40 USC SUBTITLE III, CHAPTER 113, SUBCHAPTER I: DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET
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TEXT OF PART V OF SUBTITLE A (3001 ET SEQ.), EFFECTIVE JANUARY 1, 2022, CURRENTLY SET OUT AS A PREVIEW

40 USC SUBTITLE III, CHAPTER 113, SUBCHAPTER I: DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET
From Title 40—PUBLIC BUILDINGS, PROPERTY, AND WORKSSUBTITLE III—INFORMATION TECHNOLOGY MANAGEMENTCHAPTER 113—RESPONSIBILITY FOR ACQUISITIONS OF INFORMATION TECHNOLOGY

SUBCHAPTER I—DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET

§11301. Responsibility of Director

In fulfilling the responsibility to administer the functions assigned under chapter 35 of title 44, the Director of the Office of Management and Budget shall comply with this chapter with respect to the specific matters covered by this chapter.

(Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1237.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
11301 40:1411. Pub. L. 104–106, div. E, title LI, §5111, Feb. 10, 1996, 110 Stat. 680.

Statutory Notes and Related Subsidiaries

AI in Government

Pub. L. 116–260, div. U, title I, Dec. 27, 2020, 134 Stat. 2286, provided that:

"SEC. 101. SHORT TITLE.

"This title may be cited as the 'AI in Government Act of 2020'.

"SEC. 102. DEFINITIONS.

"In this Act [probably means "this title"]—

"(1) the term 'Administrator' means the Administrator of General Services;

"(2) the term 'agency' has the meaning given the term in section 3502 of title 44, United States Code;

"(3) the term 'AI CoE' means the AI Center of Excellence described in section 103;

"(4) the term 'artificial intelligence' has the meaning given the term in section 238(g) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 2358 note);

"(5) the term 'Director' means the Director of the Office of Management and Budget;

"(6) the term 'institution of higher education' has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001); and

"(7) the term 'nonprofit organization' means an organization described in section 501(c)(3)of the Internal Revenue Code of 1986 [26 U.S.C. 501(c)(3)] and exempt from taxation under section 501(a) of that Code [26 U.S.C. 501(a)].

"SEC. 103. AI CENTER OF EXCELLENCE.

"(a) In General.—There is created within the General Services Administration a program to be known as the 'AI Center of Excellence', which shall—

"(1) facilitate the adoption of artificial intelligence technologies in the Federal Government;

"(2) improve cohesion and competency in the adoption and use of artificial intelligence within the Federal Government; and

"(3) carry out paragraphs (1) and (2) for the purposes of benefitting the public and enhancing the productivity and efficiency of Federal Government operations.

"(b) Duties.—The duties of the AI CoE shall include—

"(1) regularly convening individuals from agencies, industry, Federal laboratories, nonprofit organizations, institutions of higher education, and other entities to discuss recent developments in artificial intelligence, including the dissemination of information regarding programs, pilots, and other initiatives at agencies, as well as recent trends and relevant information on the understanding, adoption, and use of artificial intelligence;

"(2) collecting, aggregating, and publishing on a publicly available website information regarding programs, pilots, and other initiatives led by other agencies and any other information determined appropriate by the Administrator;

"(3) advising the Administrator, the Director, and agencies on the acquisition and use of artificial intelligence through technical insight and expertise, as needed;

"(4) assist agencies in applying Federal policies regarding the management and use of data in applications of artificial intelligence;

"(5) consulting with agencies, including the Department of Defense, the Department of Commerce, the Department of Energy, the Department of Homeland Security, the Office of Management and Budget, the Office of the Director of National Intelligence, and the National Science Foundation, that operate programs, create standards and guidelines, or otherwise fund internal projects or coordinate between the public and private sectors relating to artificial intelligence;

"(6) advising the Director on developing policy related to the use of artificial intelligence by agencies; and

"(7) advising the Director of the Office of Science and Technology Policy on developing policy related to research and national investment in artificial intelligence.

"(c) Staff.—

"(1) In general.—The Administrator shall provide necessary staff, resources, and administrative support for the AI CoE.

"(2) Shared staff.—To the maximum extent practicable, the Administrator shall meet the requirements described under paragraph (1) by using staff of the General Services Administration, including those from other agency centers of excellence, and detailees, on a reimbursable or nonreimbursable basis, from other agencies.

"(3) Fellows.—The Administrator may, to the maximum extent practicable, appoint fellows to participate in the AI CoE from nonprofit organizations, think tanks, institutions of higher education, and industry.

"(d) Sunset.—This section shall cease to be effective on the date that is 5 years after the date of enactment of this Act [Dec. 27, 2020].

"SEC. 104. GUIDANCE FOR AGENCY USE OF ARTIFICIAL INTELLIGENCE.

