Oppose NDAA Information Technology Procurement Provisions

September 18, 2017

Dear Senator,

On behalf of the undersigned organizations, we urge you to strike sections 881, 883, 884, 885, and 886 from S. 1519, the 2018 National Defense Authorization Act (NDAA).

We believe these provisions would harm taxpayers by promoting costly sole-source, government-based technology concepts over proven private sector solutions; and violating long-standing technology neutral procurement policies. They would also adversely impact intellectual property rights and national security.

Title VIII, Subtitle I, “Development and Acquisition of Software Intensive and Digital Products and Services” is intended to improve information technology procurement at the Department of Defense (DOD).  However, the language in Section 881 fundamentally violates U.S. copyright laws, as well as the Trade Secrets Act, by requiring companies providing software to the DOD to turn over source code in its native electronic format to the agency.  The language of section 881 would also apply to commercial off-the-shelf (COTS) products.  Taking such a drastic step as Section 881 contemplates, with virtually no debate, could have grave consequences for the innovation economy.

Section 883 specifies how IT projects within the DOD should be analyzed, designed, and procured.  This section directs all software projects currently being developed, but considered as “at risk,” to be procured through the General Services Administration’s (GSA) Technology Transition Service, Office of 18F, even if a similar tool or resource might be available through the private sector.  The GSA Office of Inspector General issued reports on October 24, 2016, and February 21, 2017, that identified wasteful spending and security issues surrounding the development of software products by 18F.  It is therefore ironic that more “at risk” projects would fall under the auspices of an agency whose fiscal behavior is, in itself, risky.

The Office of 18F was started in March 2014 by a group of Presidential Innovation Fellows (established under former President Obama in 2012) to supposedly help improve and modernize government technology.  It is simply not credible to believe that this fledgling operation with approximately 200 employees scattered throughout the U.S. can possibly provide better software for the DOD than long-established private sector companies with tens of thousands of employees (not to mention up-and-coming innovator firms that don’t enjoy the subsidies provided to 18F).  Regardless of the level of expertise of any federal operation, there should always be competition in the procurement process, particularly for the DOD.

Sections 884 and 885 specify the development practice commonly called “agile” as the preferred method for developing and/or acquiring information technology for the federal government.  Codifying this method of development precludes the use of future practices that may be cost-effective or efficient improvements on this process. 

Section 886 mandates that the DOD use open source for all future unclassified custom-developed software and related technical data that is not a defense article regulated pursuant to section 38 of the Arms Export Control Act.  It is not a coincidence that 18F only uses open source software.  Section 886 would expose the source code for numerous DOD applications to foreign entities. The Government Accountability Office has designated the security of federal cyber assets as “high risk” for 20 years. Policymakers should bear this in mind before exposing critical national security systems to Section 886.

In 2004, the Office of Management and Budget issued guidance that required federal software purchases to be technology neutral.  Section 886 violates this long-standing practice, and sets a precedent that could lead to establishing open source as the sole form of software to be used throughout the government. Congress should not effectively close DOD to any software option that might better serve taxpayers.

The problematic provisions in S. 1519 regarding IT procurement and intellectual property rights threaten great harm.  To avoid this monumental mistake, Congress must act now by striking sections 881, 883, 884, 885, and 886 from S. 1519. 

Sincerely,

Thomas A. Schatz
President
Council for Citizens Against Government Waste      

Pete Sepp
President
National Taxpayer's Union

Andrew Langer
President
Institute for Liberty                             

Grover Norquist 
President 
Americans for Tax Reform                                        

John M. Palatiello
President
Business Coalition for Fair Competition (BCFC)

Katie McAuliffe
Executive Director
Digital Liberty

David Williams
President 
Taxpayers Protection Alliance                                   

Daniel Schneider
Executive Director
American Conservative Union

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