGENCY INVEST- MENTS.—The direction issued under paragraph (2) shall include guidance for undertaking effi- ciently and effectively interagency and Fed- eral Government-wide investments in informa- tion technology to improve the accomplish- ment of missions that are common to the ex- ecutive agencies. (4) PERIODIC REVIEWS.—The Director shall implement through the budget process peri- odic reviews of selected information resources management activities of the executive agen- Page 230 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 11311 cies to ascertain the efficiency and effective- ness of information technology in improving the performance of the executive agency and the accomplishment of the missions of the ex- ecutive agency. (5) ENFORCEMENT OF ACCOUNTABILITY.— (A) IN GENERAL.—The Director may take any action that the Director considers ap- propriate, including an action involving the budgetary process or appropriations man- agement process, to enforce accountability of the head of an executive agency for infor- mation resources management and for the investments made by the executive agency in information technology. (B) SPECIFIC ACTIONS.—Actions taken by the Director may include— (i) recommending a reduction or an in- crease in the amount for information re- sources that the head of the executive agency proposes for the budget submitted to Congress under section 1105(a) of title 31; (ii) reducing or otherwise adjusting ap- portionments and reapportionments of ap- propriations for information resources; (iii) using other administrative controls over appropriations to restrict the avail- ability of amounts for information re- sources; and (iv) designating for the executive agency an executive agent to contract with pri- vate sector sources for the performance of information resources management or the acquisition of information technology. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1238.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 11303 .......... 40:1413. Pub. L. 104–106, div. E, title LI, § 5113, Feb. 10, 1996, 110 Stat. 681. SUBCHAPTER II—EXECUTIVE AGENCIES § 11311. Responsibilities In fulfilling the responsibilities assigned under chapter 35 of title 44, the head of each executive agency shall comply with this subchapter with respect to the specific matters covered by this subchapter. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1239.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 11311 .......... 40:1421. Pub. L. 104–106, div. E, title LI, § 5121, Feb. 10, 1996, 110 Stat. 683. Statutory Notes and Related Subsidiaries PROCUREMENT OF AUTOMATIC DATA PROCESSING EQUIP- MENT FOR TAX SYSTEMS MODERNIZATION PROGRAM; DELEGATION OF AUTHORITY Pub. L. 104–52, title V, § 526, Nov. 19, 1995, 109 Stat. 495, provided that: ‘‘Notwithstanding any other provision of law, the Administrator of General Services shall dele- gate the authority to procure automatic data proc- essing equipment for the Tax Systems Modernization Program to the Secretary of the Treasury: Provided, That the Director of the Office of Management and Budget shall have the authority to revoke such delega- tion upon the written recommendation of the Adminis- trator that the Secretary’s actions under such delega- tion are inconsistent with the goals of economic and ef- ficient procurement and utilization of automatic data processing equipment: Provided further, That for all other purposes, a procurement conducted under such delegation shall be treated as if made under a delega- tion by the Administrator pursuant to [former] 40 U.S.C. 759.’’ § 11312. Capital planning and investment control (a) DESIGN OF PROCESS.—In fulfilling the re- sponsibilities assigned under section 3506(h) of title 44, the head of each executive agency shall design and implement in the executive agency a process for maximizing the value, and assessing and managing the risks, of the information technology acquisitions of the executive agency. (b) CONTENT OF PROCESS.—The process of an executive agency shall— (1) provide for the selection of investments in information technology (including informa- tion security needs) to be made by the execu- tive agency, the management of those invest- ments, and the evaluation of the results of those investments; (2) be integrated with the processes for mak- ing budget, financial, and program manage- ment decisions in the executive agency; (3) include minimum criteria to be applied in considering whether to undertake a particular investment in information systems, including criteria related to the quantitatively ex- pressed projected net, risk-adjusted return on investment and specific quantitative and qual- itative criteria for comparing and prioritizing alternative information systems investment projects; (4) identify information systems invest- ments that would result in shared benefits or costs for other federal agencies or state or local governments; (5) identify quantifiable measurements for determining the net benefits and risks of a proposed investment; and (6) provide the means for senior management personnel of the executive agency to obtain timely information regarding the progress of an investment in an information system, in- cluding a system of milestones for measuring progress, on an independently verifiable basis, in terms of cost, capability of the system to meet specified requirements, timeliness, and quality. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1239; Pub. L. 108–458, title VIII, § 8401(3), Dec. 17, 2004, 118 Stat. 3869.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 11312 .......... 40:1422. Pub. L. 104–106, div. E, title LI, § 5122, Feb. 10, 1996, 110 Stat. 683. Editorial Notes AMENDMENTS 2004—Subsec. (b)(1). Pub. L. 108–458 substituted ‘‘in- vestments in information technology (including infor-