"(a) Guidance.—Not later than 270 days after the date of enactment of this Act [Dec. 27, 2020], the Director, in coordination with the Director of the Office of Science and Technology Policy in consultation with the Administrator and any other relevant agencies and key stakeholders as determined by the Director, shall issue a memorandum to the head of each agency that shall—

"(1) inform the development of policies regarding Federal acquisition and use by agencies regarding technologies that are empowered or enabled by artificial intelligence, including an identification of the responsibilities of agency officials managing the use of such technology;

"(2) recommend approaches to remove barriers for use by agencies of artificial intelligence technologies in order to promote the innovative application of those technologies while protecting civil liberties, civil rights, and economic and national security;

"(3) identify best practices for identifying, assessing, and mitigating any discriminatory impact or bias on the basis of any classification protected under Federal nondiscrimination laws, or any unintended consequence of the use of artificial intelligence, including policies to identify data used to train artificial intelligence algorithms as well as the data analyzed by artificial intelligence used by the agencies; and

"(4) provide a template of the required contents of the agency plans described in subsection (c).

"(b) Public Comment.—To help ensure public trust in the applications of artificial intelligence technologies, the Director shall issue a draft version of the memorandum required under subsection (a) for public comment not later than 180 days after [the] date of enactment of this Act.

"(c) Plans.—Not later than 180 days after the date on which the Director issues the memorandum required under subsection (a) or an update to the memorandum required under subsection (d), the head of each agency shall submit to the Director and post on a publicly available page on the website of the agency—

"(1) a plan to achieve consistency with the memorandum; or

"(2) a written determination that the agency does not use and does not anticipate using artificial intelligence.

"(d) Updates.—Not later than 2 years after the date on which the Director issues the memorandum required under subsection (a), and every 2 years thereafter for 10 years, the Director shall issue updates to the memorandum.

"SEC. 105. UPDATE OF OCCUPATIONAL SERIES FOR ARTIFICIAL INTELLIGENCE.

"(a) In General.—Not later than 18 months after the date of enactment of this Act [Dec. 27, 2020], and in accordance with chapter 51 of title 5, United States Code, the Director of the Office of Personnel Management shall—

"(1) identify key skills and competencies needed for positions related to artificial intelligence;

"(2) establish an occupational series, or update and improve an existing occupational job series, to include positions the primary duties of which relate to artificial intelligence;

"(3) to the extent appropriate, establish an estimate of the number of Federal employees in positions related to artificial intelligence, by each agency; and

"(4) using the estimate established in paragraph (3), prepare a 2-year and 5-year forecast of the number of Federal employees in positions related to artificial intelligence that each agency will need to employ.

"(b) Plan.—Not later than 120 days after the date of enactment of this Act, the Director of the Office of Personnel Management shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives a comprehensive plan with a timeline to complete requirements described in subsection (a)."

GSA Modernization Centers of Excellence Program

Pub. L. 116–194, §2, Dec. 3, 2020, 134 Stat. 981, provided that:

"(a) Definitions.—In this section:

"(1) Cloud computing.—The term 'cloud computing' has the meaning given the term in section 1076 of the National Defense Authorization Act for Fiscal Year 2018 [Pub. L. 115–91] (40 U.S.C. 11301 note) [set out below].

"(2) Executive agency.—The term 'executive agency' has the meaning given the term 'Executive agency' in section 105 of title 5, United States Code.

"(3) Program.—The term 'Program' means the Information Technology Modernization Centers of Excellence Program established under subsection (b).

"(b) Establishment.—The Administrator of General Services shall establish a program to be known as the Information Technology Modernization Centers of Excellence Program to facilitate the adoption of modern technology by executive agencies on a reimbursable basis.

"(c) Responsibilities.—The Program shall have the following responsibilities:

"(1) To encourage the modernization of information technology used by an executive agency and how a customer interacts with an executive agency.

"(2) To improve cooperation between commercial and executive agency information technology sectors.

"(3) To the extent practicable, encourage the adoption of commercial items in accordance with section 3307 of title 41, United States Code.

"(4) Upon request by the executive agency, to assist executive agencies with planning and adoption of technology in focus areas designated by the Administrator, which may include the following:

"(A) A commercial cloud computing system that includes—

"(i) end-to-end migration planning and an assessment of progress towards modernization; and

"(ii) a cybersecurity and governance framework that promotes industry and government risk management best practice approaches, prioritizing efforts based on risk, impact, and consequences.

"(B) Tools to help an individual receive support from and communicate with an executive agency.

"(C) Contact centers and other related customer supports.

"(D) Efficient use of data management, analysis, and reporting.

"(E) The optimization of infrastructure, including for data centers, and the reduction of operating costs.

"(F) Artificial intelligence.

"(5) To share best practices and expertise with executive agencies.

"(6) Other responsibilities the Administrator may identify.

"(d) Coordination.—The Administrator shall coordinate with the Secretary of Homeland Security in establishing the Program to ensure that the technology, tools, and frameworks facilitated for executive agencies by the Program provide sufficient cybersecurity and maintain the integrity, confidentiality, and availability of Federal information.

"(e) Program Reporting.—Not later than 1 year after the date of enactment of this Act [Dec. 3, 2020], and every year thereafter, the Administrator shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives a report on the Program, which shall include the following:

"(1) A description of the reimbursable agreements, statements of work, and associated project schedules and deliverables for the Program.

"(2) Details on the total amount of the reimbursable agreements.

"(3) Any additional information the Administrator determines necessary.

"(f) Sunset.—This Act shall cease to have effect on the date that is 7 years after the date of enactment of this Act.

"(g) Rule of Construction.—Nothing in this Act shall be construed to impair or otherwise affect the authority delegated by law to an executive agency or the head of an executive agency."

Modernizing Government Technology

Pub. L. 115–91, div. A, title X, subtitle G, Dec. 12, 2017, 131 Stat. 1586, provided that:

"SEC. 1076. DEFINITIONS.

"In this subtitle:

"(1) Administrator.—The term 'Administrator' means the Administrator of General Services.

"(2) Board.—The term 'Board' means the Technology Modernization Board established under section 1094(c)(1).

"(3) Cloud computing.—The term 'cloud computing' has the meaning given the term by the National Institute of Standards and Technology in NIST Special Publication 800–145 and any amendatory or superseding document thereto.

"(4) Director.—The term 'Director' means the Director of the Office of Management and Budget.

"(5) Fund.—The term 'Fund' means the Technology Modernization Fund established under section 1094(b)(1) [probably should be "1078(b)(1)"].

"(6) Information technology.—The term 'information technology' has the meaning given the term in section 3502 of title 44, United States Code.

"(7) IT working capital fund.—The term 'IT working capital fund' means an information technology system modernization and working capital fund established under section 1093(b)(1) [probably should be "1077(b)(1)"].

"(8) Legacy information technology system.—The term 'legacy information technology system' means an outdated or obsolete system of information technology.

"SEC. 1077. ESTABLISHMENT OF AGENCY INFORMATION TECHNOLOGY SYSTEMS MODERNIZATION AND WORKING CAPITAL FUNDS.

"(a) Definition.—In this section, the term 'covered agency' means each agency listed in section 901(b) of title 31, United States Code.

"(b) Information Technology System Modernization and Working Capital Funds.—

"(1) Establishment.—The head of a covered agency may establish within the covered agency an information technology system modernization and working capital fund for necessary expenses described in paragraph (3).

"(2) Source of funds.—The following amounts may be deposited into an IT working capital fund:

"(A) Reprogramming and transfer of funds made available in appropriations Acts enacted after the date of enactment of this Act [Dec. 12, 2017], including the transfer of any funds for the operation and maintenance of legacy information technology systems, in compliance with any applicable reprogramming law or guidelines of the Committees on Appropriations of the Senate and the House of Representatives or transfer authority specifically provided in appropriations law.

"(B) Amounts made available to the IT working capital fund through discretionary appropriations made available after the date of enactment of this Act.

"(3) Use of funds.—An IT working capital fund established under paragraph (1) may only be used—

"(A) to improve, retire, or replace existing information technology systems in the covered agency to enhance cybersecurity and to improve efficiency and effectiveness across the life of a given workload, procured using full and open competition among all commercial items to the greatest extent practicable;

"(B) to transition legacy information technology systems at the covered agency to commercial cloud computing and other innovative commercial platforms and technologies, including those serving more than 1 covered agency with common requirements;

"(C) to assist and support covered agency efforts to provide adequate, risk-based, and cost-effective information technology capabilities that address evolving threats to information security;

"(D) to reimburse funds transferred to the covered agency from the Fund with the approval of the Chief Information Officer, in consultation with the Chief Financial Officer, of the covered agency; and

"(E) for a program, project, or activity or to increase funds for any program, project, or activity that has not been denied or restricted by Congress.

"(4) Existing funds.—An IT working capital fund may not be used to supplant funds provided for the operation and maintenance of any system within an appropriation for the covered agency at the time of establishment of the IT working capital fund.

"(5) Prioritization of funds.—The head of each covered agency—

"(A) shall prioritize funds within the IT working capital fund of the covered agency to be used initially for cost savings activities approved by the Chief Information Officer of the covered agency; and

"(B) may reprogram and transfer any amounts saved as a direct result of the cost savings activities approved under clause (i) [probably should be "subparagraph (A)"] for deposit into the IT working capital fund of the covered agency, consistent with paragraph (2)(A).

"(6) Availability of funds.—

"(A) In general.—Any funds deposited into an IT working capital fund shall be available for obligation for the 3-year period beginning on the last day of the fiscal year in which the funds were deposited.

"(B) Transfer of unobligated amounts.—Any amounts in an IT working capital fund that are unobligated at the end of the 3-year period described in subparagraph (A) shall be transferred to the general fund of the Treasury.

"(7) Agency cio responsibilities.—In evaluating projects to be funded by the IT working capital fund of a covered agency, the Chief Information Officer of the covered agency shall consider, to the extent applicable, guidance issued under section 1094(b)(1) [probably should be "1078(b)(1)"] to evaluate applications for funding from the Fund that include factors including a strong business case, technical design, consideration of commercial off-the-shelf products and services, procurement strategy (including adequate use of rapid, iterative software development practices), and program management.

"(c) Reporting Requirement.—

"(1) In general.—Not later than 1 year after the date of enactment of this Act, and every 6 months thereafter, the head of each covered agency shall submit to the Director, with respect to the IT working capital fund of the covered agency—

"(A) a list of each information technology investment funded, including the estimated cost and completion date for each investment; and

"(B) a summary by fiscal year of obligations, expenditures, and unused balances.

"(2) Public availability.—The Director shall make the information submitted under paragraph (1) publicly available on a website.

"SEC. 1078. ESTABLISHMENT OF TECHNOLOGY MODERNIZATION FUND AND BOARD.

"(a) Definition.—In this section, the term 'agency' has the meaning given the term in section 551 of title 5, United States Code.

"(b) Technology Modernization Fund.—

"(1) Establishment.—There is established in the Treasury a Technology Modernization Fund for technology-related activities, to improve information technology, to enhance cybersecurity across the Federal Government, and to be administered in accordance with guidance issued by the Director.

"(2) Administration of fund.—The Administrator, in consultation with the Chief Information Officers Council and with the approval of the Director, shall administer the Fund in accordance with this subsection.

"(3) Use of funds.—The Administrator shall, in accordance with recommendations from the Board, use amounts in the Fund—

"(A) to transfer such amounts, to remain available until expended, to the head of an agency for the acquisition of products and services, or the development of such products and services when more efficient and cost effective, to improve, retire, or replace existing Federal information technology systems to enhance cybersecurity and privacy and improve long-term efficiency and effectiveness;

"(B) to transfer such amounts, to remain available until expended, to the head of an agency for the operation and procurement of information technology products and services, or the development of such products and services when more efficient and cost effective, and acquisition vehicles for use by agencies to improve Governmentwide efficiency and cybersecurity in accordance with the requirements of the agencies;

"(C) to provide services or work performed in support of—

"(i) the activities described in subparagraph (A) or (B); and

"(ii) the Board and the Director in carrying out the responsibilities described in subsection (c)(2); and

"(D) to fund only programs, projects, or activities or to fund increases for any programs, projects, or activities that have not been denied or restricted by Congress.

"(4) Authorization of appropriations; credits; availability of funds.—

"(A) Authorization of appropriations.—There is authorized to be appropriated to the Fund $250,000,000 for each of fiscal years 2018 and 2019.

"(B) Credits.—In addition to any funds otherwise appropriated, the Fund shall be credited with all reimbursements, advances, or refunds or recoveries relating to information technology or services provided for the purposes described in paragraph (3).

"(C) Availability of funds.—Amounts deposited, credited, or otherwise made available to the Fund shall be available until expended for the purposes described in paragraph (3).

"(5) Reimbursement.—

"(A) Reimbursement by agency.—

"(i) In general.—The head of an agency shall reimburse the Fund for any transfer made under subparagraph (A) or (B) of paragraph (3), including any services or work performed in support of the transfer under paragraph (3)(C), in accordance with the terms established in a written agreement described in paragraph (6).

"(ii) Reimbursement from subsequent appropriations.—Notwithstanding any other provision of law, an agency may make a reimbursement required under clause (i) from any appropriation made available after the date of enactment of this Act [Dec. 12, 2017] for information technology activities, consistent with any applicable reprogramming law or guidelines of the Committees on Appropriations of the Senate and the House of Representatives.

"(iii) Recording of obligation.—Notwithstanding section 1501 of title 31, United States Code, an obligation to make a payment under a written agreement described in paragraph (6) in a fiscal year after the date of enactment of this Act shall be recorded in the fiscal year in which the payment is due.

"(B) Prices fixed by administrator.—

"(i) In general.—The Administrator, in consultation with the Director, shall establish amounts to be paid by an agency under this paragraph and the terms of repayment for activities funded under paragraph (3), including any services or work performed in support of that development under paragraph (3)(C), at levels sufficient to ensure the solvency of the Fund, including operating expenses.

"(ii) Review and approval.—Before making any changes to the established amounts and terms of repayment, the Administrator shall conduct a review and obtain approval from the Director.

"(C) Failure to make timely reimbursement.—The Administrator may obtain reimbursement from an agency under this paragraph by the issuance of transfer and counterwarrants, or other lawful transfer documents, supported by itemized bills, if payment is not made by the agency during the 90-day period beginning after the expiration of a repayment period described in a written agreement described in paragraph (6).

"(6) Written agreement.—

"(A) In general.—Before the transfer of funds to an agency under subparagraphs (A) and (B) of paragraph (3), the Administrator, in consultation with the Director, and the head of the agency shall enter into a written agreement—

"(i) documenting the purpose for which the funds will be used and the terms of repayment, which may not exceed 5 years unless approved by the Director; and

"(ii) which shall be recorded as an obligation as provided in paragraph (5)(A).

"(B) Requirement for use of incremental funding, commercial products and services, and rapid, iterative development practices.—The Administrator shall ensure—

"(i) for any funds transferred to an agency under paragraph (3)(A), in the absence of compelling circumstances documented by the Administrator at the time of transfer, that such funds shall be transferred only on an incremental basis, tied to metric-based development milestones achieved by the agency through the use of rapid, iterative, development processes; and

"(ii) that the use of commercial products and services are incorporated to the greatest extent practicable in activities funded under subparagraphs (A) and (B) of paragraph (3), and that the written agreement required under paragraph (6) documents this preference.

"(7) Reporting requirements.—

"(A) List of projects.—

"(i) In general.—Not later than 6 months after the date of enactment of this Act, the Director shall maintain a list of each project funded by the Fund, to be updated not less than quarterly, that includes a description of the project, project status (including any schedule delay and cost overruns), financial expenditure data related to the project, and the extent to which the project is using commercial products and services, including if applicable, a justification of why commercial products and services were not used and the associated development and integration costs of custom development.

"(ii) Public availability.—The list required under clause (i) shall be published on a public website in a manner that is, to the greatest extent possible, consistent with applicable law on the protection of classified information, sources, and methods.

"(B) Comptroller general reports.—Not later than 2 years after the date of enactment of this Act, and every 2 years thereafter, the Comptroller General of the United States shall submit to Congress and make publically available a report assessing—

"(i) the costs associated with establishing the Fund and maintaining the oversight structure associated with the Fund compared with the cost savings associated with the projects funded both annually and over the life of the acquired products and services by the Fund;

"(ii) the reliability of the cost savings estimated by agencies associated with projects funded by the Fund;

"(iii) whether agencies receiving transfers of funds from the Fund used full and open competition to acquire the custom development of information technology products or services; and

"(iv) the number of IT procurement, development, and modernization programs, offices, and entities in the Federal Government, including 18F and the United States Digital Services, the roles, responsibilities, and goals of those programs and entities, and the extent to which they duplicate work.

"(c) Technology Modernization Board.—

"(1) Establishment.—There is established a Technology Modernization Board to evaluate proposals submitted by agencies for funding authorized under the Fund.

"(2) Responsibilities.—The responsibilities of the Board are—

"(A) to provide input to the Director for the development of processes for agencies to submit modernization proposals to the Board and to establish the criteria by which those proposals are evaluated, which shall include—

"(i) addressing the greatest security, privacy, and operational risks;

"(ii) having the greatest Governmentwide impact; and

"(iii) having a high probability of success based on factors including a strong business case, technical design, consideration of commercial off-the-shelf products and services, procurement strategy (including adequate use of rapid, agile iterative software development practices), and program management;

"(B) to make recommendations to the Administrator to assist agencies in the further development and refinement of select submitted modernization proposals, based on an initial evaluation performed with the assistance of the Administrator;

"(C) to review and prioritize, with the assistance of the Administrator and the Director, modernization proposals based on criteria established pursuant to subparagraph (A);

"(D) to identify, with the assistance of the Administrator, opportunities to improve or replace multiple information technology systems with a smaller number of information technology services common to multiple agencies;

"(E) to recommend the funding of modernization projects, in accordance with the uses described in subsection (b)(3), to the Administrator;

"(F) to monitor, in consultation with the Administrator, progress and performance in executing approved projects and, if necessary, recommend the suspension or termination of funding for projects based on factors including the failure to meet the terms of a written agreement described in subsection (b)(6); and

"(G) to monitor the operating costs of the Fund.

"(3) Membership.—The Board shall consist of 7 voting members.

"(4) Chair.—The Chair of the Board shall be the Administrator of the Office of Electronic Government.

"(5) Permanent members.—The permanent members of the Board shall be—

"(A) the Administrator of the Office of Electronic Government; and

"(B) a senior official from the General Services Administration having technical expertise in information technology development, appointed by the Administrator, with the approval of the Director.

"(6) Additional members of the board.—

"(A) Appointment.—The other members of the Board shall be—

"(i) 1 employee of the National Protection and Programs Directorate [now Cybersecurity and Infrastructure Security Agency] of the Department of Homeland Security, appointed by the Secretary of Homeland Security; and

"(ii) 4 employees of the Federal Government primarily having technical expertise in information technology development, financial management, cybersecurity and privacy, and acquisition, appointed by the Director.

"(B) Term.—Each member of the Board described in paragraph (A) shall serve a term of 1 year, which shall be renewable not more than 4 times at the discretion of the appointing Secretary or Director, as applicable.

"(7) Prohibition on compensation.—Members of the Board may not receive additional pay, allowances, or benefits by reason of their service on the Board.

"(8) Staff.—Upon request of the Chair of the Board, the Director and the Administrator may detail, on a reimbursable or nonreimbursable basis, any employee of the Federal Government to the Board to assist the Board in carrying out the functions of the Board.

"(d) Responsibilities of Administrator.—

"(1) In general.—In addition to the responsibilities described in subsection (b), the Administrator shall support the activities of the Board and provide technical support to, and, with the concurrence of the Director, oversight of, agencies that receive transfers from the Fund.

"(2) Responsibilities.—The responsibilities of the Administrator are—

"(A) to provide direct technical support in the form of personnel services or otherwise to agencies transferred amounts under subsection (b)(3)(A) and for products, services, and acquisition vehicles funded under subsection (b)(3)(B);

"(B) to assist the Board with the evaluation, prioritization, and development of agency modernization proposals.

"(C) to perform regular project oversight and monitoring of approved agency modernization projects, in consultation with the Board and the Director, to increase the likelihood of successful implementation and reduce waste; and

"(D) to provide the Director with information necessary to meet the requirements of subsection (b)(7).

"(e) Effective Date.—This section shall take effect on the date that is 90 days after the date of enactment of this Act.

"(f) Sunset.—

"(1) In general.—On and after the date that is 2 years after the date on which the Comptroller General of the United States issues the third report required under subsection (b)(7)(B), the Administrator may not award or transfer funds from the Fund for any project that is not already in progress as of such date.

"(2) Transfer of unobligated amounts.—Not later than 90 days after the date on which all projects that received an award from the Fund are completed, any amounts in the Fund shall be transferred to the general fund of the Treasury and shall be used for deficit reduction.

"(3) Termination of technology modernization board.—Not later than 90 days after the date on which all projects that received an award from the Fund are completed, the Technology Modernization Board and all the authorities of subsection (c) shall terminate."

§11302. Capital planning and investment control

(a) Federal Information Technology.—The Director of the Office of Management and Budget shall perform the responsibilities set forth in this section in fulfilling the responsibilities under section 3504(h) of title 44.

(b) Use of Information Technology in Federal Programs.—The Director shall promote and improve the acquisition, use, security, and disposal of information technology by the Federal Government to improve the productivity, efficiency, and effectiveness of federal programs, including through dissemination of public information and the reduction of information collection burdens on the public.

(c) Use of Budget Process.—

(1) Definitions.—In this subsection:

(A) The term "covered agency" means an agency listed in section 901(b)(1) or 901(b)(2) of title 31.

(B) The term "major information technology investment" means an investment within a covered agency information technology investment portfolio that is designated by the covered agency as major, in accordance with capital planning guidance issued by the Director.

(C) The term "national security system" has the meaning provided in section 3542 of title 44.1


(2) Analyzing, tracking, and evaluating capital investments.—As part of the budget process, the Director shall develop a process for analyzing, tracking, and evaluating the risks, including information security risks, and results of all major capital investments made by an executive agency for information systems. The process shall cover the life of each system and shall include explicit criteria for analyzing the projected and actual costs, benefits, and risks, including information security risks, associated with the investments.

(3) Public availability.—

(A) In general.—The Director shall make available to the public a list of each major information technology investment, without regard to whether the investments are for new information technology acquisitions or for operations and maintenance of existing information technology, including data on cost, schedule, and performance.

(B) Agency information.—

(i) The Director shall issue guidance to each covered agency for reporting of data required by subparagraph (A) that provides a standardized data template that can be incorporated into existing, required data reporting formats and processes. Such guidance shall integrate the reporting process into current budget reporting that each covered agency provides to the Office of Management and Budget, to minimize additional workload. Such guidance shall also clearly specify that the investment evaluation required under subparagraph (C) adequately reflect the investment's cost and schedule performance and employ incremental development approaches in appropriate cases.

(ii) The Chief Information Officer of each covered agency shall provide the Director with the information described in subparagraph (A) on at least a semi-annual basis for each major information technology investment, using existing data systems and processes.


(C) Investment evaluation.—For each major information technology investment listed under subparagraph (A), the Chief Information Officer of the covered agency, in consultation with other appropriate agency officials, shall categorize the investment according to risk, in accordance with guidance issued by the Director.

(D) Continuous improvement.—If either the Director or the Chief Information Officer of a covered agency determines that the information made available from the agency's existing data systems and processes as required by subparagraph (B) is not timely and reliable, the Chief Information Officer, in consultation with the Director and the head of the agency, shall establish a program for the improvement of such data systems and processes.

(E) Waiver or limitation authority.—The applicability of subparagraph (A) may be waived or the extent of the information may be limited by the Director, if the Director determines that such a waiver or limitation is in the national security interests of the United States.

(F) Additional limitation.—The requirements of subparagraph (A) shall not apply to national security systems or to telecommunications or information technology that is fully funded by amounts made available—

(i) under the National Intelligence Program, defined by section 3(6) of the National Security Act of 1947 (50 U.S.C. 3003(6));

(ii) under the Military Intelligence Program or any successor program or programs; or

(iii) jointly under the National Intelligence Program and the Military Intelligence Program (or any successor program or programs).


(4) Risk management.—For each major information technology investment listed under paragraph (3)(A) that receives a high risk rating, as described in paragraph (3)(C), for 4 consecutive quarters—

(A) the Chief Information Officer of the covered agency and the program manager of the investment within the covered agency, in consultation with the Administrator of the Office of Electronic Government, shall conduct a review of the investment that shall identify—

(i) the root causes of the high level of risk of the investment;

(ii) the extent to which these causes can be addressed; and

(iii) the probability of future success;


(B) the Administrator of the Office of Electronic Government shall communicate the results of the review under subparagraph (A) to—

(i) the Committee on Homeland Security and Governmental Affairs and the Committee on Appropriations of the Senate;

(ii) the Committee on Oversight and Government Reform and the Committee on Appropriations of the House of Representatives; and

(iii) the committees of the Senate and the House of Representatives with primary jurisdiction over the agency;


(C) in the case of a major information technology investment of the Department of Defense, the assessment required by subparagraph (A) may be accomplished in accordance with section 2445c of title 10, provided that the results of the review are provided to the Administrator of the Office of Electronic Government upon request and to the committees identified in subsection (B); and

(D) for a covered agency other than the Department of Defense, if on the date that is one year after the date of completion of the review required under subsection (A), the investment is rated as high risk under paragraph (3)(C), the Director shall deny any request for additional development, modernization, or enhancement funding for the investment until the date on which the Chief Information Officer of the covered agency determines that the root causes of the high level of risk of the investment have been addressed, and there is sufficient capability to deliver the remaining planned increments within the planned cost and schedule.


(5) Report to congress.—At the same time that the President submits the budget for a fiscal year to Congress under section 1105(a) of title 31, the Director shall submit to Congress a report on the net program performance benefits achieved as a result of major capital investments made by executive agencies for information systems and how the benefits relate to the accomplishment of the goals of the executive agencies.


(d) Information Technology Standards.—The Director shall oversee the development and implementation of standards and guidelines pertaining to federal computer systems by the Secretary of Commerce through the National Institute of Standards and Technology under section 11331 of this title and section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g–3).

(e) Designation of Executive Agents for Acquisitions.—The Director shall designate the head of one or more executive agencies, as the Director considers appropriate, as executive agent for Government-wide acquisitions of information technology.

(f) Use of Best Practices in Acquisitions.—The Director shall encourage the heads of the executive agencies to develop and use the best practices in the acquisition of information technology.

(g) Assessment of Other Models for Managing Information Technology.—On a continuing basis, the Director shall assess the experiences of executive agencies, state and local governments, international organizations, and the private sector in managing information technology.

(h) Comparison of Agency Uses of Information Technology.—The Director shall compare the performances of the executive agencies in using information technology and shall disseminate the comparisons to the heads of the executive agencies.

(i) Monitoring Training.—The Director shall monitor the development and implementation of training in information resources management for executive agency personnel.

(j) Informing Congress.—The Director shall keep Congress fully informed on the extent to which the executive agencies are improving the performance of agency programs and the accomplishment of the agency missions through the use of the best practices in information resources management.

(k) Coordination of Policy Development and Review.—The Director shall coordinate with the Office of Federal Procurement Policy the development and review by the Administrator of the Office of Information and Regulatory Affairs of policy associated with federal acquisition of information technology.

(Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1237; Pub. L. 108–458, title VIII, §8401(1), (2), Dec. 17, 2004, 118 Stat. 3869; Pub. L. 113–291, div. A, title VIII, §832, Dec. 19, 2014, 128 Stat. 3440; Pub. L. 115–88, §2, Nov. 21, 2017, 131 Stat. 1278; Pub. L. 115–91, div. A, title VIII, §819(a), Dec. 12, 2017, 131 Stat. 1464.)

Historical and Revision Notes
Revised

Section

Source (U.S. Code)Source (Statutes at Large)
11302 40:1412. Pub. L. 104–106, div. E, title LI, §5112, Feb. 10, 1996, 110 Stat. 680.

Editorial Notes

References in Text

Section 3542 of title 44, referred to in subsec. (c)(1)(C), was repealed by Pub. L. 113–283, §2(a), Dec. 18, 2014, 128 Stat. 3073. See section 3552 of Title 44, Public Printing and Documents.

Amendments

2017—Subsec. (c)(5). Pub. L. 115–88 and Pub. L. 115–91 amended subsec. (c) identically, striking out par. (5) relating to sunset of certain provisions. Text read as follows: "Paragraphs (1), (3), and (4) shall not be in effect on and after the date that is 5 years after the date of the enactment of the Carl Levin and Howard P. 'Buck' McKeon National Defense Authorization Act for Fiscal Year 2015."

2014—Subsec. (c). Pub. L. 113–291 added pars. (1), (3), (4), and par. (5) relating to sunset of certain provisions and redesignated former pars. (1) and (2) as par. (2) and par. (5) relating to report to Congress, respectively.

2004—Subsec. (b). Pub. L. 108–458, §8401(1), inserted "security," after "use,".

Subsec. (c)(1). Pub. L. 108–458, §8401(2), inserted ", including information security risks," after "evaluating the risks" and "costs, benefits, and risks".


Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Management of Software Licenses

Pub. L. 114–210, July 29, 2016, 130 Stat. 824, provided that:

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'Making Electronic Government Accountable By Yielding Tangible Efficiencies Act of 2016' or the 'MEGABYTE Act of 2016'.

"SEC. 2. OMB DIRECTIVE ON MANAGEMENT OF SOFTWARE LICENSES.

"(a) Definition.—In this section—

"(1) the term 'Director' means the Director of the Office of Management and Budget; and

"(2) the term 'executive agency' has the meaning given that term in section 105 of title 5, United States Code.

"(b) OMB Directive.—The Director shall issue a directive to require the Chief Information Officer of each executive agency to develop a comprehensive software licensing policy, which shall—

"(1) identify clear roles, responsibilities, and central oversight authority within the executive agency 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, including 80 percent of software license spending and enterprise licenses in the executive agency, by identifying and collecting information about software license agreements using automated discovery and inventory tools;

"(B) regularly track and maintain software licenses to assist the executive agency in implementing 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 agency; and

"(F) consider the software license management life cycle phases, including the requisition, reception, deployment and maintenance, retirement, and disposal phases, to implement effective decisionmaking and incorporate existing standards, processes, 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 resulted from improved software license management.

"(2) Availability.—The Director shall make each report submitted under paragraph (1) publically available."

Appropriate Use of Requirements Regarding Experience 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 Regulation.—Not later than 180 days after the date of the enactment of this Act [Oct. 30, 2000], the Federal Acquisition 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 procurement of information technology services, of requirements regarding the experience and education of contractor personnel.

"(b) Content of Amendment.—The amendment issued pursuant to subsection (a) shall, at a minimum, provide that solicitations for the procurement of information technology services shall not set forth any minimum experience or educational requirement for proposed 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 Comptroller General shall submit to Congress an evaluation of—

"(1) executive agency compliance with the regulations; 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 contract requirements in clear, specific, and objective terms with measurable outcomes."

1 See References in Text note below.

§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 management in fulfilling the responsibilities assigned under section 3504(h) of title 44.

(b) Evaluation of Agency Programs and Investments.—

(1) Requirement.—The Director shall evaluate the information resources management practices of the executive agencies with respect to the performance and results of the investments made by the executive agencies in information technology.

(2) Direction for executive agency action.—The Director shall issue to the head of each executive agency clear and concise direction 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 investment 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 component 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 performed 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 appropriate, before making significant investments in information technology to be used in support of those missions; and

(D) ensure that the information security policies, procedures, and practices are adequate.


(3) Guidance for multiagency investments.—The direction issued under paragraph (2) shall include guidance for undertaking efficiently and effectively interagency and Federal Government-wide investments in information technology to improve the accomplishment of missions that are common to the executive agencies.

(4) Periodic reviews.—The Director shall implement through the budget process periodic reviews of selected information resources management activities of the executive agencies to ascertain the efficiency and effectiveness of information technology in improving the performance of the executive agency and the accomplishment of the missions of the executive agency.

(5) Enforcement of accountability.—

(A) In general.—The Director may take any action that the Director considers appropriate, including an action involving the budgetary process or appropriations management process, to enforce accountability of the head of an executive agency for information 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 increase in the amount for information resources 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 apportionments and reapportionments of appropriations for information resources;

(iii) using other administrative controls over appropriations to restrict the availability of amounts for information resources; and

(iv) designating for the executive agency an executive agent to contract with private 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.